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Jay Sekulow - Major Case On Judges' Power At Supreme Court

May 27, 2025 | 26:27

Jay Sekulow speaks about the protection of religious freedoms in America.

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Sekulow | Jay Sekulow - Major Case On Judges' Power At Supreme Court | May 27, 2025

(bright music)
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- welcome to "sekulow."
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The supreme court
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With an oral argument on this case
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Which will speak to the issue
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Of these nationwide injunctions
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Issued by district court judges.
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And this is an issue that we've seen pop up.
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We've seen it more aggressive in these first 100 days
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Than we've maybe ever seen it before
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In the history of a presidency in the courts.
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And what you're seeing is on full display
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The way that the supreme court justices
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Are questioning the solicitor general
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And the other respondents
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About how they are going to come to an outcome
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On whether or not
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These nationwide injunctions should continue.
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And we're gonna have very good analysis here.
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Jordan is in the courtroom right now
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With the attorney general of west virginia, jb mccuskey,
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And we will be joined in the next segment of the broadcast
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By chief counsel of the aclj jay sekulow
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To talk about the oral argument that is still ongoing.
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But what we've heard so far is very, very fascinating,
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And you're gonna wanna stick with us in the next segment
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Especially as jay joins us to break down what he hears it
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With his long history with the court and arguments
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And how you can maybe read things from the justices
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Or maybe don't read things from the justices,
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And we will see where this goes.
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But it has been very interesting as well
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When some of these justices have actually spoken out
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In the past against nationwide injunctions,
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Including justice kagan who had given a talk,
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Was interviewed on a panel
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At northwestern law school back in 2022
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During the biden administration.
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And she even had criticism of this issue talking about how
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In recent years,
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The district courts have issued nationwide injunctions.
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And this has happened under both trump
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And biden administrations.
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And she brings up the issue of forum shopping.
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And she brings up the issues
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That when it's against a republican president,
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They go to the northern district of california,
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And when it's against a liberal president,
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They go to texas and they get these nationwide injunctions
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To block national policy at one district court
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In one location.
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And that's what we're seeing.
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But it has ramped up, especially during the trump years.
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You've seen, i believe the tally is 67%
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Of all nationwide injunctions
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That have been issued have been against president trump
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While he is president,
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Both in his first term and now during this second term.
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But we're not only analyzing this,
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The reason that jordan is in the courtroom right now,
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We are there with the attorney general of west virginia
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Because we are representing west virginia
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In our amicus brief that we filed in this case.
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And so it's very important,
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This is the work of the aclj,
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Pushing back against these nationwide injunctions
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Because one district court,
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One judge should not have the power
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To consistently block policy
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Of the president of the united states
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Before there's ever briefing on the merits,
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Before you get to any sort of details in the case,
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They just put an end to it.
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And as justice kagan pointed out in 2022,
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And then it's tied up for years
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As it goes through the legal process.
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That's what we're pushing back against today,
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And that's what is before the supreme court.
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Join us in the next segment as jay sekulow,
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Chief counsel of the aclj, joins us to break it down.
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We'll be right back.
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(bright music)
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(bright music)
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(bright music)
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- welcome back to "sekulow."
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Executive producer will haynes,
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And i'm joined now by the aclj's chief counsel, jay sekulow,
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About this case that gets to the heart
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Of these nationwide injunctions that have been issued
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By district courts across the country
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To block policies of the president.
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Now these have happened
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Under both democrat and republican presidents,
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But they always seem to tick up during the trump years.
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As a matter of fact, the statistic is around 67%
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Of all nationwide injunctions
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That have been issued have been against president trump
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Either during this 100 plus days
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Or the four years prior during his first term.
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But i wanted to get your read on just
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The first blush looking at this hearing,
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It got contentious at times,
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But what was your takeaway as someone
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Who has been before that court many times?
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- [jay] well, and of course we represent
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West virginia in this case.
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The underlying action is the birthright citizenship issue
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Where the administration, through an executive order,
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Narrowed the scope of who would qualify
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For birthright citizenship.
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That is what's not before the court, though,
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The actual underlying action.
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And that i think is gonna have a very difficult time.
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But what is before the court
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Is these universal injunctions.
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And look, conservatives have been guilty
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Of going after these too, i mean,
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Famously, the state of texas.
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But here's the reality,
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And i think the universal injunctions are dangerous
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For the exact reasons that justice alito was pointing out.
