This Week’s Episode: “We’re All Hypocrites” + Zachary Price
This week on Versus Trump, the Take Care podcast, we start off with a preview of the upcoming immigration executive order oral argument [1:20-28:00]. We talk about all the nitty gritty procedural hurdles plaintiffs will have to overcome to even get a court to hear their claims: Do they have standing? Can judges review immigration policy? And can a single court issue a nationwide order? We’ll have an an emergency podcast up first thing on Tuesday, May 9, the day after the oral argument, so stay tuned. Listen online below or at takecareblog.com/podcast, and subscribe here with any podcast player or here in iTunes.
After our discussion, Jason talks about reliance interests with Professor Zachary Price of the University of California, Hastings, College of Law [28:00-42:15]. Jason and Zach chat about what might happen if the Trump Administration reverses the Obama Administration’s policy of non-enforcement of certain federal laws governing marijuana possession and distribution, or if it attempts to undo the Obama Administration’s promise that children who arrived here as undocumented immigrants would not be deported. Could anyone sued by the Trump Administration under these laws raise a viable defense that they relied on prior promises that these laws wouldn’t be enforced? It’s a fascinating, important question. You can find Zach’s Take Care posts about reliance interests here and here, and here’s an upcoming law review article on the subject. (Zach’s also written about state standing, which we chat about in the first half of the show.)
We close with some Trump Nuggets (Trump Chunks?) [42:15-end], so stick around till the end of the show!
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Here are links to some of the things we talked about this week.
- The text of the challenged executive order outlining the Muslim travel ban is here.
- Plaintiffs, represented by the ACLU and the National Immigration Law Center, among others, exchanged briefs with the Department of Justice in the upcoming Fourth Circuit oral argument.
- GWU law professors Ira Lupu, Robert Tuttle, and Robert Smith make the case that standing requirements are loosened in Establishment Clause cases.
- Here are links to two of the Establishment Clause standing cases we mentioned, Flast v. Cohen and Engel v. Vitale.
- The State of Washington filed an amicus brief in Texas’ challenge to Obama’s deferred action program, arguing that the state did not have standing—the opposite of the position Washington has taken in the current immigration executive order litigation.
- We mentioned a few cases that establish the standard of deference owed to the executive branch in immigration matters: Chae Chan Ping v. United States (the Chinese Exclusion case), Kleindienst v. Mandel, Kerry v. Din, and Harisiades v. Shaughnessy.
- Here’s the government’s brief arguing for no judicial review in the first immigration executive order lawsuit, and here’s the Ninth Circuit oral argument audio, which contains the crucial exchange Charlie mentioned.
- Here’s Reno v. American Arab Anti-Discrimination Committee, and here’s its “famous” Central District of California predecessor.
- Professor Samuel Bray’s article, arguing that nationwide injunctions by district courts are an uneasy recent invention, is available here.
- Charlie’s Trump Nugget urged you to follow Daniel Hemel’s suggestion and call your NY state senator to get Trump’s taxes released (here’s a list of the Democrats who are standing in the way).
- Here’s an article discussing the delay in the regulation requiring chain restaurants to post calories; Jason mentioned this topic in his Trump McNugget.
- And finally, here’s the text of the EL CHAPO Act, Senator Cruz’s questionable plan for getting the famous border wall built.
[Disclosure: Co-host Jason Harrow is co-counsel on an amicus brief filed in support of plaintiffs in the Fourth Circuit.]