The DACA Trap
The Supreme Court will hear arguments next week in a case about whether the Trump Administration can revoke DACA. But progressives ought to be wary of the long-term effects of prevailing. A win here could very well make it very hard to undo the lax enforcement policies of the current Administration.
Versus Trump: Trump's No Good, Very Bad Day
On this week’s Versus Trump, Jason and Easha break down President Trump's bad day in court on Friday, October 11. On that day, he lost three different lawsuits: one on the "public charge" immigration rule, one on Congress's subpoena power, and one on border wall funding. Listen now!
Versus Trump: An Impeachment Primer...
Gotcha! No impeachment dessert until you eat your immigration broccoli. On this week’s Versus Trump, Easha (back from parental leave!) and Charlie (just starting parental leave) discuss two immigration losses for the Trump administration. The first concerns Trump’s attempts to roll back court-ordered protections for migrant children; the second, Trump’s attempt to subject more immigrants to expedited removal. Listen now!
Same Flores Song, Different Verse
Judge Gee’s earlier ruling on DOJ’s “application for relief” from the Flores settlement makes clear why her recent ruling invalidating DHS’s new regulation is correct.
Versus Trump: What's Left Of Asylum Law?
On this week's episode of Versus Trump, Charlie and Jason discuss the Supreme Court's recent action permitting the Trump Administration to enforce tough new restrictions on asylum eligibility for those who enter the U.S. at the southern border. Listen now!
Judges, Do The Reading
The oral argument in the TPS case featured a line of questioning that suggested one of the judges had not read the relevant Supreme Court case.
Updates | The Week of January 22, 2018
1/28/18 // Daily Update
Michael Dorf argued that litigation against the travel ban should be considered a success, regardless of the final result at the Supreme Court. A report shows that Customs and Border Protection repeatedly violated court orders issued during the first week of the travel ban litigation.
Updates | The Week of November 20, 2017
11/26/17 // Daily Update
Travel Ban litigation continues: The Trump Administration petitioned the Supreme Court to allow the full ban to go into effect while they appeal an earlier injunction. An Inspector General report, currently withheld from publication, indicates that federal agents violated court orders in the rollout of the first travel ban.
Forced Separation Of Families & Forced To-Term Pregnancies
The administration’s policy of forcibly separating children from their parents highlights some of the shortcomings with the legal justifications for the administration’s position in Azar v. Garza, the case in which the administration is refusing to allow undocumented women in its custody to obtain abortions.
Versus Trump: Kavanaugh's Coming, Plus Updates
On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases. Listen now!
Immigration Policy Parallels
Now that the Trump administration has identified an additional 1700 children separated from their families, it’s time to revisit the administration’s legal arguments for why it was not actually separating families; with new, questionably legal actions that arise practically every day, we cannot let the way the administration has handled the fallout of its immigration policies slip by the wayside.
The Supreme Court’s Travel Ban
The Supreme Court is now a co-owner and co-author of the travel ban. That grows truer every time it tinkers with minutiae of this cruel, unjustified policy. And with that position comes major institutional risk to the Supreme Court’s public legitimacy.
Versus Trump: Stop The Wall!
On this week's episode of Versus Trump, Charlie, Jason, and Easha discuss the early lawsuits that seek to stop the new sections of border wall that President Trump authorized through executive action. Listen now!
Versus Trump: The Healthcare Episode
On a new episode of Versus Trump, Take Care's podcast, Easha and Jason dig into healthcare for the first time, as they take a deep dive into the House v. Price litigation that addresses whether certain payments to insurers under the Affordable Care Act have been properly appropriated. They also debate immigration rhetoric vs. action and discuss drug testing for unemployment benefits. Listen now!
The Problem with Palmer
In its Muslim Ban brief, DOJ favorably cites Palmer v. Thompson (1971)—which allowed Jackson, Mississippi to close public pools rather than integrate them. The Fourth Circuit should question DOJ about this stunning citation and make clear that Palmer, an odious ruling, has no place in anti-discrimination law today.
An Update on DACA
The President's words indicate he is open to honoring DACA (the Deferred Action for Childhood Arrivals program). But his actions (and inactions) suggest otherwise.
Versus Trump: 2017 Scorecard
On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!
What It Means To Be Presidential: Litigating Positions
Jane Chong questioned whether the administration's “self-interested [legal] stance" in the cases about the emoluments clauses "is ... fundamentally at odds with the trust that the office [of the President] confers.” It's worth asking the same about the administration's litigating position on the scope of the injunction against the entry ban.
