NYC Suing Trump & Fixing the Shadow Docket

0:00Some people treat Chachy PT like some kind of smart search engine, and some use it to get work done. Chachy PT work is a new way of working in Chachy PT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put Chachy PT to work on your most ambitious ideas and projects. Get started at chachypt.com by selecting Work Mode, available on plus and pro plans. If you listen to financial news, you know a lot of time to spend thinking about what's next. The next opportunity, the next investment, the next move. But sometimes what matters most is being ready for what you never saw coming. For more than 75 years, Cincinnati Insurance has worked with independent agents to help protect

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2:04authority by passing an arbitrary and capricious rule that goes against 140 years of legal precedent. The new federal public charge rule not only sweeps aside more than a century of established law. It is intentionally vague as a means of creating uncertainty and fear to isolate immigrant New Yorkers, to force them to make an impossible choice between meeting their own basic needs and continuing to live in the city that they love. New York City and State are leading a coalition of cities and 22 states filing lawsuits against the Department of Homeland Security's revocation of 2022 guidelines of the public charge rule in a way that gives immigration officers unprecedented sweeping discretion to deny green cards or visas to lawful immigrants. Joining me is an expert in immigration law, Leon Fresco, a partnered hon. and knight. Leon first tell us what the public charge rule is.

3:07Well, so the public charge rule actually comes from a statute that was passed in the 1800s. This is not a new provision of law, so to speak, but it's a provision that existed since the 1800s, which says that if a person is believed by the US government to be likely to need public benefits, what the actual statute says is that if the attorney general believes at the time of your application for admission into the United States, that you are likely to be a public charge, you shall be deemed inadmissible. And so now it's not the attorney general who makes that decision, now it's the secretary of Homeland Security, and it's not just at the time of the admission, but also at the time of if you try to change from one status to another or try to move from a non-immigrant status to a green card status, there is a medjudication that has to be made each and every time about all of the grounds of inadmissibility. Meaning, are you a drug dealer? Are you a terrorist? Are you a illegal gambler?

4:12etc. And one of the grounds of inadmissibility is that you are likely to be a public charge. So what has happened is over the course of many decades, the rules keep changing as to what the government wishes to define as a public charge. And the most recent rule was a Biden administration rule from 2022, which said that you are not a public charge unless you had obtained very specific government benefits that are very, very hard to obtain. So almost no one was a public charge. But what the Trump administration has done is they've replaced that Biden administration guidance with a rescission of that rule, but not with a new rule of their own. Instead, they said, go look at this sub-regulatory guidance in our USCIS policy manual. And what that policy manual basically says is any particular adjudicator can look at pretty much anything they want and make

5:17an unfettered discretionary determination as to whether the person in front of them with their application is a public charge or not, which again, the theory is this person going to be dependent on the US taxpayers for their life in the United States, in which case the answer is they don't get the immigration benefit they are supposed to get. Or if you think that they will be self-sufficient, then you can continue and give them the benefit that they're supposed to get. Mayor M. Donney said that the change is going to disproportionately affect cities like New York City with large immigrant populations, because they rely on federal funding. And there's a concern that people are not going to request these benefits because they're afraid of what may happen in their immigration cases. Well, the cities have two problems, which is number one, they have to have some sort of standing basis in order to file the lawsuit. So they have to show what they are going to suffer in order to be able to file this lawsuit on behalf of the foreign nationals that

6:22would themselves otherwise have to file this lawsuit about the public charge. So they have to have some theory of how they as states are harmed. And what they're saying is that as these federal rules and calculations get placed for how many people need benefits, etc. many of them are calculated based on how many people have green cards and how many people are lawfully in the state, etc., etc. And so when you lower those numbers, then those states lose those benefits. And the idea is that money gets spent in the state and then it has circulation effects where that money then gets spent again, etc., etc. And all of that economic damage then occurs because that body that federal money never gets to that state in the first place because these people don't acquire the status that allows them to be included in these calculations. So the grounds are that DHS is exceeding its authority and the new rule is arbitrary and capricious.

