An Updated Guide to Our Analyses of the Travel Ban
// 4/23/18 //
This posts presents all Take Care analyses of Travel Ban 2.0 & Travel Ban 3.0.
THE THIRD TRAVEL BAN
On the So-Called 'Global Injunction' Question in the Travel Ban Case
Marty Lederman | 4/23/18
Thoughts on what remedy is appropriate if the travel ban is held unconstitutional
The Perils of National Security Exceptionalism
Ganesh Sitaraman & Ingrid Wuerth | 4/23/18
Whatever side the Court takes in the travel ban litigation, it should renounce national security exceptionalism
Our Constitution Forbids a Religious Test for Immigration
David Gans | 4/19/18
The Supreme Court should strike down Trump’s travel ban.
Here's Why SCOTUS Should Block Travel Ban 3.0
Joshua Matz | 4/17/18
The government can't act based on animus toward particular religions. But that's exactly what Trump did.
Against Deference: Considering the Trump Travel Ban
Vicki Jackson & Judith Resnik: 12/8/17
Upholding the third travel ban out of deference to the President on matters of foreign affairs would be a tragic mistake.
Travel Ban 3.0 in Court (again)
Leah Litman | 10/18/17
A quick analysis of the differences between the Hawaii and Maryland district court decisions on the entry restrictions in "EO-3."
Leah Litman | 10/17/17
A quick analysis of Judge Watson's order that temporarily restrained the latest set of entry restrictions.
THE END OF THE SECOND TRAVEL BAN
The Supreme Court, Animus, And Amicus
Leah Litman | 10/10/17
Some thoughts on a brief in a case the Court had scheduled to hear today.
The Travel Ban and the Ontology of the Compelling Interest Test
Michael Dorf | 10/6/17
Maybe the whole compelling interest test is misguided in Establishment Clause cases.
Looking Back On The Entry Ban Justifications
Leah Litman | 9/25/17
The government and the courts have proven that one of the administration’s justifications for the now expired entry ban was a joke.
End of the Travel Ban and Its Litigation (for now, anyway)
Marty Lederman | 9/24/17
By the time you read this, the heart of the so-called 'travel ban' will probably be no more.
Challenging the 'Travel Ban' in the Supreme Court
Joshua Matz | 9/19/17
Will the President’s own words mean nothing to the Court, even as they mean everything to millions affected by his order?
The Ninth Circuit's Latest Order and The Zombie Travel Ban
Joshua Matz | 9/7/17
And now what? We’re condemned to battle the zombie-like remains of this cruel order as it shuffles about the world for just a few more weeks, ruining lives and embarrassing our tradition of religious liberty.
Oceans Apart But Still a Close Familial Relation
Sarah Mahmood | 9/5/17
Analysis of the Ninth Circuit's latest travel ban argument (and some personal reflections).
Trump's (Apparent) DACA Position Is At Odds With His Travel Ban Brief
Michael Dorf | 9/4/17
The Trump administration will invoke whatever views of statutes and executive power maximize cruelty towards the foreign nationals he and his supporters most despise.
Second Thoughts About The Supreme Court’s Scheduling The Entry Ban Case
Leah Litman | 8/2/17
The Court’s October Calendar Further Underscores That It Never Actually Intends To Resolve The Legality Of The Entry Ban
The Supreme Court’s Travel Ban
Joshua Matz | 7/19/17
The Supreme Court is now a co-owner and co-author of the travel ban. That grows truer every time it tinkers with minutiae of this cruel, unjustified policy. And with that position comes major institutional risk to the Supreme Court’s public legitimacy.
Litigating the Supreme Court’s Entry Ban Opinion: What’s the Required Connection?
Marty Lederman | 7/19/17
All of the briefs are now in on the government’s motion to the Supreme Court for clarification of its order in Trump v. Hawaii.
The Government And Grandparents (What's The Big Deal?)
Leah Litman | 7/15/17
DOJ rushed to the Supreme Court to ensure that the government wouldn't have to admit grandparents. Its arguments are silly.
Back to the Supreme Court on the Scope of the Entry Ban Injunction: First Thoughts
Marty Lederman | 7/15/17
Now that the travel ban is back in the Supreme Court, here are four additional, preliminary thoughts on where things stand.
Latest Travel Ban Ruling Helps A Lot But Not Enough
Michael Dorf | 7/14/17
It is likely that the Trump administration will simply seize on whatever ambiguity there is in the latest injunction to deny entry to as many people as it can. Why? Because that is the point of the Travel Ban.
