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Panel I: Challenging Trump

Cato Institute — 25th Annual Constitution Day Conference

Panelists:

• Carmen Iguina González, Deputy Director for Immigration Detention, ACLU National Prison Project
• Erik Jaffe, Partner, Schaerr Jaffe LLP
• Jeffrey Schwab, Senior Counsel and Director of Litigation, Liberty Justice Center

Moderated by Molly Nixon, Senior Fellow in Executive Power, Cato Institute

Opening Remarks

Tommy Berry: Hello and welcome everyone, both here in person and online, to our twenty-fifth annual Cato Constitution Day Conference. Every year on Constitution Day, we celebrate the Constitution by releasing a new edition of the Cato Supreme Court Review, and here we have it, hot off the presses — the first and fastest volume of legal scholarship on the Supreme Court’s just-completed term. And for the third year in a row, we have also released our Illustrated Supreme Court Review. Here we go — boom — whose editor is James Craven.

My name is Tommy Berry. I’m editor-in-chief of the Cato Supreme Court Review and director of the Robert A. Levy Center for Constitutional Studies here at the Cato Institute. As always, at our Constitution Day Conference, we’ll have three panels on the just-completed term, one panel looking ahead to the next term, and our keynote, which this year will be delivered by Tara Grove, the Vinson and Elkins Chair and Professor of Law at UT Austin School of Law. For those of you following online, you can join the conversation on social media using the hashtag CatoSCOTUS — C‑A-T-O-S-C-O-T-U‑S.

Here at Cato’s Constitutional Studies Department, we freely confess our biases. We view the Constitution from a Madisonian perspective as a document that protects individual rights against government overreach and that strictly separates the powers of government so that they check and restrain one another. We also reject the tired dichotomy of judicial activism versus judicial restraint. We urge judges to engage with and follow the law, which includes, most importantly, the Constitution. If that means invalidating a statute or a regulation, it’s the judiciary’s duty to do so without putting a deferential thumb on the scale in favor of the elected branches. At the same time, judges should not be outcome-oriented. Some decisions may lead to a bad policy outcome, but that’s not an argument that the decision was legally wrong. Indeed, we think any rigorous legal philosophy must sometimes lead to policy outcomes a judge doesn’t prefer, or it’s not really a legal argument at all.

But we don’t want the Cato Supreme Court Review to be an echo chamber. Not every author you’ll hear from today would necessarily self-describe as an originalist. Certainly not everyone would self-describe as a libertarian, and that’s as it should be. If we wanted the Review to say exactly what Cato thought on every issue, we could just reprint the amicus briefs and op-eds that we’ve written throughout the year. Instead, we invite a stellar lineup of authors, give them the freedom and trust to write what they want on this year’s biggest cases, and as always, they did not disappoint.

Both this edition of the Cato Supreme Court Review that you hold in your hands and this conference took an enormous amount of work from many, many people. I want to first and foremost thank all of our authors, most of whom had literally one month, start to finish, to write a law review article, which is basically unheard of. Also, the primary thanks within Cato go to our managing editor, Laura Bond, and Carmen, who put in more time than anyone on making the Review a reality. Thank you to my colleagues Clark Neily, Walter Olson, Dan Greenberg, Molly Nixon, Matthew Cavedon, and Mike Fox, who all provided great help in editing the Review and in picking up the slack for me on other work while I was buried in edits and unitalicized periods. Thank you to legal associates Samuel Rutsek, Kimberly Coleman, Harrison Prestwich, Garrett Flynn, and Samara Hassan for their work in editing and site-checking. Thank you to Cato research associates Arpit Rao and Mira Harris, and Cato intern Miles Clutter, for their work on editing and typesetting as well. We also relied on wonderful editing from the many copy-editing professionals at Pubs Pros, and the physical book that you hold in your hands, believe it or not, was all typeset and printed within just the last week by the amazing printing professionals at R.R. Donnelley. Thank you to Eleanor O’Connor in Cato’s publishing department, Brandy Dunn in our marketing department, and May MacLeod, who put together the cover, which some of you might notice, if you’re repeat attendees, has been refreshed this year with a picture of the Supreme Court on it for the first time — we think it’s a nice, modern spin.

This conference also came together through the tireless efforts of many Cato staff: Ryan Moore, Kiana Graham, Moi Saint Ong, David Tassy, Jonathan Fields, Darren Walker, Elcid de Monteverde, Roshni Asher, John Myers, Linda Osu, Cecil Sherman, Savannah Beatley, Sam McKinney, Jose Medina, Alex Frank, Kevin McKinney, and many more.

Now, a few logistical notes before we get started. Lunch will be served in the conference rooms — those are one level up from here — at noon, directly after this next panel. If you just follow the person in front of you, you’re unlikely to get lost. There are single-stall bathrooms here on this floor, but there are larger bathrooms both one level up and one level down, so if there’s a traffic jam here, please consider trying another floor. And as you get our tasty snacks and drinks throughout the day, please be aware food and drink are not allowed here in the auditorium — it was renovated relatively recently, and we’re still trying to keep it looking nice for at least a couple more years. Also, because we live-stream our panels on a two-minute delay, every panel will actually start two minutes early here in the auditorium — so the first panel will be starting, for example, at 10:43, not 10:45. One minute from now.

So, in a nutshell, you’re going to hear about cases coming up challenging the Trump administration. I’ll set the table a little bit by suggesting that a lot of the media’s coverage this year of the big cases boiled down to simply one question: who won? Did Trump win, or did Trump lose? And for most people, that’s as deep as the analysis goes. Some people might like it if Trump wins, some people might like it if Trump loses, but when you dig a little bit deeper, I think you see that there’s a lot more going on in these particular cases, and you really have to ask more nuanced questions. Is what the administration was trying to do completely novel? Is it unheard of? Is it a claim to a truly unprecedented exercise of presidential power, or was the Supreme Court’s decision perhaps in line with a trend it had already been going in?

For example, later on, we’re going to hear on my panel about the FTC v. Slaughter case, about presidential removals and the so-called unitary executive theory. That’s a case where, although the headline again was “Trump won,” in fact the reasoning was very much in line with cases that the Supreme Court had been deciding under both the George W. Bush and even the Barack Obama administrations — not so much unique to President Trump, either in the arguments of the administration or in the majority opinion. So these are just some of the running themes to think about as you hear about the cases going on.

I’ll now call up our scholar in executive power, Molly Nixon, who will be moderating the first panel on challenging Trump. Molly?

Panel Introduction

Molly Nixon: Thank you, Tommy, and thank you everyone for coming. Thank you everyone watching online, and thank you to our panelists for taking the time to join us today. We’ll be discussing three cases in which the plaintiffs — some of whom were represented by people on this stage — challenged the government, and we will jump into those after I introduce our panelists.

To my immediate right, we have Jeffrey Schwab. He’s Senior Counsel and Director of Litigation at the Liberty Justice Center, where he focuses on enforcing constitutional limits on government power, particularly in cases involving free speech, economic liberty, and the rights of ordinary Americans and small businesses. He was lead counsel at the Court of International Trade and the Federal Circuit in V.O.S. Selections v. Trump, challenging the administration’s emergency tariffs, and counsel at the Supreme Court, where the case was consolidated with Learning Resources v. Trump. Jeffrey received his BS in Business Management from Grove City College and his JD from the University of Michigan Law School.

