Thanks to the Harvard Law Review, we recorded a live episode in the famed Austin Hall at Harvard Law School. While we hoped to discuss merits cases, the Court gave us far too much shadow docket activity to break down.
Thanks to the Harvard Law Review, we recorded a live episode in the famed Austin Hall at Harvard Law School. While we hoped to discuss merits cases, the Court gave us far too much shadow docket activity to break down.
[Divided Argument theme]
Dan Epps: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will Baude: And I'm Will Baude.
Dan Epps: Do you remember that time we were recording an episode and I forgot the lead in?
Will Baude: No.
Dan Epps: It was like an unscheduled and--
Will Baude: There’s a couple times I've messed it up, and you made me redo it.
Dan Epps: I haven't done that live so far. But we have gotten some pushback from people who say our live shows. And this is when we'll tell you where we are in a second. We're a little nervous. At least, we sound that way. So, where are we, Will?
Will Baude: We're at Harvard Law School.
Dan Epps: This is a live show sponsored by the nation's leading law review, Harvard Law Review.
Will Baude: One of the nation's leading law reviews. [laughs]
Dan Epps: T1.
Will Baude: An excellent law review.
Dan Epps: Yeah. You're contractually bound not to agree with me. Are you still the president of the Yale Law Journal Association?
Will Baude: No. My term as president has finally ended, so I no longer have a fiduciary duty to promote the law journal as the best law journal in America.
Dan Epps: Are there term limits?
Will Baude: There are.
Dan Epps: I hear there are ways around term limits [Will laughs] systems.
Will Baude: El Salvador actually did this. The president of El Salvador is supposed to be term limited. He packed the El Salvador Supreme Court, and then got them to interpret the term limits amendment in a technical way that didn't apply to him.
Dan Epps: Okay. We're going to come back to El Salvador in a minute.
Will Baude: Hope not.
Dan Epps: But there is going to be a lot of Trump related stuff to talk about. I think everybody is really hoping us to weigh in one thing that the president has done recently. And answer the question, how are the tariffs going to affect the show? [Will laughs] Are you outsourcing any of your takes from China?
Will Baude: No.
Dan Epps: Yeah. Not that I am aware of. I think we're going to be okay on tariffs.
Will Baude: I think we should double what we charge people for the show?
Dan Epps: Yeah, which is zero. But maybe if we have to buy any more podcasting equipment, that might be a problem but otherwise, we should be okay. So, tariffs are kind of extraordinary thing this administration has done. It's actually not the principal topic we're going to be talking about, but we are going to be talking today about a number of other things the administration has done that many people think are pretty shocking. The Court has been called to weigh in on. But before we do that, tariffs. What's the over under on when the Court will rule on tariffs in some way?
Will Baude: Okay.
Dan Epps: Is it the end of this term, July 1st?
Will Baude: Definitely. I would take the under on July 1st.
Dan Epps: Okay. You say definitely.
Will Baude: Yeah. There's going to be a nationwide injunction out of the northern district of Florida in two weeks or less, and I assume that'll be in the Supreme Court by July.
Dan Epps: So, four weeks. I'm not going to take a bet. I only take bets I'm sure I can win. [Will laughs] What do you think?
Will Baude: Six weeks.
Dan Epps: Okay. All right. Well, we will see if any listeners want to write in and offer you the over on that. You would take the under on that or you would--
Will Baude: I mean, six weeks is about where I would draw the line.
Dan Epps: Okay. So, six weeks and one day is you would take the under. Okay. What else are we talking about today? We're talking about a lot of things. Well, before we talk about anything substantive, I do want to say how cool it is to be in this room. We are in Austin Hall, the most famed building at—[crosstalk].
Will Baude: What is it famous for?
Dan Epps: The most famed law school, arguably.
Will Baude: I didn't go here, Dan. What is it famous for?
Dan Epps: It's the old building, and we're in this big classroom, a lot of famous classes in here. It's got a paper chase vibe. I took con law in this room. I think we did the Harvard Law Review elections in this room, lo, some 17, 18 years ago. So, it's great. It's great for me to be here. You don't care.
Will Baude: It's great to be here. [laughs]
Dan Epps: Okay. You're just being polite.
Will Baude: I'm doing this for the first time. For me, it's a new experience.
Dan Epps: Okay. Do you feel loose for the live show?
Will Baude: I always feel this, Dan. You're the-- [crosstalk]
Dan Epps: [chuckles] Is that what people said, really?
Will Baude: Yeah.
Dan Epps: Okay. [Will laughs] I had to talk you out of wearing a suit.
Will Baude:That's true.
Dan Epps: You would not have felt loose in a suit.
Will Baude: I feel loose in a suit.
Dan Epps: I don't know, all you Fed Soc guys, you can't get out of the natural instinct to wear a suit. [Will laughs] But I'm glad I was able to put you off on that. Okay. I think people do actually want us to talk about some substantive things on the shadow docket, which I guess we are supposed to keep calling the shadow docket in deference to you progenitor of that term, although really the shadow aspect of it is over. [Will laughs] I think the emergency docket is probably the more neutral term and it's where maybe the Court itself is going.
Will Baude: Emergency docket is also not a useful term or not a neutral term, because it is not clear all these cases are emergencies.
Dan Epps: Well, by intervening in them in somewhat extraordinary ways, doesn't that suggest that the Court thinks they are emergencies?
Will Baude: Well, the more the Court intervenes, the less extraordinary the intervention and then the harder it is to say they're all emergencies as opposed to just-- Unless it's an emergency that somewhere in the country the Trump administration lost a case.
Dan Epps: Well, I'm sure some people feel that way. So, what are we going to call it? You want to stick with shadow docket.
Will Baude: I was originally going to call it the orders list. That was a good idea. Although that doesn't work anymore either.
Dan Epps: These aren't on the orders list. These are just-- [crosstalk]
Will Baude: It used to be all these things were on the orders list. So, they were in the shadows of the Supreme Court website, literally. You went to the main part of the Supreme Court website, you didn't find them, you didn't know where to click around. Now, if the Court issues a per curiam opinion joined by five or more Justices, it puts them on the opinion section of the website.
Dan Epps: Yeah.
Will Baude: But I think is to hide the fact that they don't have regular opinions anymore, [Dan chuckles] and they got to put something on the website. It's like when academics pad their CVs with a bunch of symposium pieces to hide the fact that we haven't written a real article lately. But then, one of the orders that came down is still on the orders list and not on the opinion section.
