Two executive orders came from the same desk, and the government gave the same defense for both: the challenge came too early, because nothing had happened to anyone yet. The argument lost against the birthright citizenship order, and it has lost every time since. Against the mail voting order, the Supreme Court accepted it and held that the district court never had jurisdiction. The difference was the drafting. The birthright order commands agencies to reach a result: no department or agency shall issue citizenship documents. The mail voting order commands the Postal Service to run a rulemaking, and a rulemaking's outcome has to stay open.
Gwen and Marc trace how that choice of wording decides which body of law tests a policy, when the clock starts, who can get into court, and what a loss actually costs.
In this episode:
- Why the birthright order was ready for review immediately, while agency guidance under it would have arrived slowly, agency by agency
- Biden v. Nebraska, where a presidential policy was carried out by the Secretary of Education, and why losing on the statute left the Higher Education Act as a second route
- A "ladder" of losses: procedural, statutory, and constitutional, and why only the constitutional one takes a policy off the table for good
- Constitutional avoidance: the interpretive canon, the separate habit of not deciding things, and why avoidance works poorly when a question isn't close
- Trump v. Barbara: a 6–3 affirmance on two different grounds, and Justice Kavanaugh's statutory route, which would have left a door open for Congress
- The second birthright order, enjoined before its implementing guidance existed
- Executive Order 14399 on mail voting: deadlines attached to proposals, a Supreme Court stay for prematurity, a final rule issued three days before that ruling, and then the government arguing the challengers were too late
- The twist: the Postal Service is exempt from ordinary APA review, so the case the plaintiffs were told to wait for may not be available to them
The lesson isn't that one instrument protects a policy. Each one buys time and changes which question a court gets to first. The real drafting question is which loss you can live with.
Recorded September 11, 2026. These cases are moving quickly, and developments after that date aren't reflected here.
Hosted by Professor Gwendolyn Savitz and Dean Marc Roark of the University of Tulsa College of Law.
Next week: standing, and who is allowed to challenge agency action at all.
Tags/keywords: administrative law, executive orders, birthright citizenship, Trump v. Barbara, Biden v. Nebraska, constitutional avoidance, ripeness, standing, APA, Postal Service, mail voting, Supreme Court, law school
00:00:14 --> 00:00:16 to Administrative Remedies, because you can't
00:00:16 --> 00:00:17 fix what you don't understand. Brought to you
00:00:17 --> 00:00:19 in part by the University of Tulsa College of
00:00:19 --> 00:00:22 Law's Mabee Legal Information Center. I'm Gwendolyn
00:00:22 --> 00:00:25 Savitz, an associate professor here at TU. And
00:00:25 --> 00:00:27 I'm Mark Roark, a professor at the College of
00:00:27 --> 00:00:29 Law. We'll be breaking down complex doctrines
00:00:29 --> 00:00:32 with real -life analogies and examples to demystify
00:00:32 --> 00:00:34 the world of administrative law for everyone
00:00:34 --> 00:00:36 trying to understand how government actually
00:00:36 --> 00:00:38 works. Agencies are the main way the federal
00:00:38 --> 00:00:40 government gets things done. It's not through
00:00:40 --> 00:00:42 Congress, for reasons we'll be addressing over
00:00:42 --> 00:00:45 the course of the series. Mark, this administration
00:00:45 --> 00:00:48 has issued a ton of executive orders, and we're
00:00:48 --> 00:00:50 going to be talking about two right now. The
00:00:50 --> 00:00:52 first one's on birthright citizenship that was
00:00:52 --> 00:00:56 signed the 20th of January, 2025. And when that
00:00:56 --> 00:00:58 one was challenged, the government's answer was
00:00:58 --> 00:01:00 that the suit had come too early. It was before
00:01:00 --> 00:01:02 anything had happened to anybody. It lost that
00:01:02 --> 00:01:05 argument and it's lost it every time that argument
00:01:05 --> 00:01:07 has been made since. The second executive order
00:01:07 --> 00:01:10 is on mail voting. That was from March of this
00:01:10 --> 00:01:12 year. Again, the government used the same defense
00:01:12 --> 00:01:15 that this was before anything had happened to
00:01:15 --> 00:01:17 anybody. And in August, the Supreme Court agreed
00:01:17 --> 00:01:20 that that challenge was premature and held that
00:01:20 --> 00:01:22 the district court never had jurisdiction. So
00:01:22 --> 00:01:25 essentially the same desk with the same argument,
00:01:25 --> 00:01:28 but very different results at the threshold.
00:01:28 --> 00:01:32 Yes. And nothing about that difference is accidental.
00:01:32 --> 00:01:34 Both of the orders run through agencies. That
00:01:34 --> 00:01:37 part's the same. The birthright order tells agencies
00:01:37 --> 00:01:40 what results they have to produce. But the section
00:01:40 --> 00:01:42 of the mail voting order that everything turns
00:01:42 --> 00:01:45 on tells one agency to run a proceeding that
00:01:45 --> 00:01:47 may or may not produce any particular result.
00:01:47 --> 00:01:50 So the drafting decided how long the government
00:01:50 --> 00:01:52 got before anyone could ask whether it was legal.
00:01:52 --> 00:01:55 Yes, that's most of the episode. Last week, we
00:01:55 --> 00:01:57 set those executive orders aside because the
00:01:57 --> 00:02:00 president isn't an agency. This time we're talking
00:02:00 --> 00:02:01 about it more specifically because the choice
00:02:01 --> 00:02:05 underneath that, that determines the outcome
00:02:05 --> 00:02:08 or at least the proceedings. And it sets forth
00:02:08 --> 00:02:12 which body of law is testing the policy, when
00:02:12 --> 00:02:14 the clock starts, who gets through the door and
00:02:14 --> 00:02:17 what a loss actually costs you. The word choice
00:02:17 --> 00:02:19 is doing some work in that sentence. It's doing
00:02:19 --> 00:02:21 a lot of it. So that choice usually gets made
00:02:21 --> 00:02:23 in the White House before there's a plaintiff
00:02:23 --> 00:02:26 who can show an injury the court requires. Then
00:02:26 --> 00:02:28 the court makes a second choice, which of the
00:02:28 --> 00:02:30 available questions to answer. And that can undo
00:02:30 --> 00:02:32 a lot of what the drafting was designed for.
00:02:32 --> 00:02:35 OK, so there are two routes, a fight about which
00:02:35 --> 00:02:38 route it belongs on and no guarantee the person
00:02:38 --> 00:02:41 who picked which route to take gets to keep the
00:02:41 --> 00:02:44 pick. Yes. So one quick housekeeping note. We
00:02:44 --> 00:02:48 are recording this September 11th, 2026, and
00:02:48 --> 00:02:50 things could potentially change by the time the
00:02:50 --> 00:02:53 episode airs, and they'll certainly change after
00:02:53 --> 00:02:55 it. All right, let's start with what the birthright
00:02:55 --> 00:02:58 order actually says. Most people have never really
00:02:58 --> 00:03:00 read one of these, but it's short. Here's the
00:03:00 --> 00:03:03 important part. It is the policy of the United
00:03:03 --> 00:03:06 States that no department or agency of the United
00:03:06 --> 00:03:08 States government shall issue documents recognizing
00:03:08 --> 00:03:11 U .S. citizenship or accept documents issued
00:03:11 --> 00:03:14 by the state, local, or other governments or
00:03:14 --> 00:03:16 authorities purporting to recognize U .S. citizenship
00:03:16 --> 00:03:21 to persons when that person's mother was unlawfully
00:03:21 --> 00:03:23 present in the United States and the person's
00:03:23 --> 00:03:26 father was not a U .S. citizen or lawful permanent
00:03:26 --> 00:03:28 resident at the time of said person's birth.