To his right is Erik Jaffe. Erik is a partner at Schaerr Jaffe LLP. Jaffe has been involved in appeals on a broad range of legal issues. He has been involved in over two hundred Supreme Court matters, including filing thirty cert petitions, representing half a dozen parties on the merits, and filing over one hundred and fifty amicus briefs at both the cert and merits stages — including as counsel of record on behalf of Neutral Principles in its amicus brief in the birthright citizenship case, Trump v. Barbara. Erik graduated from Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit and to Supreme Court Justice Clarence Thomas.

To my far right, we have Carmen Iguina González. She’s Deputy Director for Immigration Detention of the ACLU National Prison Project, where she plans, manages, and helps direct litigation efforts and strategies on issues related to immigration detention. She was counsel for one of the respondents in the temporary protected status terminations case, Mullen v. Doe, which she’ll be discussing today. Carmen clerked for U.S. Supreme Court Justice Sonia Sotomayor, Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit, and Judge Kiyo Matsumoto of the U.S. District Court for the Eastern District of New York, and graduated from New York University School of Law — my alma mater as well.

So let’s jump right in. I should also note, before we start, that if you have questions as the panelists are speaking, please take a minute to jot them down, because we will have time for questions later. So we’ll jump right into Learning Resources v. Trump with Jeff.

Learning Resources v. Trump — Tariffs

Jeffrey Schwab: Well, thanks, Molly. I appreciate the invitation from Cato, and I’m here to talk about tariffs, and I guess where we’ve been in the last year and a half, which is — we’ve come a long way and used a lot of statutes to impose tariffs in unique and unprecedented ways.

But let’s take you back to April of 2025. If you’ll remember, “Liberation Day,” when the president imposed tariffs on the whole world at between ten and fifteen percent. His justification for doing so was a statute called IEEPA, the International Emergency Economic Powers Act. IEEPA does not say anything about tariffs, so what was the justification from the president? Well, IEEPA uses the term “regulate importation,” and the president thought that meant impose tariffs. Now, if you think about it, and you see in the Constitution that Congress both has the power to impose tariffs and also the power to regulate, and those are two separate things, you might think that this case should have taken about thirty seconds to decide, and that would be it. But unfortunately, that was not the case. There’s a little bit of history that makes it somewhat complex.

Although I’m not an economist or an economic historian, I’ll try to get into this history and hopefully explain it in a way that makes sense to everybody, because it’s a little bit dense. Back in the ’70s, after President Nixon took us off the gold standard, we had an emergency economic problem, and the president imposed tariffs without really thinking about what justification he had for doing that. So people sued, and they won in the district court — at the time, a different court. The court said, “Well, what’s your justification for this?” The president sort of justified it, back-end, by saying, “Well, there’s a statute called TWEA” — which allows the president to impose, or to regulate importation, in wartime. Relevant to this case, the most recent case, TWEA also contained the language “regulate importation.” So although the lower court said that was wrong, the predecessor to the Federal Circuit said, “We’ll give you a pass this time — it was kind of important, and we don’t really want to relitigate this. We’ll let it slide, but this is kind of a one-time thing. Don’t do this again.”

In the meantime, Congress did a lot of stuff. It revised TWEA to only apply in wartime. It enacted the International Emergency Economic Powers Act, which was supposed to apply in peacetime. Neither of those things were supposed to allow tariffs. But it did enact another law called Section 122, which did allow tariffs in limited circumstances. So Congress responded to the president’s need after the fact — that’s one of the reasons, by the way, that the predecessor to the Federal Circuit said, “We’ll let this pass this time,” because Congress had passed Section 122.

The reason that’s relevant is because, as I said, “regulate importation” — the predecessor to the Federal Circuit said that was okay for imposing tariffs. So that gave the administration some sort of precedent to say that, well, in IEEPA, where it has the same language as TWEA, that can mean impose tariffs. So that’s where we were.

I think this is a pretty straightforward question, because, one, the issue was different in the Nixon administration in that it was limited to a specific period of time. By the time it actually got to the court, those tariffs had been revoked. President Trump’s argument under the Liberation Day tariffs was that he could impose any tariffs he wanted under IEEPA, at any rate, at any time, for any reason — and if you’ll recall the time period after Liberation Day, he kind of did that. He changed them all the time for all kinds of weird reasons, and he just basically assumed that IEEPA gave him an unlimited tariff power. I think that’s one of the reasons the court was so skeptical: because Congress generally doesn’t just give the president all of its constitutional power in words that don’t actually explicitly say that.

So that’s where we were. The Supreme Court decided this case in February of this year, which is a very quick timeline. We went from the Court of International Trade — when we filed the case in April of 2025 — to the Supreme Court decision in February of 2026. Super fast timeline. I know maybe for non-lawyers that seems like almost a year, that’s a pretty long time, but in the legal world, that’s lightning quick.

Chief Justice Roberts wrote an opinion that pretty clearly says “regulate importation” does not actually mean “impose tariffs,” for various reasons, including that those are two different words, and it can’t mean that Congress sort of gave all of its power to the president. I think Chief Justice Roberts’s opinion is pretty readable and pretty straightforward — it’s about twenty pages. You might think, “Okay, well, I looked at the opinion, and it says it’s a hundred and eighty pages in the PDF. How in the world did you get from twenty pages to a hundred and eighty pages?” Well, that’s because a hundred and sixty pages of the opinion are concurring opinions and dissenting opinions, and I’d say about three-fourths of those are a very intense discussion about what the major questions doctrine actually means. That was actually one of the reasons I was interested in the case — Ilya Somin, a professor who writes at the Volokh Conspiracy, had written about this case and said, “Oh, I think actually this could implicate major questions and non-delegation,” and I like those things, so I reached out to Ilya, and he joined our lawsuit as a lawyer.

Molly Nixon: Do you want to give a quick explanation of the major questions doctrine and non-delegation, for—

Jeffrey Schwab: Yes. I will. The major questions doctrine basically says: when Congress delegates some sort of power of vast economic or political significance, it’s got to be basically clear — if it’s a major question, something of vast economic and political consequence, then Congress has to be very clear about that. Obviously, a tariff on the whole world is of pretty vast economic consequence, so we thought that’s pretty clearly applicable. The non-delegation doctrine is similar — it says Congress doesn’t delegate all of its power unless it’s very clear that it’s intending to do that. They’re sort of related.

So I kind of felt like a kid at Thanksgiving when you bring up a political topic, and then all the adults argue for like fifteen minutes — sort of like, “Oh, sorry I brought up the major questions doctrine,” because it was a lot of discussion. Actually, most of that was Justice Gorsuch’s concurring opinion, basically saying, “Aside from the Chief Justice, you guys are all hypocrites about the major questions doctrine” — calling out both the liberal side of the court, for saying it didn’t apply in this case but refusing to apply it in other cases, and the conservative justices in the dissent, for having generally joined major-questions cases and then basically rejecting it here.

So that’s the in-the-weeds discussion. But I actually think the case is pretty simple when you think about it. It’s just a question of whether “regulate importation” means “impose tariffs,” and I don’t think it does. I should mention another reason why it doesn’t: it says “regulate,” and then there’s actually a word in between — it’s “importation or exportation.” Well, you can’t regulate exports — even Congress can’t do that. So it seems unlikely that the term “regulate” means “impose tariffs,” since that would mean imposing tariffs on exports.