Dan Epps: Because it was short, right?
Will Baude: Yeah. Even though it contains a two-paragraph thing that you might think is an opinion, but I guess it's part of the order.
Dan Epps: You couldn't format that in the regular Supreme Court PDF.
Will Baude: They put DIGS on the Supreme Court website, and they're like, “One cent a form.”
Dan Epps: Yeah. When did these things move over to opinions of the Court? Sorry, we're pretty deep in the weeds on talking about the web design of the Supreme Court. I do think it's substantive in the sense that it does. Tell us a little bit about how the Court thinks about what these things are.
Will Baude: I think part of it tells us is just that the court is still working it out, like they're in this-- A couple of recent young law clerks wrote a piece called Shadow Docket Experiments, or maybe Emergency Docket Experiments. I forget which title they took. But sometimes the Court schedules oral argument in them, sometimes it doesn't, sometimes it writes an opinion. So, I think they're still playing around with this new docket they have.
Dan Epps: So, do you imagine getting to a place where the Court has more regularized procedures, which is what you were calling for when you first wrote that shadow docket article?
Will Baude: Yes, I think we're already starting to get there. They now have some rules around amicus briefs that they've proposed, maybe not enacted yet. I think we'll keep getting there.
Dan Epps: Okay. Well, we're not there yet. So, we have some things that are bubbling up through a variety of timelines and procedures. We talked a bit about where to start with these. I think you and I concluded that maybe the place to start is Department of Education v. California.
Will Baude: April 4th, 2025.
Dan Epps: All right. So, what happened here?
Will Baude: All right. So, all of these are cases that started in the district courts challenging various surprising and arguably unlawful initiatives of the Trump administration. This one is a suit that began in the District of Massachusetts which issued a so-called temporary restraining order enjoining the government from terminating a bunch of education related grants to which appear to have been terminated on, I guess, what we loosely call like DEI grounds.
Dan Epps: Anti-DEI grounds.
Will Baude: Yes. Fine. The Trump administration decided that it didn't think that the way the grants had been administered and the various kinds of training they provided were lawful or in the interest of the government. And so, it terminated them all. The district court entered a nationwide or a broad TRO saying, “Keep the grants coming, because it's not at all clear this is lawful.” And so, the Department of Education went to the Supreme Court and said, “No, no, no, the district court can't just keep the money flowing. That's a whole lot of money. It's an irreparable injury, so you got to stop it so we can have control over the purse.”
Dan Epps: The argument that it's irreparable being that once the money's sent out, maybe they can't get it back.
Will Baude: Yeah.
Dan Epps: Okay. There's a jurisdictional problem with that, which is TROs. A TRO is different from a preliminary injunction. TRO is supposed to be short.
Will Baude: Is it?
Dan Epps: Well, if it actually is a TRO, right?
Will Baude: Yeah.
Dan Epps: It's supposed to be very short, but not appealable. Preliminary injunction is appealable.
Will Baude: Right. So, there's a jurisdictional provision that says, “While you can normally only appeal a final judgment, you can appeal the grant or denial of a preliminary injunction.” That's why so many of these cases get up to the appellate court so fast. And so, the first question is, is this TRO immediately appealable? And the Supreme Court says, “This one is effectively a preliminary injunction. And so, it's appealable.”
Dan Epps: Yeah. Despite being labeled as a TRO.
Will Baude: Yes. Does that bother you?
Dan Epps: Not necessarily. It is another one of these situations where it makes it look like the Court is possibly reaching to address an issue. But sometimes it is helpful to have the Court weigh in earlier. We'll talk in a minute about the merits, the upsides, downsides of the Court moving so expeditiously. But given the stakes, maybe it is useful for the Court to err in favor of giving itself the chance to review these things early.
Will Baude: Yeah.
Dan Epps: Because what would the timeline be if it were not a preliminary injunction? If it were an unappealable TRO? We'd have to wait for the district court to do a preliminary injunction. That presumably is going to happen quite soon, because there is a natural expiration date for these TROs.
Will Baude: Right. The TROs are generally capped at 14 days.
Dan Epps: And you can extend it-- [crosstalk]
Will Baude: Little.
Dan Epps: Yeah.
Will Baude: So, it's still-- We're only talking about a couple of weeks. Now, part of what might happen is the TRO might start being overbroad, because you get this complaint that's like, “Whoa, look at all these illegal things the administration did. You need to stop it all right now.” And so, you say, “Okay, that seems bad. You stamp the TRO.” Then you get a couple of weeks for the government to bring the federal programs people in and say, “Oh, no, actually, there's no jurisdiction, or the relief should be narrower or it's more complicated.”
So, I think in some of these cases, if you waited for the preliminary injunction, the temperature would go down a little bit, which would be part of the reason you might want to wait, part of the reason you might say, “The TRO doesn't need to be immediately appealable.”
Now, maybe if you're the Trump administration, you would rather take your best vehicle. So, you'd rather take the district court that overreached the most [chuckles] at the earliest possible stage and get that in front of the Supreme Court, because you're more likely to win. Whereas you wait for them to narrow it, you don't get as much of a victory as you want.
Dan Epps: Yeah.
Will Baude: I have a former student who's now a professor at BYU, Tyler Lindley, who has a new article that he got up in amazingly timely fashion on the appealability of TROs. He argues that, “If anything, the current doctrine is erring in the other direction is-- [crosstalk]
Dan Epps: Making it too hard to appeal.
Will Baude: Yeah. The whole idea that a TRO is unappealable is not actually in the statute. The statute says, “Preliminary injunctions are immediately appealable.” You might just ask, “Aren't all TROs within the statutory definition of a preliminary injunction? Did TROs even exist when the jurisdictional provision was written?” Surely, courts can't issue like a preliminary schmajunction and say, “It's not a preliminary injunction. It's just like a new equitable order to do a bunch of stuff. And so, it's not appealable.”
Now, it turns out TROs did exist when the statute was created, but at the time, the statute drew a line that TROs were not appealable if they'd been issued ex parte, but if there was a hearing and they were appealable. Almost all these TROs are after a hearing, that's part of what makes them look like preliminary junctions. So, it depends on how you think about the statutory changes and stuff, but it's not at all crazy. It might even be right to just say these TROs are what they really are as super-fast injunctions.
Dan Epps: And so, what would that suggest? Every time one of these is issued, the parties can run to the court of appeals, do a full round of briefing.
