Take Care // 6/22/17 //
This posts organizes all Take Care analyses of the revised travel ban. The sub-topics are: (1) Supreme Court Review; (2) The Courts of Appeals; (3) Getting the Facts Right; (4) The Establishment Clause; (5) Presidential Motive & Campaign Statements; (6) The National Security & Immigration Context; and (7) Appellate Briefing & Strategy.
Leah Litman | 6/21/17
An analysis of DOJ's latest filing at SCOTUS in the travel ban cases.
Marty Lederman | 6/21/17
Analysis of DOJ's filing at SCOTUS today in the travel ban cases.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Leah Litman | 6/2/17
The government's petition for certiorari and stay requests raise some difficult timing issues in the travel ban litigation.
Amir Ali | 6/1/17
The Ninth Circuit can give life to one of the challengers' most powerful arguments against Supreme Court review.
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).
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.
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.
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.
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.
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.
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.
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.
Michael Dorf | 3/18/17
Why the Establishment Clause Has Emerged as the Chief Stumbling Block for Trump's Muslim Ban
Leah Litman & Niko Bowie | 3/29/17
The First Amendment makes America great for everyone, not just for citizens.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
Amir Ali | 3/17/17
An emergency appeal on the Muslim Ban may be both rational and his worst outcome.
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.
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.