7:28Right, there's two different interesting, it's like a sandwich complaint, which is they try to say if you want to pick road number one, you will be losing in this route. If you want to pick road number two, you will be losing in this route. So you have to pick one and then you lose. So there's three count and I'll go through them. So the first one is that if what you're trying to say is that this sub regulatory guidance is binding on the agency and they have to use it the guidance, which is USCIS policy manual, which gives sort of a checklist for adjudicators to use to determine whether someone is a public charger not. Their first group here is that that violates the statute because the statute means specific types of benefits. Period, it doesn't mean anything you want and it's not a broad sort of let's look at this entire person's life and make a determination. It means

8:32specific benefits and the reason they claim that is because there have been several congressional efforts to try to change the 1952 statute meaning of what a public charge was and all of those congressional efforts have failed, meaning that if you could already look at everything, you wouldn't have needed those congressional efforts to try to change this statute. And so in the second circuit, which is where the case was filed in New York, there's a case called New York versus BHS that came out in 2020, which says that a public charge is someone who's unable to support themselves through work savings or family ties and that near receipts from the government of benefit is not dependency. And so from that standpoint, that means that you can't just unilaterally disqualify people for the bases that are in these checklists. But then they say, but if you're saying that these

9:33checklists are not binding, then it's a question of, but what are they there for their country, but they say they are binding, then the issue is then that's really a regulation. You need it to do that using notice and comment and they didn't use notice and comment, which is whenever you do any new thing administratively, if it's of any substance, you have to give 60 days or 30 days or some amount of notice and you have to give the public a chance to comment on it and they didn't do that here. And then in addition, the final claim is that to the extent also that they say this does matter, then they didn't consider of the reliant interest. This has been a thing since the time of the DACA decision where Justice Roberts said that they didn't give sufficient scrutiny to the reliant interest that people had already done when they took DACA. This is the same thing. They didn't consider alternatives or the reliant interest of what people did when they took benefits that are now going to be held against them when they thought it was legal. And so from that standpoint,

10:37that that would also be arbitrary and capricious. So all three of those are interesting, but the point is one way or another, these states are likely to prevail in the second circuit because they've already prevailed during an initial Trump administration rule in 2020. What will be more interesting will be what the Supreme Court does. The Supreme Court has ruled for the Trump administration in almost every case. What do you think they'll do here? I do wonder if the Supreme Court will want to allow unfettered discretion to adjudicators without any kind of notice and comment. I do think that's going to be potentially something that might bother five justices maybe to the Supreme Court. But we'll have to wait and see because they did give this unfettered discretion to the CBP to not let in lawful permanent residents. If they thought there was a problem with their case and they just assumed that the CBP would act in good faith, that was a decision this last term. So maybe they will assume

11:38this public charge power will always be used in good faith and nobody will ever be discriminated against. But maybe they won't. Maybe they will say the government does need a check on this and you can't just have a sub-regulatory guidance that says whoever the specific person thinks that day is a public charge now suddenly has to leave the country. It does seem very vague. Manami said it was intentionally vague. So what do you think the government's argument is? Well, the government's argument is going to be that the statute as it was passed in the 1800s is the original statute is the same basic version and that was to give this unfettered guidance to the adjudicators. There's a very famous case from the late 1800s that I teach by immigration law students called EQ versus United States as a Japanese woman who comes with the equivalent nowadays of $4,800 in her wallet. But because she doesn't speak English, there's sort of this miscommunication and they're asking

12:43her what she's going to do here and she can't explain and they say you're a public charge. We are not allowed to be here. And then that case goes to the Supreme Court of all places. Over this one person's public charge issue in the 1800s. It's interesting that they had this kind of advocacy litigation even back then in the 1800s. And the Supreme Court says, look, the statute says what it says. It says that the individual adjudicator can make this adjudication and who are we the Supreme Court to interfere with this. At the end of the day, this is what the Congress wrote. The Congress said who had to make the adjudication and we're not going to create any kind of federal court interference with this statute that was otherwise passed by Congress and signed by the president. So if they can get the Supreme Court to say all that is old is new again. Then they could bring us back to the 1800s and restore that understanding of the immigration law. Leon, the mayor of New York and the Attorney General of New York said that because of this,