00:03:30 --> 00:03:33 That isn't an instruction to go study something.
00:03:33 --> 00:03:36 It just simply tells every agency in the government
00:03:36 --> 00:03:39 what is the answer that they are to give. Right.
00:03:39 --> 00:03:42 And it does that very quickly. It's supposed
00:03:42 --> 00:03:45 to apply to children born more than 30 days after
00:03:45 --> 00:03:47 the order is issued. Then there's a separate
00:03:47 --> 00:03:50 enforcement section that specifically names four
00:03:50 --> 00:03:52 officials and tells them to conform their agency's
00:03:52 --> 00:03:54 regulations and practices to what's in the order.
00:03:55 --> 00:03:58 OK, so the order itself doesn't adjudicate anybody's
00:03:58 --> 00:04:01 passport application. It tells the agency, though,
00:04:01 --> 00:04:03 what result to reach when the application arrives.
00:04:04 --> 00:04:06 Right. But because that's the way it's been set
00:04:06 --> 00:04:08 up, the relief the planners are requesting runs
00:04:08 --> 00:04:11 against the implementing officials rather than
00:04:11 --> 00:04:13 personally against Trump. Courts are generally
00:04:13 --> 00:04:17 reluctant to enjoin a president directly, provided
00:04:17 --> 00:04:19 they don't need to. All they need to do is enjoin
00:04:19 --> 00:04:23 the officials and no passport is denied. The
00:04:23 --> 00:04:25 president is on the caption and the injunction
00:04:25 --> 00:04:28 lands on his cabinet and it gives a plaintiff
00:04:28 --> 00:04:30 two different kinds of claim, one at the order
00:04:30 --> 00:04:34 itself, an unconstitutional one, one at whatever
00:04:34 --> 00:04:39 the agencies did to comply. Yes. Regarding. The
00:04:39 --> 00:04:41 executive order itself. The plaintiffs argued
00:04:41 --> 00:04:43 that it was contrary to law, that it was in excess
00:04:43 --> 00:04:46 of statutory authority, and that it was arbitrary
00:04:46 --> 00:04:48 and capricious. They also had a procedural theory.
00:04:49 --> 00:04:52 If an agency changes a binding legislative rule,
00:04:52 --> 00:04:54 it ordinarily has to use the procedures that
00:04:54 --> 00:04:56 made it. Although potentially implementation
00:04:56 --> 00:04:58 can come as guidance instead, which raises its
00:04:58 --> 00:05:01 own set of questions. And a plaintiff doesn't
00:05:01 --> 00:05:03 have to pick. They can plead all of them and
00:05:03 --> 00:05:05 let the court choose. Right. That's the choice
00:05:05 --> 00:05:09 we're getting to. If the order commands a result
00:05:09 --> 00:05:11 and every agency has to publish guidance saying
00:05:11 --> 00:05:14 how it will comply, the paperwork exists almost
00:05:14 --> 00:05:17 immediately. Why isn't that an administrative
00:05:17 --> 00:05:19 case from the start? The order itself generally
00:05:19 --> 00:05:22 isn't reviewable agency action. We talked about
00:05:22 --> 00:05:24 that. There's no rule to set aside. There's no
00:05:24 --> 00:05:27 administrative record to attack there. And then
00:05:27 --> 00:05:29 the guidance and any regulation changes that
00:05:29 --> 00:05:32 come later can be agency action. But that's the
00:05:32 --> 00:05:34 point. They come later and they come agency by
00:05:34 --> 00:05:37 agency. And each time one issues, it has to be
00:05:37 --> 00:05:40 found and challenged and shown to hurt somebody.
00:05:41 --> 00:05:43 So the administrative track isn't missing. It's
00:05:43 --> 00:05:45 just slower to arrive than the order is. Right.
00:05:45 --> 00:05:47 And the constitutional claims don't have that
00:05:47 --> 00:05:50 problem. Although that doesn't mean they automatically
00:05:50 --> 00:05:53 work. This one is ripe. It's ready to go right
00:05:53 --> 00:05:55 now because of how the order was written. It
00:05:55 --> 00:05:57 says that no department or agency shall issue
00:05:57 --> 00:06:00 documents. No, where this is appropriate. No,
00:06:00 --> 00:06:04 to the extent feasible. This is a direct command
00:06:04 --> 00:06:08 on what they're supposed to do. So the verb decided
00:06:08 --> 00:06:11 the question. Yeah, we will come back to it.
00:06:11 --> 00:06:14 It matters in both of them. Okay, so then hold
00:06:14 --> 00:06:17 it there because I want the opposite case. An
00:06:17 --> 00:06:20 order that commands a result is one end of the
00:06:20 --> 00:06:23 range, but the other end looks like when there's
00:06:23 --> 00:06:27 no order at all. So one good example there is...
00:06:28 --> 00:06:31 When Biden was announcing the student loan relief
00:06:31 --> 00:06:33 on August of 2022, he says that government's
00:06:33 --> 00:06:36 going to cancel up to $20 of student debt
00:06:36 --> 00:06:39 per borrower. This is going to total roughly
00:06:39 --> 00:06:44 $430 billion. This is his podium. It's his policy,
00:06:44 --> 00:06:46 but he's not doing it through an executive order
00:06:46 --> 00:06:49 at all. What did he do instead? Instead, he had
00:06:49 --> 00:06:53 his secretary of education do it. Miguel Cardona
00:06:53 --> 00:06:56 signed a determination the same day that was
00:06:56 --> 00:06:58 waiving or modifying the student loan rules under
00:06:58 --> 00:07:02 a statute from 2003 based on an Office of Legal
00:07:02 --> 00:07:04 Counsel opinion dated from the day before. So
00:07:04 --> 00:07:06 here's the statute that he was basing it off
00:07:06 --> 00:07:12 of. This is 20 U .S .C. 1098 BBA1. The Secretary
00:07:12 --> 00:07:14 of Education may waive or modify any statutory
00:07:14 --> 00:07:18 or regulatory provision applicable to the student
00:07:18 --> 00:07:21 financial assistant programs under Title IV of
00:07:21 --> 00:07:23 the Act. as the secretary deems necessary in
00:07:23 --> 00:07:26 connection with a war or other military operation
00:07:26 --> 00:07:29 or national emergency to provide the waivers
00:07:29 --> 00:07:31 or modifications authorized by paragraph two.
00:07:31 --> 00:07:33 So this was from the secretary, not from the
00:07:33 --> 00:07:38 president. And according to the way we deal with
00:07:38 --> 00:07:40 administrative law, if the authority runs to
00:07:40 --> 00:07:42 a secretary, the secretary has to be the one
00:07:42 --> 00:07:45 that's exercising the authority, whatever the
00:07:45 --> 00:07:48 podium looks like. Right. And there's also another
00:07:48 --> 00:07:51 wrinkle a little bit later. So it says that Section
00:07:51 --> 00:07:54 553 of the APA doesn't apply to these waivers.
00:07:54 --> 00:07:57 That means that Congress had exempted them from
00:07:57 --> 00:07:59 the notice and comment process. So the careful
00:07:59 --> 00:08:01 route came without the paperwork, which takes
00:08:01 --> 00:08:04 the obvious procedural attack off the table before
00:08:04 --> 00:08:07 anybody files. Right. It takes the obvious one
00:08:07 --> 00:08:10 off, but not everyone. So the president announces
00:08:10 --> 00:08:12 it and the secretary owns it. Right. And this
00:08:12 --> 00:08:14 doesn't mean that the president was powerless.
