Steve Palmer [00:00:00]:

Alright, everybody. Lawyer Talk off the record on the air. You can check us out at lawyertalkpodcast.com where you can catch the backlog of all our episodes going way back, maybe four or five years. Go to the old days and check them out. They're sort of fun. We take legal questions. We cover different topics. We've got a series.

Steve Palmer [00:00:19]:

They don't teach you that in law school. You'll you'll see. Just go check it out. Today, I'm gonna do something I haven't done in a while. I'm gonna talk I'm gonna do a legal breakdown. And it seems like the national media is screaming at me to do this. It, we are, we're hearing every day on the news, there's a constitutional crisis. And I typically stay away from politics on this on this series, but so I'm not gonna get political about it.

Steve Palmer [00:00:42]:

But I am gonna talk about the legal stuff that they're not telling you about. The constitutional crisis, of course, is whether, president Trump's, executive actions and particularly the Doge with Elon Musk are dismantling unconstitutionally the, administrative state of government. And I think really the the bigger issue is there were some statements maybe out of JD Vance and, the Trump administrate administration. I haven't listened to the whole statements, and sometimes those are taken out of context. The statements are such saying something like, they're not gonna they're not gonna, follow the orders of a judge, that has issued an injunction against what Doge is doing or maybe the the layoffs or the termination of federal employees, whatever the issue is. So that's that's the backdrop of this constitutional crisis. I think it makes some sense to break this town a little bit. So we all know that our country is not falling apart.

Steve Palmer [00:01:37]:

The constitution is not falling apart. I'm just gonna give some of the procedure on how it works generically. I'm probably I may not even talk about Doge or Trump or anything else again. But, generally, how this is how this works. We have a say there's a an action by the government. It could be a law. It could be something that congress did, so the congress passes a law. It could be a rule that came out of the administrative government, and say that impacts you directly.

Steve Palmer [00:02:03]:

It impacts a business directly. And the business says, you know what? I think this law violates my constitutional rights or violates the constitution in some way, and it impacts me in some way that I have standing. What is standing? That means it impacts me in such a way that the courts allow me to challenge it. I can't in fact, not necessarily. I can't challenge something that impacts your constitutional rights. It has to impact my constitutional rights. We have to have standing, in other words, some stake in the outcome of it. So assuming they're standing and you wanna challenge some government action, whether it's a edict out of the presidential or the executive branch of government, a rule out of the administrative branch of government, which sits under the executive branch, or a law written by Congress, or even your state wherever you live.

Steve Palmer [00:02:51]:

I wanna challenge that law. So I go into court, and it could be federal court. It could be state court. But here, let's take federal court. I pick a district court, and there's plenty of districts all throughout the country, and I file a lawsuit. And I'm filing a lawsuit to declare this government action to be unconstitutional, meaning I think this government action violates my constitutional rights. It's unconstitutional. Government's not allowed to do it.

Steve Palmer [00:03:16]:

Now a district court judge has to make a decision on the constitutionality of the law. Generally, a lot of these things, there's not even facts. It's not like they have to call witnesses because it's just a legal argument. The lawyers are just challenging the constitutionality of laws that applies to their client. And what lawyers typically do and what's happened in the scenarios we're seeing is the courts then issue a temporary or the law the lawyers ask for a temporary restraining order and the courts issue one or they decide not to issue one. What is a temporary restraining order? You hear the term TRO, which stands for temporary restraining order. What the lawyers are asking is the court to do this while the case is pending, while until we decide my legal suit, my my request to declare the law unconstitutional, I'm asking you, judge, to issue an order that says the government can't apply the law to me or to people in my situation. And that is a temporary order.

Steve Palmer [00:04:14]:

And there's a whole host of factors. I've talked about these on a number of different shows and media formats. There's a whole host of factors, one of which is the likelihood of success on the merits. The other would be the danger of irreparable harm. What does that mean? It means, like, if the if the government action, if the law continues to be in place, it's gonna cause me some sort of harm economically. Maybe my business goes out, something that is irreparable unless it's stopped. And the other big one that I always highlight, of course, is the likelihood of success on the merits. Meaning, you know, if you have I can file declaratory judgment all I want against all sorts of things, but if I have no chance of winning, the the court, when it is screening or trying to decide whether to issue a temporary order, the court can actually look at it and say, alright.

Steve Palmer [00:05:01]:

I'm not deciding the whole thing because I understand you guys wanna make your arguments. You wanna you wanna brief the issues. You want to, argue it in front of me in open court and in writing or whatever you're gonna do. I'm not gonna decide the whole thing yet, but looking at this on the face of it, I sort of think you're gonna win or I sort of think you're gonna lose. And if the judge sort of thinks you're gonna win, then the judge can issue a TRO. Enjoining, meaning preventing, meaning telling the government, no. You can't enforce this order against this person or this group of people until I decide the whole case. And if the judge thinks, well, I'm gonna balance all these factors.

