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.
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.
Updates | The Week of June 12, 2017
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 June 5, 2017
Discussion of the Trump administration's travel ban continued as the administration sought Supreme Court review of a nationwide injunction against the ban.
Updates | The Week of May 8, 2017
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 May 1, 2017
Comparisons between President Trump’s promise to exclude Muslims from the United States and vague off-the-cuff comments during campaign season are inapt.
No Peeking? Korematsu and Judicial Credulity
The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.
The Comey Affair And Evidence Of Motive
The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.
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!
En Banc Review? How Can I Say No?
When asked by the Fourth Circuit, the Government said it wanted to have the full court consider its Muslim ban. But the Government probably did not mean it.
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.
The Attorney General, Hawaii Statehood, and National Injunctions
The AG's comments denigrating Hawaii statehood are objectionable for many reasons. But don't overlook his underlying complaint about national injunctions—which conservatives spent years developing and have suddenly, painfully discovered can be used against them.
The President’s Dilemma
An emergency appeal on the Muslim Ban may be both rational and his worst outcome.
A Compilation of Travel Ban Legal Analyses From Around the Web
Take Care hereby presents in a single post all commentary we have rounded up in our daily updates since the site launched on March 16. Together, these articles tell the story of the revised travel ban and offer a diverse set of perspectives on legal issues in the litigation.
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
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.
Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose
Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.
Travel Ban Misconceptions II: Animus & Non-Citizen/Foreign Muslims
The Muslim Ban targets Muslims everywhere. The notion that it reflects, at most, animus toward foreign (or non-citizen) Muslims doesn't withstand scrutiny. There can be no doubt that it inflicts severe and continuing injury on the American Muslim Community.
Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
The Muslim Ban and Trump's Latest Tweets
Thanks in part to the President's own recent tweets and public comments, the case for concluding that his revised travel ban is unconstitutional has now become overwhelming.
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.
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.
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.
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.
The Muslim Ban: Answering Tough Questions About Motive
The opinion by then-Justice Rehnquist in Hunter v. Underwood (1985), a case about denying the right to vote for racist reasons, offers thoughtful answers to many of the hardest questions that you might ask about motive and the Muslim Ban.
Motive Matters in Assessing the Travel Ban
To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.
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.
Trump’s Approach to Crime & Punishment
The president has continued existing policies, but also signaled a misplaced (and dangerous) reliance on immigration enforcement and incarceration to protect the public.
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 March 20, 2017
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 March 27, 2017
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 April 3, 2017
Litigation challenging President Trump's revised immigration order continues in courts. Questions over President Trump's campaign statements and intent continue to linger.
The Story Thus Far: Immigration
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 April 10, 2017
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.