00:08:14 --> 00:08:17 He'd appointed Cardona. He could have fired him.
00:08:17 --> 00:08:20 But officially, the legal act had to be the secretary's.
00:08:20 --> 00:08:23 And that decided which body of law tested it.
00:08:23 --> 00:08:25 So he takes the credit and Cardona gets takes
00:08:25 --> 00:08:28 the exposure. Right. And we're also working on
00:08:28 --> 00:08:30 a different clock here. Cardona's determination
00:08:30 --> 00:08:33 was on the books that afternoon and suits came
00:08:33 --> 00:08:36 really fast. What took most of a year was a plaintiff
00:08:36 --> 00:08:38 and a theory of injury that could get it all
00:08:38 --> 00:08:40 the way to the Supreme Court. This was Biden
00:08:40 --> 00:08:43 v. Nebraska. There were two questions. The first
00:08:43 --> 00:08:45 one was on standing. And the court got it in
00:08:45 --> 00:08:47 through Missouri's particular relationship with
00:08:47 --> 00:08:50 a loan servicer that stood to lose fees, even
00:08:50 --> 00:08:52 though there the facts were pretty questionable.
00:08:52 --> 00:08:55 But the borrower's own case died on standing.
00:08:55 --> 00:08:58 So for most of that year, the live question wasn't
00:08:58 --> 00:09:01 whether the secretary could do this. It was whether
00:09:01 --> 00:09:04 anybody was entitled to ask. Right. And that's
00:09:04 --> 00:09:05 going to be the next couple of weeks on themselves.
00:09:07 --> 00:09:08 We're just going to hold on to that for a little.
00:09:09 --> 00:09:11 But here's the other thing, that the way you
00:09:11 --> 00:09:14 lose, they're not all equal. There's a ladder,
00:09:14 --> 00:09:16 and where you land on it decides whether you
00:09:16 --> 00:09:19 get to try again. The bottom rung being the paperwork.
00:09:20 --> 00:09:22 Right. So that would be a procedural APA loss.
00:09:22 --> 00:09:25 This usually means a remand. Go back, agency.
00:09:25 --> 00:09:27 Do it properly. And it means the agency can come
00:09:27 --> 00:09:29 out with the exact same policy. And even though
00:09:29 --> 00:09:32 that delay, there could be elections in the meantime
00:09:32 --> 00:09:35 that make it difficult, but the potential objective
00:09:35 --> 00:09:38 survives. The middle rung would be a statutory
00:09:38 --> 00:09:41 holding saying this statute doesn't authorize
00:09:41 --> 00:09:44 what you did. So that closes the door, but it
00:09:44 --> 00:09:47 still leaves possibilities open. Congress could
00:09:47 --> 00:09:50 pass a new statute. The top rung is constitutional.
00:09:50 --> 00:09:52 This takes the objective totally off the table.
00:09:53 --> 00:09:55 Regardless of what you try and do later, that
00:09:55 --> 00:09:57 is not a thing you could do under the Constitution.
00:09:57 --> 00:10:00 And this loan forgiveness plan we've been talking
00:10:00 --> 00:10:02 about, that is one that lands in the middle.
00:10:02 --> 00:10:05 Right. It dies in 2023. But this wasn't because
00:10:05 --> 00:10:07 the court read the statute particularly narrowly.
00:10:07 --> 00:10:10 This was because it applied the major questions
00:10:10 --> 00:10:14 doctrine. When an agency claims authority that
00:10:14 --> 00:10:16 the court says is going to have vast economic
00:10:16 --> 00:10:18 and political significance, the court requires
00:10:18 --> 00:10:21 clear congressional authorization. And this power
00:10:21 --> 00:10:24 that the secretary had to waive or modify provisions,
00:10:24 --> 00:10:28 the court decided wasn't clear enough. OK. The
00:10:28 --> 00:10:31 court said. that the secretary asserts that the
00:10:31 --> 00:10:33 HEROES Act grants him the authority to cancel
00:10:33 --> 00:10:38 $430 billion of student loan principal. And it
00:10:38 --> 00:10:41 does not. We hold today that the act allows the
00:10:41 --> 00:10:43 secretary to waive or modify existing statutory
00:10:43 --> 00:10:46 regulatory provisions applicable to financial
00:10:46 --> 00:10:49 assistance programs under the Education Act,
00:10:49 --> 00:10:51 not to rewrite that statute from the ground up.
00:10:52 --> 00:10:55 That's a statutory holding. This statute doesn't
00:10:55 --> 00:10:58 get you there, but it says nothing about whether
00:10:58 --> 00:11:01 another one might. Right. And that fact was not
00:11:01 --> 00:11:03 lost on the administration. But within a few
00:11:03 --> 00:11:06 hours after that decision came down that very
00:11:06 --> 00:11:08 same afternoon, the president announced that
00:11:08 --> 00:11:10 they were going to be starting over under the
00:11:10 --> 00:11:12 Higher Education Act and that Cardona had already
00:11:12 --> 00:11:15 taken the first step under the act. So same policy,
00:11:15 --> 00:11:18 second instrument. Pick the day the first one
00:11:18 --> 00:11:20 failed. Right. This isn't the same instrument
00:11:20 --> 00:11:22 repackaged, though. It's a different statute,
00:11:22 --> 00:11:24 which means there's going to be a different basis
00:11:24 --> 00:11:27 for the authority. And in particular, they didn't
00:11:27 --> 00:11:28 like this one initially because the Higher Education
00:11:28 --> 00:11:31 Act requires negotiated rulemaking. That has
00:11:31 --> 00:11:34 a committee and stakeholders and consensus before
00:11:34 --> 00:11:36 you can move forward. It takes years. This isn't
00:11:36 --> 00:11:38 something they can actually do in an afternoon.
00:11:38 --> 00:11:41 Next season, we'll spend an entire episode on
00:11:41 --> 00:11:43 negotiated rulemaking. So the middle rung isn't
00:11:43 --> 00:11:46 a door held open. It's a door into a much longer
00:11:46 --> 00:11:49 hallway. And that's a Democratic administration
00:11:49 --> 00:11:52 doing it, which matters since everything else
00:11:52 --> 00:11:54 we're about to discuss will sound like it's about
00:11:54 --> 00:11:57 one man. Right. This is something that the office
00:11:57 --> 00:12:00 of the president does, regardless of who's in
00:12:00 --> 00:12:02 it. So a court looking at the birthright complaint.
00:12:02 --> 00:12:04 has four or five ways to rule for the plaintiff,
00:12:04 --> 00:12:07 and only one of them requires deciding whether
00:12:07 --> 00:12:09 the president may do this. Right. And generally,
00:12:09 --> 00:12:11 there's a settled preference for the narrower
00:12:11 --> 00:12:14 grounds. This is the idea of constitutional avoidance.
