Christina Ford  //  12/8/17  //  Daily Update

Commentary continues following Wednesday’s oral argument in Hawaii v. Trump at the Ninth Circuit Court of Appeals. The Trump Administration sided against public employee unions in a brief filed at the Supreme Court late Wednesday night. Congress approved a two-week stopgap measure to keep the government funded and sent the bill to President Trump to sign. CFPB Deputy Director English filed an injunction in D.C. District Court to block OMB Director Mulvaney from leading the agency. During a congressional hearing, EPA Administrator Pruitt said the EPA is committed to replacing the Clean Power Plan.   

PODCAST

The latest episode of Versus Trump features Joshua Matz, publisher of Take Care, for a discussion about the Masterpiece Cake Shop oral argument, the status of the Muslim Ban litigation, and the future of Take Care.

IMMIGRATION

Commentary continues following Wednesday’s oral argument in Hawaii v. Trump at the Ninth Circuit Court of Appeals.

• Dahlia Lithwick wonders why people seem to have stopped caring about the animus underlying the travel ban (Slate).
• The panel argument turned on whether the ban clashes with the Immigration Act, writes Peter Margulies at Lawfare.
• The panel pushed back on the government’s argument that the court had only limited power to review President Trump’s action, notes Maura Dolan at the L.A. Times.
• You can watch a video of the oral argument here.
• The Fourth Circuit Court of Appeals will hear arguments on a different challenge to the ban on Friday.

Attorney General Sessions issued a new memo reviewing DOJ policies and practices regarding the speed of immigration cases (ImmigrationProf Blog). 

• You can read the memo here.

CIVIL RIGHTS

In Masterpiece Cakeshop, Justice Kennedy must realize that the price of tolerance is equality, writes David Gans at Take Care.

DEMOCRACY

The Trump Administration sided against public employee unions in a brief filed at the Supreme Court late Wednesday night (WaPo; Politico).

• The Solicitor General’s brief could tip the scales in the case, writes Lyle Denniston at Lyle Denniston Law News.
• You can read the brief here.

JUSTICE & SAFETY

DHS will create a new office focused on countering weapons of mass destruction (WaPo).

During an oversight hearing, FBI Director Wray defended the Bureau’s hacking notification procedures (The Hill).

REGULATION

Congress approved a two-week stopgap measure to keep the government funded, sending the bill to President Trump to sign (NYT; The Hill).

During a congressional hearing, EPA Administrator Pruitt said the EPA is committed to replacing the Clean Power Plan (The Hill).

• Pruitt also stated that the EPA under President Obama engaged in a “breach of process” when it declared greenhouse gases a dangerous pollutant in 2009.  

CFPB Deputy Director English filed an injunction in D.C. District Court to block OMB Director Mulvaney from leading the agency (The Hill; Consumer Finance Monitor).

• You can read the motion for a preliminary injunction here.

Outdoor-recreation companies like Patagonia and REI are joining the lawsuit against President Trump’s actions on national monuments in Utah (WSJ).  

• Both proclamations by President Trump raise distinct legal issues, writes Nick Breyner at Legal Planet.

CHECKS & BALANCES

Democrats on the Senate Judiciary Committee are criticizing their Republican colleagues for rushing judicial nominees through the confirmation process (The Hill).

During an oversight hearing, FBI Director Wray defended the Bureau’s independence in response to Republican legislators who say the Bureau is biased against President Trump (WaPo). 

• Congress must step up and protect the FBI, writes Matthew Kahn at Lawfare.

REMOVAL FROM OFFICE 

There are at least eight grounds for the House to authorize the Judiciary Committee to begin hearings on whether to impeach President Trump, write Ron Fein, John Bonifaz, and Ben Clements at Take Care.

MUELLER INVESTIGATION & RUSSIAN INTERFERENCE 

Donald Trump Jr.’s invocation of attorney-client privilege is dubious, argues Andy Wright at Just Security. 

The Logan Act’s text, legislative history, and prior interpretations counsel in favor of a narrow construction, argue Daniel Hemel and Eric Posner at Lawfare. 

• Daniel Rice at Just Security argues that invoking the Logan Act could cause serious collateral consequences.

Paul Manafort’s defense team argued his op-ed did not violate the judge’s gag-order in the case (The Hill).

Previously undisclosed emails show a follow-up to the June 2016 Trump Tower meeting (CNN).