Animus, Past and Present
In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.
It is time for progressives to embrace federalism and to use Supreme Court precedents protecting states’ rights to fight against Trump administration policies
The Court’s Border Wall Fiasco
The Supreme Court’s decision to stay the injunction against the President’s construction of the border wall made no sense. It is also part of a troubling trend of restricting remedies against unlawful government action.
Judicial Deference to President Trump
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?
Opposing Trump's Muslim Ban at the Supreme Court
President Trump has asked the Supreme Court to lift the stay preventing him from implementing his travel ban. Nelson Tebbe, Micah Schwartzman and I, along with a large group of constitutional law scholars, have filed a brief opposing Trump's motion.
Versus Trump: Russia Check-In
On a new episode of Versus Trump, Easha, Jason, and Charlie check back in with the most politically charged of all Versus Trump suits: the Russia investigation. Listen now!
A Primer on the DACA Rescission
Here we address confusions and misconceptions about what DACA is (or was), and what will happen next; about the effects of DHS’s “rescission, and what the legal basis might be for that rescission; about what happens during the so-called six-month “window”; about the prospects that Trump might reverse course in March; and about the current litigation challenging DHS’s rescission.
Some Notes On The Latest “Ban”
There are some notable similarities between the President's announcement that transgender individuals would be banned from military service, and the ban(s) on entry from several Muslim majority countries.
Versus Trump: An Immigration Omnibus
On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss recent important cases in the world of immigration, including a new lawsuit contending that the Trump Administration may not pursue its apparent policy of legally separating immigrant children from adults that they enter the country with. Listen now!
Tweetstorm Round Deux
The President's latest statements on Twitter undermine DOJ's defense of the entry ban, and continue the President's efforts to blame everyone (including DOJ and the courts) but himself.
Entry Ban Animus Revisited
Many of the Supreme Court’s recent decisions tell us what we need to know: Under any meaningful standard for assessing government motives, the entry ban must fail.
Versus Trump: Muslim Ban Argument Recap
It's our first emergency podcast! Right after the full Fourth Circuit heard oral arguments in a major case regarding the Muslim Travel Ban, we hopped on the line to do a recap. The podcast includes excerpts from the oral argument audio.
Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More
This week on Versus Trump, Jason and Easha go through a few updates to cases involving Title X, which provides money for family planning; the Administration's policy to have many asylum applicants removed to Mexico; and the controversial border wall. Trump lost one, won one—for now, and hasn't yet gotten a decision in the third. Listen now!
Animus and the Travel Ban
One of the founding principles of this nation is that our government welcomes those of all faiths and rejects religious intolerance. President Trump’s order contravenes our nation’s fundamental commitment to religious freedom and to the equal protection of the laws. Federal courts should declare it unconstitutional.
The Fourth Circuit & Animus Under Mandel
By Corey Brettschneider: As the Fourth Circuit recognized today, even if Kleindanst v. Mandel supplies the rule of decision and requires rationality review, animus is fatal to the Muslim Ban even under that standard.
Some Thoughts on the Government’s Latest Filing in the Entry Ban Cases
Here I offer three quick reactions to the government’s latest filing in the Ninth Circuit case—the first two on questions concerning what the Court should do now with the government’s applications, and the third with respect to the merits of the statutory ultra vires argument on which the Court of Appeals for the Ninth Circuit relied.
A Response to Will Baude on Mootness in the Entry Ban Case
I've argued that the Supreme Court shouldn't grant review of the travel ban case because 33 hours after the Respondents file their response to the petition for certiorari on June 12, the entry ban will no longer be operative. Here I respond to two purportedly “plausible” alternative interpretations of the executive order offered by William Baude.
Misconceptions Part I: Trump, Muslims, and the Travel Ban
Misperceptions of the Muslim Ban case abound. One of them is that Trump's animus is evidenced only by his campaign promise to ban Muslims from America. That promise, we demonstrate, must be situated in the context of Trump's sustained and wide-ranging crusade against the American Muslim community.
Roderick & Solange MacArthur Justice Center
Versus Trump: Secret Subpoenas, A New AG, and Live Listener Feedback
On this week's episode of Versus Trump, Charlie, Jason, and Easha hit three topics: the mysterious case of the subpoena to a foreign corporation that may be related to the Mueller investigation; the nomination of William Barr as Attorney General; and the temporal nature of an emergency, as prompted by live listener feedback. Listen now!
