STEVE INSKEEP, HOST:
OK. This is all complicated and consequential and also kind of cool. So we've brought in Amy Howe of SCOTUSblog, who was also listening to the arguments at the Supreme Court yesterday. She's come by with - well, you got a big, tall drink there. What do you got there?
AMY HOWE: I have a Duchess Earl Grey tea.
INSKEEP: OK, excellent. Well, welcome. Welcome. I'm glad you're well-lubricated or whatever the word is. You've got...
HOWE: Caffeinated. Yes.
INSKEEP: Caffeinated. Caffeinated. You've got tea. What do you make of the administration's focus on universal injunctions?
HOWE: You know, this is something that has been, as Solicitor General John Sauer said yesterday at the oral argument, sort of a bipartisan bane. You know, the Department of Justice, the Biden administration, before that, the Obama administration, both Trump administrations feel like they have been stymied in their ability to implement some of their major policy initiatives by these universal injunctions. You know, that somebody who opposed one of these policy injunctions could go to a federal court during the Trump administration. It would be a federal court, as Justice Elena Kagan said yesterday, in somewhere like San Francisco or Seattle, during the Biden administration in Texas...
INSKEEP: Yeah.
HOWE: ...And go quickly and get a ruling from a federal judge that would block the administration from implementing that policy or that regulation anywhere in the country. And so this is something that has been happening, particularly during the early stages of this Trump administration, in no small part because the president has been issuing so many executive orders. But as General Sauer said yesterday, it's something that is bipartisan.
INSKEEP: OK. So I'm thinking of the old saying about lawyers - if the facts are on your side, argue the facts. If the law's on your side, argue the law. And I'm wondering if, in this case, if the law's not on your side, you argue a technicality. Did they go for this universal injunction thing because they knew they'd be likely to lose on the actual question of whether it's constitutional to deny birthright citizenship?
HOWE: I do think that is exactly what's going on. And indeed, you know, the justices - several of the justices have expressed frustration with these universal injunctions in recent years in some of their written opinions. And the Biden administration - Solicitor General Elizabeth Prelogar came to the Supreme Court towards the end of the Biden administration also trying to get the Supreme Court to weigh in on universal injunctions. At that point, the Supreme Court turned her down.
And so the Trump administration came - and it came only on this issue of universal injunctions - said, you know, we're not - this is not about birthright citizenship. But, you know, birthright citizenship - there were no justices yesterday who, despite General Sauer's insistence that the executive order is constitutional, were speaking out in defense of the order. You know, everyone seemed to think that - who spoke up about it seemed to think that it was wrong on the merits, and it was really difficult to sort of talk about the two separately.
INSKEEP: I want to understand the way the administration might apply a ruling in their favor. If we find out that a judge in San Francisco, Seattle, wherever it is - they make a ruling. They find something is unconstitutional, and it only applies to that one person. And the administration is trying to deny the citizenship of 10,000 people, say, and one person sues, and we find out that it's unconstitutional, as it seems always to have been. Did you understand the administration to say their intent in that case would be to go ahead and deny citizenship to the other 9,999 people?
HOWE: They weren't saying that they wouldn't. And so that seemed to trouble Justice Amy Coney Barrett, one of Trump's appointees during his first term. And I think sort of layered on top of that is sort of a general skepticism right now of the Trump administration in light of some of its conduct in some of the other cases that have come to the Supreme Court. And in particular, the case of Kilmar Abrego Garcia, the Maryland man who was sent to El Salvador - is still in a prison in El Salvador - due to what the Trump administration admits was an administrative error. And so the Trump administration came - the...
INSKEEP: Yeah.
HOWE: ...Supreme Court ordered the Trump administration to facilitate his return. It has not yet happened.
INSKEEP: This is really interesting. So there's two questions here. One is the constitutionality of denying birthright citizenship. One is the matter of universal injunctions. Did it sound to you like the justices really had a third question on their minds, like is this administration going to listen to us less and less over time?
HOWE: It did sound like that, and I think that was part of the problem. You know, generally, you know, if they were to get rid of universal injunctions, you know, requiring someone to litigate these issues piecemeal, you know, would not be the problem, perhaps, that it - that the justices might think it would be now with this administration.
INSKEEP: Amy Howe is with SCOTUSblog. Thanks for coming by - really appreciate it.
HOWE: Great to be here with you. Thanks for having me. Transcript provided by NPR, Copyright NPR.
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