Will Baude: Well, you can't do a full round of briefing, because the TROs expire 14 days. So, still, most of the time-- [crosstalk]
Dan Epps: And you can do a full round if the briefs are not very good.
Will Baude: And if they're fast. So, the point would be, most of the time they're still not going to be appealable, because most of the time, the parties aren't going to want to invest a lot of effort in trying to appeal it so fast. But in principle-- [crosstalk].
Dan Epps: But you could do a round of stay applications and briefing.
Will Baude: Yes.
Dan Epps: Okay. Well--
Will Baude: So, that's step one. We have a per curiam opinion saying, treating this as a TRO. I think that's a sign for how the appellate courts are supposed to deal with all these TROs in the future. I do think there's been an unprecedented wave of extremely broad TROs against the administration. Arguably justified by an unprecedented wave of executive orders that were not reviewed by the office legal counsel for form and legality. [chuckles]
Dan Epps: There is not a ton of guidance here about how to tell whether something is a TRO or a PI.
Will Baude: Yeah. There is an earlier case, Sampson v. Murray, that they cite, but yeah.
Dan Epps: Among other considerations, the district court's order carries many of the hallmarks of a preliminary injunction and incites Sampson and another case.
Will Baude: Yeah.
Dan Epps: And that's it.
Will Baude: Yeah. Moreover, the district court's basis for issuing the order is strongly challenged, as the government is likely to succeed.
Dan Epps: So, anytime it's strongly challenged, it's a preliminary injunction?
Will Baude: It's a bad TRO-
Dan Epps: [chuckles]Okay.
Will Baude: -preliminary junction.
Dan Epps: Okay. Yeah. Maybe it would have been nicer to give us a little bit more of a test going forward. Obviously, there's some precedent to rely on, but to the extent that this is going to be a big problem over the coming weeks and months, maybe more would have been helpful. Can I just detour us for one second? Obviously, we are in a period of just rapid, crazy, shadow docket activity.
Will Baude: Yes.
Dan Epps: Is this what the next three plus years are going to look like, [Will laughs] or do you think the Court is going to have to do something aggressive and just say, “Let's get rid of all these cases”? I can't imagine they want to keep doing this.
Will Baude: I do think the Court is preparing for that. I think cert grants are down even by the Court's historically low standard of cert grants. I've heard the speculation that's in part, because [chuckles] they're clearing their desks for the emergency docket, and they know that they're going to spend a lot of time on these cases. I think it's hard to know the answer though without knowing-- [crosstalk].
Dan Epps: So, eventually, the merits docket might be the shadow docket.
Will Baude: Yeah.
Dan: The flip.
Will Baude: There'll be scholars who say like, “Sometimes the Supreme Court deals with cases in this strange, slow procedure called merits briefing, [chuckles] where everybody has time to actually research and write long briefs. They even call the parties in. They do this archaic thing where they conference and discuss the case among themselves.”
Dan Epps: That'll be us in 30 years, and the students will just say, “Shut up.”
Will Baude: I think the point is, until we know how the Trump administration is going to change, it's hard. If the Trump administration keeps issuing executive orders on new topics at the rate it has issued them for the past two and a half months, I think the Court's just going to have to keep doing this.
Dan Epps: Yeah. It's interesting to speculate about that. Obviously, this is an aggressive, bold administration, has a lot of things it wants to do. Maybe it will run out of big ones. They're getting all the big ideas out. [Will laughs] But their staffing is changing in two ways. First of all, more Senate confirmed officials are coming online in DOJ and elsewhere. That could cut two different ways. It could be that the Senate confirmed officials feel more emboldened to do bold things. It could be that maybe some of the acting officials are a little bit more aggressive. So, that's one possibility.
Will Baude: Yup. Now, it could be the opposite. It could be that there are some of these are done in a legally questionable way, not on purpose. So, it could be that if there are more people in the room who all say, “Yeah, you can do this, but just give us three weeks to rush it through notice and comment, or at least to rush through the record that shows we don't need notice and comment.” That could be different.
I think there's now a nominee to head the Office of Legal Counsel, which according to news stories, has basically been sidelined. Traditionally, they review all executive orders for form and legality and they don't issue the executive order until after OLC has signed off on it. This is a fast process, but you have somebody who's like, “Okay, this is good to go.” Maybe once they have somebody at OLC who they trust, they will ask that person for legal advice and that person will give them legal advice, and then-- [crosstalk].
Dan Epps: That would be useful. Yeah, it makes me think of the first Trump administration, the travel ban, how we went through multiple iterations before it finally reached the Court and they had perfected it in ways to make it seem a little bit less problematic.
Will Baude: Yeah. But it could also be they don't want to do that. It could be this is on purpose and that they don't mind triggering the courts, in which case this isn't necessarily a stop.
Dan Epps: Because what? Because they think they will cow the courts into going along or because it's helpful to have the courts pushing back and for the administration to be able to point at the courts and say, “They're hacks.”
Will Baude: Yeah. I think on this model, it would be a win-win. If you violate some ticky-tack procedural norm, then you either get to force the courts to show they don't believe in ticky-tack procedural norms, which will be useful when you want them not to believe in real procedural norms, or they do and then you say, “Look, they're not letting us save the American people because of some ticky-tack procedural norms. Do you really like that?” I'm not saying this is theory, but that'd be one model for--
Dan Epps: Yeah. Another equally cynical theory, is that let's say this administration wants to do five things that are really bold and arguably illegal. If they do 20 things that fit into that category, maybe the Court, just as, “This is not a legal argument, but just as a matter of realpolitik,” feels like it has to give them something-
Will Baude: Sure.
Dan Epps: -rather than ruling against the administration on everything. And the Court has given the administration something, although we're still tentative. I think one thing we want to talk about today is what is the trajectory looking like? There's different ways you can read what the Court has done. I think the coming days will tell us a lot about what trajectory were on.
Will Baude: Yeah, fair enough.
Dan Epps: All right. That was a bit of a detour, but I think we had just gone through all the TRO PI stuff and now we are going to the relatively brief merits discussion in this per curiam.
Will Baude: Yes. Okay. So, the per curiam concludes that the government is likely to win, because this is a suit against the federal government. And the APA's waiver of sovereign immunity doesn't apply to orders to enforce a contractual obligation to pay money along the lines of what the district court ordered here, for which the court cites a case, Great-West Life & Annuity Ins. Co. v. Knudson, that I think is not, in fact, an APA case, but it's okay, and says, “Therefore, this is unlikely to succeed, and the government's got good arguments. The other state factors, if indeed this is a lawsuit that can't be brought or can't be brought except in the federal claims. This is a lot of money at stake,” etc., etc.