Molly Nixon: And they can’t do that under the Constitution, right? Even Congress can’t do it.

Jeffrey Schwab: Yeah, under the Constitution, so they can’t delegate that power to the president. I’ve heard the Gorsuch concurrence described — I think aptly — as a Frank Costanza, Festivus-in-Seinfeld moment, where he says, “I’ve got a lot of problems with you people, and here’s the concurrence where you’re all gonna hear about it,” and just went after everyone.

All right — I’ll turn it over to Erik.

Trump v. Barbara — Birthright Citizenship

Erik Jaffe: Sure. Hi, thank you for having me back to Cato — a longtime friend of the organization. I’m probably the person who provides the least intellectual diversity for Cato; I tend to agree with them on so many things, I’ve had them as clients. I’m quite both conservative and libertarian, but most importantly, I’m an old-school textualist, and that’s somewhat how me and my organization, Neutral Principles, got involved in the Trump v. Barbara case.

I find so many cases these days not to be that complicated. They’re actually quite simple, and are made complicated by people sort of forgetting the lessons of Judge Bork and Justice Scalia and all of us old-school Fed Soc folks who thought we had a revolution going on how one approaches language. In Trump v. Barbara, President Trump decided he didn’t like the long-standing precedent of what it means to become a citizen. To become a citizen under the Fourteenth Amendment, you need to be born or naturalized — but in this case, let’s just stick with born — in the United States, and subject to the jurisdiction thereof. The whole fight in Trump v. Barbara is not about where you were born; no one disputes that the folks being targeted for perhaps not having citizenship were born in the United States. The question is whether they were subject to the jurisdiction of the United States.

Now, an old-school person like Scalia would say, “Okay, I’ve got this phrase, ‘subject to the jurisdiction of the United States.’ What do I do with that? Well, I look back and see how that phrase was understood at the time, was used at the time, whether there are other examples of its being used. I try to see if there’s consistency in how one interprets that, see if there’s a novel reading of it that doesn’t really apply.” You ask all those questions, and I think those are the right questions to ask, and then you come to a conclusion. In this case, that’s not what happened — we had a result, and then we had a conclusion that was used to back it up. There’s lots of academic work out there that tries to do these historical and textual analyses; I think many of them are flawed.

But anyway, the president signs an executive order saying folks born to illegal immigrants and some others, temporary visitors, don’t count because they are not “subject to the jurisdiction” of the United States — reading that phrase as meaning subject to the complete political jurisdiction of the United States and owing allegiance to the United States and to no other country. You’ll notice there are a lot of words there — “complete,” “not subject to other people,” “owing no allegiance” — that modify “subject to the jurisdiction” and somehow got left out of the Fourteenth Amendment.

So this goes to court. The court smacked this down based on the Supreme Court precedent Wong Kim Ark, which addressed this question for the child of Chinese citizens who had been residing in California but then went back to China. There was a debate, and the court said, “Yes, that person’s a citizen.” There’s some dispute over what role domicile did or did not play, versus the mere fact of being born here and not subject to certain exceptions to jurisdiction. There was a nationwide injunction imposed on the order. The case then goes up on an emergency appeal about the form of the remedy, not the substance of the case — whether one court could tell the whole world, the entire United States government, what it had to do everywhere, even beyond the jurisdiction of that particular court. That goes to the Supreme Court. The Supreme Court says, “No, these universal injunctions go too far — one little court in one district of the country can’t tell every other district what to do.” So it goes back down, the parties modify their relief, and then finally we get to the merits, and it goes up again.

The administration loses over lots of dissents, and it gets to the Court. Ultimately, the administration loses on the constitutional question — five-four on the result, six-three on… the difference between the five-four and the six-three is Justice Kavanaugh, who would have decided it on statutory grounds but would have gone the other way on the constitutional question if he’d been squarely presented with it, or at least strongly suggests he would have. He doesn’t fully reach it, but gives a lot of hints. Chief Justice Roberts writes the opinion — a very long opinion that talks about Roman law, this law, that law, and then in its second substantive part says, “Oh, and by the way, here’s what the words meant,” and here’s a bunch of cases about what the words meant, and then, “Let me just talk about history and what Congress was really trying to do at the time.” Then the dissents — Justice Thomas writes a very interesting dissent tracking the history. I think he at least goes through the steps of what you’d understand to be textualism: what did people understand these words to mean at the time? What does it mean to be “subject to the jurisdiction”? Does it imply complete jurisdiction? Total political allegiance? Non-allegiance to someone else?

He goes through those and rests very heavily on history and what I’d describe as legislative history of the Fourteenth Amendment — people making comments about what they interpreted the phrase to mean. And if anyone in this room has a passing familiarity with Justice Scalia’s entire jurisprudence, this kind of thing ought to make a traditional textualist’s head explode. Last time I checked, I didn’t really care what Senator X or Senator Y wanted this to say, or thought it said, or tried to manipulate by making a floor statement. What I cared about was some more objective evidence of what these phrases mean — not in the immediate context of trying to manipulate the results, but as they’ve been used and publicly understood. I thought that piece of Justice Roberts’s opinion — if it were me, I might have considered writing that short two-page piece and then stopping there, not bothering with the rest of it, and pointing out that it doesn’t really fit our methodology for interpreting textual instruments like the Constitution or statutes. He didn’t, and all the dissents spent a lot of time talking about the history, the policy implications, why you would ever want to do this — things that, to my mind, ought not play a role in the judicial enterprise. They’re great policy decisions. They’re great reasons you might want to amend the Constitution, or clarify it, or even pass a statute that might have bearing on the phrase “subject to the jurisdiction of.” But that doesn’t necessarily tell you what the phrase means.

So we wrote a brief — my organization, Neutral Principles, a relatively new organization, largely founded by me and two friends, with the purpose of saying, “Look, we used to know what conservative legal interpretation meant, and I’d like to continue doing that, even if the results may not be conservative or right-wing‑y in their substance and policy.” We argued that the phrase “subject to the jurisdiction of” has a long historical and understood meaning — it was actually used a lot in statutes and treaties, and it was understood to mean subject to the judicial authority of a nation. It was not understood to mean subject to political allegiance, or exclusive jurisdiction — you could be subject to the jurisdiction of more than one entity.

The best examples were things like American businessmen traveling abroad — in Thailand, in China, other foreign countries — where we’d have a treaty with those countries saying whether or not those people were or were not subject to the jurisdiction of the host nation. Sometimes they were not, and if that occurred and somebody committed a crime, they would not go to a local court, would not be arrested — instead, they’d be taken to the U.S. consulate, and the U.S. government would adjudicate whether they’d committed a crime, even if it was a local crime. They were subject to the exclusive jurisdiction, in that instance, of the United States, and not subject to the jurisdiction of the host country. Here, of course, visitors and illegal entrants are subject to this notion of territorial jurisdiction — and you see Justice Thomas talk about territorial versus political jurisdiction. Our argument was that, historically, the bare phrase “subject to the jurisdiction of” a country was the territorial version, not the political version — not the allegiance version. That was really the gist of our argument. I think it’s not cited, not reflected as well as I would have liked, but it basically embodies part two of Chief Justice Roberts’s reasoning.

