BONUS Episode 7.5 | Are District Courts a Threat to the Republic?

In this bonus episode, our host, law professor Ilan Wurman, gives a talk to a conference of conservative law students on Trump vs. the courts. Are we in a constitutional crisis? Is it because the executive is disrespecting the courts, or because the courts are disrespecting the executive? Can the President ever ignore a court order? What if the court doesn't have jurisdiction? Who decides that question? And what can courts do better to respect the President and ensure they have jurisdiction? Our host makes some suggestions about causes of actions and injunctions. Please enjoy this special bonus episode of Rationally BASED.

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Transcript

SPEAKER_00 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. I'm your host, Elon Mormon, a law professor at the University of Minnesota Law School. Today we have a 25-minute bonus episode, our district court's A Threat to the Republic, a speech that I recently gave at a conference of conservative law students. Please enjoy this bonus episode and stay tuned for our regularly scheduled Thursday episode, which will be a live taping that we did at that conference. Thanks for listening. Well, thank you so much for having me here. Thanks to those of you who showed up to the live taping of that new podcast yesterday. The energy was great, the attendance was great, and the students on the panel were absolutely fantastic. So thank you for coming to that. One other preliminary note, as the judge said, this was supposed to be a debate. The proposition we had agreed on was district courts are a threat to the republic. I was gonna argue in the affirmative. Instead, what I decided to do is I would talk about the general issue. I would be less polemical, and I would, you know, try to give a more comprehensive picture of the issue. The only thing that I reserve is the right to use all of my opponent's time that he would have been here. I will go for uh, you know, maybe a bit longer than you'd expect, 20, 25 uh minutes if I can swing in, and then I'm just very thankful that Professor Green has agreed uh to at least uh ask some questions uh and to be a bit of a gadfly. So the way I guess I want to address the question is now that I don't have this debate opponent as such, is to reformulate the question: are we in a constitutional crisis? And if we are in a constitutional crisis, is it because of the disrespect that the president is showing the courts? Or is it because of a disrespect that the courts are showing the president? Or maybe it's a little bit of both, again, assuming there is a constitutional crisis to begin with. So I thought I would address this overarching proposition through a series of questions. The first question is: is it ever appropriate for the president to ignore a court order? And I'm gonna argue, no, not merely if it's wrong on the merits. That is an insufficient reason to ignore a court order. But what if the court's so-called order was entered without jurisdiction? I'm gonna argue that actually it would be appropriate for the president to ignore a so-called order, it wouldn't really be an order, entered without jurisdiction. But this creates something of a problem. What if the courts and the president disagree over whether the courts had jurisdiction? That I want to suggest would be a constitutional crisis if we came to that moment. There is no answer to that question, so I think it's important that cooler heads prevail if we come to such a situation. But in the smaller final part of my talk, I'd like to suggest that there are ways that courts can minimize the risk of such a conflict by more formalistically understanding what jurisdiction is and whether they have improperly been exercising jurisdiction. So I'm gonna say a little bit about causes of action and a little bit about remedies and injunctions. Okay, so that's where this is going. Question number one: is it ever appropriate for the president to ignore a court order? Not because it's wrong on the merits. And here I want to draw your attention to the infamous Dred Scott case. Dred Scott against Sanford was wrong on the merits. What did Chief Justice Tani rule in Dred Scott against Sanford? He invalidated the Missouri Compromise, which more or less directly led to the coming of the Civil War, but he also held that free persons of African descent were not citizens of the United States and never could be citizens of the United States within the meaning of the Constitution, entitled to any of the privileges or immunities that the Constitution accords to its citizens. Was this decision wrong? Well, it was, according to Justice Benjamin Curtis and Abraham Lincoln, and they were right, so let me just explain to you the argument. Justice Curtis said free black persons were citizens of five states before the adoption of the Constitution. They were part of the people that participated in the public debate that led to the adoption and ratification of the Constitution. Nothing in the Constitution purports to strip them of citizenship. There's nothing in there, certainly, that directly or expressly says that. Congress has a naturalization power. That is the power to make new citizens of aliens. It is not the power to strip citizens of those who had it before the adoption of the Constitution or those who are natural-born citizens. And the natural-born citizenship requirement for presidential eligibility implies that their descendants would themselves be citizens of the United States. Chief Justice Tani and the court were basically dead wrong in the Dred Scott case. And so Lincoln argued that this case should be reversed, which led Judge