So, that all seems relatively unremarkable, except that didn't we talk on the show already about another shadow docket case in USAID, where there were some similar arguments, only they were made in dissent by Justice Alito. And the Court did let the money flow and Justice Alito was stunned.
Dan Epps: He was stunned. I guess he's less stunned now.
Will Baude: He's un-stunned.
Dan Epps: Yeah, I thought about that. I didn't have an obvious theory as to what made this different. Is it the Court here has different instincts on the ultimate merits?
Will Baude: Well, okay, so I think the only thing that's changed between those two opinions is the vote of Justice Barrett. So, this opinion is 5-4. The Chief Justice would deny the application, but does not otherwise dissent.
Dan Epps: And doesn't explain right now why he would have denied it.
Will Baude: Yeah. And then, we have opinions by Kagan, Jackson and Sotomayor. So, I think what's happened is the Trump administration has picked up Justice Barrett. Maybe it's just because she's thought harder about the issue. I think part of the objection to USAID was like the intersection between the APA's waiver of sovereign immunity and the great life, the rule in Bowen v. Massachusetts and Great Life is complicated and we're doing this on a really fast timeline. It could be that she was just not there yet. But in the couple of weeks since that case, she's thought about it some more and now thinks the argument's pretty good.
It could be there's some subtle distinction between the claims here and the claims there, that makes the claims here more clearly contractual and thus more clearly in the Great West Life exception. I've seen theory that just, the MAGA people got to her and she was warned, she was going to be-- [crosstalk]
Dan Epps: Got to her how?
Will Baude: I don't know.
Dan Epps: Did they do some flags outside her house or something?
Will Baude: No, I don't-- Whatever version of working the ref you think is going on.
Dan Epps: Okay.
Will Baude: I think that's the least likely, personally. But I think some of the ref workers think that they're succeeding and should do it more.
Dan Epps: Yeah, it would have been helpful. There's lots of cases like this where there's clearly one Justice's views who were critical, and that Justice often just doesn't explain.
Will Baude: Justice Ginsburg?
Dan Epps: That happened. Are you thinking about Booker?
Will Baude: That's what I was thinking.
Dan Epps: Yeah, that's a very classic one. She's the only Justice in that opinion who splits her vote, creates two different majorities. Would have been logical for her to write that opinion. [chuckles] Instead, she just joins the different majorities and doesn't explain.
Will Baude: Yeah.
Dan Epps: Okay. Lots of detours as we do on the show, but I will keep trying to steer us back.
Will Baude: [laughs] If you say so. All right.
Dan Epps: I said trying. I didn't say, succeeding.
Will Baude: All right. So, the Chief says “The Chief would deny the application, but with no comment.” So, I guess if Justice Barrett doesn't have to comment on why she thinks this case is different, he doesn't have to comment on why he thinks his case is the same. Justice Kagan has a dissent.
Dan Epps: Were you surprised by that though that he just has this-- When there is an actual opinion of the court, it's not just-- We see this all the time on actual orders where it's like two paragraphs.
Will Baude: I'm not surprised in the sense that if he didn't say that, we would otherwise assume this is 6-3. And both Barrett and the Chief have switched from their earlier position.
Dan Epps: Yeah.
Will Baude: And so, if you had not, in fact, switched, I think it's not surprising just to indicate that.
Dan Epps: But this is one of those weird things where it wouldn't necessarily be 6-3, because they don't have a syllabus at the beginning who says, “Who joins what?” Someone can not join, but not dissent and note their dissent.
Will Baude: But people might just infer it.
Dan Epps: Yeah.
Will Baude: And especially, if you subscribe to the view that the Chief is the most likely person to switch his vote for some political legitimacy purposes, which I think is not an accurate model of the Chief, but if that is your model, then he might just want to indicate, “By the way, it's not true.”
Dan Epps: What are you talking about?
Will Baude: What do you mean?
Dan Epps: Has he done that before?
Will Baude: No. [Dan laughs] Never. Never. All right. So, Justice Kagan has a dissent that's on discretionary shadow docket grounds. It is a mistake for the Court to grant this emergency application not exactly disagreeing on the APA point, but just saying, “The government doesn't defend the legality of the ultimate cancellations here.”
I do think this is going to cause irreparable injury. It's forcing them to curtail their teacher training programs. The issue about whether this goes to the APA or the Court of Federal Claims is tricky. It's not obvious that Great West is controlling. So, the Court's reasoning is, at the least underdeveloped and very possibly wrong. The risk of error increases when the Court decides cases as here, with bare bones briefing, no argument and scarce time for reflection.
Sometimes the Court must act in that way despite the risk, and there will, of course, be good faith disagreements when that is called for. But in my view, nothing about this case demanded our immediate intervention. So, it's just like a on balance, I would prefer not to have as many of these shadow docket rulings, where we're making major claims about administrative law on a two-week timeline.
Dan Epps: Yeah. You skip the next sentence though, where she makes clear she likes emergency docket. “Rather than make new law on our emergency docket, we should have allowed the dispute to proceed in the ordinary way.”
Will Baude: Yes. She called it the shadow docket in her SB8 dissent, right?
Dan Epps: Yeah.
Will Baude: So, now she's switched.
Dan Epps: Which Justice Kavanaugh did not like in my memory.
Will Baude: We can call it the emergency docket if you want.
Dan Epps: I don't care. [Will chuckles] I care only insofar as it needles you and gets people to stop citing your article. You've gotten enough cites. Okay.
Will Baude: Read the sequel called the Emergency Docket.
Dan Epps: [laughs] Okay. So, she just writes for herself. She doesn't join the other dissent by Justice Jackson, that Justice Sotomayor does join. The Jackson dissent is longer, more outraged, I would say.
Will Baude: Yeah.
Dan Epps: Why do you think she just wants to write this short little thing?
Will Baude: Well, so, it could just be she genuinely is not like she read the dissent and thought, “Yeah, this is pretty persuasive. But I'm not sure if it's right and I would need more time to figure out who's right and who's wrong.” In that sense exactly as she says. This is a hard question, and this is kind of what we shouldn't be resolving on the shadow docket. That's my suggestion.