Steve Palmer [00:05:36]:

It's like five or six, but I'm gonna balance all the factors. And not only are you not irreparably harmed if we keep this in place, you're probably not gonna win anyway, so I'm not gonna issue a temporary restraining order. Now in in recent cases, without going into details, there have been some judges who have issued temporary restraining orders or one judge anyway who issued a re temporary restraining order. And that says, government, you can't do what you're trying to do, and we're not gonna let you do it until, we get this thing decided. And here's where the defendant's government is saying, nuh-uh. You can't do that. I'm not gonna follow your law or whatever it would be. And the government has issued an order that you have to follow law.

Steve Palmer [00:06:15]:

So generally, those types of orders, those are those are dealt with in contempt proceedings. But I think I think the big debate here is that there is not generally like, say because well, I'm I'm ahead of my skis here. Let me back up. Say the judge issues the temporary restraining order, the TRO, and the defendant here, the government doesn't like it, they can appeal. And so you have district courts. Those are like the local federal courts. Above the district courts, you have circuit courts. There's 11 circuits in in, The United States, and you would go up to a circuit court.

Steve Palmer [00:06:47]:

So here in Ohio, if I filed a declaratory judgment action saying the government can't do something it wants to do, the next step, I would file that in district court. And if I lost or if the other side lost, the next step would be a direct appeal to the sixth circuit court of appeals in federal court. Then the sixth circuit could review whether the district court judge properly, imposed a temporary restraining order or probably properly denied a temporary restraining order. And then, of course, you probably already guessed it. If you don't like what the sixth circuit does, you can go up to the US Supreme Court and have them review that. And this has happened in a lot of stuff in the last several years. Think COVID, and some other implementation of of, of TROs where the US Supreme Court, has either declined or or, granted TROs or or affirmed TROs, and but they didn't decide the merits. Now they sort of did.

Steve Palmer [00:07:43]:

Right? Because one of the considerations, remember, is likelihood of success on the merits. So sometimes you get these decisions where the US Supreme Court hints around it. Yeah. We think that this is probably gonna fail on the merits anyway, so we're not gonna reverse the district court's decision or the sixth circuit's decision on the TRO. So we'll send it back. Or they may pick one of the other factors. Who knows? Or they may just say it's not we're not ready yet. We'll decide this on the merits when it comes to us, but we're not ready yet.

Steve Palmer [00:08:10]:

For now, lower courts, you do your jobs, deal with it. So really and then I I saw an interview. I'll I'll use the name again. President Trump the other day, I don't know if it was yesterday or the day before, says something like, no. No. No. We're gonna respect the the I don't think he I don't think he used the word respect. But he he basically said, we are going to appeal the t r o decisions to the Court of Appeals.

Steve Palmer [00:08:35]:

That would be whatever circuit court, appellate court, and federal court that would be directly above the district court. And then if they win there, the other side inevitably will appeal that to the US Supreme Court. And that is not a constitutional crisis, folks. That is the that is the that's how things are supposed to work. Now, ultimately, here's the question. If and when the US Supreme Court decides something, say they they say they're we are going to approve a temporary restraining order on some of this stuff. Now the question is, how do they enforce it? And that's where the question gets sort of dicey because there is no mechanism. It's not like the Supreme Court of the United States has an army that they can go and force the order.

Steve Palmer [00:09:12]:

And if you go back famously to president, you know, it was Andrew Jackson, he shirked it, shirked the responsibility of Supreme Court at one point. But, you know, typically speaking, we all sort of respect the governmental authority. And so far, what I'm seeing, that's exactly what's happening. Now this is a if you turn back your history books, there was a this is not unusual. I talked about this on another, show. I just finished a book on a famous legal decision called Marbury versus Madison. And Marbury versus Madison, I'm not gonna go into the depths of it, but it basically created this idea of judicial review, the very thing that I'm talking about, the idea that the US Supreme Court can review actions of Congress and determine whether they are constitutional or unconstitutional. Now that had to do with an ongoing debate between, Adams and then his successor Jefferson.

Steve Palmer [00:10:10]:

And these guys were at odds, and Adams had passed in his time something called the Sedition Act. And he had put a he had arrested a bunch of people in the opposite political party, and a lot of people were prosecuted, under the Sedition Act. Jefferson comes in and, of course, pardons everybody. Does that sound familiar? And it it it resulted in, it all shook out and resulted in some legal decisions out of the US Supreme Court the way it should. And guess what? They were writing not writing, but they were creating the the procedure as they went, and it still worked out. That was the I I mean, we're talking about listen. Washington, Adams, Jefferson. We're talking about the first three presidents, and then Madison, Monroe, John Quincy Adams.

