Helen Klein Murillo,  //  6/5/17  //  Daily Update

Analysis continues of the Trump Administration's request for Supreme Court review of injunctions against its revised travel ban. The Administration's draft contraception coverage rules have leaked, and have drawn heavy criticism. The Office of Government Ethics plans to further investigate waivers issued by the White House to its staffers. Experts have weighed in on Trump's power to block former FBI Director James Comey from testifying before Congress. The President's decision to withdraw from the Paris Agreement raises a host of complex legal and political questions, both at home and abroad.



The Trump administration has sought Supreme Court review of a nationwide injunction against its revised travel ban, which temporarily suspends entry to the United States from six majority-Muslim countries (NYT,WaPo, WSJ).

  • You can find the government’s certiorari petitionhere.
  • An updated guide to Take Care analysis of the travel ban is available here.
  • On Take Care, Leah Litman analyzes the stay requests accompanying the government’s petition for certiorari.
  • At Lawfare, Amira Mikhail and and Jordan Brunnersummarize the government’s petition.
  • On SCOTUSblog, Edith Roberts provides around up of commentary on the petition.
  • Adam Liptak explains the key issues, background, and likely course of Supreme Court action in the matter (NYT).
  • Amrit Cheng of the ACLU likewise analyzes the Supreme Court’s options in responding to the petition.
  • On Take Care, Marty Lederman argues that certiorari could be denied for the simple reason that the entry ban expires less than two weeks from now, making the appeal potentially moot.
  • Marty elaborates on his argument in response to two alternative theories offered by Will Baude.
  • Ilya Somin encourages the Supreme Court to strike down the travel ban, even though president could hypothetically have established such a ban for non-discriminatory reasons (WaPo). 

Analysis of the Fourth Circuit’s ruling in the travel ban litigation continues.

  • At Lawfare, Quinta Jurecic argues that the Fourth Circuit’s ruling is motivated in part by judicial doubt as to the sincerity of President Trump’s oath (Lawfare).
  • Josh Blackman finished his five-part analysis of the Fourth Circuit opinion at Lawfare. In Part IV, Blackman analyzes Judge Niemeyer’s dissent in the Fourth Circuit’s travel ban ruling. In Part V, he looks at dissents by Judges Shedd and Agee and at the government’s certiorari petition to the Supreme Court.

Visa applicants deemed to be a potential threat to national security will be required to provide their social media handles under new vetting procedures (Ars Technica).

Even lawful permanent residents, whose immigration status is not covered by the travel ban, are declining to travel abroad, fearful that the unpredictable administration may prevent them from returning to the United States (LA Times).

Fake posters in Washington, D.C., urged residents to report “illegal aliens” to immigration authorities and provided telephone numbers to Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CPB) (NYT).

A new lawsuit challenges ICE’s policy requiring pre-approval for advocates to access family detention facilities to assist clients (ImmigrationProf Blog).

A new Government Accountability Office report highlights the need to reduce case backlog and improve management at the Executive Office for Immigration Review (ImmigrationProf Blog).

A look back at the debates and government action against Italian immigrants in the 19th and early-20th centuries reveals numerous parallels to today’s immigration debates, argues Helene Stapinski (NYT).



The full text of the administration’s proposed rules on contraceptive coverage is now available (Religion Clause).

  • The document can be found here.
  • On Take Care, Douglas NeJaime and Reva Siegel argue that the administration’s invoking conscience to block the contraceptive mandate is contrary to the U.S. religious liberty tradition.
  • Also on Take Care, Nelson Tebbe, Micah Schwartzman, and Richard Schragger offer an in-depth analysis of the administration’s effort to undermine the mandate, arguing that it is an affront to women and to the Constitution.
  • Louise Melling of the ACLU explains why the draft rule on contraceptive coverage is “frightening.”
  • Activists with close ties to the current administration are using propaganda films in an effort to pressure the Department of Justice to investigation Planned Parenthood (Rewire).
  • At Rewire, Imani Grandy, Brie Shea, and Jessica Mason Pieklo provide a timeline of increasing efforts to restrict second-trimester abortions.

The USA FREEDOM Act, surveillance reform legislation that turned two on Friday, has been significant not only in ending the NSA’s bulk collection programs, but also in creating greater transparency into the government’s surveillance programs, argue Caroline Lynch and Lara Flint (Lawfare).

  • Meanwhile, in the Lawfare Podcast, Matt Olsen discusses the future of Section 702, the warrantless foreign intelligence gathering provision (Lawfare).

A ban on Supreme Court Plaza demonstrations does not violate the Religious Freedom Restoration Act (RFRA), according to a new federal district court ruling (Religion Clause).



Significant voting rights hinge on the outcome of the appeal in Ohio’s voter rolls purge procedure case, granted Supreme Court certiorari last week, explain Jessica Mason Pieklo and Ally Boguhn (Rewire).

The effort to institute automatic voter registration is picking up steam across the country (HuffPost).

  • Meanwhile, some experts doubt whether voter suppression is a but-for cause of Hillary Clinton’s defeat in the 2016 presidential election (HuffPost).

Officials on the U.S. Election Assistance Commission are split on whether it was permissible to allow states to include documentary proof of citizenship requirements on federal voter registration forms, temporarily keeping the requirements off federal forms in the three states (Brennan Center for Justice).



President Trump’s proposed Department of Justice budget includes cuts to programs that the President promised he would not touch, explains Leah Litman on Take Care.