13:47people won't use the safety nets that are available to them. I mean, do you think that that's true, that they'll stop for fear of what may happen? I think it becomes complicated because you would have to make two adjudications in your own mind. Number one, do I really need the benefits? And then number two, when do I think I'm going to be in front of immigration? So if you think you could wait until there's an administration that would remove said public charge rule, then you would take the benefits because you would say, well, whenever I apply one day, it won't be a problem because that rule will be gone by then. But if you think this rule would be in place forever, then the rational move would be not to accept any public benefits because you could be denied for accepting any public benefits. And the real trick is this, the individual that's the foreign national themselves rarely can get any benefits. The only one they can get is something called emergency Medicaid, which is basically you're dying and they got to let you in the hospital and

14:52somebody's got to cover it. So that's that that's emergency Medicaid. But now what they're talking about is, okay, you are here as a foreign national, you have a US citizen child, your US citizen child is poor because you're poor and they get food stamps. So before that wasn't held against the foreign national applicant because it was the child who was getting the food stamps. It wasn't before a national. Now that's being held against the foreign national under this guidance where they would say, well, it's your fault. You had this child and now the US taxpayers are paying for this child's food. Why would we reward you with a green card in exchange for what you've done here? But the problem is at the end of the day, this person is not technically the public charge. It's the citizen. And even if you were to deport the foreign national, the citizens still might stay and still might be getting food stamps. So it might not even change anything from that perspective. So

15:53there's a lot there. And I can understand a lot of the thinking on all the sides here, but the point is now that parent may not get those food stamps for that child. And so then yes, that might happen now because of this rule. First stop though district court. Thanks so much, Leon. That's Leon Fresco of Holland and Knight. Coming up next, is there a way to fix the shadow docket? This is Bloomberg. Some people treat Chachy PT like some kind of smart search engine. And some use it to get work done. Chachy PT work is a new way of working in Chachy PT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs and scattered information that you have to grind through to turn into something useful can just become something useful. Put Chachy PT to work on your

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18:58Tees & C's Apply. The Supreme Court's emergency or shadow docket has grown in size and importance. Rulings that are often issued without a detailed explanation yet are binding on lower courts. Justice Katanji Brown-Jackson is one of the justices who've criticized the shadow docket for its lack of transparency and accountability. So the court has left confusion in its wake. And it offers little guidance because it ordinarily does not spell out the circumstances, giving rise to its own equities evaluation, making it incredibly difficult for lower courts to understand which facts were important to the state determination and thus identify like cases. In a new paper, Columbia Law School professors Thomas Schmidt and Kellyn Funk say that over the past 15 years, the Supreme Court has confronted a growing number of its most consequential public

20:04law disputes through the shadow docket and that the rising number of such rulings and the hasty way they're decided may lead to charges of arbitrariness and lack of transparency. Professor Schmidt joins me now. Can you explain why the shadow docket has grown so much in size and significance? Well, it's a difficult question. Let me just begin with some numbers, June. Just to remind everybody how dramatically this has grown in the last decade or so. So during the eight years of the Obama administration plus the eight years of the Bush administration, so six years total, the court got, I believe, six or eight applications from the government to intervene and lift the lower courts injunction with respect to a federal policy that has exploded in recent years. So the latest number that I saw was about 37 applications from the second Trump administration in the first year and a half, almost two years of the administration. So there's just been a

21:06dramatic increase. And I think that's due to a number of different reasons. I think one is that the executive branch and the president in particular has gotten a little bit more aggressive over time in invoking legal authorities to implement its preferred policies, right, without Congress. And that's led to some litigation that has created a series of injunctions and lower courts. And the Supreme Court itself has felt pressure to intervene and has intervened in a lot of cases. So that's one piece of the story. But I think another piece of the story, unquestionably, is that the court has been more open to these sorts of applications. And it's applied its own stay and injunction standards in a way that invite these applications. So to a certain extent, litigants are pushing on an open door. And that's another reason that there's been so much of a growth in the side of the court's business. Is it also because the court is taking so many fewer cases than it did years ago on the regular docket? It seems to go down all the time. That may be part of it, although there's