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Now, it's very close, will,
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I could tell you just by the oral arguments,
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It is a very closely divided court.
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Here's the reality.
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The reality is this is, i think looking at right now,
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A 4-4 case,
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And gorsuch could be the determining factor here,
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And he did not seem very sympathetic
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To president trump's solicitor general sauer.
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- i wanted to play that bite
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From justice alito that you mentioned.
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This is bite nine where he's talking about the problem
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Of these nationwide injunctions.
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And even starts off by saying,
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"let's put out of our minds the merits of this."
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As you're referencing,
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Many people in the media are pointing to the underlying eo
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That got this hearing, but that's not what it's about.
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It is specifically about these injunctions
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Issued by district court judges
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That put a nationwide hold on the policy of the president.
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So let's play this bite,
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And then i wanna get your reaction to it, bite nine.
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- [samuel] so what do you say about the practical problem?
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So let's put out of our minds the merits of this
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And just look at the abstract question
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Of universal injunctions.
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What is your response
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To what some people think is the practical problem?
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And the practical problem is that
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There are 680 district court judges,
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And they are dedicated and they are scholarly,
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And i'm not impugning their motives in any way,
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But you know, sometimes, they're wrong.
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And all article three judges are vulnerable
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To an occupational disease,
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Which is the disease of thinking
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That i am right and i can do whatever i want.
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Now on a multi-member appellate court,
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That is restrained by one's colleagues,
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But trial judge,
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The trial judge sitting in the trial judge's courtroom
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Is the monarch of that realm.
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And there are situations in which trial judges,
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The president does something.
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It could be president trump, it could be president biden,
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Could be president obama.
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The trial judge says, "this is unlawful
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And i'm gonna order, i'm gonna enjoin it,
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And i'm convinced i'm right,
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So i'm not gonna stay the injunction."
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And then an application is submitted to the court of appeals
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To stay the injunction,
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The court of appeals gives it the back of the hand,
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And then the case comes immediately to us
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In the context of an emergency application.
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- that is justice samuel alito breaking that down,
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What is kind of the core problem
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Of these nationwide injunctions.
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And i just wanted to get your thoughts,
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Especially as it relates to how he points out
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The 680 district court judges,
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It reminds me of an argument you made
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Before the supreme court talking about
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The local district attorneys going after the president.
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And when you have this broad swath of officials
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That can be weaponized in some way
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Against the agenda of a president
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If they are able to pursue it in this manner.
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- [jay] well no, you're exactly correct.
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And by the way, if we carry the day and win this case,
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Justice alito, what he wrote is gonna be the basis
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Of the opinion,
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Because what he pointed out is exactly what,
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And you're right,
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I pointed it out in representing president trump
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Before the supreme court
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When the local das were going after him, i said,
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You know what, there's 2,800 or whatever the number was
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Of local district attorneys.
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Any one of them can start doing this.
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And that's exactly the problem.
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So this idea that the injunction
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Goes that long is dangerous or that broad.
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Here's the bottom line.
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The bottom line is we have to fight,
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And we're continuing to do that.
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And now at the supreme court.
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- and as you mentioned, it did seem,
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And you've also cautioned before
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That you never can really tell what's going on
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In one of the justice's minds just by the questioning.
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Maybe some of them that were very aggressive
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Against even the underlying policy.
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But once again, at the end of the day,
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This isn't about the executive order,
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It is about the limits of these district court judges.
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So even if you were
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To take just the sentiment from the panel
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Of justices up there,
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It could seem as though because of the way
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They went after that underlying issue
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That they may automatically,
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You can't ever imagine getting them on board with this.
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But didn't you hear statements like that
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From justice kagan just back in 2022
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Where she was cautioning at a northwestern law school event
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About a district judge being able
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To stop nationwide policy in its tracks
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That while they may not like the underlying issue,
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Which isn't before the court today,
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You could see some sort of narrow
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Or limiting of a district court's power
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In nationwide injunctions
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From surprising members of the court
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Depending on how it shakes out.
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- [jay] yeah, again, the underlying issue here,
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The birthright citizenship there,
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Whenever they touch it,
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Did not seem like there was many justices
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That were in favor
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Of what the trump administration has done.
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Of course, being in favor of it doesn't mean
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It's not constitutional.
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So they're gonna eventually have to address that issue.
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But as it relates to the injunction,
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This really should not be a liberal conservative issue.