A federal judge has remarked that “80% of the mandatory sentences he hands down are unjust” (Sentencing Law and Policy).

Leaked photos of the Manchester bombing scene published by U.S. news outlets jeopardize national security, explains Laura Mallonee (Wired).

The Pentagon’s proposed measures to track weapons provided to Syrian rebels are insufficient for true accountability, according to arms-control experts (WaPo).

The Pentagon has confirmed an additional 100 civilian casualties in the U.S. air campaign against ISIS, bringing the acknowledged civilians death toll to 484 (WaPo).

  • At Lawfare, Zach Abels argues that the Trump administration must learn the counterinsurgency lessons of the early 2000s in Iraq, including pairing military effort with diplomacy and a focus on civilians, in order to be successful in the fight against ISIS in Iraq.

Defense Secretary James Mattis sought to quell foreign allies’ concerns over the Trump administration agenda at an Asian defense summit over the weekend (WaPo).

Michael Flynn may have decided to delay a U.S. military action opposed by the Turkish government after his consulting firm received payment from the Turkish government, writes Rep. Raja Krishnamoorthi (The Hill).



In response to recent pieces arguing that since George Washington violated the Emoluments Clause,  it isok if President Trump did as well, Jed Shugerman writes for Take Care that President Washington’s actions were also problematic.

The Office of Government Ethics plans to further investigate details and types of waivers issued by the White House to its staffers, which may indicate the waivers were improperly granted (WaPo).



Senator Mark Warner, the top Democrat on the Senate Select Committee on Intelligence, stated that so far there is no “smoking gun” evidence proving collusion between the Russians and the Trump administration (WSJ).

Trump campaign collusion with Russian interference in the 2016 campaign might criminally violate campaign finance laws, argues Bob Bauer (Just Security).

Immediately after President Trump took office, his staffers reportedly requested a plan from State Department officials to lift sanctions on Russia imposed as part of the Obama administration’s response to election interference (The Hill).

An FBI investigation might be a “proceeding” under the obstruction of justice statutes under a number of different theories, explain Helen Murillo and Ben Wittes (Lawfare).

  • The ACLU’s Christopher Anders, meanwhile, argues that Attorney General Jeff Sessions should be held accountable for his attempts to thwart the investigations.

A “megadeal” between Qatar and Russia may corroborate statements in the alleged MI6 dossier on President Trump and explain some of the meetings taking place between Jared Kushner, Michael Flynn, and Russian Ambassador to the U.S. Sergei Kislyak, writes Jed Shugerman (Shugerblog).

Discussion continues of the potential for President Trump to invoke executive privilege to prevent James Comey from testifying to particular matters at his upcoming Senate appearance (Reuters, WSJ).

  • Charlie Savage provides an overview of the nature and application of executive privilege, noting that since James Comey no longer works for the federal government, the Administration would need an unprecedented restraining order to prevent testimony (NYT).
  • The ABA discusses the procedures necessary for invoking executive privilege (ABA Journal).
  • Michael Stern argues that executive privilege turns not on whether an official wishes to testify but on whether the president invokes executive privilege (Point of Order).

When an individual is granted a pardon that removes the risk of criminal self-incrimination, that individual may no longer refuse to testify if subpoenaed; however, an individual may refuse a pardon in order to maintain the right against self-incrimination, concludes Eugene Volokh (WaPo).

With increasing focus on his campaign activities, Attorney General Jeff Sessions may very well be among Trump associates at risk in the wide-ranging Russia investigation, argues Emile Cadei (Newsweek).

Holman W. Jenkins, Jr., argues that Russian efforts to disrupt U.S. politics consisted of planting fake leads to get U.S. government agencies to intervene in the campaign, instead of actual intervention (WSJ).



President Trump plans to announce curtailment of federal government funding for infrastructure and to encourage cities, states, and corporations to provide most of the necessary projects and repairs (NYT, WSJ).

As appointed positions remain empty, the Federal Trade Commission has only two commissioners, who must agree before the FTC can challenge a merger, writes Brent Kendall (WSJ).



The fight over the U.S. withdrawal from the Paris climate agreement will extend past the 2020 presidential election, explains a team of contributors at Just Security.

  • At Take Care, Michael C. Dorf writes that President Trump is no extremist on climate change; rather, his actions are consistent with the view of most congressional Republicans.
  • At Lawfare, David Wirth argues that international law provides a safety net against the sudden withdraw from the legally binding treaty.
  • At Opinio Juris, Daniel Bodansky explains that the actual impact of President Trump’s announcement to withdraw from the agreement will likely depend on the reaction of other signatories to the agreement, who have a claim under international law that the treaty is enforceable.
  • At Just Security, Tess Bridgeman argues that the Paris agreement is a binding agreement under international law and examines why that matters.



Trump-appointed judges faced with a Democratic president may developed a series of “nationalism canons,” “principles and doctrines . . . that will aim to ensure that officials of the United States act strictly as representatives of Pittsburgh, not Paris,” speculates Adrian Vermeule (Lawfare) 

The Obama administration’s decision to fund the Affordable Care Act (ACA) without clear statutory authority handed the Trump administration a powerful tool to use against the ACA, writes Carl Hulse (NYT).

The David Horowitz Freedom Center, a charity related to some of the most powerful members of the Trump administration, may violate IRS rules about participation by charities in political activities, argue Robert O’Harrow, Jr. and Shawn Boburg (WaPo).


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.

If you have any feedback, please let us know here.

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