Take Care  //  3/20/17  //  Daily Update

Legal commentary remains focused on President Trump's revised entry ban, which has been blocked by two federal judges.  Late on Friday, several judges of the Ninth Circuit Court of Appeals published opinions regarding that court's denial of rehearing en banc in Washington v. Trump (which upheld a ruling that blocked the original entry ban).  These opinions have generated an active debate over the propriety of considering President Trump's campaign statements in reviewing the purpose behind his entry bans.  Elsewhere, the big news on Friday was a brief filed by the Department of Justice that switched from an Obama-era position and argued that the Consumer Financial Protection Bureau is structured in an unconstitutional manner. 

IMMIGRATION

A federal judge in Hawaii has denied a request to narrow the scope of his order against the revised entry ban.

• Lyle Denniston outlines arguments presented over the weekend and describes Judge Watson’s short order.

Late Friday, several Ninth Circuit judges issued additional opinions regarding the denial of en banc review in Washington v. Trump, in which a three-judge panel of the Ninth Circuit upheld a decision blocking President Trump’s first entry ban (here).

• Judges Reinhardt and Berzon concurred in the denial of rehearing en banc and responded to dissents from Judges Kozinski, Bybee, and Bea.
• Josh Gerstein (Politico) summarizes the latest opinions.

Commentators have weighed in on judicial battles over President Trump’s entry bans. 

• For this site, Michael Dorf explains why the Establishment Clause has emerged as the main stumbling block for the revised entry ban.
• Also writing for Take Care, Amir Ali observes that President Trump likely will appeal very quickly, even though waiting to appeal would be the wiser course.
• At Just Security, Daphne Eviatar argues that the revised entry ban “is doomed.”
• Lyle Denniston reports that the government has appealed one district court order (Maryland) and offers thoughts on why it has not yet appealed another (Hawaii).
• Jeffrey Toobin (New Yorker) argues that federal courts have erred in considering President Trump’s campaign statements in their constitutional analysis; at Concurring Opinions, Gerard Magliocca advances a similar argument.
• At Volokh Conspiracy, Will Baude notes that the question whether courts should treat government institutions as “black boxes,” or should probe more deeply, is familiar.

A leaked draft executive order would use receipt of public benefits as a basis to deny citizenship or as a basis for removal, according to Michael Fix and Randy Capps (Migration Policy Institute).

President Trump has requested proposals to build a “physically imposing” border wall, as reported by Ron Nixon (NYT).

CIVIL RIGHTS

President Trump’s command that female employees “dress like women” is offensive and unworthy of the Presidency, as Richard Thompson Ford explains for Take Care.

Incognito messaging by federal employees raises legal questions, according to Harper Neidig and Joe Uchill (The Hill).

JUSTICE & SECURITY

President Trump will shower private prisons with money and influence, as Madelyn Peterson explains in the Harvard Civil Rights-Civil Liberties Law Review.

CONFLICTS OF INTEREST

At Notice & Comment, Andy Grewal considers whether retired Lt. General Michael Flynn’s speaking fees from Russian sources violated the Foreign Emoluments Clause.

President Trump’s close advisor Carl Icahn has reportedly bet millions of dollars that the Environmental Protection Agency will adopt a reform to the market for renewable-fuel credits that he’s advocated to the President (The Intercept, Bloomberg).

REGULATION

The Justice Department filed a brief in PHH Corporation v. CFPB arguing that the Consumer Finance Protection Bureau’s (CFPB’s) structure is unconstitutional, a sharp departure from the Obama administration’s position. (NYT, WSJ, WaPo)

• Here’s the brief.
• At Volokh Conspiracy, Jonathan Adler remarks on the unusual circumstance posed by the Justice Department opposing another federal agency.
• At Consumer Law & Policy Blog, Jeff Sovern argues that the government is wrong.
• At CFPB Monitor, Alan Kaplinsky, Richard Andreano, Jr., and Theodore Flo note that the Justice Department seeks a more limited remedy than does PHH.

President Trump has declined to nominate people to key agency positions, avoiding the required advice & consent process, as Brianne Gorod explains for Take Care.

Americans are conflicted in their feelings about the federal bureaucracy, in ways with significant real-world implications, as John D. Michaels describes for Take Care.

The Congressional Budget Office (CBO) and the Office of Information and Regulatory Affairs (OIRA) can learn from each other, as Jennifer Nou describes for Take Care.

President Trump’s “one in, two out” Executive Order on regulation is mostly a publicity stunt, as Rachel Sachs explains for Take Care.

CHECKS & BALANCES

"Unfortunate precedents set by the Obama administration” on executive enforcement discretion have opened a dangerous door for the Trump administration, according to Zachary Price, who addresses the question for Take Care.

• At Notice & Comment, Adam White asserts that the Obama-era precedent in Shirley v. Sebelius (2012) will act as an administrative law “trump card” for this administration.

INTERNATIONAL LAW

President Trump has begun an onslaught on international law and institutions, argues Jack Goldsmith at Lawfare.

• Eric Posner responds here.
• Michael Fuchs contends at Just Security that President Trump will destroy American global leadership.

FEDERALISM

President Trump’s executive order on sanctuary cities relies on a statute that violates the anti-commandeering principle, as Steven Schwinn explains here.

RUSSIAN INTERFERENCE

Investigations into Russian interference in the presidential election by the Senate Intelligence Committee, House Intelligence Committee, and FBI have been muddled by overlapping agendas and political sniping, the New York Times reports.

• FBI director James Comey is set to face questions before the House Committee on Russian involvement on Monday (Politico).

This post reflects the hard work and diligence of Shane Hebel and Eve Levin.

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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