Emily Morrow  //  12/20/19  //  Daily Update

Speaker Nancy Pelosi indicated the House will be “ready” to move forward with the next steps once the Senate has agreed on ground rules, but the House may withhold from sending the articles to the Senate until after the new year. Commentary continues about the Fifth Circuit's mixed decision on the status of the ACA.


Speaker Nancy Pelosi stated the House is “ready” to move forward with a trial once the Senate has agreed on ground rules (Politico).

  • At the extreme, President Trump could stay in office with support from 17 states representing 7% of the population  (WaPo).

Others report that House leaders may withhold the articles of impeachment from the Senate through the New Year (NYTWSJBuzzFeed).

  • Regardless, the Senate may still hold a trial, explains Gerard N. Magliocca at Balkinization.

The DOJ argues that the House Judiciary Committee’s subpoena ordering former White House counsel Don McGahn to testify is moot following Trump’s impeachment (The Hill).

Democrats may be concerned that Mitch McConnell would hold a sham trial—because, in essence, he said he would do so, explain Greg Sargent and Paul Waldman at The Washington Post.

Article II of the impeachment articles, pertaining to obstruction of Congress, deserves greater public attention, in particular as precedent for future presidentswrites Keith E. Whittington at the New York Times.

Former White House officials indicate that Trump’s focus on Ukrainian interference in the 2016 election is a result of Putin influence (WaPo).

It is “implausible” that Senators could be “impartial” in the upcoming trial—the real threat isn’t “partiality” but that Republican Congressmen have already decided that Trump “didn't even abuse the powers of his office,” argues Marty Lederman at Balkinization.

  • Senators who take seriously their oath to “do impartial justice” must not apply friendlier standards to their own party write Ira C. Lupu and Robert W. Tuttle at Take Care

House Republicans’ refusal to take the proceedings seriously, and the Senate’s threat to conduct a trial without witness cheapens and trivializes Constitutional obligationswrites George T. Conway III at The Washington Post.



Immigration advocacy organizations sued the Trump administration to block implementation of public charge rules, specifically, the recent Proclamation requiring green-card applicants to have “approved” medical coverage or resources to pay for it (WaPo).



The United States and India agreed to mutual cooperation as India deals with massive protests over its new citizenship law (WaPo).



Eliminating the ACA would be highly consequential—the Fifth Circuit’s decision allows President Trump to escape accountabilitywrites Abbe R. Gluck at The New York Times.

By declining to rule on severability and inviting the district court that invalidated the entire ACA to reach a similar conclusion, the Court of Appeals gave the Republican Party a big advantage in the 2020 electionwrites Leah Litman at Take Care.

The Supreme Court may not hear a challenge to Texas v. United States right away, but the “writing is on the wall” for the ACA following the Fifth Circuit’s decision which blended “arrogance and cowardice” argues Nicholas Bagley at The Atlantic.

Agreeing with dissenting Judge King that the 2017 Congress already decided the issue, the Fifth Circuit should not have remanded the casewrites Ilya Somin at The Volokh Conspiracy.

  • The case is “necessary,” though, because Chief Justice Roberts saved the ACA on conditions that are no longer present argues Josh Blackman at The Volokh Conspiracy.


Daily Update | December 23, 2019

12/23/19  //  Daily Update

Speaker of the House Nancy Pelosi and Senate Majority Leader Mitch McConnell seek to leverage uncertainties in the rules for impeachment to their advantage. White House officials indicated that President Trump threatened to veto a recent spending bill if it included language requiring release of military aid to Ukraine early next year. The DHS OIG said that it found “no misconduct” by department officials in the deaths of two migrant children who died in Border Patrol custody last year. And the FISA court ordered the Justice Department to review all cases that former FBI official Kevin Clinesmith worked on.

Emily Morrow

Harvard Law School

Daily Update | December 19, 2019

12/19/19  //  Daily Update

The House of Representatives voted to impeach President Trump. Some Democrats urge House leaders to withhold the articles to delay a trial in the Senate. Meanwhile, the Fifth Circuit issues an inconclusive decision about the future of the ACA, and DHS and DOJ proposed a new rulemaking to amend the list of crimes that bar relief for asylum seekers.

Emily Morrow

Harvard Law School