Now, what does that tell us about litigating against the Trump administration? We could go into whether the case was right or wrong — I think the result was right, I think some of the reasoning was troubling. I think Kavanaugh’s approach — well, Wong Kim Ark made some exceptions, so we can make some new ones — is so anti-textualist, I don’t even know what to do with it. But even among the people who voted for a result I agreed with, I kind of didn’t like the way it came out, because it implied that all these extra-textual factors mattered, and I don’t think they do. This is Scalia’s famous point — we have a written Constitution for a reason. It’s written down, and if you think they made a mistake, if you think they didn’t write down precisely what they wanted to do, too bad, so sad — you got what you got, and if you think it didn’t properly convey what you want, amend it, or do something more substantive to change it into what you really wanted, versus what you actually said.

So what does this tell us about litigating against the Trump administration? I think not a lot. One, it tells us the Trump administration is willing to run to the Supreme Court at every possible opportunity — hence the emergency relief on the nationwide injunction. It’s not that nationwide injunctions aren’t a real problem — they are — the question is whether we needed to make it an emergency. It tells you the administration is trying to change the facts on the ground. You hear this in wartime situations a lot — once you’ve changed the facts on the ground, whatever the rule is later is sort of moot, or may be moot, because you’ve already done the damage, and unwinding the damage is incredibly difficult. See the tariffs, right — where they changed the facts on the ground, and one of the arguments for interpreting the statute incorrectly was, “Well, it’d be so hard to give back refunds, and that would be terrible.” Again, changing the facts on the ground. It shows a litigation approach that I’m not saying is unique to the Trump administration — I just point out you see quite a bit of it, and a greater willingness to run up to the Supreme Court to speed the plow, rather than wait for the ordinary process of litigation, which often takes longer than a year, or six months, or two days, or whatever it is. So that’s an interesting thing for litigators.

The other thing is an extreme willingness to challenge existing precedent. Under this old case of Wong Kim Ark — which had been around for a long time — the administration is quite willing to challenge precedent. You see that in many other cases. You see it in the unitary executive context. You see it in New York Times v. Sullivan, where there are calls to overrule that, by him and some of his supporters and administration. So I suppose it tells you they were not overly concerned with precedent. Now, I clerked for Justice Thomas — I’m not overly concerned with precedent either. I try to get to the right answer rather than monkey around with precedent that may have been tragically wrong. Whether Wong Kim Ark was tragically wrong is a very different question — I don’t think it was. I think parts of it were wrong, in thinking that Native Americans born in the United States were not subject to the jurisdiction of the United States. I think that piece of our history of who is and isn’t a citizen is vaguely racist, and I would have thought Justice Gorsuch would have been sensitive to the notion that that exception is bizarre, given that the federal government most certainly asserted jurisdiction over Indians in the United States — whether they exercised it is a different question, but they certainly claimed the power to do so.

The last thing I think is interesting is that, unlike traditional conservative administrations — or more so than past conservative administrations — policy factors are driving a lot of the legal argumentation. There’s much more reliance on “what a terrible result this would be,” so you have to close your eyes and blink at the text because, oh my God, the world will end, everybody’s gonna die, we’ll be overrun by the children of visitors. That’s happened in administrations in the past. My personal view is it tended to happen in administrations that had a different, less text-focused approach to the Constitution — a more “living constitution” approach. I don’t mean to say they don’t have arguments, and that’s a nice theoretical and intellectual debate, but in that framework, those kinds of things matter. In a hard textualist framework, those kinds of things not only don’t matter, but are precisely what folks like Bork were trying to squeeze out, because those decisions get made by judges who really aren’t the people who ought to be driving these big policy decisions.

So I’ll leave it at that. That’s the case, and those are the implications I have — I’m sure we’ll chat more about what it’s like and what it means to litigate against this administration compared to others.

Mullen v. Doe — Temporary Protected Status

Carmen Iguina González: Good morning. Thank you so much for having us and inviting us to talk about Mullen v. Doe, the case decided this Supreme Court term about the reviewability, basically, of determinations concerning temporary protected status.

I’m actually going to start a little bit further back from what the dispute in the case was, because — unlike tariffs and birthright citizenship — I think there’s kind of a surface-level knowledge of what TPS is, temporary protected status, but not actually a lot of the details and the history of what that humanitarian relief and protection is, where it comes from — which I think inform the debate here.

Temporary protected status is a form of humanitarian relief granted by the Secretary of Homeland Security to eligible foreign-born individuals who are unable to return to their home countries because of conditions or circumstances that prevent their country from adequately and safely having them return — for example, an ongoing armed conflict, an environmental disaster, an epidemic. Those are some of the circumstances under which administrations in the past have granted temporary protected status. It’s a form of humanitarian relief that had been used for over three decades by Democratic and Republican administrations alike, to prevent the return of people — say, after a massive earthquake, when countries were just unable to have individuals return, administrations in the past said, “We will grant this temporary status to individuals until conditions improve in their home country.”

Now I want to pause for a second, because I often get asked, “Is TPS similar to Deferred Action for Childhood Arrivals, DACA?” And the answer is no. TPS is rooted in statute — Congress passed that statute in 1990, setting out exactly how the Secretary was going to go about evaluating whether to designate a country for TPS in the first place, and then what’s called the period of temporary review. It doesn’t just say “grant TPS” and that’s the end of it. Because it’s a temporary form of status, it says grant TPS, and at least every eighteen months, you have to review it to determine whether conditions in the country have changed so that the individuals here in the United States can go back.

Importantly, Congress passed that statute in 1990 precisely to replace a system where the executive, without any guidance or criteria, on its own decision, would grant a similar form of relief called “extended voluntary departure” — and that’s very explicit. There’s a D.C. Circuit court opinion ruling on what the administration at that point had done with respect to people from El Salvador and whether to grant extended voluntary departure. Congress passed a statute to overrule that case. So we know very clearly that Congress wanted to get rid of a system where the executive is just arbitrarily deciding who gets to stay and who doesn’t.

So, as I said, the statute very tightly constrains who is eligible for TPS. It grants relief to people from countries stricken by armed conflict, natural disaster, and other extraordinary and temporary conditions. You get employment authorization — while you’re here, you’re protected from removal and detention, and you get a work permit so that during the duration of your stay you can engage in the economy and contribute. It’s very limited as to who qualifies: it only applies to people who are in the United States at the time the designation is made. It’s not an invitation for people to come over — so if there’s an earthquake in a foreign country, and there are people here in the United States at the time, TPS says you are protected from removal and deportation for this period, you can stay here, but we’re not opening our doors for everyone to come over. And it doesn’t provide a pathway to permanent residence or citizenship, which is why it’s temporary — a temporary status until conditions in your country change.

Now, I had mentioned the period of review, which is what’s at issue here. The statute again is very clear: Congress sets very specific criteria, very specific timelines, a very specific procedure that the Secretary has to follow to make a determination about whether to renew, terminate, or extend a previous designation of TPS — and only allows for termination where the conditions in the country have now ceased to exist. If the Secretary finds those conditions are no longer true, the statute says you terminate. If that determination is not made, the default is actually extension. Congress said if you can’t determine that the country is safe for people to return, the default in the statute is that the designation is extended for six months; the Secretary can extend it longer. But again — periodic review.