00:12:14 --> 00:12:16 If a case can be resolved on administrative grounds,
00:12:17 --> 00:12:19 like the agency didn't explain itself or the
00:12:19 --> 00:12:21 agency went past the statute, courts generally
00:12:21 --> 00:12:23 do that rather than trying to reach a constitutional
00:12:23 --> 00:12:27 question. Although the important emphasis there
00:12:27 --> 00:12:31 is generally. So avoidance is the way it gets
00:12:31 --> 00:12:34 taught, but it's basically a rule about reading
00:12:34 --> 00:12:37 statutes. If the text will bear a construction
00:12:37 --> 00:12:39 that keeps you clear of the constitutional problem,
00:12:40 --> 00:12:43 you take that construction. It isn't a general
00:12:43 --> 00:12:45 preference for smaller rulings. Courts used one
00:12:45 --> 00:12:47 word for both, and they definitely aren't the
00:12:47 --> 00:12:50 same. What you're describing is the canon, and
00:12:50 --> 00:12:52 it only runs when the statute is genuinely open
00:12:52 --> 00:12:55 to more than one reading. The other one is just
00:12:55 --> 00:12:57 a practice of not answering a question you don't
00:12:57 --> 00:13:00 have to answer. And the canon has a floor. The
00:13:00 --> 00:13:03 other reading has to actually be available. You
00:13:03 --> 00:13:05 don't get to bend the statute into a shape that
00:13:05 --> 00:13:09 rescues it. That's the same instinct as construing
00:13:09 --> 00:13:11 a deed. You read it to save it if the words let
00:13:11 --> 00:13:15 you, not if they don't. Right, which is why the
00:13:15 --> 00:13:18 canon can be harder to abuse than it. The practice,
00:13:18 --> 00:13:20 this idea of just not deciding stuff you don't
00:13:20 --> 00:13:22 have to, has no floor at all. A court can decline
00:13:22 --> 00:13:24 to reach something for any reason or none and
00:13:24 --> 00:13:26 never has to say which one it's doing. Which
00:13:26 --> 00:13:29 is a sensible approach where the constitutional
00:13:29 --> 00:13:32 question is genuinely hard. Though, suppose the
00:13:32 --> 00:13:36 order is flatly unconstitutional. Not close,
00:13:36 --> 00:13:39 not arguable. Deciding that one on APA grounds
00:13:39 --> 00:13:42 says the agency did the paperwork wrong. Yeah.
00:13:42 --> 00:13:44 So the important part about that is that that
00:13:44 --> 00:13:46 also implies that the agency could do the paperwork
00:13:46 --> 00:13:49 right. The justification for avoidance is strongest
00:13:49 --> 00:13:51 when the constitutional question is genuinely
00:13:51 --> 00:13:54 difficult. It gets thin or it should get thin
00:13:54 --> 00:13:56 when the question isn't difficult at all. And
00:13:56 --> 00:13:58 that's the part that really should worry people
00:13:58 --> 00:14:00 here. That's the risk routing the constitutional
00:14:00 --> 00:14:03 problem towards an administrative answer. That
00:14:03 --> 00:14:05 the agencies can go back and build a record and
00:14:05 --> 00:14:07 write a reasoned explanation and produce the
00:14:07 --> 00:14:10 identical policy, now wearing everything the
00:14:10 --> 00:14:12 court had asked for. This defense of avoidance
00:14:12 --> 00:14:14 is real. It makes sense that courts shouldn't
00:14:14 --> 00:14:16 decide constitutional questions when they don't
00:14:16 --> 00:14:19 have to. But when you apply it to something that
00:14:19 --> 00:14:22 is just immediately substantively void, it converts
00:14:22 --> 00:14:24 a question that has one answer into a question
00:14:24 --> 00:14:28 that has many answers and a long procedure. And
00:14:28 --> 00:14:30 a procedure is something an administration with
00:14:30 --> 00:14:33 competent lawyers can satisfy. Right. Okay. Except
00:14:33 --> 00:14:36 the case everybody watched went the other way.
00:14:36 --> 00:14:38 Right. You are talking about Trump v. Barbara
00:14:38 --> 00:14:43 from the very end of June this year. And let's
00:14:43 --> 00:14:45 talk about how it got there, because the remedy
00:14:45 --> 00:14:48 might shaped it. So in Trump v. Casa, which was
00:14:48 --> 00:14:52 June of 2025, the court had said that universal
00:14:52 --> 00:14:55 injunctions will generally exceed a district
00:14:55 --> 00:14:58 court's equitable authority. There had been an
00:14:58 --> 00:14:59 injunction in place. It stayed the injunction
00:14:59 --> 00:15:01 to the extent it gave broader relief than necessary
00:15:01 --> 00:15:04 to give those particular plaintiffs complete
00:15:04 --> 00:15:07 relief. Which I have expected to shrink these
00:15:07 --> 00:15:10 cases. And instead, it just moved them. It left
00:15:10 --> 00:15:12 alternatives open. And one of them was a class
00:15:12 --> 00:15:15 action. We had Maryland plaintiffs who filed
00:15:15 --> 00:15:17 an amended class action complaint within hours
00:15:17 --> 00:15:19 of the decision and had a class certified that
00:15:19 --> 00:15:21 August. There was a different New Hampshire case
00:15:21 --> 00:15:23 that had provisionally certified a nationwide
00:15:23 --> 00:15:25 class covering essentially the same children.
00:15:25 --> 00:15:29 And that case was Barbara. It's this New Hampshire
00:15:29 --> 00:15:31 injunction the Supreme Court ended up affirming.
00:15:31 --> 00:15:34 The argument was on April 1st, and this decision
00:15:34 --> 00:15:36 was the end of June. And the injunction there
00:15:36 --> 00:15:40 was affirmed six to three. But not six on the
00:15:40 --> 00:15:43 same ground. Right. Five said that the 14th Amendment
00:15:43 --> 00:15:45 guaranteed citizenship to the children that the
00:15:45 --> 00:15:48 order covered. Kavanaugh was the sixth vote for
00:15:48 --> 00:15:50 the judgment, but he was doing it on statutory
00:15:50 --> 00:15:52 grounds. In his view, the order didn't automatically
00:15:52 --> 00:15:55 violate the 14th Amendment. It violated the provision
00:15:55 --> 00:15:57 of the Immigration and Nationality Act that was
00:15:57 --> 00:16:00 codifying the citizenship clause. So that's not
00:16:00 --> 00:16:02 avoidance. He reached the constitutional question.
00:16:03 --> 00:16:05 He just came out the other way on it. Right.
00:16:05 --> 00:16:07 He answered it and he answered it in favor of
00:16:07 --> 00:16:09 the government. And then he struck down the order
00:16:09 --> 00:16:11 anyway, based on the statute. So the narrower
00:16:11 --> 00:16:14 ground existed and nobody used it as a narrower
00:16:14 --> 00:16:18 ground. The five in the majority decided the
00:16:18 --> 00:16:20 constitutional question. The three dissenters
00:16:20 --> 00:16:23 decided it. Kavanaugh decided it, nine for nine.
00:16:24 --> 00:16:27 Right. This is a case where the question presented
00:16:27 --> 00:16:29 had two parts, and the second one could have
00:16:29 --> 00:16:31 totally disposed of it. They could have held
00:16:31 --> 00:16:33 that the order violated the statute, said nothing
00:16:33 --> 00:16:35 about the 14th Amendment, and the order would
00:16:35 --> 00:16:38 have been dead. Which is what avoidance is for,
00:16:38 --> 00:16:41 though. And no one wanted avoidance in this case.
00:16:41 --> 00:16:43 Right. And here, in his opinion, you kind of
00:16:43 --> 00:16:46 see what the narrow route does. Kavanaugh specifically
00:16:46 --> 00:16:48 saying that Congress could amend the statute.
00:16:49 --> 00:16:51 It could write in exceptions for children. If
00:16:51 --> 00:16:53 that reasoning had five votes, that road would
00:16:53 --> 00:16:56 be open right now. And on the majority's holding,
00:16:56 --> 00:16:59 it isn't because you can't legislate an exception
00:16:59 --> 00:17:01 to the 14th Amendment. Right. So that's that
00:17:01 --> 00:17:04 latter. His route was the middle rung. The majority's
00:17:04 --> 00:17:07 is the top. That constitutional avoidance doctrine
00:17:07 --> 00:17:09 says that we should try and stick to the middle
00:17:09 --> 00:17:12 if we can. This rests on humility. The court
00:17:12 --> 00:17:13 might get it wrong. That's expensive to undo.