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This really should be an issue of
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How do we want an unelected district court judge
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In spokane impacting citizens
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Of the state of georgia or north carolina
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Or texas or new york.
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I mean, it's ridiculous.
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- if the supreme court were to not issue
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A broad order or rule on this in a way,
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Are there any avenues through even congress,
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Which does have some authority in creating courts
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And things of that nature,
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Could legislate some sort of restraints?
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Or is that strictly up
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To the judicial branch once it's there?
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- [jay] no, i mean, no, congress determines
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The jurisdiction of the courts.
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I mean the courts in that sense are an act of, you know,
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It's a constitutional appointment under article three.
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But yes, with the jurisdictional issues
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Are the federal rules of civil procedure, for instance,
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These are all adopted by congressional actions
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And are put in place across the country
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As an action of congress.
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So of course congress can curtail jurisdiction of courts.
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That would be a long way to go.
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And i'm not sure there would be enough support
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To actually do it, but it's a close call.
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I think we're right that the injunction
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Should not be universal in scope,
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But it's gonna be very close at the court.
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- thank you for joining us today and for that analysis.
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It is always fascinating to see these hearings,
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Especially ones that have such broad-reaching impact on
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On literally anything that a president can do,
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Not just president trump,
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But any president that follows him.
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As we see this, this is truly a historic case,
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And we are representing the state of west virginia.
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Jordan is there in the courtroom
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With the attorney general of west virginia,
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Who you've seen on this broadcast many times, jb mccuskey.
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And we will see where this all goes
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As we look forward
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And we'll be getting a ruling on this issue from this court.
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(bright music)
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(bright music)
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(bright music)
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- welcome back to "sekulow."
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Executive producer will haynes here.
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And i am joined in studio by professor harry hutchison
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As we continue to talk about this historic day
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At the supreme court.
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The issue before the court today are
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These nationwide injunctions being placed on policy issues
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And executive orders of the president.
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And this isn't a new issue.
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This has only been ramped up though
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In really the last few administrations,
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And it has affected administrations on both sides.
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However, we have seen the disproportionate amount
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Of these nationwide injunctions against president trump,
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Both in his first term as well as this 100 plus days
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That we have of the second trump presidency.
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And i played in the last segment,
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Justice kagan from a law school panel
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That she was on at northwestern in 2022.
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- in recent years,
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Some district courts have issued nationwide injunctions.
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And this happened in the trump administration,
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And it has also happened in the biden administration.
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So this has no political tilt to it,
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But some district courts
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Have very quickly issued nationwide injunctions
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That stop a policy in its tracks,
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Something that the president and/or congress
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Has determined to be the national policy
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And it just, one district court stops it.
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And then you combine that with the ability of people
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To forum shop, to go to a particular district court
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Where they think that that will be the result.
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And you look at something like that and you think,
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That can't be right that one district court,
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Whether it's in the trump years,
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People used to go to the northern district of california,
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And in the biden years, they go to texas,
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And it just can't be right
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That one district judge can stop a nationwide policy
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In its tracks and leave it stopped
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For the years that it takes to go through a normal process.
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- as we see this, that's exactly what's happening.
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What she was talking about in 2022,
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That's exactly the issue before the court today.
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- i think that's precisely correct.
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I think justice kagan is precisely correct,
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And she's correct for a number of reasons,
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Not the least of which is the fact
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That the court record below has not yet been developed.
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So in other words, you have a single district court judge
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Issuing an injunction
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Based on an incomplete judicial record and saying,
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"hey, i will determine whether or not
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The executive branch
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Can actually run the government."
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And it's imperative
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That the supreme court intervene here.
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Why?
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Because over two thirds of the injunctions
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Issued in us history have been issued
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Against the trump administration.
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So there's something that's disproportional
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That's going on here from a policy perspective.
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And let me also point out,
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Even though that's not really before the court,
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If you actually understand
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The underlying legal issue
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And go to the 14th amendment of the us constitution,
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The 14th amendment is not crystal clear
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As some individuals suggest.
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So it states in pertinent part
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That all persons born or naturalized in the united states
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And subject to the jurisdiction thereof
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Are citizens of the united states.
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And so one of the things
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That most people emphasize
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Is the first part of that statement,
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All persons born or naturalized
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In the united states.
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They don't focus on the second part,
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And subject to the jurisdiction thereof.