So what was the challenged action of the Trump administration here? It was very clear, even before taking office, that TPS was going to be a target for the new administration. The then-candidate Trump talked about eliminating the program as a priority of his, because, in his view, it is not legal. Again — this is a statute Congress has passed. It’s not like DACA, where there are debates in the courts about the executive’s authority to extend that type of relief. This is a statute codified by Congress. On his first day in office, he passes an executive order mandating that TPS be limited in scope, with the purpose of reducing the number of people in the country illegally — including people who have TPS status in that category, despite the fact that Congress has said those people are actually in the country legally. Secretary Noem then takes office; during her confirmation hearing, she again confirms that terminating TPS is going to be a priority for the administration — and that’s exactly what happens. Over the next year, every single determination about whether to extend or terminate TPS that comes before her results in a termination — every single one, for thirteen countries.

And again, these are designations that, for over three decades, Democratic and Republican administrations alike, upon evaluating country conditions and consulting with the Department of State, have determined some of these countries are still not safe to return to. I’m not saying this happens with every TPS designation — there have been plenty of TPS designations where a country gets designated, conditions improve, and the designation terminates without a challenge. But here we’re talking about periodic review after periodic review where the Secretary determines “safe to return, everyone go back.” And all of these have a lot in common. One, it becomes very clear that, despite the statute mandating that the Secretary consult with the Department of State about country conditions, that hasn’t been done. We know that even without looking at the record, because the Department of State travel advisories for those countries make it very clear the Department of State has determined those countries are not safe. Syria, for example — Doe itself was a termination of TPS for people from Syria. The State Department has the highest-level travel alert for Syria — do not travel, and if you’re going to go, execute your will, leave a DNA sample. That’s how dangerous Syria is; there’s no part of the country that’s safe. That’s what the State Department is saying. And here’s the Secretary of Homeland Security saying, “Actually, the conflict is done, everything is safe, people from Syria can go back.”

The other thing that’s clear is that the Secretary is relying on criteria that are not in the statute. Congress told you what to consider, and Congress was actually very clear — the termination notices, published in the Federal Register, cite criteria that are just not what Congress told the Secretary to do. So, unsurprisingly, as these termination notices get published, individuals start filing suit. And when I take a step back, even though all of these terminations have all of this in common, they’re not litigated together, because the terminations are issued when each country’s periodic review period comes up, meaning they’re on different timelines — Venezuela is one of the early cases, Syria is still at earlier stages.

I mention this because we’re talking about litigating against the Trump administration and the use of the emergency docket. The path to the Supreme Court in this case: it comes to the Court through the emergency docket, on a stay of a preliminary injunction that’s issued on an oral decision — right, so this was an emergency application because the statute was terminated and people were going to be deported to Syria (again, execute your will, leave your DNA). People go to court, ask for a preliminary injunction, the court holds a hearing and issues the decision on the record. The administration chooses that case to appeal to the Supreme Court and asks for cert before judgment, which is a very uncommon practice — usually you want a fully developed record, you want the court to be able to engage on the issues, you want a reasoned opinion, not an oral order — you want the full picture when a case reaches the Supreme Court. They chose this case to take up, despite the fact that, for example, the Venezuela case had a fully developed record and a fully reasoned opinion on its way to the Supreme Court just a short time later. So they chose this case, with a very limited record and very limited reasoning, to be the case the Court hears to determine whether these terminations are legal.

And the Court granted cert. I will race you through the timeline — about a year from filing to decision. The case comes to the Supreme Court on an emergency application for a stay at the end of February, briefing happens in March, the Court hears argument in April, it’s decided by June. That’s how truncated it was — if you’re not a Supreme Court practitioner, maybe that sounds reasonable, but it’s not; it’s just so fast, and there really wasn’t the opportunity for advocates in affected communities to weigh in and explain their view on the statute and on the reviewability of these decisions. There just wasn’t the space and time for advocates to do that.

So I laid a lot of background — the case is about the challenge to the process, not about the substantive determinations. The challenge in Doe is not saying the Secretary was wrong that Syria is safe to return to — she was wrong, but that’s not the legal challenge. The challenge is about whether she followed the procedures Congress told her to follow. Very simple: Congress told you what to do — did you do it? Did you do the consultation with the State Department that Congress told you to do? Did you follow the criteria Congress told you to follow? And if you do all those things and still decide to terminate, we concede there’s no judicial review, because there’s a statute that says there’s no judicial review of determinations to designate and/​or terminate TPS.

But on process, there’s actually pretty clear precedent making the distinction that process-based claims are still reviewable, despite those types of statutes that bar judicial review of the ultimate determination. Even if you can’t review the substance — the decision about country conditions — you can still review the process. And it wasn’t just based on that precedent; it was also based on the statutory text itself. The judicial review bar at issue in the case — the government was saying, “You just can’t review this, Congress has told you our determination about terminating TPS is completely outside the jurisdiction of what courts can hear” — the statute actually talks about a bar on judicial review of “determinations,” and the word “determination” in that provision is used over and over again to talk about country conditions, not about the ultimate termination decision. So a pretty solid argument based on the text of the statute, based on how administrative law generally works, and based on Supreme Court precedent that had interpreted this exact same language this way — to say process-based claims are different from substance-based claims, even if substance-based claims are barred.

And unfortunately, the Court disagreed. Justice Alito writes an opinion focusing on the dictionary definition of “determination,” and — in my view — ignoring the context in which the term is used, saying, “ ‘Determination’ just means what we think it means — it means a decision.” So the Secretary makes a decision not to consult with the State Department — that’s a determination. The Secretary makes a determination not to use the criteria Congress told her she needed to use — that’s a determination too. And it’s all barred; there’s no judicial review of any of these claims. Which, when you take a step back — what the government is asking the Court to decide is that Congress went through the trouble of overruling the prior system, setting a very clear statute, telling the Secretary exactly what she needed to do, only to then say, “But never mind — all of this is not reviewable, not enforceable, there’s nothing anyone can do if you fail to follow” very specific — and I should say very mandatory-sounding — language in the statute. “The Secretary shall do this. They shall evaluate. They shall consult with relevant agencies.” Which is just a really extraordinary claim about the limits of judicial power. And if you listen to the oral argument, the Solicitor General concedes the Secretary could have been pulling countries out of a hat — Syria gets TPS, Haiti doesn’t — that’s fine. Could have used a Ouija board — that was one of the examples raised during argument. Could she use a Ouija board? The Solicitor General says, totally fine.

So ultimately, the consequences of what this means, and the arguments the administration is now going to make based on this precedent about the breadth of executive power and the limits of not only what Congress has told it, but what courts can do to intercede — I think are quite extraordinary. Thank you.

Panel Discussion

Molly Nixon: I have lots of questions, but I want to open it up first, if anyone on the panel has either a response or a question for one of the other panelists about the case they discussed, or anything they said during that.

Erik Jaffe: I just have one comment, which is that the theme I see running through a lot of this is not a function of any of these individual cases, but a challenge to — and a potential reconceptualization of — the separation of powers. You see this in the unitary executive, you see it in this notion of judicial deference: we’ve decided that executive power is utterly expansive, almost regal, as some people would accuse it of being, in its scope and unreviewability. The judicial power — which doesn’t take a lot to read into the Constitution, and which seems like it should be equally balanced if we think of a balance of powers — is narrow, almost non-existent, and can be encroached upon and eliminated by the legislative power. I find that personally fascinating — again, from a textualist perspective: we wrote these three powers in, with some sense that one couldn’t infringe upon the other. There’s some structural reason to believe that.

