//  6/16/17  //  Commentary

One of the more powerful and unusual tactics in litigation against the Trump Administration could become the “against type” amicus brief.  Filing an amicus brief joined by Republicans critical of the Trump Administration and with some claim of expert knowledge made by these Republicans related to the constitutional issues can be a powerful tactic to use in courts.  As an initial signal that this is correct, notice the role that amicus briefs questioning the national security rationale played in debates surrounding the opinions and even sometimes in the opinions themselves in the cases that worked their way through the Fourth and Ninth Circuits.

When a speaker expected to argue one side argues the opposite side, it can be an effective argument.  The media will devote more attention to the argument.  Consider, for instance, all of the attention paid to the argument made by former Republican Representative Bob Inglis, who led impeachment efforts against President Bill Clinton, that Trump has committed more problematic actions than Clinton.  Citizens looking for “source cues” about what the Republican Party position is on this issue will not just be looking to the Trump Administration as guidance as to what to think about the issue being litigated.  There is plenty of evidence that citizens use this mechanism to decide how to react to legal matters just like any other matter.  If Justice Clarence Thomas argues something, for instance, the reaction will be different to his argument than it would be to the exact same argument made by Justice Ruth Bader Ginsburg simply because the argument was made by Justice Thomas.  Judges who are particularly persuaded by lawyers with their same inclinations can be persuaded by seeing an amicus brief filed on behalf of a lawyer with whom they agreed in prior matters.  Within the legal community, there are certainly many conservative lawyers and judges who were and remain very skeptical of Trump, and for that audience amicus briefs filed by conservatives against Trump could be powerful signals that there are conservative concerns based in the Constitution with the actions of the Trump Administration.

This suggests a litigation strategy for other organizations challenging actions by the Trump Administration: find Republicans who agree that the actions by the Trump Administration pose constitutional problems and have them sign on to legal efforts to challenge those actions.  If it passes, find conservative federalists to agree to challenge problematic portions of the repeal of the Affordable Care and Patient Protection Act.  Find conservative federalists devotees to agree to join challenges to the Trump Administration’s sanctuary city actions.


The Wide Array of Amicus Briefs in the Congressional Oversight Cases Underscore Their Importance

3/23/20  //  In-Depth Analysis

By Ashwin Phatak and Charlie Miller: This Term, the Supreme Court will hear a pair of consolidated cases concerning Congress’s oversight and investigative powers. A number of amicus briefs filed in the Court explain in different ways the broader issues at stake in these cases.

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COVID-19, the ACA, and the Role of the Federal Government

3/23/20  //  Commentary

Congress has a crucial role to play in keeping us safe from COVID-19. Notwithstanding baseless continued attacks on the Affordable Care Act, Congress is fully empowered to legislate on these issues.

Versus Trump: Should Democrats Try And Pack The Supreme Court?

3/19/20  //  Commentary

On this week’s Versus Trump, Jason talks with Aaron Belkin and Matt Lehrich of Take Back The Court. They talk about Aaron's idea for the Democrats to add four seats to the U.S. Supreme Court in response to what he sees as two "stolen" seats. Listen now!