Dan Epps: Yeah, just makes sense. Okay. So, the Justice Jackson dissent quite long and it's interesting. I think she is really trying to set herself up as a leading critic of how the Court uses the shadow docket.
Will Baude: Sure.
Dan Epps: She seems to be trying to build a jurisprudence there. I thought it was an interesting opinion. She frames it as-- There's a lot going on, but let's focus on the underlying merits of the legality of what the government did here. She wants to frame this jurisdictional question as, what she calls, an auxiliary issue, that's a distraction.
Will Baude: Yeah.
Dan Epps: What did you think about that? I'm not totally in favor of what the Court did here, but I wasn't totally in favor of that framing. I don't think if the Court below does not actually have power to order the relief, that does seem like the thing to focus on.
Will Baude: Yeah. I guess it just depends so much on what the Court is trying to do here. So, I think if you're thinking of this as like the cert docket, then you would say like, “What matters is the legal issue.” So, there's a hard legal issue and the lower court got the legal issue wrong and we'll reverse some legal issue. It doesn't matter whether behind that legal issue are contained other unmeritorious legal issues. Like, the Court can grant a circuit split on some jurisdictional question. It doesn't care that behind the jurisdictional question lies some stupid claim, they don't care about.
Dan Epps: Yeah.
Will Baude: And that's I think what the majority would say in response to Justice Jackson. But if they're doing something unusual, if the whole reason they're blowing through normal timelines for appeal and the normal level of certainty they'd expect on these jurisdictional questions is because something really important and ultimately wrong is happening here, then it's not as crazy for them to ask like, “Is the ultimate thing that's happening here, how wrong is it?”
Dan Epps: Because that would be relevant to the stay factors?
Will Baude: At a minimum, be relevant to the public interest in the balance of the equities. So, if you concluded that on the merits the government should win this case, because it shouldn't be filed in this Court. But it should lose the same cases when they're filed in the court of federal claims, a little bit from now, that is technically a victory on the merits. I guess it's not totally clear it's an irreparable injury, because the point would be the government's going to have to pay that money back either way. And then, when you get this balance on the equity, it's like how important is it to charge in here and stop it just to make sure that the correct court does it later? It's not as clear how important that is.
Dan Epps: Okay. We're spending a lot of time talking about the first thing, as we often do. So, let's go on. What's next?
Will Baude: Like, a whole another opinion?
Dan Epps: Well, how about a whole other order?
Will Baude: Okay. Oh, yeah. So, this is where our attempt to keep track all these things was tricky. So, we also have an order also in the DOGE funding branch of the Trump shadow docket in Office of Personnel Management v. AFGE. This one does not get a per curiam opinion, but it features a preliminary injunction out of the district for the Northeast of California that effectively ordered the rehiring of a whole bunch of terminated probationary employees.
And the Court, well, maybe 7-2, the Court, over two dissents, [chuckles] reverses the injunction or issues a stay of the injunction and says, “The district court's order is stayed pending the disposition of the appeal in the Ninth Circuit.” The district court's injunction was based solely on the allegations of the nine nonprofit organization plaintiffs in this case. But under established law, those allegations are presently insufficient to support the organization's standing, Clapper v. Amnesty International, no pin cite. This order does not address the claims of the other plaintiffs, which did not form the basis of the district court's preliminary junction. Justice Sotomayor-- [crosstalk].
Dan Epps: The Harvard Law editors in the room just shuddered when you said no pin cite.
Will Baude: [chuckles] Justice Sotomayor would deny the application. Justice Jackson would have declined to reach the standing question in the context of an application for emergency relief, where the issue is pending, the lower courts and the applicants have not demonstrated urgency in the form of interim reputable harm see her DOA dissent.
Dan Epps: Which we just talked about.
Will Baude: Yeah.
Dan Epps: Yeah. So, interesting here. Under established law, those allegations are presently insufficient.
Will Baude: Yeah.
Dan Epps: You wonder if given that it's not clear that Justice Kagan dissented. She may have joined, she may have just done nothing and decided not to note her view. But maybe that's the kind of language that she asked for?
Will Baude: Oh, maybe. I was reading it as more-- As we look at the record, what the district court used to get to find standing was not enough. But you could come up with more. Like, if you come back-- [crosstalk].
Dan Epps: Yeah. But she might want that and the others might want to just get rid of it.
Will Baude: I saw the speculation that she clearly didn't join this part of the opinion, but I don't think we know whether that's true or not. So, it's a standing-- Yeah, it's a 7-2 standing reversal.
Dan Epps: Okay. So, lots we could say about that. Briefs are pretty interesting, but we should go on and talk about the next category of shadow docket stuff that has happened. By the way, you wanted to also talk about a merits opinion. I said, no. That would have been a terrible call to try to do that given how much [Will laughs] is going on and how much time we want to spend on these things. So, immigration stuff. Maybe the first thing we should talk about is something where the Court has largely not acted yet.
Will Baude: Okay.
Dan Epps: Noem v. Abrego Garcia.
Will Baude: Okay. Are you sure they haven't acted yet?
Dan Epps: Yeah, I'm a little nervous. This matter is pending. There's been an administrative stay issued by the Chief Justice. The cases may be fully briefed. That's a little complicated. It could be decided at any moment. If the audience knows, everybody wave their hands and we will try to react in real time, which would be a disaster.
Okay. So, this is a case that's gotten, I'd say, a ton of media attention of the Trump administration's actions. Maybe more media attention than almost anything else other than tariffs.
Will Baude: The other immigration case has gotten a lot of attention.
Dan Epps: Yeah. But this one a lot.
Will Baude: Yeah. All right. So, Mr. Abrego Garcia is here from El Salvador. Five years ago or so, six years ago or so, was in removal proceedings where he got a stay of removal saying that he could not be removed to El Salvador, because he would be likely to face persecution there by the El Salvador government.
Dan Epps: And he's been accused of being a gang member.
Will Baude: Yes. He was accused of-- At the beginning of that process, the Court found probable cause to believe he was a member of MS-13, because an informant said he was part of the MS-13 cell in New York, although he apparently has not been to New York.
Dan Epps: And he was wearing a Chicago Bulls hat.
Will Baude: Yeah. And jersey.
Dan Epps: Yeah. Okay. Okay.
Will Baude: Highly suspect.
Dan Epps: Fair enough.