22:09a little bit of a chicken and egg problem here. So in other words, one thing that could be happening is the court has just decided for its own internal reasons to take fewer cases that has led to having more time to deal with more emergency applications. And therefore, they've adjusted the relevant standards to make that possible. Another version of the story, and this is the version that I happen to believe, June, is that the court has gotten much more active on the shadow or what my co-author, Kellyn and I call the equity docket. And as a result, it just says less time for the merits cases. Right? So in other words, I think partly at least the shrinking of the merits docket is due to the fact that the court anticipates term after term that it's going to be doing so much in a shadow, interim, emergency or equity posture, whatever phrase you want to use. Explain why you think it'd be better to call this the equity docket. I think it's better because that fundamentally describes what the court is doing. Right? I mean, what litigants are doing when they come to the court in this posture is asking the

23:13court to set the status of a legal policy or to set the status between the parties while a lawsuit is pending. And traditionally, historically, that was one of the core functions of courts of equity. And so what we're trying to do by using this phrase is just connecting the court's activities in recent years on the equity or shadow docket to a long tradition of adjudication because we think there are actually some useful lessons to be drawn in that connection. There's a four-part test for equitable intervention that courts use. Does the Supreme Court take into account and decide on each of those four factors? So the four-factor test that the court has given is a reputable harm, the likelihood of success on the merits, the balance of the equities and the public interest. Now, it's a little bit difficult to answer your question for a couple reasons, right? So first of all, so often these rulings on what we call the equity docket are unexplained. So when a ruling is unexplained,

24:17there's just no way to assess which of the factors the court considered. And second, sometimes when they are explained, they only focus in on one factor and don't really address the other factors. So again, it's not really clear in that circumstance what was an ingredient in the court's decision making. And then in other cases, the court kind of recites the factors in a road sort of way, but doesn't really address all of them. So one thing that Kellyn, Professor Funk and I argue for in this paper, is a little bit more transparency in the rationale for rulings and just a little bit more sensitivity, a little bit more attention to the traditional inputs of equitable decision making when the court takes a case on the equity docket. Will you explain what you mean by paying more attention to the traditional inputs of equitable decision making? Yeah, so maybe be helpful to talk about this in the context of a case that's currently pending in the Supreme Court on its equity docket. So I'm thinking of the mail-in voting case. We're all thinking about that and waiting for that. Yes. Okay. So that's pending right now.

25:22We're all waiting with baited breath for the Supreme Court's ruling in that case. And let me explain what I mean about focusing on the equities, right? So one way that you could answer the government's petition in the mail-in voting case is to say the government is right on the merits. The United States Postal Service has the statutory authority to promulgate this rule. And as a result, we're going to grant the government's application and allow it to implement this rule before the new election, right? That would be a very merits-focused way of resolving the case. Another way of resolving the case would be to say, well, what's the balance of the equities here? And as the government really shown that it can prevail on that factor of the equitable test? And if you look at it from that point of view, I don't think this is a particularly close case at all, right? Because we think about the equities on one side, we have tremendous possible harm in the form of voter disenfranchisement and just chaos in election administration, right? Stemming from the fact that the U.S. Postal Service

26:23rule conflicts with state law in some ways. And this is all happening so soon before the election. It's not even clear the federal government will be able to get this up and running, right? So we have all of those harms on one side of the ledger. And it's very difficult to identify what the harm on the other side of the ledger is if you look at the government's briefing, right? One thing the government says as well, our goals would be thwarted, but that's kind of an abstraction, right? That's not really focusing in on the facts on the ground as we would want a court of equity to do. The other thing the government gestures towards is voter fraud. That could of course be relevant to the equities, but the problem is the government doesn't really, and it's briefing, give any evidence for what that problem is and how this rule in particular could help, right? So this is all to say, I think this would be a very straightforward case for the court to resolve on the equities without having to get into the thorny merits issues about the U.S. PS's statutory authority. Then why do you think the court didn't resolve it the first time it came around and instead,