00:17:14 --> 00:17:17 And it's also preventing it from placing some
00:17:17 --> 00:17:18 sort of restraint on the political branches.
00:17:19 --> 00:17:21 And again, both of those are strongest when the
00:17:21 --> 00:17:23 answer is contestable. So the argument for being
00:17:23 --> 00:17:26 careful evaporates when there's nothing to be
00:17:26 --> 00:17:29 careful about, though, which suggests the doctrine
00:17:29 --> 00:17:33 ought to sort by how clear the question is. Right.
00:17:33 --> 00:17:35 It should and it doesn't. Nothing says reach
00:17:35 --> 00:17:38 the question when the answer is obvious and avoid
00:17:38 --> 00:17:40 it when it's close. And there's a trap inside
00:17:40 --> 00:17:42 this criteria anyway, because whether something
00:17:42 --> 00:17:45 is blatantly wrong isn't a fact about the world.
00:17:45 --> 00:17:48 Right. Four of the nine justices said this order
00:17:48 --> 00:17:51 doesn't violate the 14th Amendment, even though
00:17:51 --> 00:17:53 it was a fringe theory a couple of years ago.
00:17:53 --> 00:17:56 The three dissenters and Kavanaugh, who voted
00:17:56 --> 00:17:59 to strike it down anyway on the statute. Right.
00:17:59 --> 00:18:01 And on their accounts, it wasn't blatantly wrong
00:18:01 --> 00:18:03 in any way. It was a defensible reading of a
00:18:03 --> 00:18:06 clause that nobody had really addressed at all
00:18:06 --> 00:18:08 for this class of people. So to know whether
00:18:08 --> 00:18:10 a question is clear enough to reach, you have
00:18:10 --> 00:18:13 to actually reach it. The sorting rule needs
00:18:13 --> 00:18:14 the answer that's supposed to come before it.
00:18:15 --> 00:18:18 OK, before we leave him, though, how does Kavanaugh
00:18:18 --> 00:18:21 get there? The statute tracks the amendment almost
00:18:21 --> 00:18:24 exactly. All persons born in the United States
00:18:24 --> 00:18:26 and subject to the jurisdiction thereof. A person
00:18:26 --> 00:18:28 born in the United States and subject to the
00:18:28 --> 00:18:31 jurisdiction thereof, same operative phrase,
00:18:31 --> 00:18:33 read two different ways in one opinion. All right.
00:18:33 --> 00:18:36 He's being very explicit about his reasoning
00:18:36 --> 00:18:39 here. Everybody agrees that we had Juan Kim Ark
00:18:39 --> 00:18:42 in 1898. And in that case, the Supreme Court
00:18:42 --> 00:18:44 listed exceptions to birthright citizenship,
00:18:45 --> 00:18:47 that it didn't apply to the children of foreign
00:18:47 --> 00:18:48 sovereigns, didn't apply to their ministers.
00:18:49 --> 00:18:51 It didn't apply to children born on foreign public
00:18:51 --> 00:18:53 ships or children. children of enemies during
00:18:53 --> 00:18:56 a hostile occupation, or children of members
00:18:56 --> 00:18:58 of the Indian tribes. Kavanaugh says this is
00:18:58 --> 00:19:01 a closed set, at least according to the case,
00:19:01 --> 00:19:03 and that no further exceptions can be recognized
00:19:03 --> 00:19:06 based on later circumstances. OK, did the majority
00:19:06 --> 00:19:09 sign off on that? So not the way he's phrasing
00:19:09 --> 00:19:11 it. They approved a wonky mark and just left
00:19:11 --> 00:19:13 it standing. They said that's what the exceptions
00:19:13 --> 00:19:17 are. It's described it. This is. Everything we
00:19:17 --> 00:19:19 need to deal with. It was just accepting foreign
00:19:19 --> 00:19:22 ministers and these 19th century tribes that
00:19:22 --> 00:19:25 the United States had already ceded part of its
00:19:25 --> 00:19:27 territorial jurisdiction to. Because when Congress
00:19:27 --> 00:19:30 borrows language a court has already construed,
00:19:30 --> 00:19:33 it presumed to take the construction along with
00:19:33 --> 00:19:35 it. So the statute picks up those exceptions
00:19:35 --> 00:19:39 and the door shuts behind them. Right. So that's
00:19:39 --> 00:19:42 a statutory hack. He's saying that Juan Quimarco
00:19:42 --> 00:19:44 was wrong, that it shouldn't have closed the
00:19:44 --> 00:19:47 set there. But then. Congress was essentially
00:19:47 --> 00:19:51 taking that limited list of exceptions and codifying
00:19:51 --> 00:19:54 it in the statute. So then the argument eats
00:19:54 --> 00:19:57 itself a little bit. The statute is narrower
00:19:57 --> 00:20:00 because Congress adopted a holding he says is
00:20:00 --> 00:20:02 incorrect. He says that the statutory question
00:20:02 --> 00:20:04 is straightforward and the constitutional one
00:20:04 --> 00:20:06 is complicated, which is what licenses his narrow
00:20:06 --> 00:20:09 little wiggling through this position. But the
00:20:09 --> 00:20:11 straightforward answer is borrowed from the reading
00:20:11 --> 00:20:14 he's attacking. OK, there's a problem on the
00:20:14 --> 00:20:17 other side, too, though. If the set is open,
00:20:17 --> 00:20:20 you need a principle telling you what the new
00:20:20 --> 00:20:23 exception has to look like, something the recognized
00:20:23 --> 00:20:26 ones share. Look at the four. A foreign minister's
00:20:26 --> 00:20:29 child, a child born on a foreign public ship,
00:20:29 --> 00:20:32 a child of an occupying enemy, a child of a tribal
00:20:32 --> 00:20:35 member. Those don't share a fact about the parent's
00:20:35 --> 00:20:37 nationality. They share something about sovereignty,
00:20:37 --> 00:20:40 places and people the United States couldn't
00:20:40 --> 00:20:42 govern. That's how the majority is describing
00:20:42 --> 00:20:44 them, not as a list of disfavored parents, a
00:20:44 --> 00:20:46 list of situations where the government's power
00:20:46 --> 00:20:49 just runs out. So then an unlawfully present
00:20:49 --> 00:20:52 parent is the hardest possible case to add because
00:20:52 --> 00:20:56 the one thing nobody disputes is that we can
00:20:56 --> 00:20:59 govern them. Right. So notice what he just did.
00:20:59 --> 00:21:02 He argues for the narrow route and working out
00:21:02 --> 00:21:04 whether the narrow route is any good requires
00:21:04 --> 00:21:06 going through his constitutional analysis anyway.
00:21:07 --> 00:21:09 Which is the case against avoidance in the miniature.
00:21:09 --> 00:21:12 You can't tell whether a small question is enough
00:21:12 --> 00:21:15 until you've looked at the big one. Right. And
00:21:15 --> 00:21:17 then we have the sequel because there was a second
00:21:17 --> 00:21:20 order. That seems fast. It is. Trump knows what
00:21:20 --> 00:21:23 he wants. The government's argument there is
00:21:23 --> 00:21:25 the argument that this whole episode is about.
