Raquel Dominguez  //  6/28/17  //  Daily Update


Commentary and analysis about the Supreme Court's decision to modify the stay of the travel ban continues. In particular, commentators debate whether the decision was a good result for the Trump Administration, and they wonder how the limits articulated by the Supreme Court will be enforced. And the end of the Supreme Court's term also gave rise to several other decisions that have generated commentary, especially Hernandez v. Mesa and Pavan v. Smith.

 

IMMIGRATION

Debate continues as to who scored the “victory” regarding the Supreme Court’s decision to modify the stay of the travel ban (NYT, The Atlantic, WSJ, WaPo). 

  • President Trump’s response to the Supreme Court decision can be found here
  • Marty Lederman with Take Care explains what happened. 
  • Daniel Hemel, writing for Take Care, notes the Court’s deviation 
  • Michael Dorf, writing for Verdict, offers his analysis. 
  • Dahlia Lithwick and Mark Joseph Stern with Slate liken the Supreme Court’s decision to baby-splitting. 
  • Noah Feldman on Bloomberg View thinks the Court strategically gave a modest win to President Trump. 
  • Corey Brettschneider, writing for NYT, believes the travel ban would be struck down if heard on the merits. 
  • Peter Margulies with LawFare praises the Court’s balance of the equities. 
  • Jack Goldsmith with LawFare praises the Court’s measured response.
  • The Supreme Court deviated from Nken’s four-factor stay standard, but probably did so to insure institutional legitimacy, writes Daniel Hemel for Take Care.

Others note the difficulty of determining how to interpret and implement the ruling.

  • Will Baude for the Volokh Conspiracy explores the possibilities of what happens next. 
  • How the government will interpret “bona fide relationship” remains unclear (The Hill, NYT).
  • Amir Ali on Take Care describes how this uncertainty creates hardship for and facilitates discrimination against Muslim people.
  • Josh Blackman for LawFare weighs in on the ramifications of “bona fide.”

The travel ban issue will become moot before the Supreme Court can make a decision on the merits, predicts Richard Primus writing for Politico Magazine.

The DOD is considering cancelling the enlistment contracts of undocumented soldiers and adopting “enhanced screening” for soldiers who are naturalized citizens (WaPo).  

  • Customs and Boarder Protection has asked select companies for prototypes (NYT, LA Times). 

 

CIVIL RIGHTS

The per curiam opinion issued by the Supreme Court in Pavan v. Smith does not mean the Chief Justice has accepted Obergefell as stare decisis, writes Joshua Matz for Take Care. 

 

SAFETY AND JUSTICE

The Supreme Court’s punt of Hernandez v. Mesa may illustrate the impossibility of federal civil rights actions against federal officers, writes Michael Dorf for Take Care. 

  • The Court’s opinion can be found here
  • Amy Howe, writing for SCOTUSblog, summarizes the issues. 
  • Elie Mystal with Above the Law criticizes the court’s decision. 
  • Andrew Kent, writing for LawFare, supports the court’s decision. 

Though Secretary of Defense Jim Mattis says the United States refuses to be drawn into the Syrian Civil War, the White House threatens repercussions for any chemical attack (WaPo, WSJ, NYT, Politico). 

  • Brian Bennett and Noah Bierman with the LA Times describe how the warning about chemical attacks has become a credibility test. 

Congress could not have intended the AUMF to authorize recent US conduct in Syria, argues Deborah Pearlstein on Balkinization. 

 

REGULATION

The Regulatory Review continues its series of essays on the legality of President Trump’s “1-in-2-out” executive order. 

  • Scott Slesinger and Robert Weissman argue that the executive order “violates the constitutional separation of powers doctrine and the President’s duty to take care that the laws be faithfully executed.”
  • Sam Batkins disagrees that the Executive Order raises constitutional concerns, and also claims that the lawsuit challenging the order is unripe for judicial review.

 

And that's our update today! Thanks for reading. We cover a lot of ground, so our updates are inevitably a partial selection of relevant legal commentary.

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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 20, 2019

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.

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