A Reality Check On Proceedings Related To The Entry Ban Injunctions
Leah Litman | 7/13/17
Some commentators are seizing on court orders in the proceedings related to the scope of the injunction against the entry ban as an indication that courts are rethinking their decisions against the entry ban. That's wrong (with a cautionary note about the federal courts).
What It Means To Be Presidential: Litigating Positions
Leah Litman | 7/11/17
Jane Chong questioned whether the administration's “self-interested [legal] stance" in the cases about the emoluments clauses "is ... fundamentally at odds with the trust that the office [of the President] confers.” It's worth asking the same about the administration's litigating position on the scope of the injunction against the entry ban.
Seriously? The Court Intended to Exclude Grandmas from the Preliminary Injunctions?
Marty Lederman | 6/29/17
A post on the absurdity of the Administration’s interpretation of the Supreme Court’s modification of the travel-ban/refugee-limit preliminary injunctions.
The Administration's Travel Ban Guidance
Leah Litman | 6/29/17
The administration has again attempted to push the boundaries to see what it can get away with on the travel ban guidance.
The Administration's Travel Ban Guidance Falls Short of Good Faith
Amir Ali | 6/29/17
As reported by the New York Times, the Administration's travel ban guidance shows a lack of respect for the Supreme Court's directive.
SUPREME COURT REVIEW OF THE SECOND TRAVEL BAN
Unlocking the Mysteries of the Supreme Court’s Entry Ban Case
Marty Lederman | 6/27/17
Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why. With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.
The Supreme Court's Contribution to the Offense of Flying While Muslim
Amir Ali | 6/27/17
By making fine distinctions between who Trump can or cannot ban from the US, the Supreme Court has opened the door to greater discrimination against Muslims at the border.
Lower Courts: Don’t Try This at Home
Daniel Hemel | 6/27/17
The Supreme Court’s travel ban order deviates sharply from well-established standards for the granting of a stay. For better or for worse, the spirit of compromise trumped the letter of the law.
On The Travel Ban The Supreme Court Says: Stay Tuned
Leah Litman | 6/26/17
Some quick thoughts on the Supreme Court's actions on the travel ban.
Animus Revisited: DOJ Fails To Explain Change in Position on Relevance of Campaign Statements
Jim Oleske | 6/23/17
DOJ can't distinguish a case from 1995 in which it took a diametrically opposed view on the relevance of campaign statements.
The Clarifying Memorandum Is Not A Reason For A Stay
Leah Litman | 6/21/17
An analysis of DOJ's latest filing at SCOTUS in the travel ban cases.
Donald Trump’s Say-So is Not a Presidential “National Security Judgment”
Marty Lederman | 6/21/17
Analysis of DOJ's filing at SCOTUS today in the travel ban cases.
The President’s Clarifying Memorandum And The Amicus Brief About Animus
Leah Litman | 6/20/17
The President’s clarifying memorandum undercuts the legitimate rationale the executive order and DOJ had offered for the entry ban. An amicus brief filed in the Supreme Court explains why that matters.
Some Thoughts on the Government’s Latest Filing in the Entry Ban Cases
Marty Lederman | 6/19/17
Here I offer three quick reactions to the government’s latest filing in the Ninth Circuit case—the first two on questions concerning what the Court should do now with the government’s applications, and the third with respect to the merits of the statutory ultra vires argument on which the Court of Appeals for the Ninth Circuit relied.
Opposing Trump's Muslim Ban at the Supreme Court
Corey Brettschneider | 6/16/17
President Trump has asked the Supreme Court to lift the stay preventing him from implementing his travel ban. Nelson Tebbe, Micah Schwartzman and I, along with a large group of constitutional law scholars, have filed a brief opposing Trump's motion.
The President Resuscitates the Entry Ban: Where Should the Supreme Court Go From Here?
Marty Lederman | 6/15/17
In this post I explain why, in light of the Ninth Circuit’s decision on Monday, there’s no good reason for the Supreme Court to grant any of the government’s petitions or applications.
How the President’s Clarifying Memorandum Destroys the Case for the Entry Ban
Leah Litman & Steve Vladeck | 6/15/17
The President's "clarifying" memorandum undermines the facial legitimacy of the entry ban, and the government's stated purposes for the entry ban.
Anti-Catholic Animus, Blaine Amendments, and the Trump Travel Ban
Jim Oleske | 6/15/17
Litigation over Blaine Amendments--and the government's filings in LeBlanc-Sternberg v. Fletcher--show that reliance on unofficial campaign statements is far from novel in our religious liberty tradition—and would no doubt be embraced by federal judges in the face of an analogous anti-Catholic measure.