Mootness and Munsingwear in the Travel Ban Litigation
A Munsingwear vacatur could be an intriguing compromise in the travel ban case that just might generate consensus on the Supreme Court. It would let the Justices avoid wading into treacherous constitutional waters. But it would also avoid giving the impression that the Court approved of a nationwide injunction about which the conservative Justices will, I suspect, have serious concerns.
Lower Courts: Don’t Try This at Home
The Supreme Court’s travel ban order deviates sharply from well-established standards for the granting of a stay. For better or for worse, the spirit of compromise trumped the letter of the law.
Sherley You’re Joking
A confused and poorly reasoned decision by the U.S. Court of Appeals for the D.C. Circuit shouldn’t be read to shield agencies from judicial review whenever they happen to be following an executive order.
See You In Court 2.0
Last night, a federal judge in Hawaii blocked Trump's revised entry ban. Here is a detailed analysis of its decision and an assessment of what likely will happen next in that litigation.
The World Is Not Made Brand New Every Morning
Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.
Unlocking the Mysteries of the Supreme Court’s Entry Ban Case
Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why. With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.
Youngstown Zone Zero
Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.
Judge Keenan Identifies The Most Straightforward Reason Why The Entry Ban Is Unlawful
In the Fourth Circuit argument in IRAP v. Trump, Judge Keenan put her finger on a simple, basic reason why Section 2(c) of Executive Order 13769 is unlawful—and it doesn’t have much to do with the Establishment Clause. Rather, it’s a matter of everyday statutory interpretation, and the fact that President Trump has failed to establish the necessary precondition for the exercise of his statutory authority.
Faith in the Ninth Circuit
An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.
Updates | The Week of October 2, 2017
10/8/17 // Daily Update
The first legal challenges to the third travel ban were filed, while the parties challenging the second travel ban filed briefs on the mootness of those cases. The Trump administration began its phase-out of DACA.
Updates | The Week of July 17, 2017
7/23/17 // Daily Update
The Supreme Court issued a partial stay of the district court's order granting relief to refugees from the revised travel ban. Reports suggest the President is weighing a new executive order that would expand expedited removal of undocumented immigrants.
Updates | The Week of March 20, 2017
3/26/17 // Daily Update
The week was rich with analysis at Take Care and beyond of President Trump’s revised entry ban. The Administration has asked the Fourth Circuit to expedite the appeal. In the meantime, diplomatic cables reveal “extreme vetting” policies may be ramping up.
Updates | The Week of October 16
10/21/17 // Daily Update
Federal district court judges in Maryland and Hawaii blocked President Trump's revised travel ban, preventing the administration from enforcing key provisions of its policy.
Updates | The Week of March 27, 2017
4/2/17 // Daily Update
Litigation over President Trump's revised travel ban order continues: a federal judge in Hawaii issued a preliminary injunction against the order, and the Fourth Circuit will take initial en banc review of a similar injunction.
Updates | The Week of July 3, 2017
7/9/17 // Daily Update
A federal district judge rejected Hawaii's request to clarify the scope of the preliminary injunction against the revised travel ban. Commentary continued on the Supreme Court's decision to hear the travel ban case.
The Story Thus Far: Immigration
3/16/17 // Daily Update
President Trump has issued two very controversial executive orders, both banning entrants from selected Muslim-majority nations. Here are some useful analyses of the story thus far.
Updates | The Week of May 8, 2017
5/14/17 // Daily Update
The en banc Fourth Circuit heard oral arguments on the revised travel ban, sparking extensive commentary. An advocacy group filed a FOIA request related to border searches of electronic devices in the possession of individuals covered by the travel ban.
Updates | The Week of June 12, 2017
6/18/17 // Daily Update
The Ninth Circuit largely upholds a lower court's injunction of President Trump's revised entry ban; the Administration responds with a request to the Supreme Court for supplemental briefing.
Updates | The Week of July 24, 2017
7/30/17 // Daily Update
Commentary continued on the Supreme Court's holding on the revised travel ban. The Trump Administration asked the Ninth Circuit to interpret the Supreme Court's ruling narrowly.
Updates | The Week of April 10, 2017
4/16/17 // Daily Update
This week, Hawaii asked the Ninth Circuit for full court review of the revised entry order. The Fourth Circuit, in an unusual move, agreed to hear the Trump Administration's revised entry order appeal en banc, with oral arguments set for May 8.