Steve Palmer [00:10:52]:

You you remember from history. But, anyway, it's not the first time we've dealt with this. I don't think this is going to amount to a, quote, constitutional crisis. And I look. Irrespective where you fall in the political spectrum, this is not about that. Our system tends to work. It tends to work. It tends to endure the roller coaster ride.

Steve Palmer [00:11:13]:

And I love it because I'm a I'm a lawyer. I'm not gonna call myself a legal scholar because that's a little bit I'm I'm just not. But I love this stuff. I love reading about it, and I love learning about it, and I love looking at the history. And so go back in time and and drop the rhetoric for a little bit and just sort of review how this is really working and how it's supposed to work. And I think you're gonna find it is working how it is supposed to work. We have requests for temporary restraining orders. They have so far in one situation at least been granted.

Steve Palmer [00:11:42]:

The court of appeals will review that. We'll see what that court does, then we'll see what the US Supreme Court does, and then we'll see if we ever get to this point where there's an actual constitutional crisis. I doubt it. I I think that is a a gross exaggeration. The courts work. That's what I love about being a lawyer. That's what I love about studying the law is that it all seems to work. And guess what? And one more final point.

Steve Palmer [00:12:03]:

It's not supposed to work perfectly. Nobody's supposed to get exactly what they want. The executive branch is is not supposed to be all powerful. The, legislative branch is not supposed to be all powerful, and the judicial branch is not supposed to be all powerful. And if you're thinking, well, look, it it we can't get anything done as a federal government. Well, it's sort of how it's supposed to be. You know, one if you give one side or one branch all the power, then I firmly believe in the old Lord Act and, quote, power corrupts and absolute power corrupts absolutely. Our founders believed in that.

Steve Palmer [00:12:35]:

Our legal system is premised upon that. Our constitutional system is premised upon that. We're not gonna fall apart, folks. There's not a crisis. The courts will sort this out. It may not go the way you like it on your political side or may not go the way you like it on the other political side. I'm not gonna take sides. I'm just gonna tell you, it'll work itself out.

Steve Palmer [00:12:54]:

And also understand this. In the conflict, we get resolution. So a constitutional crisis, I I don't know. We what we have is a legal conflict. We have an we have this notion that maybe the executive branch is taking on some authority that the other side doesn't like. And it hasn't been often, maybe never, that our US Supreme Court has actually dealt with that issue. Our US Supreme Court, maybe it's high time they do. So, you know, we might get some resolution out after we weather the storm.

Steve Palmer [00:13:26]:

You know, there is no, nothing is ever easy, and our system isn't supposed to be easy. And and, the the term that we often use is adversarial. In other words, it is a clash of ideas. It's a clash of arguments. It is one side pitted against the other side. And in that conflict, we get resolution. And if nothing else here, we're gonna get some Supreme Court authority on issues that the issues of the day. What's the presidential power? What's the presidential power over the administrative form of government? What does the fourteenth amendment have to say? And how should that be applied? You know, these are there's been many, many landmark US Supreme Court decisions, throughout history.

Steve Palmer [00:14:11]:

And if we didn't have those landmark US decisions, they wouldn't be landmark US Supreme Court decisions. We wouldn't know, what the rule of law is. So and and if you didn't have conflict to those landmark decisions never would have happened if we didn't have conflict behind them. And and trust me, at the in the day of those decisions, the conflict probably felt as worse or as as bad, if not worse, than it does now. What they didn't have in historic times is the mass media that we all deal with. So, again, don't hit the panic buttons. So as close as you're ever gonna get to politics on lawyer talk, but I felt it's necessary just to give everybody the backdrop. And by the way, this stuff happens all day every day.

Steve Palmer [00:14:47]:

I've had I have filed declaratory judgment actions in something as menial as Ohio as Ohio's gambling law and whether or not, Ohio can pass a law banning or the law that Ohio, passed actually banned, local skill games and such like that. So, I mean, look, this is normal procedure. It happens all the time and it's happening now just on a bigger scale with politics involved and and media interest involved. So never never fear. Our constitution is well intact, and it will work. I promise. Lawyer talk if and one last thing. If you want me to cover a topic, I don't do these breakdowns often, but I I do like to do them.

Steve Palmer [00:15:21]:

If you want me to cover something, shoot me a message on the social media sites or send me a question at lawyer talk podcast dot com. I will, I'll be happy to try to cover it. And and if I can't, I'll try to find somebody who's got the expertise who can. So Lawyer Talk, off the record, on the air, at least until now.