Will Baude: Okay. So, he had a stay of removal proceedings. So, he was living his life. He had a work permit. And then, one day, he is picked up, told falsely that his status has changed and sent to the maximum-security prison in El Salvador. After that-- [crosstalk]
Dan Epps: Without any opportunity to challenge that-
Will Baude: Yes.
Dan Epps: -before it happens.
Will Baude: After that, eventually, his wife figures out where he's gone. I think she sees him in one of the videos or pictures of the facility. So, his immigration lawyer files suit in the District of Maryland saying, “Bring him back.”
This actually happens not infrequently in immigration. There are people who are wrongfully removed, and then the government has established procedure for trying to bring them back. This came up, I don't remember, this a couple years ago. The Court talks about this process in the Nken v. Holder, one of its early landmark opinions on the stays pending appeal.
And then, four years later, the Court had to go back and quasi—the SG had to go back and quasi confess error, because they had said, “We always bring them back when we wrongly deport them.” And they were like, “Well, it's not really always. It's an irregular process. We try to bring people back, but sometimes it doesn't work.” And so, it was an awkward moment. But apparently, it is time for a new confession of error, [chuckles] because the government's new position is, “We are not interested in bringing him back, and you can't make us.”
Dan Epps: Yeah. And in the lower court litigation, the career attorney who is representing the government basically said, “This removal was an error. I don't know why it happened.” And as a result, it has been placed on administrative leave by this administration.
Will Baude: Yeah. I'm not sure exactly which of the things he did, got him placed on leave, but yes, I think the government still says it was an administrative error to remove him. They say, “We knew about the order. But because of an administrative order, we removed him anyway.” I gather he was in some way like an alternate for the flight, and they maybe didn't check the alternates very carefully, and then at the last minute, they lost somebody else for the flight and they just put them on the flight.
And then, the government at the district court said, “Well, it answered a lot of hard questions.” The judge said things, like, “Well, I don't know, your honor. I've asked my clients, and they haven't told me, why we can't do this. I'm hoping I can talk to them again and we can work this out.” So, the district court ordered the government to facilitate and effectuate his return by the end of the day on Monday.
Dan Epps: Very tight timeline.
Will Baude: Mm-hmm. The government immediately placed the line attorney on administrative leave and relieving him of all his duties, filed an emergency stay of appeal in the district court and in the Fourth Circuit, and then immediately placed on administrative leave the attorney who had filed those briefs, who's been supervising a bunch of these immigration cases, for failure to adequately supervise his subordinates. They let him file the emergency-- [crosstalk]
Dan Epps: They're going to run out of attorneys, eventually.
Will Baude: Well, [chuckles] the Fourth Circuit denied that with three judges all voted to deny it. Two of them joined an opinion that said, “More or less, this is incredibly lawless and inhumane. Shame on you.” And one of them, Judge Wilkinson, wrote a separate opinion that said, “This is a hard question, and we can't really just let the government send people to foreign countries illegally with no process. But also, we can't tell the government what to do when it comes to foreign policy.”
So, he construed the district court opinion narrowly to mean the government has to try to get him back, but they don't have to succeed and not clear how hard they have to try, but they have to do something.
Dan Epps: Yeah. I would imagine if that is the final result in this case, the administration will say, “We sent a letter, we tried, it didn't work.”
Will Baude: Yeah. Maybe we were landing. And then, as of the time we're recording this, then the SG took them out of the Fourth Circuit-- [crosstalk]
Dan Epps: To the Supreme Court.
Will Baude: To the Supreme Court. Sorry. And in the interim as of Monday, I think also we now have an SG, John Sauer, Trump's personal attorney in the immunity case, who also wrote the weird Trump TikTok amicus briefly we talked about before he was president.
Dan: Boasting about how great President Trump was at social media.
Will Baude: Yeah. They are now the ones papering this in the Supreme Court. And then, I thought very interestingly in the sur reply in the Supreme Court, they for the first time-- [crosstalk]
Dan Epps: In just the regular reply.
Will Baude: The regular reply. Thank you. They say, “All those factual representations that our attorney made at the district court level, they do not represent the position of the United States. He's gone, like forget that guy ever happened,” which I think is not a thing normal clients get to do. Like, if you're attorney- [crosstalk]
Dan Epps: Yeah, you're bound.
Will Baude: Like if your attorney [crosstalk] sessions, you can't be like, “I fired my law firm and I have a new position on appeal.” I guess you could try, but normally you're bound by what your lawyer does below. And they say, “He, after all, was not privy to information about why we did this. But we in this office, we now have reason to believe that there are reasons that we can't ask for his return from El Salvador. El Salvador may have its own reasons for wanting to detain him.” They say that in the reply brief for the first time.
Again, a normal litigant can't say, “Well, I didn't tell my attorney the real reasons I did this. But now on appeal, I guess I got to tell you, like, don't listen to anything my attorney said, because I was-- [crosstalk]
Dan Epps: And then, without actually explaining to the court what the real reasons are.
Will Baude: Right. But this is the kind of slack the SG normally gets some of-- No, I don't know exactly-- [crosstalk]
Dan Epps: Maybe because we have the new actual SG coming online, the court might be a little bit more forgiving. But we do have the lawyers for Abrego Garcia have now filed a motion to file a sur-reply to respond to these two new arguments.
Will Baude: Yeah. Although mostly what they say is like, “WTF, you can't make new factual assertions contradicted by your concessions below for the first time in a reply brief of the Supreme Court,” which I guess is obvious.
Dan Epps: Yeah, that is normally the way it works.
Will Baude: But do you think it's going to work that way here?
Dan Epps: I think maybe what the Court will do is just let them file the sur-reply and then just treat it as if it was something advanced in an opening brief.
Will Baude: Yeah. I think they might just leave the sur-reply pending and then once they rule, they can-- [crosstalk]
Dan Epps: Deny it as moot or--
Will Baude: Yeah.
Dan Epps: Okay.
Will Baude: This is a case where, if I were on the Court, you might want to have argument just in part, so you can make the SG show up and ask him what the hell's going on. Because when you do it in writing, you can be a little weaselly. So, you can say like, “Have you or have you not talk to El Salvador about this matter? Are there or are there not national security concerns?”
Dan Epps: Yeah. And what is the relationship? There's this allegation that the government is paying El Salvador for his detention.
Will Baude: Yes.
Dan Epps: The government's briefs have very consciously disclaimed any willingness to tell us about the specifics of those arrangements.