Stephen Douglas in his debate, in his famous Lincoln-Douglas debates with Abraham Lincoln, to accuse Lincoln of defying the Supreme Court, of ignoring court orders. Lincoln, Douglas said, wants to overturn, wants to reverse the Supreme Court's decision in the Dred Scott case. By which tribunal will Lincoln reverse it? To which tribunal will he appeal? Will he appeal to Lynch's law? Will he stir up strife and rebellion and the rule of the mob? It is enough for me, Judge Douglas said, to know that the Constitution has established the Supreme Court to definitively resolve all questions touching the true construction of the instrument and its ruling is the supreme law of the land. This sounds like modern-day American might sound, actually. That's a conception that modern-day Americans often have about the courts. So what did Lincoln respond to this? He said, I think Dred Scott was wrong on the merits. But nobody is defying a judicial order. Nobody is purporting to disturb the judgment in that case. No mob is going to go and spring Dred Scott free from the clutches of his master, John Sanford. That decision, even though it's a Supreme Court decision, is binding on no one but Dred Scott and John Sanford. It is not binding in future cases. The Supreme Court has overturned its own decisions. We're gonna seek to have it overturn this. But more than that, there were situations in which the question about free black citizenships might arise in the other government departments. Do they have to defer to Chief Justice Tony's erroneous ruling in the Dred Scott decision? So let me give you some examples. When Lincoln became president, he had to decide whether he could give coasting licenses and passports, which the statutes provided could only be given to citizens of the United States. Could he give them to free African Americans? So he had his Attorney General Ed Bates write an opinion, who basically said Chief Justice Tawney was wrong, Justice Curtis was right, free black Americans are actually citizens within the meaning of the Constitution, and Lincoln granted them passports and coasting licenses. He did not treat the Supreme Court's pronouncement in a particular case as the supreme law of the land. What about Hiram Revels? Anyone know who Hiram Revels was? Good man. Thank you. There's at least one hand in the audience. Hiram Revels was the first African-American United States senator appointed by the reconstructed Mississippi legislature in 1870. What's the problem? Well, the Constitution says to be a senator of the United States, you must have been nine years a citizen of the United States. Well, if Dred Scott was the supreme law of the land, then Hiram Revols had not been a citizen until 1868 with the adoption of the 14th Amendment. He had only been citizen of the United States for two years. Well, the Democrats, as they were wont to do, challenged Hiram Revels' right to be seated in the Senate. The Senate debated it, and the Senate seated Hiram Revels anyway. They did not have to treat the Supreme Court's pronouncement in the Dred Scott decision as the supreme law of the land. They did not have to treat it as a political rule, establishing a rule for the country that has to be established in all cases, whether they come to the judiciary or not in some form. So the lesson here, I think, is that Lincoln did not purport to defy a court order merely because it was wrong on the merits. But what he did say is he didn't have to follow that erroneous decision in other judicial or non-judicial cases. He did not have to treat it as the supreme law of the land. The Supreme Court is not the Constitution. Its opinions are not the Constitution. Its opinions are not the supreme law of the land. Okay. What about ex parte merrimen? Did Lincoln defy a court order in ex parte merriman? So who was John Merriman? Allegedly a seditionist that was blowing up rail lines in Baltimore. Well, what was the problem? Lincoln had convened an extraordinary session of Congress in 1861 in order to confront the secession and the Civil War, and the members of Congress from the North needed the railway lines in Baltimore to reach Washington. So Lincoln authorized his general, Codwalleter, to suspend the privilege of the writ of habeas corpus, which he promptly did, and he arrested and detained John Merriman on suspicion of sabotaging the railway lines in Fort McHenry without charges, without trial. Somehow he got access to counsel, though, which is very interesting because he was in a military fort. And he presented a writ, a petition for a writ of habeas corpus, which was heard by none other than Roger B. Tawney, sitting as a circuit justice for the Circuit Court of Maryland. And in this decision, Tawney basically held that Lincoln had violated the Constitution and had unlawfully detained Merriman because it was unlawful for the president, acting on his own authority, to suspend the writ of habeas corpus. Now, because I have a captive audience and this is interesting, was he right on the merits of this question? Some people say was that a yes? Yes? Maybe. So it the suspension clause, right, the writ of habeas privilege of the writ of habeas corpus shall not be suspended, except in cases of invasion or the public safety may require it, is in Article 1, Section 9 of the Constitution, which implies that it's a limitation on Congress's power. But I don't know, there's the, you know, no money shall be withdrawn from the Treasury, but in consequence of appropriations. Doesn't that bind the executive? So it's not obvious that it only binds Congress. And then the more radical-based argument that I would make in favor of Lincoln in this case, if you will, is Article II gives him the right to