27:23you know, said that the case wasn't right because the post office hadn't passed regulations. I mean, I wonder about that because every legal expert says it's clear that it's not for the administration, it's not for the executive branch, for the postal service for federal agencies to be making rules about election. So why did they do that? It seemed bizarre. Yeah, I mean, I think one way to look at it is to say it was so clear that all of this chaos and uncertainty was coming and the Supreme Court should have got involved. I suspect the way the court majority looked at it was that whatever chaos we find to be coming down the road, if an application to us or a motion in a lower court for preliminary injunction is premature, that is to say it's filed before the relevant rule challenged is even promulgated, a court shouldn't get involved. And you could even associate that with certain equitable traditions too about requiring plaintiffs to show a reputable harm. So they may have had their own equitable reasons initially to grant it, even if in retrospect that decision

28:27might look improved. To the Trump administration, everything is an emergency. Whether it's an immigration law or something else, it's always an emergency that they're going to the Supreme Court on. I mean, should the court at some point say this isn't an emergency anymore, they do put some of these on the regular docket rarely, but they do that. I mean, should they stop taking every single case that the Trump administration says is an emergency? Yeah, I think there's a lot to that, June. And I would think about it in a couple different ways. First of all, one of the most important requirements for getting on the equity docket and historically to get into a court of equity was that you had to show irreparable harm. And the reason you had to show irreparable harm is that the courts of law, in the case of the Supreme Court, the merits docket are open for adjudication of the case in this non-expedited posture. So one way that the court could respond to the circumstance is to just insist on government showing of irreparable harm in every case when they come to the court.

29:29And I think the pattern so far is that the court has been taking the administration at its word when it claims harm. And the result has been that as we talked about before, the door to the equity docket has swung open. So I think one way to deal with this problem is for the court to insist in a more granular factual sense on what exactly the emergency is and why the government is going to suffer irreparable harm. But the second part of my answer to your question, June, is that you're right that not all of these cases present genuine emergencies. And this is one reason that Kellyn and I are skeptical of the emergency docket label, because while it may be true that some of these cases present emergencies, a petition from non-citizens hours before deportation would be an obvious case. If you think about the AAARP case, for example, that's an emergency. Other cases it's much less clear that these are emergencies. If you think about the Lisa Cook case, that was technically resolved on the equity docket, right? The court never granted Sursurara in the

30:32case, but it was pending for several months. It was pending at least as long as the typical merits case, right? So in that circumstance, we think there's no danger in slowing down a little bit and issuing an opinion that explains kind of point by point why the equitable standard is met. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Tom Schmidt. Those many cases where the government says there are national security concerns, whether it's immigration or Trump's White House ballroom. I'm June Grasso and you're listening to Bloomberg. Some people treat Chachy PT like some kind of smart search engine, and some use it to get work done. Chachy PT work is a new way of working in Chachy PT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to

31:35turn into something useful can just become something useful. Put Chachy PT to work on your most ambitious ideas and projects. Get started at chachy PT dot com by selecting work mode available on plus and pro plans. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling the system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. There are healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system. So care is connected, not complicated for patients and providers. Things like making it easier to get care that looks at the whole person from primary care doctors to mental health support and even in-home care. And then using technology to make sure they all work together. Technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions,

32:36Optum is working to bring costs down, save patients money and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. Wise is the smart way to manage the currencies you need around the globe. If you've ever sent money internationally using a traditional bank, there's a good chance you've paid more than you realize. Hidden fees, exchange rate markups, and extra charges can quietly add up before your money even arrives. There's a better way. Try Wise. Wise uses the exchange rate. You'd usually find on Google helping you avoid the unwelcome surprises that often come with international transfers. Whether you're sending money to family overseas, spending while on your holiday abroad, or paying bills across borders, Wise makes moving money simple, transparent, and straightforward. Wise offers 24-7 customer service and runs over 7 million daily checks to spot and stop fraud. And most transfers happen in under 20 seconds, which means your money arrives in less time than

