Derek Reinbold  //  9/20/17  //  Daily Update

Additional briefs are filed in the Supreme Court in the travel ban case, and commentary ensues. Reports emerge about close industry ties for several of the President's pending nominees. And the Senate confirms a new Solicitor General in a close vote.



Several legal teams have filed challenges to the President’s planned wind down of the Deferred Action for Childhood Arrivals (DACA) programnotes Leah Litman on Take Care.

The government’s brief in the travel ban case is rife with formalisms designed to construct an alternate universe where President Trump kept his mouth (and Twitter account) shutwrites Joshua Matz, previewing his amicus brief in Trump v. IRAP on Take Care.

  • The brief is available here.
  • The children of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu also filed an amicus brief in the case (Immigration Prof Blog).
  • The presumption of regularity does not insulate the executive order from review, and does not heighten the plaintiffs’ burden of showing discriminatory intent, argues Robert Loeb at Lawfare.
  • While Congress has “plenary” power over immigration, it cannot use that power in ways that violate the Bill of Rights, notes Ilya Somin at Volokh Conspiracy.

In pardoning Joe Arpaio, the president demonstrated that, despite his stated commitment to enforce the immigration laws at all costs, he is not equally committed to enforcement of civil rights lawswrites Kevin Johnson at LatinxTalk.



The Trump administration is again siding with Texas in the Voter ID case, in a 180 degree switch from the Obama administrationwrites Rick Hasen at Election Law Blog.



President Trump’s attacks on the press and free speech are unprecedented threats, but there are legal avenues to push back on his use of the “bully podium,” write Anne Tindall and Ben Berwick of Protect Democracy at Take Care.

Calamitous election outcomes bring reform proposals; one such proposal is Professor Larry Lessig’s litigation to establish that states may not allocate Electoral College votes on a winner-take-all basiswrites Bob Bauer at More Soft Money Hard Law.



President Trump addressed the United Nations General Assembly, vowing to “totally destroy” North Korea if it threatens the United States (NYTimesWSJ).

  • The bombastic speech shattered US political norms and had a whiff of authoritarianism, writes Stephen Collinson at CNN.
  • President Trump has defined his foreign policy doctrine as sovereignty for major powers, write Noah Bierman and David Lauter at the LA Times.
  • President Trump mentioned “sovereignty” 21 times, shamefully appealing to national sovereignty over human rights and deflecting attention from the human rights abuses of his own administration, writes Joshua Manson at the ACLU.

The Senate passed a defense budget of about $700 billion (WaPo).

  • Legislators will now work towards a compromise between the Senate and House versions of the bill.



EPA Chief Scott Pruitt stated that the Trump administration is “steadfast” in its intent to pull out of the Paris Climate Change Accord, contradicting reports from over the weekend that the administration was changing its stance (The Hill).

The Chief of the National Guard cited bigger, larger hurricanes as evidence of climate change (WaPo).

  • Contaminated floodwaters from hurricanes may bring a wave of climate change litigation, notes Dena Adler at Climate Law Blog.

President Trump’s nominee to head the government’s chemical regulatory program is closely tied to the chemical industry; he spent much of his career helping businesses fight restrictions on the use of toxic compounds in consumer goods (NYTimes).

President Trump’s nominee to lead air and radiation policy at the EPA is arguing on behalf of industry groups in a federal court of appeals next week, opposing an Obama-era rule protecting workers from silica dust (The Hill).

The Trump administration is considering unprecedented removal of protections from America’s national monuments (LA Times).

Trey Trainor, President Trump’s nominee to the FEC, tried to shred Texas’s already flimsy ethics lawswrites Christopher Hooks at Texas Observer.

The Trump administration is reportedly planning to ease restrictions on American manufacturers selling small arms to overseas buyers (The Hill).



Attorney General Jeff Sessions attacked California’s new bill providing some protections to undocumented immigrants across the state, calling it a threat to public safety (LA Times).



The Senate confirmed Noel Francisco, a partner at the law firm Jones Day, as Solicitor General by 50-47 (SCOTUSBlog).

Judicial nominee confirmation hearings, one of the most important Senate duties, have become an exercise in futilitywrites Dan Froomkin at ACSBlog.



Special Counsel Robert Mueller’s team is reaching back 11 years in its investigation of former Trump campaign chairman Paul Manfort (CNN).

  • This is the latest indication that Mueller’s team is going well beyond Russian campaign meddling as part of its investigation.
  • Mueller’s team warned Paul Manafort, during a raid on his house in July, that they planned to indict him (NYTimes).
  • Investigators also wiretapped Manafort under FISA warrants both before and after the election (CNN).

Facebook should be treated like a crime scene because it likely has data that could provide critical leads for the investigation into Russian collusionwrites Max Bergmann at Just Security.

Trump lawyers clashed over how much to cooperate with the Russia inquiry; Ty Cobb and John Dowd argued over the matter at a DC steakhouse and were overheard by New York Times reporters (NYTimes).

  • The steakhouse conversation poses significant questions about professional judgment, ethics, and evidence privileges, but the revelation that White House Counsel Don McGahn is keeping certain documents locked in a safe may prove irresistible for investigators, writes Andy Wright at Just Security.
  • These internal conflicts can only be exacerbated by the poor organization of the legal team, and the public conversation between Cobb and Dowd is a juvenile blunder, writes Bob Bauer at Lawfare.

President Trump is reportedly using the Republican National Committee (RNC) to pay legal fees surrounding the Russia probe (The Hill).

Jon Huntsman, President Trump’s pick for Russian ambassador, said there was “no question” that Moscow interfered in the U.S. presidential election (The Hill).



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