Supreme Court, Justice Department, Gene Sperling discussed on The Lawfare Podcast


This question of if the president believes that the president is getting tea leaves as a word that the supreme court is going to strike down. But he's going to do but the supreme court has not said so and there is not controlling evidence or controlling precedent on point. What should the president do. Right is the president's job to predict what the supreme court will do and say you know if there's a fifty percent plus probability that the supreme court will say that. What i'm doing is illegal. I cannot do that. Or is the role. The president to say look as long as there is a legally available option. That is not foreclosed by existing precedent and existing controlling law. Even if i think i probably gonna lose. Look it's still worth it for me to try this out because i in my article two responsibilities. Think that what i'm doing is actually okay and look at the supreme court wants to officially tell me it's not we'll deal with that. I think this is actually a really tricky question. It's not obvious that there's a blanket right or wrong answer. I think there's probably a point at which you know. Even president that thinks supreme court is wrong has to accept that he's probably going to lose them therefore he probably shouldn't do it but this is a matter of degree What's what's frustrating in particular about this case is because the administration has been talking so many sides of it's mouth about what it actually thinks the law is. We can't even get to this issue. So i just wanna take issue with two things that y'all said the first is both of you said some version of the president said that he didn't think he what he was doing was lawful and that was a natural interpretation of the president's words especially in light of what the press secretary and gene sperling said before technically not what he said the president. I don't believe binds lawyer. Maybe he is but he is okay. He is so he gave a whole bunch of rambling remarks and but he never said those words he said he did say that the court has already ruled on the present eviction moratorium but they were of course issuing a new era when that they thought and that was wrong by the way that's an inaccurate statement of what the court said in any event i'm not going to parse his really truly incoherent words but he didn't actually say what i'm doing is illegal but i'm gonna do it anyway. That was the natural interpretation of it. That's the way people did interpret it. It's not what he said as for the question about the standard for the justice department defending executive action via executive order in court. The justice department is a legal matter has never said that we're going to base our litigation position on a prediction of whether we're winner lose and they often defend things that they think. There's a good chance to believe that they will lose and they think that they should make the best arguments a lot. The court aside the s g and the litigation branches earn a much different posture from when the office legal counsel is giving advice for as a basis presidential action. That's not going to be reviewed in court as the first point. The second point is so. I think it was easily available for them. Consistent with justice department traditions to defend the new narrower moratorium there was simply no ruling to the contrary moreover. I think it's a mistake to allow the supreme court without a reason decision on the shadow. Docket where there were very little where there was diminished briefing. There was no oral argument. Very little america's participation no vote on the merits and no reason decision making by the court. It's really a bad precedent or a bad idea for the court to be able to in effect force. The president stop defending a position through that mechanism. So i don't think it's a good i. I don't think that anything. The administration did when it ultimately issued the new narrower moratorium and defended in court. I don't think it came close to passing the line of the types of orders in the types of context of the justice department. Always defense all right. Let's talk about the role of the justice department. Here alan the body of your piece raises questions about where the justice department actually was on these questions and whether the president was or was not getting advice from the justice department. Walk us through your concerns here. Sure so the the main concern here is that when the administration went from the position that did not have the legal authority for the cd to implement a new moratorium in a flip that to the position that the cdc did have that authority doj does not appear to have been consulted or at least based on the reporting and the public statements of the administration. There are good reasons to think that doj was not consulted. So the first is that in the you know several articles now that have been reported on this. There's no indication that doj was part of that process in addition There's a reporter that asked attorney general garland directly whether doj signed off on the on the second cdc eviction moratorium garland kind of declined to answer that question and then the administration has said that it has actually gone into some detail about where it got. Its legal advice. And that did not include doj particular this the as check pointed out the administration consulted a variety of constitutional law scholars. It consulted the white house. Counsel's office which of course is sort of within the white house itself and then consulted the lawyers at the cdc and we can talk about the pros and cons of all of those sources of information but again there is a really to my mind striking absence of consultation with doj who one would think whether it's the opposite legal council civil appellate. The office would be the ones providing This sort of advice now. It's it's quite possible that doj didn't provide this advice because their position had never change. They thought the original. Cdc moratorium was fine..

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