And yet this administration — perhaps more than past administrations, not that past administrations haven’t asserted a lot of executive authority and tried to expand their authority base, but they did it incrementally, on the edges, on the margins, in more subtle ways, and backed off when they were smacked in the head — sometimes, not always, and I say that of both parties — here there is just a complete and unrelenting demand that the executive power means “I can do anything,” the judicial power means “you can do nothing,” and the legislative power is irrelevant. That phrase, “faithfully execute the laws” — irrelevant too. I think that drives all of this as an underlying theme that helps explain some of the litigation strategies going on, and some of the ways one might have to litigate against the administration, by taking a step back and understanding the scope of these fundamental powers conferred by the Constitution.

Molly Nixon: Anyone else?

Carmen Iguina González: No, I think that’s exactly right. Sometimes we get so focused on this particular text and this particular dispute, and it is, I think, so powerful to take that step back and think about what we’re actually asking here. I had this example come up — actually, the term I was clerking at the Court, we had a case about whether you needed a warrant to search a rental car. You get there and it’s the Fourth Amendment, and the history of the Fourth Amendment, and how it’s been applied — and then, all of a sudden, during argument, someone just took a step back and said, “Well, really what you’re asking us here is whether the police just want to be able to search cars without having to tell us why.” It’s sometimes powerful to take that step back and say, we have this very important constitutional protection that we’ve written into this founding document, and we have applied it, and then we get so bogged down in the details. But if you take that step back, it actually gives you the perspective of what this means — what are you actually asking me here? And I think in all of these cases, there’s a pretty extraordinary interpretation of what the executive can do.

Molly Nixon: Yeah. I don’t know if this is contrary to what you were saying, Erik and Carmen, but at least in Jeff’s case, and in the Trump v. Barbara case, you have two cases here where executive power is generally thought to be at a high point — foreign policy, arguably, at least with the tariffs, and immigration — and the administration took that maximalist position, and the court kind of took a step back and said, “What are we talking about here? It’s not foreign policy, it’s tariff power. And regardless of whether this is immigration, we’ve got a text that we’re going to turn to.” I’m curious for each of you: was there anything in the opinions, the concurrences, or the dissents that really surprised you? Carmen, maybe perhaps obviously, since — as you said — the opinion didn’t come out your way. I’ll start with Erik, though, because you mentioned all the legislative history in the majority opinion — I don’t know if it surprised you, but you mentioned it, so I’m wondering what you take away from that, and whether there’s anything else in Trump v. Barbara that surprised you.

Erik Jaffe: You’re right — well, it didn’t surprise me. It annoyed me, I guess, is the real answer. I’m not surprised anymore that you’d use the tools in your toolbox, even if at different points you may have suggested those tools ought not be used — they’re the tools of the day, you use them, and I’m not surprised. I would hope for, and wish for, and argue for a more narrow use of tools that I think are illegitimate or that don’t really bear on the question before you, but that’s not what happened here.

I’m a little more surprised by Kavanaugh’s opinion. Not that I disagree with his treatment of statutory history as ratifying the state of the law at the time, but more so with the “well, Wong Kim Ark made up some exceptions, so we can too,” without greater attention to whether the exceptions noted in Wong Kim Ark were indeed consistent with the Fourteenth Amendment’s text. Like I said, I think the diplomat example is very consistent, the invading-army example is very consistent — they’ve literally conquered territory and removed the civil authority of the government they’re attacking. I think the Indian example is terrible — just terrible — and the notion that you’d allow a terrible example from an old precedent to become the thin edge of the wedge for as many new examples as you want, no matter what — that bothered me quite a bit, and I think it’s mistaken. Like I said, I’m not so wedded to precedent, but I’d like to understand which parts were right and which were wrong, and not just take it or leave it in toto. I think the Indian part was just wrong. So that’s what I take away from those tools and their uses, and the surprises.

I was once schooled — I had written a memo for one of my old bosses that said, “Here’s what the case law says, here’s what this says, here’s the way it’s been done for the last fifty years.” And I was told, “Did you bother going back and reading the text of the statute, the constitutional provision, this and that?” And why would I keep running the train off the cliff in the wrong direction rather than try to steer it back to what the text actually says? I had to go rewrite the entire memo, because I hadn’t even asked myself that question, and I kind of wish that question got asked more. If the answer is Congress had no authority to limit the president in this way — well, then challenge the statute. Don’t pretend the statute doesn’t mean what it says. Go to the fundamentals. I think Congress probably did have the authority to do what it did — I don’t know all the details of what it actually said. What does the judicial power mean? Can Congress actually tell the courts, “You can’t review this”? Maybe some lower courts that Congress created — but the Supreme Court? I’d kind of doubt that, personally, if the Supreme Court is interpreting and exercising the judicial power vis-à-vis the Constitution, which Congress has no right to render a nullity by removing any conceivable remedy for violating the Constitution. I’m not a fan of the political question doctrine. I’m not a fan of all these ways for courts to pretend the judicial power is in fact smaller than it probably is. That’s what I take away from some of these cases — and what surprises me is that there’s not greater consideration of that, without the lens of “we’ve always done it this way, so it’s okay to ignore the judicial power because we’ve always ignored the judicial power.”

Molly Nixon: Okay. Jeff, anything in the majority or the dissents in your case surprise you?

Jeffrey Schwab: Not really, in the sense that I think a lot of people, including us, sort of figured what the vote would be, and it came out that way. I did mention the Gorsuch concurring opinion — I appreciate the sentiment, which is, look, you’ve got to be principled here. You can’t just decide major questions applies whenever you like the statute and doesn’t apply when you don’t. I think that’s his criticism of the dissenting justices, and I think it’s a really good criticism. And the criticism of the more liberal justices — “it seems like you’re actually using major questions, but you say you’re not, because you didn’t want to apply it in other cases.” I like that a little bit, and I really think, especially now, having principles is important. I think too many people are just like, “Well, who’s in charge? Okay, then my decision is based on that.” I do think many courts don’t do that — a cursory review of Supreme Court justices might make you think that, but if you get into the details, it’s not always that clear, and I think more people ought to be principled about things and worry less about who’s in charge.

Molly Nixon: Carmen, did anything in the majority or the dissent in your case surprise you? And also, maybe I missed it — was there an equal protection part of that case? If you could summarize that quickly and whether the decision there surprised you or not.

Carmen Iguina González: Yes, yes. So I talked primarily about the Doe case, which was focused just on whether the Secretary followed the procedures based purely on the statute — that’s the case concerning the termination of TPS for about 6,000 people from Syria. There’s a separate case that comes on the same path, very preliminary, no administrative record, about the termination of TPS for about 350,000 people from Haiti. That case raises the same claim — you didn’t consult with the State Department, you’re considering criteria you’re not supposed to — but in addition, it has a claim about equal protection. The argument is that the termination of TPS for Haiti in particular is based on racial animus, and the evidence is statements by the president himself and by members of his administration about why they’re targeting Haitians and terminating TPS for Haiti in particular.