Will Baude: Right. It is funny. Because this case has gotten so much media attention, there are several surreal aspects to this case. So, at one point in the lower court briefing, in response to the claim of, “Well, what do you expect us to do? It's El Salvador. We have no control over El Salvador.”
Abrego Garcia’s lawyers pointed out, “Look, after this case was filed, one of the defendants, Secretary of Homeland Security, Noem, went to the prison and was recorded on video talking to people. So, she could have asked about our client while she was there, maybe try to get him back.” Now, of course, she didn't do that. Like, the idea that she would do that is almost funny. But that just shows how not seriously the government's taking this.
Dan Epps: And how there does seem to be some close relationship here.
Will Baude: Yeah. And then, I think the president of El Salvador also tweeted about this case. I think he tweeted a picture of a confused rabbit in response to the district court holding. I don't know what that means, but I take it-- The specter that at this stage of the game, they really might be interested in not complying, if only to prove that they can is real.
Dan Epps: Well, I think it's quite likely that by the time you listen to this episode, listeners at home, we will have more information, maybe a final answer about what's going to happen in this case. I do think that the resolution of this case maybe will tell us a lot about the bigger picture about how the Court is going to be approaching these cases.
Will Baude: I predict that a majority of the Court will in some way pull a Judge Wilkinson. There are ways you can do that could be framed different ways. Like Judge Wilkinson say, “We construe the district court's order not to specifically say the defendants have to move heaven and earth and do everything they can to bring him back, but they got to do more than nothing. They got to at least act like they would like to if they could, or something.”
You could actually do that as a reversal and part affirm in part, you could say the district court's order really has two parts facilitation and effectuation, and effectuation is reversed, facilitation is affirmed or something. But I guess I predict something in that space that's more than too bad so sad, but is less than confidence that Abrego Garcia will be home.
Dan Epps: Yes. Send in Navy SEAL Team Six or something and break him out.
Will Baude: Right.
Dan Epps: Okay. Trying to pick up the pace. Another immigration matter, Trump v. J.G.G.
Will Baude: Yeah.
Dan Epps: What happened here?
Will Baude: All right. I was going to say, this is probably the most prominent of the cases that we have, the one that's gotten the most media attention has been pending. But this is a case about the Alien Enemies Act, a very old statute that the president issued a proclamation under proclaiming members of the gang Tren de Aragua to be alien enemies, which makes them subject to expedited and immediate removal.
Dan Epps: And this statute had previously only been invoked during times of war.
Will Baude: Yeah. Well, the statute says, you'd only invoke it against a foreign nation that is at war or a military incursion with the United States.
Dan Epps: But basically, only during the War of 1812 and World Wars I and II.
Will Baude: Yes. And so, the proclamation says, “The government of Venezuela, through its alter ego, the gang, the Tren de Aragua, is in fact invading the United States right now. And I have to use the Enemy Alien Act to get rid of these enemy combatants who are infiltrating the country.”
This proclamation was also signed and then not published. There's a whole weird middle of the night aspect to this where they succeeded at removing a lot of people, Venezuelans to the El Salvadorian prison in reliance on the Enemy Alien Act before people knew about it. The lawyers thought this was coming, and so they filed for an emergency TRO in D.C. in front of Judge Boasberg, some of which then led to some further ambiguities on showdown.
Judge Boasberg, at an oral hearing, when told some of these people were on planes, told the government it had to turn the planes around, and then later said, “Well, you got to get them back somehow. Whether that's turning the planes around or not letting them off the planes when you land, and then turning the planes around after they land.” You got to do it somehow. The government didn't do that. And so, there are currently ongoing or were ongoing contempt proceedings in front of Judge Boasberg about, can he do that? Did they disobey an order, etc.
Meanwhile, this bubbled up at the D.C. Circuit and out of the US Supreme Court, which says “5-4 that Judge Boasberg should not have heard this case at all, because the proper vehicle for a challenge to the Enemy Alien Act is habeas corpus in Texas and not the Administrative Procedure Act in D.C.”
Dan Epps: But preserving some ability of the detained people to challenge their removal.
Will Baude: Preserving or even creating.
Dan Epps: Yeah.
Will Baude: Right. So, the court says, “Although judicial review under the AA is limited, we have held that an individual is entitled to judicial review as to questions of interpretation and constitutionality of the act, as well as whether he or she is, in fact, an alien enemy 14 years of age or older.” So, this seems to preserve the questions of, there are people who've been removed who say, “Look, I'm not in the gang. I'm not in Tren de Aragua, I have a tattoo with a crown on it. That doesn't mean I'm a gang member. Or, I'm wearing a Chicago Bulls hat, it doesn't mean I'm a gang member.” It also preserves the question of, is there in fact an invasion from Venezuela occurring, or is that something the president made up?
Now, maybe that's supposed to be a political question. That's another sort of hard question. But all those things are still on the table. And the Court even then adds that “AEA detainees must receive notice after the date of this order, this opinion they're issuing, that they are subject to removal under the act, and the notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
Dan Epps: So, in that way, it's not a total-total win for the administration. It is useful to the administration, because arguably what some people are saying is happening is the administration is moving detainees to a favorable jurisdiction in the Southern District of Texas, where it's suspected that their claims will be looked at with a little bit more skepticism than in D.C.
Will Baude: Yeah. Another consequence, I think, of the change in forum, I mean, two other consequences are just immediately that probably, although not definitely, vaporizes the contempt proceedings in front of Judge Boasberg, which were probably going to be pretty awkward, because the government probably did intentionally violate a court order, and nobody wants to think about that.
Now, maybe you could still be held in contempt for violating an order in this context depending on a series of other procedural things, but it makes that go away. I think it makes it harder to get a class action in habeas than it would have been.
Dan Epps: Yeah, I was wondering about that.
Will Baude: I'm not positive about that. I think the ACLU may be trying to do that anyway way, but I think it makes it harder. So, it changes the forum. But it does stop-- I think the thing the government wanted to do, the whole point of the Alien Enemy Act proclamation was to avoid having hearings at all. The idea was issue the proclamation and shuffle people onto planes as fast as possible, so that by the time anybody even knows what’s happening-- [crosstalk]
Dan Epps: And then say, we can't get them back, right?
Will Baude: Well, yeah, that'll be the next question.
Dan Epps: Yeah.
Will Baude: And even now, that's the question. So, now they've been told you can't do that, you've got to tell them and give them time to file habeas petitions in Texas. Well, what if they don't? What if after this petition comes out, somebody says, “Look, they just put me on a plane before I could do anything”? Now, does the government get to say, depending on what happens in Abrego Garcia, “Yeah, that's true. And it was a mistake. We're sorry, but what do you want us to do about it?”