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So the point i'm making is there is something
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With respect to the merits that supports the merits
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Of president trump's argument here.
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And i think our chief counsel
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Who basically suggested that this is going
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To be a tough case for president trump,
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I think he's precisely correct,
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This will be a tough argument to make,
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But the argument should be allowed to be made
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In terms of a full-blooded judicial hearing,
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Not through an injunctive measure issued
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By one single judge in massachusetts or wherever.
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- and that's precisely the issue before the court today,
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Because at the end of the day,
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The underlying executive order
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That this case reached the supreme court on
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Isn't at hand at all.
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But that is what many of the justices
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Were trying to make it about.
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But it could be swapped out
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With any of the other executive actions
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That have been enjoined nationally by a district court judge
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Because the facts are almost the same in all of them.
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Basically a judge,
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Before ever getting to any sort of merits briefing
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Or any sort of real robust judicial process,
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Are putting a nationwide injunction on it,
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Stopping it before it ever even is heard by the court.
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And so while that was the angle of many
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Of the justices trying to almost litigate the merits
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Of the underlying eo
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Before that's even before the court,
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That's not the question at hand today.
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It shows you that even the nationwide injunction issue
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Because of already pre-thought maybe
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Or issues that could go along with the fact
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That that's what the underlying eo is
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Could introduce bias against this issue
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Of nationwide injunction.
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Because even as justice thomas brought up
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Early in the oral argument,
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Nationwide injunctions aren't a part
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Of american history for very long.
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The very first ones really,
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I think there is some debate about if there was something
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In the '40s that could have been considered that,
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But really the 1960s is when we first saw these.
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And he even said, "america survived its history
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Until the 1960s without these,
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Why is this necessary now?"
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And i think that is precisely the question.
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Why is the judicial branch able to do this now,
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And how did we even get here?
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- i think that's a very good question,
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And i think the answer is somewhat complex,
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But let me suggest one possible source
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Of the move toward nationwide injunctions.
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And that is academics, law schools,
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And undergraduate schools have changed
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Since the 1960s.
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And so academics have basically encouraged
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Their students to become revolutionaries.
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Some of those revolutionary students
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Are now district court judges.
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They have been revolutionized,
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And their view is they are part of the resistance.
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They have been weaponized, if you will,
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Against donald trump.
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And so i think at the end of the day, it's an indictment,
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If you will, of the academic sector.
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And one of the things that we should think about seriously,
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This is outside the parameters of today's discussion,
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But we should insist that elite schools in particular
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Be taxed more heavily.
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- we are pleased to say
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That we have gotten jordan on the phone,
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We were hoping to have him back in our studio.
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But jordan, that hearing went a little long today.
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Give us your thoughts on what you saw in the courtroom
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As you just left the supreme court of the united states.
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- [jordan] the easiest way to look at this is
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Should district court judges
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Be able to stop the actions of the executive branch,
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The president of the united states,
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Because they don't like the policy interpretation?
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Or do they have to go through a court process?
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It doesn't mean that our president gets
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To do whatever they want, whoever we elect.
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And that's obviously, you can't just look at
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Who the president is now and says, "well i like them,
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So i want them to have this power,
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But i don't want the next president to have this power."
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At the same time that you have this entire two hours
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Before the us supreme court
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Without the lower courts taking this kind of time,
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The lower courts who issued these nationwide
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Or universal injunction didn't take the time
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That the supreme court did today
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To even consider these issues.
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These were quick orders done to, again,
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Politically charged orders to prevent the president
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Of the united states from carrying out their function,
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To execute the laws of the united states.
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I thought that also one of the more arguments
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That you're seeing from the other side of this issue.
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One, you get to look at the state argument
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And they talk about programs that they administer,
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But those are programs we all fund
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Through our federal tax dollars.
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So again, the medicaid programs that states may, again,
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Have the ability to then carry out in their states,
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But those are all functions
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That they are involved with the federal government.
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The second point as you heard from the opposing court
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Is that if people here
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And the federal government decides
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Who is in the united states and who is not.
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I mean if you have a green card,
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If you have a visa, at any time, that can be revoked.
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You don't have the same kind of rights as the us citizen.
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And the argument put forward is,
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Well, we can't actually have plaintiffs come forward
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Because then they'd be telling the us government
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That they're breaking the law.
