Helen Klein Murillo, Ian Eppler  //  4/7/17  //  Daily Update

Senate Republicans went nuclear and abolished the filibuster for Supreme Court nominees, clearing the path to confirm Judge Neil Gorsuch today by a majority vote. Chairman of the House Permanent Select Committee on Intelligence Devin Nunes will step aside from the committee’s Russia investigation. President Trump has removed Stephen Bannon from the National Security Council principals committee. The battle continues over Obama-era climate change regulations, police reform efforts, and labor protection rules. And in response to Tuesday’s deadly chemical weapon attack widely attributed to Bashar al-Assad’s government, President Trump ordered a military strike on a Syrian air base 

IMMIGRATION

President Trump's campaign statements must be considered in the travel ban cases and compel a finding of unlawful purpose, explains Joshua Matz on Take Care in the second of a multi-part series on the litigation.

• See the first post in Joshua’s series here.

A Senate bill introduced this week requiring Customs and Border Patrol to obtain a warrant before searching the digital devices of U.S. citizens and lawful permanent residents would beneficially constrain CBP, notes Sophia Cope (Electronic Frontier Foundation).

The rise in immigration arrests at state courthouses threatens public safety, writes Joanne Lin (ACLU).

• The New York Times documents how fear of an immigration raid gripped one Massachusetts city.

New research suggests the public may be more open-minded about immigration and less swayed by motivated reasoning than experts have previously argued, writes Ilya Somin (Volokh Conspiracy).

CONFLICTS OF INTEREST

State laws requiring financial disclosures as a condition for presidential candidates to appear on ballots are likely constitutional, argues Danielle Lang on Take Care.

CIVIL RIGHTS

Constitutional arguments against H.J. Res 43, the bill that would allow states to deny federal grants to women’s health care programs, are promising, writes Leah Litman for Take Care.

If President Trump is able to fill a second Supreme Court vacancy and follows through on his promise to nominate judges who will overturn Roe v. Wade, we may see widespread criminal prosecutions of women, predicts Carole Joffe (Rewire).

A DOJ memorandum “gives new emphasis to combating religious hate crimes,” notes Howard Friedman at Religion Clause.

• The DOJ memorandum can be found here.

Although the Federal Communication Commission’s broadband privacy regulations have been repealed, the Wiretap Act continues to provide a substantial check on broadband providers, argues Orin Kerr (Volokh Conspiracy).

• Alex Kang reviews arguments for and against the FCC regulations and some expert reactions to their repeal (The Regulatory Review).
• Meanwhile, digital security professionals question President Trump’s commitment to privacy (Electronic Frontier Foundation).

DEMOCRACY

President Trump’s free speech argument in the civil case alleging that he incited violence against protesters at a campaign rally is in tension with his other views on free speech, argues Amanda Shanor at Take Care.

REGULATION

Surprise events may have a significant influence on climate policy during the Trump administration, writes Brad Plumer at Vox.

Environmental groups have asked the D.C. Circuit to deny the Trump administration’s request that the court delay its decision in litigation on the legality of the Clean Power Plan (ClimateWire, The Hill).

The Department of Energy has removed several pages related to climate change from its website (ClimateWire).

As President Trump prepares to meet with President Xi Jinping of China, several safeguards that have prevented a trade war between the U.S. and China are no longer present, argues Daniel Ikenson in Cato@Liberty.

Experts expressed concern that climate change would not be discussed during this week’s meeting between President Trump and President Xi Jinping of China (ClimateWire).

Despite President Trump’s promise to revitalize the coal industry, economic factors mean that demand for coal will likely continue to decrease in the coming years, according to Coral Davenport in the New York Times.

The Trump administration may attempt to reverse Obama-era regulations on the social cost of carbon and the “endangerment finding” covering carbon dioxide, but it will face obstacles, writes Niina Heikkinen at ClimateWire.

In the wake of President Trump’s February 3 executive order requesting a review of the Department of Labor’s rule requiring that retirement advisors follow a fiduciary standard, DOL has delayed implementation of the rule to June 9, 2017 (Forbes).

JUSTICE & SAFETY

The Department of Justice has sought to delay a consent decree with the Baltimore Police Department regarding police reform (Politico).

President Trump has issued a revised Presidential Memorandum on the organization of the National Security Council (NSC), notably removing Chief Strategist Stephen Bannon from the NSC principals committee (NYT).

