Zak Lutz  //  2/8/19  //  Daily Update


After earlier saying he would not testify before Congress unless the subpoena threat were removed, Acting Attorney General Matthew Whitaker said he would testify before the House Judiciary Committee. Federal investigators have given David Pecker, chief of the National Enquirer’s publisher, immunity to cooperate with the investigators. The HHS Office of Population Affairs removed content about birth control and related medicine from its Title X website. The  FEC adjusted the individual contribution limit to $2,800 per person for the next election cycle. DOJ awarded $8.3 million to the victims of the Las Vegas shooting. President Trump is likely to sign an executive order banning Chinese telecom equipment next week. The Trump Administration relaxed rules for gun exports. The CFPB proposed new regulations on payday loan lenders that would rescind “ability-to-repay” provisions.

 

TRUMP INVESTIGATIONS & LITIGATION

After earlier saying he would not testify before Congress unless the subpoena threat were removed, Acting Attorney General Matthew Whitaker said he would testify before the House Judiciary Committee (Politico, NYT, WaPo).

  • If Matthew Whitaker declines to testify before Congress, a contempt of Congress charge will be “ripe for consideration,” argues Andy Wright in Just Security.

The District Court for the Southern District of New York is still investigating Michael Cohen for campaign finance crimes (Election Law Blog).

Federal investigators have given David Pecker, chief of the National Enquirer’s publisher, immunity to cooperate with the investigators (NYT).

Investigations into the Trump Administration are already slowing congressional action (WaPo).

  • Today, a hearing began meant to obtain President Trump’s tax returns (WaPo).

 

CIVIL RIGHTS

President Trump lied about abortion laws in the State of the Union address, argues Governor Andrew Cuomo in the New York Times.

  • Other commentators have also argued that Trump lied about abortion in the State of the Union address (NYT).

The Pain-Capable Unborn Children Protect Act would be unconstitutional under the Commerce Clause, suggests Gerard N. Magliocca in Balkinization.

The Trump administration argued in the D.C. Circuit against granting a habeas corpus petition for a Guantanamo Bay prisoner (Lawfare).

The HHS Office of Population Affairs removed content about birth control and related medicine from its Title X website (Sunlight Foundation).

The Indian Child Welfare Act infringes on parents’ and children’s rights, argue Walter Olson and Nathan Harvey in Cato at Liberty.

When colleges confine free speech to a “zone,” it isn’t free, argue Emerson Sykes and Vera Eidelman at the ACLU.

 

DEMOCRACY

The FEC adjusted the individual contribution limit to $2,800 per person for the next election cycle (Election Law Blog, Inside Political Law).

The United States Election Assistance Commission swore in two Commissioners to reach a quorum of four for the first time in a decade (Election Academy).

If President Trump obstructed justice by firing FBI Director James Comey, then unintended consequences will follow for judges and lawmakers, argue David B. Rivkin Jr. and Lee A. Casey in the Wall Street Journal.

America can constitutionally tax wealth, argues Neil H. Buchanan in Verdict.

 

JUSTICE & SAFETY

DOJ awarded $8.3 million to the victims of the Las Vegas shooting (Hill).

DOJ intensified its scrutiny of class action lawsuits in an appellate brief in the Sixth Circuit, explains Alison Frankel at Reuters. 

While litigation about death penalty injections are before the Court, Tennessee is moving to execute more inmates (NBC).

Mitch McConnell submitted an amendment that may justify military operations against Iran, explains Brian Egan and Tess Bridgeman in Just Security.

It is plausible for “the future” to have standing to challenge climate change policies, argues Dan Farber in Legal Planet.

It is a “moment of truth” for cyber insurance policies, explain Ariel Levite and Wyatt Hoffman in Lawfare.

 

CONFLICTS OF INTEREST

DOJ issued issued a legal opinion long sought by Casino Magnate Sheldon Adelson (WaPo).

 

REGULATION

President Trump is likely to sign an executive order banning Chinese telecom equipment next week (Politico).

The Trump Administration relaxed rules for gun exports (Hill). 

The CFPB proposed new regulations on payday loan lenders that would rescind “ability-to-repay” provisions (Consumer Finance Monitor).

In Kisor v. Wilkie, the Supreme Court should reject Chevron deference but heed caution before ruling on any further deference issues, argues Samuel Estreicher in Verdict.

The FCC’s plan to create a disconnected phone number database could limit exposure to the Telephone Consumer Protection Act, explains Barbara Mishkin in the Consumer Finance Monitor podcast.

The CFPB entered a settlement with a payday loan lender (Consumer Finance Monitor).

 

RULE OF LAW

Originalism does not demand conservative policy outcomes -- and liberals, in fact, have argued against “fauxriginalism,” argues Praveen Fernandes in Take Care.

DOD has been slow to implement reforms according to the Government Accountability Office (GovExec).

 

CHECKS & BALANCES

Judges must carefully consider whether they should participate in legal proceedings in which toddlers appear without legal representation, explains Craig B. Mousin in The American Medical Association Journal of Ethics.

 

FEDERALISM

Maryland sued in district court attempting to enforce the Affordable Care Act and lost after the court found no live case or controversy, explain Jason Harrow and Easha Anand on this week’s Versus Trump podcast.

Judge Jeffrey Sutton’s 51 Imperfect Solutions proposes a radical new approach in which states protect individual liberty, say John C. O’Quinn and Jason M. Wilcox in The Federalist Society.

 


Daily Update | February 20, 2019

2/20/19  //  Daily Update

President Trump denied asking former acting Attorney General Matthew Whitaker to put a U.S. attorney who would be sympathetic to President Trump in charge of the investigation into payments to a woman President Trump allegedly had an affair with. The Supreme Court ruled 6-3 that a Texas man may not be executed due to his having an intellectual disability, reversing a Texas Court of Criminal Appeals decision. Judge Amy Berman Jackson ordered a hearing on Roger Stone’s bail status after he posted an image on Instagram which appeared to show the judge’s head next to the crosshairs of a gun. President Trump signed an order to create a military branch under Air Force control that would primarily deal with threats in space, which he has referred to as a “space force.” The House Committee on Oversight and Reform released a report discussing allegations from whistleblowers that Michael Flynn and other members of the Trump administration were part of an effort to transfer nuclear technology to Saudi Arabia.

Jacob Miller

Harvard Law School

Daily Update | February 19, 2019

2/19/19  //  Daily Update

Sixteen states sue to challenge the President’s authority to declare a national emergency to build the border wall. A lawsuit was filed by multiple civil rights organizations challenging the administration’s policy of sending asylum seekers back to Mexico while their cases are considered. The budget bill passed last week pushes back against some Trump Administration policies, but overall continues to expand the federal government’s immigration prison regime. President Trump stopped cost-sharing payments under the ACA, and Congress may end up liable to insurers for over $12 billion in missed payments. The First Circuit says the board appointed to oversee Puerto Rico’s finances was illegally constituted, and President Trump may have to appoint a new one.

Hetali Lodaya

Michigan Law School

Daily Update | February 18, 2019

2/18/19  //  Daily Update

Trump has declared a national emergency to fund the border wall. As a border wall becomes more likely, asylum seekers at the border are giving up hope. The Court will review the census citizenship question dispute this term. The Special Counsel's office filed its sentencing memo in Paul Manafort's case. Special Counsel Robert Mueller has subpoenaed a former employee of the data firm Cambridge Analytica. A district court ordered the Trump administration to halt the imminent discharge of HIV-positive airmen.

Kyle Skinner

Harvard Law School