convene Congress on extraordinary occasions, an extraordinary session. Doesn't that imply in the Civil War at least a limited right to suspend habeas corpus along the rail lines to effectuate this right to convene an extraordinary session of Congress? Now I will say that doesn't justify the suspension of habeas corpus, okay, that came later with respect to the draft riots. All right. But here, you know, it's a harder question, but the general view is that Tani was right. So how is Lincoln going to get uh around this one? So he of course resorts to his good pal, again, Ed Bates, the Attorney General, who writes an opinion basically saying, yeah, it addresses the merits a little bit, but basically saying that Chief Justice Tawney did not have jurisdiction. Because of the political, it's a political question, he said. So what do you do when Chief Justice Tawney purports to issue an opinion, a ruling, purporting to exercise jurisdiction, and the president of the United States claims you don't have jurisdiction? Who decides the question when the president and the court disagree about jurisdiction? There is no answer to that constitutional question. That could have been a genuine constitutional crisis, which sounds kind of funny because the nation was already in a much larger constitutional crisis, right? Which is just secession and the civil war. But might as suggest that both Tawney and Lincoln approached it the right way. Cooler heads prevailed. If you actually read Tawney's opinion, he doesn't command Lincoln to release Merriman. There's actually no mandate. He says, I have done everything that it is within my power to do. And I am ordering the clerk of the court to transmit this opinion to the President of the United States so he may take action thereupon. He did not order Merriman's release, and Lincoln, to his credit, released Merriman quietly anyway, despite having challenged the court's jurisdiction. By the way, does this have overtones of Kilmar Obrego Garcia, right? Where the Trump administration was arguing that Judge Bosberg, I think it was, did not have jurisdiction, and then they released him anyway. Dare I say Trump was being Lincoln when he was doing this? Okay, maybe that's a step too far, but may I suggest that that was perhaps the wise result in that case? Let me say something briefly on the merits of the question of this like, is it true that Lincoln could have ignored the order if he wanted because it was made without jurisdiction? Let me suggest that the answer to that question is yes, because there's at least obvious examples where we'd immediately recognize that a purported order is not actually a judicial order. So suppose a district judge in the Northern District of California or Oregon, I don't know, pick up a crazy one, or the Supreme Court said, We really think Trump is exercising power unlawfully. Here's an opinion to that effect that I that I published on the internet. No cases have come before me, no complaint has been filed. Does anyone doubt that the president would be able to ignore that advisory opinion? That is not a genuine order, because what makes a court order a court order is if the court genuinely had jurisdiction. There's another connection to Tawny here, by the way. There's a lot of Lincoln versus Tawney in this. Chief Justice Tawney prepared, we have this in his letters, a draft opinion declaring the draft to be unconstitutional. And he was just waiting, he was chomping at the bit for a case to come before him where somebody would challenge the constitutionality of the draft, but he never, no one ever brought the challenge, never uh published this opinion. Does anyone doubt that if he ordered the clerk to transmit this to the president of the United States, Lincoln could have just laughed it off? So it is obviously true that if a court purports to exercise power or issue opinions or orders without proper jurisdiction, then it's not actually a judicial order. And defying it would not be defying a court order. But the money really meets the road, or I guess that's the wrong expression. I'm sorry, the rubber meets the road. The money question. Where the rubber meets the road, we can just mix all sorts of metaphors that we want, is when it's actually not clear who's right about the jurisdictional question. Who gives? The court or the executive? That would be a constitutional crisis of sorts. Lincoln released Merriman, Trump released Kilmar Obrego Garcia. Let me suggest that they both exhibited a proper respect for the courts, even if they may not have had to do so in that moment. But in close questions, close calls, they properly exercised their judgment and followed what the court was exercising anyway, when it was reasonably disputable whether the courts had jurisdiction. So let me suggest in this final shorter part of the talk that there are ways that the courts now could diminish the risk or probability of this conflict coming to a head. And I want to suggest that the district courts generally have been somewhat of a threat to the republic by exercising jurisdiction in all sorts of cases where they really did not have it. Okay? And so let me suggest something about causes of action and something about injunctions for how courts can alter what they're doing going forward to diminish this risk. Okay, the first thing I want to say is about causes of action. Do you even know what a cause of action is? I know it's silly because it seems almost foundational, but it's amazing how little it's actually talked about. A cause of action is what gives someone a right to sue. A cause of action is what says you have a legally cognizable injury. Okay? Not every schoolyard dispute is the stuff of a federal lawsuit they used