The Travel Ban's Non-Urgency, In Pictures
Amir Ali | 6/7/17
The Administration's unhurried pace in defending its revised travel ban belies its representations of urgency to the U.S. Supreme Court.
Leah Litman | 6/5/17
The President's latest statements on Twitter undermine DOJ's defense of the entry ban, and continue the President's efforts to blame everyone (including DOJ and the courts) but himself.
The Muslim Ban and Trump's Latest Tweets
Corey Brettschneider | 6/5/17
Thanks in part to the President's own recent tweets and public comments, the case for concluding that his revised travel ban is unconstitutional has now become overwhelming.
The President's Statements On The London Attacks
Leah Litman & Helen Klein Murillo | 6/5/17
The President's statements on the London attacks reveal how the President thinks about his entry ban, and also what he might do if there is ever an attack on the United States.
A Response to Will Baude on Mootness in the Entry Ban Case
Marty Lederman | 6/2/17
I've argued that the Supreme Court shouldn't grant review of the travel ban case because 33 hours after the Respondents file their response to the petition for certiorari on June 12, the entry ban will no longer be operative. Here I respond to two purportedly “plausible” alternative interpretations of the executive order offered by William Baude.
A Simple Reason to Deny Cert. in Trump v. IRAP: Because The Entry Ban Expires in 12 days, Anyways
Marty Lederman | 6/2/17
The government's papers in the Supreme Court neglect to mention that the entry ban expires in 12 days, anyways.
The Travel Ban And The Supreme Court
Leah Litman | 6/2/17
The government's petition for certiorari and stay requests raise some difficult timing issues in the travel ban litigation.
The Ninth Circuit Can Doom Trump’s Travel Ban
Amir Ali | 6/1/17
The Ninth Circuit can give life to one of the challengers' most powerful arguments against Supreme Court review.
It Matters How and When SCOTUS Reviews the Muslim Ban
Joshua Matz | 5/30/17
A detailed guide to how and when the Muslim Ban might reach the Supreme Court (and why this question really matters).
THE COURTS OF APPEALS & TRAVEL BAN 2
See You In Court: Ninth Circuit Round 2
Leah Litman | 6/12/17
A quick recap of the Ninth Circuit's decision in Hawaii v. Trump with thoughts about what it portends for the Supreme Court.
Leah Litman | 5/25/17
A quick recap of the Fourth Circuit's decision in IRAP v. Trump.
Judge Keenan Identifies The Most Straightforward Reason Why The Entry Ban Is Unlawful
Marty Lederman | 5/9/17
In the Fourth Circuit argument in IRAP v. Trump, Judge Keenan put her finger on a simple, basic reason why Section 2(c) of Executive Order 13769 is unlawful—and it doesn’t have much to do with the Establishment Clause. Rather, it’s a matter of everyday statutory interpretation, and the fact that President Trump has failed to establish the necessary precondition for the exercise of his statutory authority.
The Fourth Circuit & Animus Under Mandel
Corey Brettschneider | 5/25/17
As the Fourth Circuit recognized today, even if Kleindanst v. Mandel supplies the rule of decision and requires rationality review, animus is fatal to the Muslim Ban even under that standard.
GETTING THE FACTS RIGHT
Misconceptions Part I: Trump, Muslims, and the Travel Ban
Joshua Matz & Amir Ali | 5/2/17
Misperceptions of the Muslim Ban case abound. One of them is that Trump's animus is evidenced only by his campaign promise to ban Muslims from America. That promise, we demonstrate, must be situated in the context of Trump's sustained and wide-ranging crusade against the American Muslim community.
Travel Ban Misconceptions II: Animus & Non-Citizen/Foreign Muslims
Joshua Matz & Amir Ali | 5/3/17
The Muslim Ban targets Muslims everywhere. The notion that it reflects, at most, animus toward foreign (or non-citizen) Muslims doesn't withstand scrutiny. There can be no doubt that it inflicts severe and continuing injury on the American Muslim Community.
Travel Ban Misconceptions Part III: False Analogies To “Imprecise” Campaign Talk
Joshua Matz & Amir Ali | 5/4/17
Trump's promise to ban Muslims was no vague, imprecise, or passing comment made on the fly during campaign season. It was a deliberate, carefully considered, and oft-repeated promise that fit perfectly into Trump's broader vision of discrimination against American Muslims.
THE ESTABLISHMENT CLAUSE
Leah Litman | 3/16/17
Last night, a federal judge in Hawaii blocked Trump's revised entry ban. Here is a detailed analysis of its decision and an assessment of what likely will happen next in that litigation.