What I found surprising, on the jurisdiction question and the statute, is just how little attention the majority dedicated to both the context — looking at how, yes, we looked to the dictionary, but if Congress tells you what a word means by using it a particular way, you usually look to that context — and to precedent. It looks at other cases that had interpreted this exact same language and just dedicates two paragraphs to saying those cases are about something else. Which, yeah, we all agree — if you had determined this statute, we wouldn’t be here — but it still didn’t give the analysis it deserved.

On equal protection, the Court rejects the equal protection challenge as well, and the reasoning is, essentially, that none of the statements pointed to are based on racial animus. It doesn’t list them in the majority opinion — it doesn’t mention what those statements are — it just says they’re not based on racial animus, and that what you’re really telling us is that the administration just doesn’t like TPS, doesn’t like non-citizens, and that’s what’s animating the decision, not racial animus.

That was really striking, and I really appreciated Justice Kagan’s dissent — joined by Justice Sotomayor and Justice Jackson — on all of it, but in particular on equal protection. I’m quoting here: “The evidence they have offered includes statements by the president so repellent and racially inflected that the majority declines to put them in print. Indeed, one measure of the president’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.” And then she lists some of those statements: Haitians “eating the dogs,” “eating the cats,” “eating the pets of the people that live in Springfield, Ohio”; “Haitians are also eating other things too that they’re not supposed to be”; “Haitians in the United States probably have AIDS”; “Haiti is a shithole country, which is filthy, dirty, and disgusting”; “Haitian immigration is like a death wish for our country”; “Haitians, along with some others, are poisoning the blood of our country.” There’s a whole other paragraph listing out statements like that, and I really appreciated her doing it. These are really hard to hear — really painful for members of the Haitian community to be talked about this way and to see it reflected in a Supreme Court opinion. But just speak the truth — these are the statements; explain why they’re not racially motivated, rather than saying, in one sentence, that they’re not. Engage with the actual language. So I appreciated Justice Kagan putting them in print, as painful as they are to read, to really call it out and say, “If you want to say this is not racially animated, actually engage with it.”

Molly Nixon: I did think that was one of the most interesting parts of the oral argument, actually — there were a lot of questions from Alito trying to drill down into what it means to say something’s racially animated, and there were two cases, right — Syrian and—

Carmen Iguina González: Right — and Haitian.

Molly Nixon: Right. I thought that was a really interesting ten or fifteen minutes in the oral argument, listening to it.

Erik Jaffe: What I found interesting about this — look, proving discrimination, animus-based discrimination, is complicated, given our precedent on that, and we’ve tried not to delve into the minds of folks, because these things are unknowable, this and that. But just contrast it with the cases about religious free exercise and religious discrimination, where passing comments that suggest hostility toward religion — look, I do a lot of religious liberty work, and I’m routinely arguing that different statutes and actions by state and federal actors interfere with and discriminate against religion. Could you imagine if you substituted the word “Catholics” for “Haitians” in those statements — if those sentences had been “Catholics do this” and “Catholics do that” — there’s no question in my mind what the result would have been on a First Amendment challenge, that this was discriminatory against religion and its exercise. I’m not saying I know the answer to how far one delves into the minds of decision-makers and how one does that. What I do know is we have a long understanding that decisions motivated by bad reasons — racially discriminatory, religiously discriminatory, viewpoint-discriminatory in the First Amendment context — you have to understand motivation under that theory. And the notion that the judicial power doesn’t let you probe that question, but the executive power insulates it notwithstanding the public statements, is again a problem of the separation-of-powers issue — an overstatement of executive authority and an understatement of judicial power.

Audience Q&A

Molly Nixon: So we’ve got some good questions coming in online, and I’ll remind everyone you can submit questions online via the events webpage, Facebook, YouTube, or on X, with the hashtag CatoSCOTUS. But if anyone in the room has a question, I’d like to start with the people in the room — I think we have microphones available. Yes — great, let’s start in the front row, right here. Good morning.

Audience member (Steven Keet): All right — my name is Steven Keet. Despite the hat, I’m a U.S. citizen. I’m also fairly active in the ACLU. I believe Erik Jaffe was talking about how the Trump administration runs to the Supreme Court frequently. What do we do if, on election day, the Trump administration — as it has not ruled out — sends ICE, sends troops, sends the National Guard, whatever, to the polling stations? What do we do if they go and seize ballot boxes, as Trump has said he regrets not doing when he lost to Joe Biden? And if there then are court opinions ruling against him, and — unlike these recent opinions — he just ignores them? Thank you.

Molly Nixon: Thanks. Erik, we’ll start with you, but if anyone else wants to jump in after, that’d be great.

Erik Jaffe: I guess my answer is: you do run to the courts, you do follow the right processes in our country, and if those processes are ignored and we then have a massive constitutional crisis where the executive branch has decided it doesn’t need to obey the judicial branch — if, at the end of the day, it goes all the way up and the Supreme Court says, “Give back the ballot boxes, don’t touch them,” and they say, “Too bad, so sad” — well, that ceases to be a legal problem anymore. That becomes an existential problem that will get resolved the way past existential problems have gotten resolved: by war, by revolution, by violence. I’m not saying that’s a good thing — I’m not saying I want that. But once law has broken down to that extent, where those in charge of the guns and the troops have stopped obeying those who make and interpret the laws, you’ve given us the nightmare scenario, and I don’t know what we’d do. All I know is that anything I do as a lawyer has ceased to matter. I hope and think it will not come to that — and if I’m wrong, well, I hope no one drops a nuke on us tomorrow either, and if I’m wrong about that too… That’s the best answer I can give, because it’s so far outside the plausible scope of the Constitution that I don’t really know what we’d do.

Carmen Iguina González: If I may, just very quickly on your last point about running to the Supreme Court and what to expect — it is true, they do run to the Supreme Court a lot, and there have been some decisions on that emergency docket that have been deeply disappointing to me. Vasquez Perdomo, permitting racially targeted stops in Los Angeles — we now know, we see the videos, we’ve seen what they were actually doing, but at that time the Court just said, “No, we’re going to stay that injunction.” Deeply disappointing. But that doesn’t mean they win every time, and the Court does step in to put limits on what the administration is doing. They just did that recently with the USPS mail-in ballots decision. They did that with the use of the Alien Enemies Act. So the Court will step in. As disappointed as I am by some of the other decisions, they will step in, and the administration — at least so far — has abided. And places like the ACLU, and lawyers across the country, will continue to go to court to make sure that keeps happening.

Molly Nixon: Carmen, you mentioned the USPS case — there are a couple of questions online touching on the idea of the presumption of regularity. This is the doctrine by which, if the Department of Justice, on behalf of the government, makes a representation in court, the court will generally accept that as true for purposes of the case. There’s been a lot of talk in the media about whether that presumption has shifted. Maybe you could talk about whether you think that played a role in your cases — was there skepticism of the motivations behind the tariffs, for instance, or in immigration, which has been coming up a lot, probably even more so at the district courts, where things are happening quickly? Do you think there’s been a change there, and has it played a role in your cases or others you’ve been watching? Jeff, maybe we’ll start with you.