to say. Is that actually true now? I suppose many schoolyard disputes are now federal lawsuits, so maybe that's like a bad expression, but you understand the point. A mere insult isn't cause to sue someone necessarily. You need a cause of action, like tort, property, contract. Well, let me ask this. When Trump deployed the National Guard to California, to Oregon, and Illinois, what was Gavin Newsom's cause of action? What was Pritzker's? That's the right answer. That's actually correct. Let's move on. Okay. What was Pritzker's uh cause of action? Now, Trump did lose the National Guard case on the merits in the Supreme Court case. I don't actually care about that. My question is, who gives the right to sue in that case? Well, let me suggest how they used to do it. And there are some problems here, some features of the legal system have changed, but I advocate in this talk right a more formalist conception. So let me tell you about a gentleman named Jacob Mott, which by the way, if you listen to the podcast, you will know the story that I'm about to tell. Well, Madison called the militia during the War of 1812. And Jacob Mott thought that the militia call was unlawful and unconstitutional. So what did he do? He didn't run to a federal district judge and said, I think this is unlawful, please declare it unlawful. What he did was he refused the call. And he got court-martialed. He didn't show up to the proceedings, but he was court-martialed. He was fined. He didn't pay the fine. So the marshal, local marshal, the local sheriff actually, came and seized his horse in satisfaction of the debt, in satisfaction of the fine. So what happens? Jacob Mott sues the sheriff for unlawful conversion of property. This, my friends, is a judicial dispute. This is a cognizable injury. And in adjudicating that injury, the courts can adjudicate the merits of the question at hand. And if Jacob Mott was found to be meritorious, his claim, then he would be made whole. The fine would be dissolved. He would get his horse back, I guess. If you didn't sell it yet, I mean that's a bit awkward, but you get the point. He would get damages or he'd get his horse back. The judicial power would be intact. They would interpret the Constitution and the laws for their purposes. But Madison will have still called forth the militia. No one is gonna issue an injunction to stop Madison from calling forth the militia. That was an injury. What was Gavin Newsom's injury? Did he have a tort injury, a contract injury, a property injury? No, he had no cause of action whatsoever. So let me explore two possibilities. What about the APA? The administrative good, I'm seeing some headshakes. You're already ahead of the curve here. What about the Administrative Procedure Act? It is a widely held belief today, among law professors, courts, judges, and I mean ordinary citizens don't know anything about this, but you understand that among the people that matter for this question, that the Administrative Procedure Act creates a free-floating cause of action anytime someone is aggrieved by agency action. Let me propose to you that this is false. This is fake news, you might say. The APA does not create a cause of action. To the students in administrative law, do not put this on your exams, by the way. Like I don't want you to get failing grades. But the APA does not create a free-floating cause of action for anybody within the zone of interests of the statute. What the APA says is judicial review shall be had any time someone has a legal injury, which implies an existing cause of action, or if someone is adversely affected or aggrieved within the meaning of the relevant statute. Which means the statute itself in question, not the APA, but some other statute that is being violated, must itself create the cause of action. So this doesn't actually help Gavin Newsome. By the way, even if the zone of interest test did apply, like would it apply to Gavin Newsome? Like, is he that within the zone of interest intended to be protected by the National Guard statute? I don't know. But the point is, I doubt it. But either way, this is all made up. The APA does not create a cause of action. The statute itself did not create a cause of action. Okay. Now here, Professor Green and I might disagree, but I don't know. What about ex parte young? What about ultra virus actions? Is there this free-floating cause of action to challenge the unlawfulness or unconstitutionality of government action? I don't have time to defend this proposition, but let me suggest to you that ex parte young is just totally historically incorrect. It is totally historically incorrect. You don't have to go, however, as far as me for that. At best, certainly in my view, that's what I used to say, but now I could say in the Supreme Court's view, ex parte young, these anticipatory injunctions, at best, what we call what John Harrison has called an anti-suit injunction. In other words, if there is some threat of enforcement, if you are enforced against, the government comes after you, and you could defend by saying the action is unconstitutional or unlawful, you could, instead of waiting to be enforced against, you could file an anticipatory action where instead of raising this claim as a defense, it's an affirmative claim. This is what we call an anti suit injury. Junction, the Supreme Court has adopted the Harrisonian view of this question in a Costa footnote. Okay? Footnote seven? Do you remember Footnote? I think it was footnote seven in the Casa case. So let's just go with that. The Supreme Court has said I'm right about this, and John Harrison is right. So let's go with that. Does this help Gavin Newsom? I don't see how it does. Was it