33:38you've been listening to me. Join millions, saving billions. Be smart. Get Wise. Visit Wise.com or download the Wise app today. Teas and C's apply. The Supreme Court's emergency or shadow docket has grown in size and importance. Rulings that are often issued without a detailed explanation yet are binding on lower courts. I've been talking to Columbia Law School Professor Thomas Schmidt about his paper, The Equity Docket, written with Columbia Law School Professor Kellen Funk. Whether it's ice protesters or offshore wind farms or the White House ballroom, The Trump administration seems to continually invoke national security as a justification for its actions. Adjustification it often uses in its applications on the shadow docket. Do you think

34:38the court almost always falls in line with the administration when it makes those national security arguments? There's no question that historically courts have been reluctant to involve themselves in cases where the executive branch is making strong claims of national security. On the other hand, the court has said again and again that the invocation of national security is not a talisman. It doesn't ward off judicial reviews sort of automatically. I think the broader pattern of litigation in the Trump administration, not just in the Supreme Court, but in the lower courts, is a certain amount of skepticism to claims that the Justice Department is making. This is sometimes couched in terms of the erosion of the presumption of regularity. The idea being we can't necessarily take the Justice Department at its word and all of the claims that it makes in its various briefs. So I think the Trump administration is trying to tap into a history or a tradition of judicial reticence, but I'm not sure that it's always working. So a lot of times the decisions on the shadow

35:45docket are not accompanied by long decisions, sometimes not accompanied by any decision, just in order. So you don't know who voted which way and why. You think that it would be helpful to have written opinions. I'm wondering if the reason that they don't do written opinions is because it takes longer, it would slow down the process because all the justices have to look at the opinions and some may want to descend or concur. I think that's quite possible. And whether to write an opinion and how long an opinion to issue, those are inevitably sort of prudential judgments that are going to be happening within the court. But I don't necessarily think that issuing opinions slows things down. And the most important reason is that the court does not necessarily have to issue a full-fledged opinion at the moment that it rules. So for example, an individual justice alone can issue an administrative stay while an opinion is being worked out. So that would preserve the status quo

36:47or allow the court at least to set the status quo while it's issuing an opinion. It can also issue in order as a majority and then issue an opinion afterwards. I mentioned the double-ARP case a moment ago. That's exactly what happened there. A very brief order on the night that the non-citizens first approached the court about their imminent deportation and then a much longer opinion a few days later. Along this line, District Court judges have sometimes complained in various ways about following these orders on the emergency docket when there are no decisions explaining the facts or the reasoning. And just to score such at one point, wrote in an opinion that yes, they have to follow the docket, taking to task one judge. I mean, is it clear that District Court judges have to follow these decisions on the emergency docket? So last year, in a case called Boyle, the Supreme Court

37:49made clear that when it rules on the emergency docket, the lower court should follow it in like cases. That is to say, by ruling on the emergency docket or the equity docket, the court has shown how it regards the equities in the case to balance out and lower court should follow that lead. Now, having said that, following the Supreme Court is perhaps easier said than done, right? To the extent many of these orders are unresigned, it's not clear what the basis was and therefore not clear exactly what it is that a lower court has to follow. The second thing is that often the court's rulings on the equity docket are foreshadowing changes in the law that make it very difficult for a lower court to understand what the law is right now. So one thing that Kellan and I talk about in the paper is the old equitable maxim that equity follows the law and we think that's fundamentally sound. And when the court takes a case on the equity docket, it should be applying existing law, right? Not anticipating a change in law that might happen down the road. To make this