Dan Epps: This is scary. If they can do this, people have said, and in this case, Justice Sotomayor raises the concern, what's stopping them from doing it to citizens if there's no review? Just grab a citizen, send them to El Salvador and then say there's nothing we can do about it.
Will Baude: Yeah. Now, I do think in Abrego Garcia, the remedy case, the Court could say something like, “The government doesn't have to try to get somebody back who in fact had no legal right to be here and who was only here in the context of a stay of removal to a specific country,” that is there would have been nothing unlawful about deporting Mr. Abrego Garcia to some other country that would have him where he wouldn't be persecuted, if there is such a country.
But they could say, “Look, obviously for a citizen, it'd be different.” The government has a duty to rescue all of its citizens no matter where they are. And yes, maybe even including sending on SEAL Team Six, if there were American citizens wrongfully incarcerated somewhere. They could say that, or they could at least leave that open. But I think it's right that the way how tolerant they're going to be of the question of, is there no remedy for an illegal removal is relevant to how scary this is.
Dan Epps: Okay. Separate opinions. We do have one of these short concurrences by Justice Kavanaugh that we see a lot. They do read to me at this point as a little defensive. He always wants to say, “Come on, come on, it's not such a big deal. We're still preserving an option. Habeas is great for this.”
Will Baude: So, there's a substantive point here which is, I think, true and interesting, which is he says, “Look, we got a lot of law on this in the D.C. Circuit from the Guantanamo days.” There were, we used habeas a lot as the vehicle for the fight about if they were being rendered to a country improperly or not. And so, saying, you got to go to use habeas is not like some weird thing we invented. That's the time-tested way we deal with this.
I do think there's some truth to that and there are some interesting parallels. Steve Vladeck had a post in his Substack about some cases about constructive custody and constructive confinement, because there were some D.C. cases about, what do you do if we're asking a foreign country to hold somebody on our behalf, maybe so they can do things to him that we wouldn't be willing to do ourselves. Sometimes the Court said, “Well, that's constructive custody because you're acting as our agent.” So, this could be relevant here.
But as I lift some of these cases, I will say this is going to sound…maybe people will get mad at me for this, looking back at a lot of the things the D.C. Circuit said about due process in the Guantanamo context, not all of it has aged super well. I don't know. So, Justice Kavanaugh cites this opinion, Kiyemba v. Obama, where he was on the panel and wrote a concurring opinion, which is about, can you stop the government from transferring you someplace where you're going to be tortured? Where the court says, “Well, it will be illegal to transfer you someplace you're going to be tortured.”
So, if the executive branch tells us that it wouldn't happen, we believe them. [Dan chuckles] Which as a matter of like strong form political question doctrine, I understand the logic. But now the Trump administration is doing this, now the Trump administration is having their SG say, “Oh, we promise. It's fine.” I wonder if all the Justices still feel the same way.
Dan Epps: Yeah. So, this one is 5-4. We have dissent by Justice Sotomayor with whom Justice Kagan and Justice Jackson join in full and with whom Justice Barrett joins as to parts of the opinions. And the parts that she joins are Part 2, which reinforces the stuff in the per curiam, which said, there does have to be notice and opportunity to seek relief. And then, Part 3B which contests the per curiam's arguments about why habeas must be the exclusive remedy.
Will Baude: Yeah. So, she reinforces the due process part and at a minimum is dubitante on the habeas holdings.
Dan Epps: And then, we have a separate solo dissent by Justice Jackson, which again goes off on her procedural posture, let's not intervene, shadow docket thread that she's pulling.
Will Baude: Yeah, although with a Korematsu kicker.
Dan Epps: Yes.
Will Baude: At least when the court went off base in the past, it left a record so posterity could see how it went wrong. See Korematsu, no pin cite. With more and more of our significant rulings taking place in the shadows of our emergency docket, I like the merger there, [chuckles] today's Court leaves less and less of a trace. But make no mistake, we are just as wrong now as we've been in the past with similarly devastating consequences. It just seems we are now less willing to face it.
Dan Epps: So, I see we're running out of time and I'm told that people are going to start fleeing for class any minute now. So, maybe we should just wrap up by my question about the bigger picture in our little shared note. I flagged an op ed from the Wall Street Journal editorial page called Trump's Triple Win at the Supreme Court that looks at these orders we've been talking about and reads them as the court saying, “Lower courts, stay in your lane, stay away from the administration. That's not for us.” Maybe I think we can't really evaluate that yet. I think we can evaluate that in a couple weeks, maybe month. I don't know.
Will Baude: Yeah, I agree. I think this is one of those cases where part of what the Court is doing is sowing a certain degree of uncertainty. Maybe on purpose that I think if you thought lower courts, we all recognize this administration is totally out of whack and the Supreme Court is going to put them in whack ASAP. Like, slow down. Like, don't think that just like finding some way to get these cases to judgment as fast as possible is going to help. Don't do that.
Now, if you thought that we were going to say everything is totally fine and totally legal, that's too soon to tell about that either. The administration has won only these procedural victories. And to the extent, the court has talked about the ultimate merits, it has been unfavorable to the administration where that still leaves a large spectrum for things to play out. And so, that might even be an intentional set of signals. These things do still have to play out through the courts, but you can't cut corners. And if anything, you got to give the administration a ton of slack before you try to rein them in.
Dan Epps: All right. Well, I think we are out of time, so why don't you lead us out?
Will Baude: All right. Thanks for listening. Thanks to the Harvard Law Review for hosting us here in Cambridge, Massachusetts. Thanks to all of you in the live audience for showing up and hearing us talk.
Dan Epps: Please rate and review the show on the Apple Podcast app or wherever else you get your podcasts. Please share the show with everyone you know. Always trying to boost our audience. Go to our website, dividedargument.com. We post transcripts of the episodes. Store at dividedargument.com for merchandise. blog.dividedargument.com, where we have a Substack with a larger community of contributors that is trying to write medium length blog posts on emerging legal issues. I think it's really exciting. Send us an email, pod@dividedargument.com, leave us a voicemail 314-649-3790.
And if there is a long delay between this and our next episode, it will be because of Will has been declared an alien enemy because of his efforts to render the president ineligible for the presidency under Section 3 of the 14th Amendment.
Will Baude: It's not too late.
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