Helen Marie Berg, Ian Eppler  //  12/6/17  //  Daily Update

Yesterday, a seemingly divided Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission leaving commentators focused on predicting Justice Kennedy’s take. Shifting course in American policy, President Trump announces that the U.S. plans to recognize Jerusalem as the capital of Israel. The Special Counsel withdrew support for a negotiated bail agreement with former Trump campaign manager Paul Manafort after discovering that Manafort was secretly ghost-writing an op-ed about his criminal case with an individual with ties to Russian intelligence. New DHS report shows that arrests at the border have dropped under President Trump, but immigration arrests inside the country have increased. 

IMMIGRATION

The Court’s orders allowing the Trump administration’s travel ban to go into full effect signals bad news for the plaintiff’s arguments, writes Josh Blackman at Lawfare.

The Trump administration’s policy to immediately deny visas to members of “undesignated” terrorist organizations runs counter to courts’ recent skepticism of such bars for classes of immigrants (Lawfare).  

New DHS report shows that arrests at the border have dropped under President Trump, but immigration arrests inside the country have increased (WaPo, NYT, LA Times).

• The report is here.
• The Cato Institute breaks down some of the statistics.

Despite rescinding DACA, President Trump may be motivated to “do right” by the children who were brought to U.S. by their parents, suggests activist Ali Noorani on the Washington Post podcast, Cape Up.

Federal court rules that immigrant teenagers accused of gang activity can’t be detained without a showing that their detention is justified (ACLU).

CIVIL RIGHTS

Yesterday, a seemingly divided Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission leaving commentators focused on predicting Justice Kennedy’s take (NYT, WaPo, WSJ, LA Times, NPR).  

• SCOTUSblog analyzes the parties’ arguments and Justices’ questions.
• The New York Times suggests that this case has an easy answer.
• The Washington Post thinks so as well.
• Justice Kennedy is considered the decisive vote (Lyle Denniston, AP, Bloomberg).
• Slate predicts a victory for the baker.
• The baker’s legal strategy focuses on religious freedom and minority rights (WaPo).
• Buzzfeed provides background on the Alliance Defending Freedom’s CEO.
• The Human Rights Commission warns of the consequences of a decision for the baker.
• The Cato Institute argues that this is different than Jim Crow era discrimination.

JUSTICE & SAFETY

Shifting course in American policy, President Trump announces that the U.S. plans to recognize Jerusalem as the capital of Israel (NYT, WSJ).

• France, Turkey, and other allies warn against the recognition (BBC, NYT).
• The New York Times explains the significance of the recognition.  
• The LA Times worries about the consequences for peace talks for the region.

Now that it will likely be investigated by the International Criminal Court about the mistreatment of detainees in Afghanistan, the U.S. must decide how to proceed, explains Jane Stromseth at Just Security.

CONFLICTS OF INTEREST

The Global Anti-Corruption Blog released its December 2017 report on conflicts of interest in the Trump administration (Global Anti-Corruption Blog).

REGULATION

President Trump’s order shrinking two Utah national monuments contradicts the text, history, and purpose of the Antiquities Act, argues Caroline Cox at Take Care.

• The Navajo Nation and several other American Indian tribes sued over the order (The Hill).
• Several other lawsuits have also been filed, reports Hillary Hoffmann at Environmental Law Prof Blog.
• Interior Secretary Ryan Zinke will likely ask President Trump to shrink two more national monuments (The Hill, WaPo).

Data on the political affiliations of civil servants suggest that there is unlikely to be a “deep state” working to undermine the Trump administration’s agenda, argues David E. Lewis in The Regulatory Review.

The administration is appealing a federal district court ruling blocking the Department of the Interior’s attempts to delay an Obama-era regulation restricting methane pollution from oil and gas extraction on public land (The Hill).

The Federal Communications Commission excluded more than 50,000 relevant consumer complaints from its docket on net neutrality repeal (Ars Technica).

REMOVAL FROM OFFICE

The president cannot commit criminal obstruction of justice in exercising powers granted to the president under Article II of the Constitution, argues Josh Blackman at Lawfare.  

• While certain conduct that would be obstruction of justice if committed by anyone other than the president may not qualify as obstruction if committed by the president, it does not follow that the president cannot commit obstruction, responds Benjamin Wittes at Lawfare.

The argument by President Trump’s lawyer John Dowd that the president cannot be criminally charged with obstruction of justice may be incorrect, suggests Joan Biskupic at CNN.

RUSSIAN INTERFERENCE

The Special Counsel withdrew support for a negotiated bail agreement with former Trump campaign manager Paul Manafort after discovering that Manafort was secretly ghost-writing an op-ed about his criminal case with an individual with ties to Russian intelligence (WSJ).

Bank records related to President Trump and the Trump Organization have been subpoenaed by the Special Counsel (WSJ).

• Jay Sekulow, a lawyer for President Trump, denied the report, but bank customers generally are not notified when their records are subpoenaed (TPM).

In a June 2016 meeting at Trump Tower, Donald Trump, Jr. asked a Russian lawyer with ties to the Russian government for information about the Clinton Foundation and lost interest when no such information was forthcoming, according to a statement provided to the Senate Judiciary Committee (NBC).

• The full statement is available here.

President Trump criticized the Special Counsel and the FBI on Twitter after reports that an agent assigned to the investigation was removed for sending anti-Trump text messages (The Hill).

Thus far, the Special Counsel investigation has cost $6.7 million, according to a Department of Justice report (Washington Post).

Public documents may provide significant clues into the direction of the Special Counsel’s investigation, argues Dan Froomkin at ACS Blog.