38:52a little less abstract, maybe I'll mention the slaughter case in which the Supreme Court overturned Humphrey's executor and the principle of independent agencies that have been embodied in that case. Now, if you're a lower court judge before slaughter, on the one hand you're looking at a unanimous majority opinion in Humphrey's executor upholding the FTC. On the other hand, you're looking at a mostly unresigned order by the Supreme Court just relying on harm to the executive branch while purporting not to disturb Humphrey's executor that allowed the Trump administration to move forward with firing a commissioner of the FTC. It's not clear to me that looking at that, it's plain what the duty of a lower court judge is. Let's talk about the ballroom case because the court there went off on standing. By doing that, the ballroom is going to get built, I mean over the objection of the three liberals and the chief justice, it's basically allowing the event to happen. It's not preserving the status quo, so the ballroom will be a done deal. That struck me

39:56as something that shouldn't have been handled in the way it was. It just struck me as very odd. I agree with you, June. I think the equity-docket idea our paper is a helpful way to think this through. One thing that courts of equity would do is to preserve the status quo while litigation is pending to enable a court to rule on the merits of a case. As you point out here, it is very possible that by the time a plaintiff withstanding under the court's new opinion comes along and is able to sue, the ballroom will be built and there will in fact be no way to adjudicate the merits of the case because it will be too late. One way to think about this in equitable terms is just to say this looks illegal under the relevant authorities for the reasons that chief justice Robert gave in his dissent. I have not seen a plausible legal justification for moving ahead with this without other kinds of approvals. Essentially, what the administration was doing in coming to the

40:57Supreme Court was asking for its equitable intervention to allow it to get away with in a legal project. That is a fundamentally inequitable use of a court of equity. The way you could put that in more legal or litigation terms would be to say the administration came to the court with unclean hands or you might say that he who seeks equity must do equity. Essentially, enlisting the Supreme Court in the circumstance, I think violated those equitable maxims. Can you sum up what changes do you suggest? There are a lot of lessons that one could draw. We kind of cluster our lessons around the various prongs of the stay or injunction tests that you and I were discussing before. The first point is just that the court should explain itself. It is really important in these high profile cases that people looking at the court believe it is deciding the case on the basis of principles that it would adhere to if the partisan

42:01issue were on the other foot. One thing that is important is for the court to explain itself and to develop essentially a kind of law or precedent of the equity docket that can enable it to discharge its responsibilities there in a way that is transparent and that people can look at and appreciate. That would be the first thing. The second is what you and I were talking about before, which is that equity follows the law. When the court takes a case on the equity docket, it should not use that as an opportunity to overturn precedence of longstanding, but rather to apply the law as it exists to that case. A third thing, which again we talked about briefly, is to insist on a reputable harm for any applicant that comes to the court. One of the big reasons that the equity docket in our view has gotten so out of whack and has gotten so important relative to the merit stock. Is that the court has essentially adopted an automatic rule that if a policy is enjoined, the government is irreparably harmed because there's a kind of

43:03injury to the government's sovereign interest in seeing its policies implemented. If that's your rule, the equity docket is not going to be extraordinary relative to the merit stock as the courts of equity were relative to the courts of law because that is going to be the case in virtually every application that comes to the court. One important thing we think is to tighten the requirement of a reputable harm to make it not so automatic that the government can get in all of the time. And then the final point is just to remember that an important function of a court sitting in equity is to balance the equities, right? So in a case like the mail and ballot case that we were just discussing, the court should not lose sight of the fact that an important part of its role is to think more broadly about the equities and the public interest and not just its preliminary instincts about the merits of the case. Seems like all that would make things easier for the lower courts. Thanks so much for joining me today. That's Professor Thomas Schmidt of Columbia Law School. And that's it for this edition of the Bloomberg Law Show. Remember you can

44:08always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street Times. I'm June Grasso and you're listening to Bloomberg. Healthcare doesn't always work great. If you've ever waited on a refill or couldn't schedule an appointment, you get it. That's the kind of stuff Optum is changing. They're using data and technology to integrate patient care, pharmacy, and everything else. So healthcare is connected, not complicated. What's that look like? Cheaper prescriptions that are easier to get and care that looks at the whole person. How you need it. Optum is helping make healthcare work as one for everyone. Learn more at business.optum.com. Before you sign off, you tuned in for ways to help teams move faster, make sharper decisions, and turn scattered contexts into work they can use.

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