threatened? Was he threatened with some enforcement action? Not at all. Gavin Newsom, even under this anti-suit injunction, did not have a proper cause of action. Does this mean nobody could sue? Does this mean nobody could sue? Oh, of course. A National Guardsman could refuse the call. Okay, that's probably not gonna happen. What if a National Guardsman committed a trespass or was ordered to seize somebody? That person can then sue the guardsman for false imprisonment. Then you have a cause of action. And then the National Guardsman would defend that I had these orders, and then the person who the plaintiff would say, Well, your orders are invalid. And if the plaintiff is correct, then the plaintiff will be made whole for the injury. The courts will assess the validity, the constitutionality of the National Guard deployment in a particular case or controversy where someone has a legitimate, legally cognizable injury, which the president can then ignore with respect to everybody else. He could continue to deploy the National Guard and just say, be very careful before you trespass on someone's house or seize somebody. The courts, might I suggest, would properly be exercising their judicial role, their judicial duty, their judicial power, but they would, the president would still get to be commander-in-chief. Okay. How am I doing? Okay, not great. So in the last uh, I'm gonna shorten this. So in the in the last two minutes or so, let me say something about injunctions, which is anyway more familiar for to you. So I'll be brief about this point. Even if there is a cause of action, there's this question about remedies and whether an injunction against the president or the administrative state is the appropriate remedy. So let me suggest the first thing you have to remember is that remedies at law, if those are adequate, injunctions are inappropriate. There is a reason that Myers, Humphreys Executor, the Wiener case, they were all suits for salary when the officer was removed. If a salary is available in the court of claims, that seems like an adequate remedy to me. So what is the deal with all of these district judges ordering reinstatement of fired employees or filed officers? At least consider whether the remedy at law is adequate or not. The second thing I want to say, why do they always have to be pre-enforcement injunctions? Dare I say that sometimes these cases will be fact-dependent? Take the birthright citizenship case, for example. Now, if you take the view that I have taken on this and published about this, then the answer might be different for unlawfully present aliens than it is for temporary sojourners. There's actually three different views of the question with respect to temporary sojourners. Let me give you an example of one view, which I don't think is right, but it's a view that was available. Some people said, including secretaries of state, shortly after the adoption of the 14th Amendment, that if a child is born to a temporary visitor, some said they're not a citizen at all. Others said that this child, if taken back to the home country, could come back to the United States soon after reaching the age of majority, within a reasonable time of reaching the age of majority, could renounce his parent citizenship, and could elect U.S. citizenship. Let me propose to you that a pre-enforcement injunction, a pre-enforcement posture, how will the Supreme Court ever possibly consider this evidence and this possibility in a case involving unlawfully present aliens, temporary visitors, those who did go back to the home country, those who didn't, those who came back after going? How is it possible to even address this possibility? Dare I say that by accepting this case in a pre-enforcement posture, the Supreme Court has actually invited a resolution that would apply to all of these cases, which stacks the deck, I think, against the government's position here. So why do these cases always have to be pre-inforcement? And finally, the universal injunctions case, the CASA case, obviously correct in my view, injunctions can only bind the parties to the case. This is just going back to Dredd Scott. It's Lincoln versus Douglas. Let me suggest two further points here to be a little polemical. Not polemical, I actually believe this. The CASA rule applies to the Supreme Court itself. In the oral argument, Sour said, no, no, no, we will treat your decisions as law. That goes way beyond what Lincoln did. So it applies to the Supreme Court itself. And let me finally suggest that class actions are not actually a substitute for this. Now, here I'll invoke a Justice Holmes who said a page of history is worth a volume of logic. There were class actions in Bills of Peace during the New Deal, and yet no one thought to use them against the Agricultural Adjustment Act and the National Recovery. Instead, you had 3,000 sum-injunctions by various judges in individual cases. So let me suggest that no one until today thought class actions would be suitable in cases respecting ultra-virus government action, and so that is not a replacement. Okay, let me stop here and just suggest, sort of in semi-conclusion, no, no, actually in just conclusion, uh, that I don't think we're in a constitutional crisis. I don't. I actually think Trump and the executive branch have shown pretty good restraint in light of, in mind you, district judges purporting to exercise jurisdiction in many cases where I really don't think that they had it. So let me suggest that if there is a greater threat to the republic, it probably is coming from the district courts today. So that's the polemical thing I will stop with, and I look forward to Jonathan agreeing with everything I've said. So thank you.