00:21:25 --> 00:21:28 The order tells agency heads to enforce it through
00:21:28 --> 00:21:30 all appropriate measures. Those measures get
00:21:30 --> 00:21:33 spelled out in public guidance and that guidance
00:21:33 --> 00:21:37 hasn't been issued yet. And so. We are waiting
00:21:37 --> 00:21:40 for the paperwork. Right. This is the second
00:21:40 --> 00:21:42 time they tried this. They made a nearly identical
00:21:42 --> 00:21:45 argument against the 2025 order and they lost
00:21:45 --> 00:21:48 it then. But the argument the district court
00:21:48 --> 00:21:51 made this time is that paperwork can't change
00:21:51 --> 00:21:53 the thing that matters, that the order has already
00:21:53 --> 00:21:56 told every agency what result to reach. No citizenship
00:21:56 --> 00:21:59 documents for these listed children. The guidance
00:21:59 --> 00:22:01 could tell them how, but not whether or not to
00:22:01 --> 00:22:03 approve it. So here's exactly what she said.
00:22:03 --> 00:22:07 No matter what the guidance says, the 2026 executive
00:22:07 --> 00:22:10 order commands agencies to deny citizenship documents
00:22:10 --> 00:22:14 to several broad categories of children. So she
00:22:14 --> 00:22:16 enjoined the result before the implementation
00:22:16 --> 00:22:18 existed. Right. And she didn't touch the implementation
00:22:18 --> 00:22:21 work. She left the guidance requirements alone.
00:22:21 --> 00:22:24 What she said was that she was enjoining these
00:22:24 --> 00:22:27 agencies from denying citizenship to anyone in
00:22:27 --> 00:22:30 the class. So then the redraft bought them 27
00:22:30 --> 00:22:32 days. Right. Because the grounds were already
00:22:32 --> 00:22:35 gone. If you run it through Kavanaugh's opinion,
00:22:35 --> 00:22:37 his reading of the statute blocks a lot of that
00:22:37 --> 00:22:40 second order, too. But he leaves Congress a door.
00:22:40 --> 00:22:42 And then the statute write the exceptions in.
00:22:42 --> 00:22:44 The majority's holding doesn't have any sort
00:22:44 --> 00:22:46 of door. Which is the difference between losing
00:22:46 --> 00:22:50 and losing permanently. So not totally permanently.
00:22:50 --> 00:22:52 Her injunction is preliminary. It could be appealed.
00:22:52 --> 00:22:55 But the grounds it stands on were taken away.
00:22:55 --> 00:22:58 And the wait for the guidance argument lost on
00:22:58 --> 00:23:01 a ground you flagged earlier. Right. That's based
00:23:01 --> 00:23:03 on what the order's verbs point at. It says no
00:23:03 --> 00:23:06 department or agency shall issue documents. The
00:23:06 --> 00:23:08 command lands on the documents. Nothing waits
00:23:08 --> 00:23:10 on a future event that might not happen. She
00:23:10 --> 00:23:12 contrasted that with orders where the mandatory
00:23:12 --> 00:23:15 language runs to the process instead. Which implies
00:23:15 --> 00:23:17 there are orders where wait for the paperwork
00:23:17 --> 00:23:22 works. Yes. Let's talk about those. So then the
00:23:22 --> 00:23:24 obvious lesson for a drafter is don't do that
00:23:24 --> 00:23:27 again. Don't hand the court a bare order with
00:23:27 --> 00:23:29 a constitutional question sitting on top of it.
00:23:29 --> 00:23:32 Right. And a common pattern now is to pair them.
00:23:32 --> 00:23:34 We'll get an order that does something on its
00:23:34 --> 00:23:37 own, plus a section directing an agency to start
00:23:37 --> 00:23:39 a rulemaking to carry it out. So we can have
00:23:39 --> 00:23:42 two instruments, but one policy, and the two
00:23:42 --> 00:23:43 different parts of it can mature at different
00:23:43 --> 00:23:45 times. That's exactly what the mail voting order
00:23:45 --> 00:23:48 did earlier this year. Starting in March. Yes.
00:23:48 --> 00:23:53 31st of March. This was Executive Order 14 -399.
00:23:53 --> 00:23:56 And it's on citizenship verification in federal
00:23:56 --> 00:24:00 elections. It's built in pieces. There's one
00:24:00 --> 00:24:02 section that directs the Secretary of Homeland
00:24:02 --> 00:24:04 Security to put together and send over to state
00:24:04 --> 00:24:07 citizenship lists. There's another section that
00:24:07 --> 00:24:09 directs the Attorney General to prioritize investigations
00:24:09 --> 00:24:13 and where appropriate prosecute people involving
00:24:13 --> 00:24:15 federal ballots issued to ineligible voters.
00:24:15 --> 00:24:17 And there's another section that tells the Postmaster
00:24:17 --> 00:24:20 General to initiate a proposed rulemaking, which
00:24:20 --> 00:24:22 is where the ballot envelope standards and the
00:24:22 --> 00:24:25 barcodes requirement in it would come from. So
00:24:25 --> 00:24:27 the agency route isn't a fallback. It's written
00:24:27 --> 00:24:30 into the order on day one. Right. People can
00:24:30 --> 00:24:32 get a little confused about that. The order isn't
00:24:32 --> 00:24:34 vague. It's full of mandatory language and hard
00:24:34 --> 00:24:37 deadlines. It says the rulemaking has to be initiated
00:24:37 --> 00:24:40 within 60 days, that Homeland Security gets 90
00:24:40 --> 00:24:41 days to build a citizenship list infrastructure.
00:24:42 --> 00:24:45 And then it isn't hedged at all. Right. But look
00:24:45 --> 00:24:47 what each of those verbs is attached to. Section
00:24:47 --> 00:24:49 3 tells the Postmaster General what the notice
00:24:49 --> 00:24:52 of proposed rulemaking has to contain. And one
00:24:52 --> 00:24:54 of the things it has to contain is a proposed
00:24:54 --> 00:24:56 provision saying the Postal Service shall not
00:24:56 --> 00:24:58 transmit mail -in or absentee ballots from any
00:24:58 --> 00:25:00 individual who isn't enrolled on a state -specific
00:25:00 --> 00:25:04 list. A proposed provision, so the shall not,
00:25:04 --> 00:25:07 is inside the thing being proposed. Right. Every
00:25:07 --> 00:25:09 substantive command in that section governs what
00:25:09 --> 00:25:12 has to be proposed. None of them says what has
00:25:12 --> 00:25:15 to survive into the final rule. And the deadlines
00:25:15 --> 00:25:17 give it away. The order says any final rule under
00:25:17 --> 00:25:21 that section shall issue within 120 days. So
00:25:21 --> 00:25:23 any final rule. That's a deadline for something
00:25:23 --> 00:25:26 that might never exist. Right. And there's also
00:25:26 --> 00:25:27 a conditional clause sitting in the middle of
00:25:27 --> 00:25:32 this. So 120 days from the 31st of March is the
00:25:32 --> 00:25:34 29th of July. The Postal Service did come out
00:25:34 --> 00:25:36 with a rule, but it only came out on the 21st
00:25:36 --> 00:25:40 of August. That's three weeks past its own deadline
00:25:40 --> 00:25:43 that it set. But watch what the deadline passing
00:25:43 --> 00:25:45 did and didn't do. It didn't turn the proposed
00:25:45 --> 00:25:48 provisions into final law. It didn't settle what
00:25:48 --> 00:25:51 the final rule had to say. The order commanded
00:25:51 --> 00:25:53 a proceeding. It never commanded the result because
00:25:53 --> 00:25:55 the proceeding could produce something else.
00:25:55 --> 00:25:57 Which is not a drafting trick. That's what a
00:25:57 --> 00:26:00 rulemaking is. You have to be able to change
00:26:00 --> 00:26:02 your mind after the comments or exercise or it's
00:26:02 --> 00:26:06 a sham. Right. So the feature that made this
00:26:06 --> 00:26:08 unreviewable for five months is a feature that
00:26:08 --> 00:26:10 the APA requires, this idea that we could potentially
00:26:10 --> 00:26:13 change our minds. Compare the birthright order.