• The memorandum can be found here.
• Jordan Brunner summarizes the revisions at Lawfare.
• Also at Lawfare, John Bellinger highlights the “positive development” that the Deputy National Security Advisor for Strategy Dina Powell has been added to both the principals committee and the deputies committee.
• Paul Rosenzweig argues that the revisions structurally subordinate homeland security to national security but that the domains should be separate (Lawfare).
• Jonathan Stevenson questions whether the NSC reorganization really indicates that National Security Advisor H.R. McMaster is wielding sufficient control, particularly in the light of the administration’s continually disjointed messaging (NYT).

In response to Tuesday’s deadly chemical weapon attack widely attributed to Bashar al-Assad’s government, President Trump ordered a military strike on a Syrian air base (NYT).

• John Bellinger examines the legal basis for the strike (Lawfare).
• At Just Security, Ryan Goodman argues that although U.S. military response to the humanitarian situation in Syria without U.N. Security Council approval would violate international law, it would not be unprecedented.
• The apparent shift in policy exposes the Trump administration’s “volatility,” argue Julian Borger and Spencer Ackerman (The Guardian).

The Trump administration owes the public more than its so far “infrequent, subdued references” to America’s Afghanistan policy, argues Benjamin Haas (Just Security).

Attorney General Jeff Sessions’s memorandum outlining task forces on various policies, including federal marijuana policy, has some state governors poised to fight back, writes Erik Altieri (NORML).

RULE OF LAW

Twitter filed a lawsuit after DHS filed a secret summons seeking information about the identity of a Twitter user claiming to be a dissident employee of the U.S. Customs and Immigration Service (The Intercept, Politico).

CHECKS & BALANCES

After 44 Democratic senators attempted to filibuster President Trump’s Supreme Court nominee, Judge Neil Gorsuch, Republican senators invoked the “nuclear option” to proceed to a confirmation vote with a simple majority (Politico, NYT, WaPo).

• The filibuster for Supreme Court appointments was effectively dead after the “nuclear option” was invoked for other appointments in 2013, argues Josh Chafetz in the Washington Post.
• Jennifer Steinhauer outlines implications for the Senate (NYT).
• Noah Feldman argues that the rule change may allow for nominees from more diverse backgrounds (Bloomberg View).
• A 50-vote threshold for Supreme Court appointments may mean more ideological polarization on the Court, according to several political scientists (Reuters).
• Former Republican Senators Bob Dole and Trent Lott support invocation of the “nuclear option” in an op-ed (WaPo).
• John Yoo and Sai Prakash argue that “democracy will emerge the winner” from the “nuclear option” (WSJ).

The Trump administration has developed relationships with the children of Supreme Court Justice Anthony Kennedy, in what some speculate is an effort to convince Justice Kennedy to retire (Politico)

RUSSIAN INTERFERENCE

Chairman of the House Permanent Select Committee on Intelligence Devin Nunes announced yesterday morning that he will step aside from the committee’s Russia investigation (Politico, NYT, WaPo).

• Nunes’s statement can be found here.
• Meanwhile, the House Ethics Committee released a statement (here) indicating it will investigate allegations of Nunes’s unauthorized disclosures of classified information.
• Russell Berman summarizes the “swift fall of Devin Nunes” (The Atlantic).
• Brian Barrett offers a detailed timeline of Representative Nunes’s surveillance claims and White House ties (Wired).
• Despite Nunes’s own missteps, the White House largely led him down this path, argues Amber Phillips (WaPo).
• Jane Chong cautions that Nunes’s statement did not use the word “recuse” and did not pledge uninvolvement in the investigation, making the statement much more equivocal than is being reported in various outlets (Lawfare).

President Trump continues to level accusations against the Obama administration of improper surveillance activity, including speculation that former National Security Adviser Susan Rice may have committed a crime (NYT).

• Bobby Chesney explains unmasking, the surveillance issue at the heart of allegations against Susan Rice (Lawfare).
• Caroline Lynch notes the odd Republican-Democrat reversal on support for the Foreign Intelligence Surveillance Act’s Section 702 authority in response to the Russian interference story (Lawfare).

And that's our update today!  Thanks for reading.  We cover a lot of ground, so our updates are inevitably a partial selection of relevant legal commentary.  

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