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I mean, so we're at a court of law
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And we're protecting people who are saying,
00:23:50.359 --> 00:23:52.294
"well we can't come forward because we know
00:23:52.294 --> 00:23:54.396
We're violating the law because we're here illegally,"
00:23:54.396 --> 00:23:56.832
And that would then,
00:23:56.832 --> 00:23:58.300
"we could be deported because we're here illegally."
00:23:58.300 --> 00:24:00.068
And so then they can't actually challenge it
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On behalf of a minor.
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Do you see where this gets out of control very quickly?
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And i think that is where you have
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To take out just the issue that was in court today.
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And i think the court did a pretty good job
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Of trying to get back to that and say,
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"what are the ramifications of going forward
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And just saying this is the new accepted practice
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Of the united states
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That district court judges get to decide when
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To shut down the executive branch from even beginning."
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I mean, i think that point needs to be underscored too,
00:24:29.197 --> 00:24:31.733
That the federal government,
00:24:31.733 --> 00:24:33.235
When these injunctions are issued,
00:24:33.235 --> 00:24:34.736
Is told not only can you not do what
00:24:34.736 --> 00:24:37.172
The executive order is ordering the federal government
00:24:38.206 --> 00:24:41.076
And the executive branch to do,
00:24:41.076 --> 00:24:42.744
You can't even begin to plan to try and implement the policy
00:24:42.744 --> 00:24:47.282
Of the president of the united states.
00:24:47.282 --> 00:24:48.817
I think there's multiple ways the court can look at it,
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And we'll see how this opinion comes down,
00:24:50.852 --> 00:24:53.121
But it just underscores a kind of climate
00:24:53.121 --> 00:24:55.157
That we're living in now where we're told on the one hand
00:24:55.157 --> 00:24:58.160
That this is about this executive specifically,
00:24:58.160 --> 00:25:01.096
And you saw that argument try to be made
00:25:01.096 --> 00:25:03.298
By the councils here.
00:25:03.298 --> 00:25:05.033
We represent, of course, the co-counsel with the state
00:25:05.033 --> 00:25:08.437
Of west virginia and the people there.
00:25:08.437 --> 00:25:10.338
And i think what has to be underscored is that
00:25:10.338 --> 00:25:12.374
The majority of states in the country are on our side.
00:25:12.374 --> 00:25:15.510
So when you heard from new jersey's argument
00:25:15.510 --> 00:25:17.979
And the states that joined new jersey,
00:25:17.979 --> 00:25:19.481
That is a minority of states in the united states
00:25:19.481 --> 00:25:21.383
Who are saying they are going
00:25:21.383 --> 00:25:22.784
To suffer some kind of harm if this goes forward.
00:25:22.784 --> 00:25:25.187
And when they point to the harm,
00:25:25.187 --> 00:25:27.155
They're pointing to the administration
00:25:27.155 --> 00:25:29.024
Of our federally funded programs.
00:25:29.024 --> 00:25:30.959
- jordan, thank you so much for jumping on here.
00:25:30.959 --> 00:25:32.928
But folks, this is such an important time.
00:25:32.928 --> 00:25:35.197
As you heard from jordan, as you heard from jay,
00:25:35.197 --> 00:25:37.866
These are the very core issues of our constitution
00:25:38.900 --> 00:25:43.305
And the way our judiciary works
00:25:43.305 --> 00:25:44.840
And the way our executive branch works,
00:25:44.840 --> 00:25:46.742
And the aclj is fighting back
00:25:46.742 --> 00:25:48.610
Against what these judges are doing.
00:25:48.610 --> 00:25:50.946
And this won't be the last historic case we have to take on.
00:25:50.946 --> 00:25:54.616
Join us today as we fight at aclj.org.
00:25:54.616 --> 00:25:58.253
(bright music)
00:25:58.620 --> 00:26:02.224
- [jordan] as always, let me thank everybody at tbn
00:26:02.224 --> 00:26:04.826
For providing this time to us at no cost so we
00:26:04.826 --> 00:26:07.696
Can update you on the most important issues of the day.
00:26:07.696 --> 00:26:10.398
From all of us at the aclj, thanks, tbn.
00:26:10.398 --> 00:26:12.667
(soft dramatic music)
00:26:12.667 --> 00:26:16.004
(gentle upbeat music)
00:26:16.004 --> 00:26:16.004

Jay Sekulow - Major Case On Judges' Power At Supreme Court

May 27, 2025 | 26:27

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