00:26:13 --> 00:26:16 It says no department or agency shall issue documents.
00:26:16 --> 00:26:19 Same shall type requirement, but it's attached
00:26:19 --> 00:26:22 to the final result in the document itself, not
00:26:22 --> 00:26:24 to the proceeding. So one commands an outcome,
00:26:24 --> 00:26:27 the other commands a process whose outcome is
00:26:27 --> 00:26:29 open. Right. Court can rule on that commanded
00:26:29 --> 00:26:33 outcome. It can't rule on an open question. Which
00:26:33 --> 00:26:36 is what the litigation found out. Yes. 23 states
00:26:36 --> 00:26:39 and D .C. sued in April. They had a judgment
00:26:39 --> 00:26:41 by early July that were enjoining those sections
00:26:41 --> 00:26:44 I was talking about earlier as to them. The requirements
00:26:44 --> 00:26:46 that we create the list and transmitted all that
00:26:46 --> 00:26:49 stuff. There was a separate case brought by voting
00:26:49 --> 00:26:51 organizations that produced a nationwide injunction
00:26:51 --> 00:26:55 against. one of the parts of it in August. And
00:26:55 --> 00:26:56 the government's response to both of them was
00:26:56 --> 00:26:58 the same. You're early. The rule doesn't even
00:26:58 --> 00:27:01 exist yet. Which isn't a bad argument, to be
00:27:01 --> 00:27:04 fair. No, it's not. And the Supreme Court took
00:27:04 --> 00:27:06 it on the 24th of August. It took it as a state's
00:27:06 --> 00:27:10 case, and it stayed that judgment per curam.
00:27:10 --> 00:27:12 It said there's no jurisdiction because it was
00:27:12 --> 00:27:14 speculative whether the Postal Service would
00:27:14 --> 00:27:17 propose a rule, weigh the comments, and then
00:27:17 --> 00:27:19 after that, issue a final rule consistent with
00:27:19 --> 00:27:22 the order. And so in that case, the court said
00:27:22 --> 00:27:25 federal courts review final rules, not proposed
00:27:25 --> 00:27:27 rules, and certainly not antecedent internal
00:27:27 --> 00:27:30 directives to propose a rule. That's a clean
00:27:30 --> 00:27:33 ruling. The government hadn't only been making
00:27:33 --> 00:27:35 that argument to the Supreme Court. On the 7th
00:27:35 --> 00:27:37 of August in the district court, the council
00:27:37 --> 00:27:40 said this on the record. When the final rule
00:27:40 --> 00:27:43 is implemented, if it affects an individual voter's
00:27:43 --> 00:27:45 ability to vote, then they certainly have standing
00:27:45 --> 00:27:47 to challenge that final rule. And courts are
00:27:47 --> 00:27:50 able to work in an expedited basis. It would
00:27:50 --> 00:27:52 only take a very short amount of time for a temporary
00:27:52 --> 00:27:54 restraining order or a preliminary injunction
00:27:54 --> 00:27:57 to issue. So the court is saying, wait for the
00:27:57 --> 00:28:00 rule and you'll have standing and we'll deal
00:28:00 --> 00:28:03 with it quickly. Right. So two weeks after that.
00:28:04 --> 00:28:06 When they're asking the judge to vacate her injunction,
00:28:06 --> 00:28:08 they told her that the plaintiffs weren't without
00:28:08 --> 00:28:10 a remedy. They could simply amend their complaint
00:28:10 --> 00:28:13 and challenge the final rule directly. So twice
00:28:13 --> 00:28:16 now, the court is saying, wait, and you'll get
00:28:16 --> 00:28:18 your day in court. Right. And so then the rule
00:28:18 --> 00:28:21 issues on the 21st of August. It's published
00:28:21 --> 00:28:23 in the Federal Register on the 26th, and the
00:28:23 --> 00:28:25 plaintiffs did exactly what they've been told
00:28:25 --> 00:28:28 to do. The states filed a new action. The organization
00:28:28 --> 00:28:30 supplemented their complaint. They both did it
00:28:30 --> 00:28:33 on publication day. And the government's position
00:28:33 --> 00:28:36 at that point? It was not, thank you for waiting
00:28:36 --> 00:28:38 until the appropriate time. It was that they
00:28:38 --> 00:28:40 were too late, that appellate review would come
00:28:40 --> 00:28:43 too late for the midterms. Wow. So that seems
00:28:43 --> 00:28:47 quite calculated. So not surprisingly, the judge
00:28:47 --> 00:28:49 noticed this. And her answer is that the question
00:28:49 --> 00:28:52 isn't when appellate review gets completed. It's
00:28:52 --> 00:28:54 whether the plaintiffs met the standard for emergency
00:28:54 --> 00:28:57 relief. So she granted a 14 -day restraining
00:28:57 --> 00:29:00 order. She granted that on the 27th, and she
00:29:00 --> 00:29:01 got there based on what the Supreme Court specifically
00:29:01 --> 00:29:04 said. Now that the rule is published, the challenges
00:29:04 --> 00:29:06 are ripe, and federal courts review the final
00:29:06 --> 00:29:09 rules. Notice the rule issued on the 21st, three
00:29:09 --> 00:29:14 days before the court ruled. So then the question
00:29:14 --> 00:29:15 could become whether the court knew about this.
00:29:16 --> 00:29:18 I was just about to ask this. There's a footnote,
00:29:18 --> 00:29:20 and it says that the government's supplemental
00:29:20 --> 00:29:23 brief about the final rule was docketed hours
00:29:23 --> 00:29:26 before the order came down. So the judge here
00:29:26 --> 00:29:28 isn't assuming the justices were able to review
00:29:28 --> 00:29:30 it in that window, and she notes that the court
00:29:30 --> 00:29:32 gave no indication it knew. Then there's the
00:29:32 --> 00:29:34 point that resolves it. The order measures standing
00:29:34 --> 00:29:37 as of when the complaint was filed months earlier.
00:29:37 --> 00:29:40 So it isn't a got you. It's actually a doctrinal
00:29:40 --> 00:29:42 problem. Right. Standing gets measured at filing.
00:29:42 --> 00:29:44 The rulemaking that made the case prematurely
00:29:44 --> 00:29:46 kept running while the case was pending. And
00:29:46 --> 00:29:48 the Supreme Court expressed concern that her
00:29:48 --> 00:29:50 injunction was stopping the Postal Service from
00:29:50 --> 00:29:53 so much as initiating a rulemaking. Here's what
00:29:53 --> 00:29:56 she said to that. No such delay occurred as the
00:29:56 --> 00:29:59 USPS had gone ahead and noticed a proposed rule,
00:29:59 --> 00:30:01 solicited and reviewed comments and issued a
00:30:01 --> 00:30:05 final rule. So nothing was being prevented in
00:30:05 --> 00:30:08 the process. It had all already happened. Right.
00:30:08 --> 00:30:11 So. If your defense is that the rule doesn't
00:30:11 --> 00:30:13 exist yet and the defense ends when the rule
00:30:13 --> 00:30:16 exists, the fastest way to cure that problem
00:30:16 --> 00:30:18 is to finish the thing that was creating it.
00:30:18 --> 00:30:21 And then the challengers get everything they
00:30:21 --> 00:30:23 were promised, a finished rule, a record, and
00:30:23 --> 00:30:27 an APA case. So here's where it stops being quite
00:30:27 --> 00:30:30 so neat, since they don't get the APA case. Congress
00:30:30 --> 00:30:32 has exempted the Postal Service from ordinary
00:30:32 --> 00:30:35 APA review. So there's no arbitrary and capricious
00:30:35 --> 00:30:38 count. There's no stay of the rule based on Section
00:30:38 --> 00:30:42 705. OK, so let's let's rewind that for a second.
