Christina Ford, Eve Levin  //  1/9/18  //  Daily Update

The Supreme Court has indicated it will consider the President’s third immigration order at its conference on January 19th. President Trump’s threat of litigation is another blow to democratic norms. A Congressional Review Act resolution to reverse the FCC’s net neutrality repeal garnered the critical 30th co-sponsor needed to force a vote on the measure. Commentators on the right and left have reacted to questions about the President’s mental fitness. Reports suggest that Special Counsel Robert Mueller is weighing interviewing President Donald Trump, while the President’s team is reportedly seeking to avoid an interview altogether.

SYMPOSIUM

Administrative separation of powers is critical to the constitutionality of the administrative state and is dangerously threatened by the current administration, argues Jon Michaels at Take Care.

IMMIGRATION

The Supreme Court has indicated it will consider the President’s third immigration order at its conference on January 19th (Lyle Denniston Law News).

The Trump Administration plans to end Temporary Protected Status for approximately 200,000 Salvadorans, many of whom have lived in the United States for almost two decades (NYT; WaPo; LA Times).

• You can find the announcement from DHS Secretary Nielsen here.

A pair of lawmakers have unveiled a bipartisan DACA plan that they hope will be acceptable to the Trump Administration (CNN).

DEMOCRACY

One year into office, President Trump continues to show hostility to the press and fallout continues over the President’s threat to sue the author and publisher of “Fire & Fury” (ACS Blog).

• Michael C. Dorf at Take Care suggests that authors and publishers cannot be held liable for inducing a breach of a nondisclosure agreement.

A Democratic member of the recently disbanded Presidential Election “Integrity” Commission said the White House had preordained results in mind for the Commission’s conclusions on voter fraud (WaPo).

JUSTICE & SAFETY

President Trump is headed toward another crisis over his promise to walk away from the Iran Deal (Lawfare).

President Trump is calling on the Pentagon and diplomats to drum up overseas business for the U.S. weapons industry; the President also hopes to ease export rules for U.S. military exports (Reuters).

National Security Advisor H.R. McMaster says there is evidence that Russia is interfering in Mexico’s presidential election (Reuters).

CONFLICTS OF INTEREST

Former Acting Comptroller of the Currency Keith Noreika is returning to private practice where he will advise banks he oversaw during his tenure, raising ethics concerns (WSJ).

REGULATION

Congress should require regulators to adopt a more outcome-oriented approach to regulation, argue former OIRA Administrator John D. Graham and his former Counselor, Paul R. Noe.

Obamacare’s pre-existing conditions provisions diminish quality and are politically unpopular, claims Michael Cannon in a two-part series excepted at Cato.

A Congressional Review Act resolution to reverse the FCC’s net neutrality repeal garnered the critical 30th co-sponsor needed to force a vote on the measure (Ars Technica)

Human impact on the planet’s natural systems will force a significant expansion of state coercion of individuals, argues Eric Biber in the third installment of a multi-part series at LegalPlanet.

To protect Americans from extreme weather threats, Congress must combat carbon pollution, support affected communities, and reform the National Flood Insurance Program, writes Josh Saks at the Hill.

• The Project on Government Oversight released supplemental analysis of federal government spending on Hurricane Harvey, Irma, and Maria recovery contracts. 

Despite his bombastic protectionist rhetoric, President Trump has erected few real tariff walls or trade barriers in his first year, writes Daniel Ikenson at Cato.

• Colin Grabow concurs at the Hill.
• Erecting more trade barriers or pulling out of NAFTA would be a blow to the states that elected the President, writes the Wall Street Journal Editorial Board.

There are fewer OSHA workplace safety inspectors under the Trump administration than under President Obama, reports Lydia Wheeler at the Hill.

President Trump vastly overstated the size of the tax cuts passed by Congress in a speech to farmers in Nashville, Tennessee (NYT).

• In the speech, the President also said he wanted a “better” NAFTA (WSJ; Politico).
• The GOP failed to sell its tax reforms to the American people via social media messaging, writes Matt Salisbury at the Wall Street Journal.

Democratic members of Congress expressed concern that the Trump administration may pressure the IRS to produce politically advantageous but substantively problematic withholding tables (The Hill).

The now-eliminated tax deduction for college football season-ticket holders’ mandatory “gifts” was a microcosm of the wacky federal subsidies going to the ivory tower, opines Neal McCluskey (Cato).

Senator Elizabeth Warren accused acting CFPB Director Mick Mulvaney of undermining the agency’s oversight of the financial sector (The Hill).

Kirsten Mork, the House Financial Services Committee Staff Director, has been named CFPB Chief of Staff (Consumer Finance Monitor).

The Supreme Court declined to grant cert in a coal mining company’s appeal arguing that the EPA must report on its regulations’ impact on coal jobs (The Hill).

FERC unanimously rejected Energy Secretary Rick Perry’s proposal to support coal and nuclear power plants (WSJ; The Hill; Ars Technica; LA Times;Politico).

DOL revived significant Bush-era overtime guidance under the FLSA (WaPo).

The President’s tweet touting the lowest black unemployment rate ever is badly misleading, claims Philip Bump at the Washington Post.

RULE OF LAW

Using a personal attorney to threaten litigation and settle personal scoresis unethical and inappropriate conduct for the President, explains Bob Bauer at Lawfare. 

Mandatory asset declarations for public officials may not actually decrease corruption, writes Ryan Balisacan at the Global Anticorruption Blog.

FEDERALISM

Net neutrality measures are gaining momentum in state legislatures, despite the FCC’s claim that state laws are preempted (Ars Technica; The Hill).

Andrew Cuomo’s attack on the new federal limit on deductibility for state and local taxes is a misplaced attempt to avoid addressing the real issue: state spending, argues William McGurn (WSJ).

REMOVAL FROM OFFICE

The 25th Amendment likely will not be invoked to remove the president, explains Josh Gerstein at Politico.

Commentators on the right and left react to questions about the President’s mental fitness, compiled at the New York Times.

• The White House is struggling to quell the questioning (WaPo).
• Reports that the President usually only works on official business from 11am to 6pm suggest a lack of interest in and fitness for the role, argues Aaron Blake at the Washington Post.
• The President’s physical won’t tell you much about his mental health, explain Dan Diamond and Adam Cancryn at Politico.

RUSSIAN INTERFERENCE 

Reports suggest that Special Counsel Robert Mueller is weighing interviewing President Donald Trump, while the President’s team is reportedly seeking to avoid an interview altogether (NBC News; WSJ; WaPo).

• At Just Security, Kate Brannen breaks down what the news may indicate about Mueller’s investigation as well as what law might apply to the interview.

Steve Bannon was morally correct, albeit not legally precise, when he called the conduct of senior Trump campaign officials “treasonous,” opines Jonathan Rauch at Lawfare.

Election interference is a pressing cybersecurity issue, argues Paul Rosenzweig at Lawfare.

Who is Glenn Simpson, the founder of the firm responsible for the infamous Trump dossier? Matt Flegenheimer provides an extensive profile at the New York Times.

The House Intelligence Committee deserves credit for securing the disclosure of potentially significant information about the Steele dossier, writes the Wall Street Journal editorial board.

Fusion GPS, the firm behind the dossier, argued that the federal judge in a case stemming from the dossier’s publication should recuse himself due to his alleged conflicts of interest (Politico).

• The firm’s letter urging recusal is here.