Jeffrey Schwab: Yeah. Well, the thing about the tariff case is that it really isn’t about the tariffs — there wasn’t really any question about whether tariffs are good policy; I think they aren’t (my justification for that is a Scott Lincicome T‑shirt, which pretty much decides it for me). It’s really about whether the executive has the power. The Trump administration’s position was basically, “We can do whatever we want, you can’t even question us.” There’s a provision in IEEPA that only allows the president to act in “unusual and extraordinary” circumstances, and the administration’s position throughout the litigation was, “We can decide whatever is unusual and extraordinary — you can’t even second-guess it in court.” I thought that was pretty extraordinary.

Molly Nixon: But not unusual — for the government.

Jeffrey Schwab: Not unusual. But I think there was skepticism of that, because taken to its logical conclusion, we’d effectively have a king, since nobody could question the president. So I think there’s some pushback on how far the administration has taken it.

Molly Nixon: Anyone else?

Erik Jaffe: You’ve certainly seen a number of judges question the presumption of regularity. I, of course, wouldn’t have created that presumption at all, because the executive is an agent, and I don’t presume that my agent is obeying my commands — it’s like Reagan’s “trust but verify.” I don’t really trust him that much, but I’m certainly going to verify. There used to be a joke — and I apologize deeply to all the DOJ officials who take their oath seriously to the Constitution and the laws of the United States — but the joke used to be that the SG’s office would lie in the text and tell you the truth in the footnotes: they’d say something outrageous and false, and then in the footnote say, “Well, except for this, this, and this,” which made the initial statement completely ridiculous. Today, I don’t think the footnote exists. That’s not to say every DOJ lawyer is like that — I honestly don’t mean it that way — it’s just that I see it popping up more and more, particularly in high-political-valence cases, where the notion that you have an obligation to the other branches to faithfully execute the laws, to candidly report to a court, conflicts with this notion of absolute executive authority: “you can’t make me do anything.” The norm that has existed, certainly post-Nixon, that the DOJ is an independent force that owes loyalty to the Constitution rather than to the president — that norm may have been more aspiration than reality at times in the past. But I think, with the unitary executive, we should all understand that norm is broken. Nobody believes it anymore — everyone now believes the loyalty of an executive branch official is to the executive themselves, and this notion that your oath is to the Constitution rather than to your president has fallen by the wayside. Not for everyone — you’ve seen some people resign from positions because they were asked to do things contrary to the proper role of a DOJ attorney or prosecutor; I won’t name names, but you can look it up. Anyway, I think that norm is broken. I think some judges are beginning to recognize it. I think litigators litigating against this administration should push back hard on any notion — not simply that this administration doesn’t deserve that kind of deference, but that no administration deserves that kind of deference anymore. There isn’t that presumption at this point. Show me the money. Show me the proof.

Molly Nixon: Carmen, the ACLU litigates a lot in district courts, in immigration and detention cases. What’s your experience with that presumption — was it ever real to begin with? Has it changed? Is it changing only in certain cases with political valence? What are your thoughts?

Carmen Iguina González: I’m glad you asked about the district court cases. On the Doe case, certainly, they didn’t hide it — it was clear they just didn’t like TPS. It wasn’t as though they were saying one thing but meaning another. I think I agree that you’re seeing a lot more judges starting to question the presumption. It comes up a lot in the context of new policies about mandatory detention — who’s subject to detention pending removal proceedings, based on new interpretations of the statute — when you transfer people out of the jurisdiction, if a judge grants habeas and they don’t get released, the justifications the government gives for that. So you are seeing judges starting to question it, and I think it’s partly a change in — you know, sometimes you can tell the attorneys are saying, “This isn’t coming from me, I just can’t give you a different answer.” I think for a lot of our cases, it’s also a change in the agency itself and how it’s perceived — the client that the DOJ attorneys are representing in court. When I started doing this work, very few people knew what immigration detention looked like — how many people were in detention, what a detention center looked like inside, who was subject to mandatory detention. That’s very different today. What people think about when they think about ICE is very different now than it was even just last year. So for our cases, at least for mine, it’s a combination of both a change in the lawyering and a change in the client.

Molly Nixon: I think that’s a really good point — that DOJ lawyers are like any other lawyer standing up before the court with a client, and there’s sometimes a gap between what you get from a client and what the lawyer says to the court.

Jeffrey Schwab: Molly, can I make one quick point on that too? I should mention that, although we won in the Supreme Court, there are still tariffs — because the administration has moved on to other sections that supposedly give it tariff power. One area where this will come up: before the Court of International Trade this month, there’s a case about Section 301 tariffs. The administration says it’s imposing tariffs under Section 301 because other countries haven’t done a great job of stopping the importation of forced-labor inputs into their own countries, and that affects U.S. commerce — apparently ninety-nine point four percent of all our imports come from those countries, and therefore the president imposed ten-to-twelve-and-a-half-percent tariffs. Basically, he’s doing the same thing he did under IEEPA, but under Section 301, under the pretext of forced labor inputs. The interesting question will be whether the Court of International Trade will actually defer to the administration on whether that was actually their motivation, or whether they’re just using a different statute to do what they wanted to do under IEEPA. There’s not great precedent in the Federal Circuit on that, so it’ll be interesting to see if the precedent changes, in that case or another one.

Molly Nixon: I think we have time for at least one more question in the room. And I utterly failed in my moderator duty earlier, so I should say: please speak clearly and directly into the microphone, announce your name and affiliation, and make sure all questions are asked in the form of a question. I see one hand back there.

Audience member (Matt Bowman): Hello — Matt Bowman, with Alliance Defending Freedom. I wonder if the panel could compare the outcome in Mullen with the outcome in Cook. We seem to have had a presidential determination where, in one case, the court said “not reviewable,” and in the other case, the court said there was some review available and remanded. Cook is the case — some people in this room are probably familiar with it as the Slaughter decision — where the president has the constitutional authority to remove executive branch actors regardless of whether Congress puts provisions in place to protect them. In Cook, for the Federal Reserve, they said there’s a different historical tradition, and that the for-cause removal provision can stand up against constitutional scrutiny. Does anyone have any thoughts on that question?

Erik Jaffe: I have a bit of a thought, which goes back to the theme I’ve been beating: I don’t know if the answers are right or wrong — I haven’t followed these cases closely enough to go into the weeds. But what I do know is that the answer to those questions lies in what we correctly understand to be the scope of the executive power and the scope of the legislative power, and whether the notion that the executive is obliged to faithfully execute the laws gives Congress some control over what it’s allowed to execute and how. I don’t think there are enough people asking that question as an originalist matter, as opposed to just waving their hands and pointing to precedent saying the president could do whatever he wants. I’m sort of a student of Justice Thomas — precedent doesn’t move me as much as it moves other folks. I’d like to know the right answer first, and then I’ll answer the precedent question. I see a lot of “well, we did it this way for a long time” going on, and I’m just not sure that’s the right question.

Carmen Iguina González: I would say the issues are quite different — in Mullen, the question is about what the statute means and its scope, and how that’s informed by administrative law, versus in Cook, which is more about a line of precedent and historical practice. But I agree that the theme that unifies it is the scope of executive power, and I think the answer is — as disappointing as the outcome was in Mullen — that the Court is willing to set some limits and say there are lines that have to be respected, not only in the cases my fellow panelists have talked about, but in other cases this term.

Molly Nixon: That’s an amazing answer that got us right to the end of the countdown. So — please, please thank our panelists for joining us today.