The Establishment Clause and the Muslim Ban
Michael Dorf | 3/18/17
Why the Establishment Clause Has Emerged as the Chief Stumbling Block for Trump's Muslim Ban
The First Amendment Belongs Only to Americans? Wrong
Leah Litman & Niko Bowie | 3/29/17
The First Amendment makes America great for everyone, not just for citizens.
The Imperatives of Structure: The Travel Ban, the Establishment Clause, and Standing to Sue
Ira Lupu, Bob Tuttle, Peter Smith | 4/3/17
In the Fourth Circuit travel ban appeal, DOJ contends that the plaintiffs lack standing. But a deeper examination of the Establishment Clause proves that the plaintiffs’ claims must be heard on the merits.
A Different View of Why the Muslim Ban Violates the Establishment Clause
Joshua Matz | 4/20/17
A diverse group of leading constitutional law scholars—representing many different views about the Establishment Clause—has filed an amicus brief challenging the Muslim Ban. Here's what you need to know.
The Under-Inclusive Theory Of Discrimination (It's Not Going To Happen)
Leah Litman | 5/8/17
The Trump administration has repeatedly (and incorrectly) argued that a policy does not constitute discrimination unless the policy discriminates against all members of a particular group.
Micah Schwartzmann and Nelson Tebbe | 5/8/17
One of the founding principles of this nation is that our government welcomes those of all faiths and rejects religious intolerance. President Trump’s order contravenes our nation’s fundamental commitment to religious freedom and to the equal protection of the laws. Federal courts should declare it unconstitutional.
PRESIDENTIAL MOTIVE & CAMPAIGN STATEMENTS
Motive Matters in Assessing the Travel Ban
Richard Primus | 3/20/17
To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.
Judge Kozinski Asked The Wrong Question & Got The Wrong Answer
Amir Ali | 3/20/17
Judge Alex Kozinski, among others, has argued that President Trump's campaign statements are irrelevant to assessing the Muslim Ban. But his argument starts with the wrong question, and inevitably reaches the wrong answer.
The World Is Not Made Brand New Every Morning
Jon Taylor | 3/20/17
Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.
Why Courts Have Probed Trump’s Motives for the Travel Ban
Joshua Matz | 4/4/17
Perceptions of presidential bad faith have given judges the fortitude to do what the law already demands of them, even though their actions might prompt the President to bash them by name on TV or Twitter.
Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose
Joshua Matz | 4/6/17
Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.
The Muslim Ban: Answering Tough Questions About Motive
Richard Primus | 4/21/17
The opinion by then-Justice Rehnquist in Hunter v. Underwood (1985), a case about denying the right to vote for racist reasons, offers thoughtful answers to many of the hardest questions that you might ask about motive and the Muslim Ban.
THE NATIONAL SECURITY & IMMIGRATION CONTEXT
Daniel Hemel | 3/16/17
An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.
Leah Litman & Ian Samuel | 3/16/17
Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.
Justice Gorsuch, Executive Power, And Muslim Ban 2.0
Leah Litman & Amir Ali | 3/20/17
A careful review of Judge Gorsuch's record reveals strong reason to believe that he would vote to uphold President Trump's revised Muslim Ban (and potentially many other executives abuses, too).
No Peeking? Korematsu and Judicial Credulity
Ian Samuel & Leah Litman | 3/22/17
The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.
The Standard Fare of Judges: What Happens When the Judiciary Does What It Always Does
Leah Litman & Dan Deacon | 3/28/17
The Muslim Ban litigation does not involve a "revolt of the judges." As proven by a survey of major and minor cases from the legal canon, this litigation involves only the standard fare of judging.
Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban
Joshua Matz | 5/10/17
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
APPELLATE BRIEFING & STRATEGY
Amir Ali | 3/17/17
An emergency appeal on the Muslim Ban may be both rational and his worst outcome.
McKayla Maroney Is Not Impressed (With DOJ's Brief in the Fourth Circuit)
Leah Litman | 3/27/17
The Department of Justice has filed a brief in the Fourth Circuit defending President Trump's revised entry ban. This is not an impressive brief: it is rife with misstatements of fact and incorrect legal arguments.
En Banc Review? How Can I Say No?
Amir Ali | 3/30/17
When asked by the Fourth Circuit, the Government said it wanted to have the full court consider its Muslim ban. But the Government probably did not mean it.
John-Paul Schnapper-Casteras 5/7/17
In its Muslim Ban brief, DOJ favorably cites Palmer v. Thompson (1971)—which allowed Jackson, Mississippi to close public pools rather than integrate them. The Fourth Circuit should question DOJ about this stunning citation and make clear that Palmer, an odious ruling, has no place in anti-discrimination law today.