00:30:43 --> 00:30:46 So the agency that this order got routed through
00:30:46 --> 00:30:48 is one of the agencies Congress took out of the
00:30:48 --> 00:30:51 Administrative Procedure Act. Then what's left?
00:30:51 --> 00:30:54 This is why the government's answer is all you
00:30:54 --> 00:30:57 have left are constitutional claims and a super
00:30:57 --> 00:30:59 narrow ultra virus theory where the government
00:30:59 --> 00:31:01 has to have acted in excess of its delegated
00:31:01 --> 00:31:04 powers and against a specific statutory prohibition.
00:31:04 --> 00:31:07 The court has recently compared this to a Hail
00:31:07 --> 00:31:10 Mary pass. And the plaintiffs presumably don't
00:31:10 --> 00:31:12 accept this. The district court certainly didn't.
00:31:12 --> 00:31:14 It declined to apply that standard, and the government's
00:31:14 --> 00:31:16 own filing says so on its way to arguing that
00:31:16 --> 00:31:19 the court got it wrong. So which review framework
00:31:19 --> 00:31:23 governs is itself unresolved. OK, so then it's
00:31:23 --> 00:31:26 worse than I said. It isn't only that the agency
00:31:26 --> 00:31:28 comes with whatever review Congress left attached.
00:31:29 --> 00:31:32 Nobody yet knows what's attached. And that's
00:31:32 --> 00:31:35 being litigated alongside the merits. Right.
00:31:35 --> 00:31:37 Which is a don't kind of delay. And it means
00:31:37 --> 00:31:38 that the assumptions we've been running on this
00:31:38 --> 00:31:41 whole time, route it through an agency and you
00:31:41 --> 00:31:43 get the administrative track at the end, clearly
00:31:43 --> 00:31:46 isn't 100 percent reliable. It depends on which
00:31:46 --> 00:31:48 agency. And Congress has switched the API off
00:31:48 --> 00:31:50 for some of them. And it cuts against the government,
00:31:50 --> 00:31:53 too, doesn't it? Yes. It doesn't look good for
00:31:53 --> 00:31:55 the government. The argument that bought them
00:31:55 --> 00:31:57 five months, that you just needed to wait for
00:31:57 --> 00:31:59 the final rule and then you could have your APA
00:31:59 --> 00:32:02 case. It was describing a case that its own lawyers
00:32:02 --> 00:32:04 now say the plaintiffs can't bring. And that
00:32:04 --> 00:32:08 fight is still running. Yes. So a restraining
00:32:08 --> 00:32:09 order became a preliminary injunction in early
00:32:09 --> 00:32:12 September. And now the government is back at
00:32:12 --> 00:32:14 the Supreme Court. By the time you hear this,
00:32:14 --> 00:32:16 something else might have happened. And we'll
00:32:16 --> 00:32:18 be looking at where things stand again in a couple
00:32:18 --> 00:32:21 of weeks. For our purposes, this arc is fairly
00:32:21 --> 00:32:23 complete. It's the loan plan from the other direction.
00:32:23 --> 00:32:25 The Biden administration made the careful choice.
00:32:25 --> 00:32:28 Agency instruments, statutory authority, an office
00:32:28 --> 00:32:30 of legal counsel opinion. This program implemented
00:32:30 --> 00:32:33 over the following months and it bought a year,
00:32:33 --> 00:32:35 but then it lost on the statute. This one hedged
00:32:35 --> 00:32:38 its verbs and it bought five months, but it lost
00:32:38 --> 00:32:41 its heads the moment the rules existed. So neither
00:32:41 --> 00:32:43 instrument actually got the outcome the White
00:32:43 --> 00:32:45 House wanted. Right. So what each bought was
00:32:45 --> 00:32:47 time and a different set of questions it could
00:32:47 --> 00:32:51 potentially lose on. And the real drafting question
00:32:51 --> 00:32:53 isn't which instrument protects you. It's which
00:32:53 --> 00:32:55 loss can you live with? Right. And that's a question
00:32:55 --> 00:32:58 about that ladder. So bare order with a mandatory
00:32:58 --> 00:33:00 verb goes straight to the constitutional question.
00:33:01 --> 00:33:04 Ask the birthright drafters who got 27 days out
00:33:04 --> 00:33:06 of their second attempt. Route it through an
00:33:06 --> 00:33:08 agency and you're more likely to lose on procedure
00:33:08 --> 00:33:11 or on the statute first. And both of those you
00:33:11 --> 00:33:13 can potentially survive. It's not guaranteed.
00:33:13 --> 00:33:16 An agency policy could still draw a constitutional
00:33:16 --> 00:33:18 injunction. It changes the order the questions
00:33:18 --> 00:33:21 arrive in. So order is most of what the timing
00:33:21 --> 00:33:24 is. And so the careful route isn't necessarily
00:33:24 --> 00:33:28 safer. It's cheaper to lose on. Yes. So next
00:33:28 --> 00:33:32 week, we'll be back to ordinary cases. The basic
00:33:32 --> 00:33:34 overview of standing and who's permitted to complain
00:33:34 --> 00:33:37 about agency action at all, which after today
00:33:37 --> 00:33:39 should read a little differently because you
00:33:39 --> 00:33:41 just watched two orders where the whole fight
00:33:41 --> 00:33:44 was about whether anybody could ask whether they
00:33:44 --> 00:33:46 were in violation yet. The week after that, we
00:33:46 --> 00:33:49 go back to the ballroom specifically. The current
00:33:49 --> 00:33:52 fun up to the minute case on that doctrine. OK,
00:33:52 --> 00:33:55 what I carry out of this is narrower than what
00:33:55 --> 00:33:57 I would have expected, though. And that's largely
00:33:57 --> 00:34:00 because it seems like it's about grammar. Two
00:34:00 --> 00:34:02 orders from the same desk, both written in the
00:34:02 --> 00:34:05 imperative, both running through agencies. One
00:34:05 --> 00:34:07 attaches commands to a document. and was reviewable
00:34:07 --> 00:34:10 that afternoon. The other attached them to a
00:34:10 --> 00:34:12 rulemaking, and it took five months and a Supreme
00:34:12 --> 00:34:14 Court decision to establish that those plaintiffs
00:34:14 --> 00:34:17 had asked too early. Right, and the drafting
00:34:17 --> 00:34:19 doesn't settle it. Plaintiffs and courts can
00:34:19 --> 00:34:21 recharacterize a dispute. They did that in both
00:34:21 --> 00:34:24 of these. The Postal Service finished a rule
00:34:24 --> 00:34:26 that had been ordered not to finish, and three
00:34:26 --> 00:34:28 days later won a case on the grounds that the
00:34:28 --> 00:34:31 rule didn't exist yet. So that does it for today's
00:34:31 --> 00:34:33 episode on administrative remedies. Thank you
00:34:33 --> 00:34:36 for joining us today. Please, if you enjoy this
00:34:36 --> 00:34:39 podcast and enjoy this episode, give us a like
00:34:39 --> 00:34:42 on Spotify, iTunes, or whatever platform you're
00:34:42 --> 00:34:45 listening on. And be sure to tune in next time
00:34:45 --> 00:34:47 where we'll continue to dive into the contours
00:34:47 --> 00:34:49 of administrative law. Because remember, you
00:34:49 --> 00:34:51 can't fix what you don't understand.