Executive Orders

Through infamous and controversial orders, President Trump has sought to ban entrants from selected Muslim-majority nations.

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.

The Comey Affair And Evidence Of Motive

5/12/17  //  In-Depth Analysis

The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.

Leah Litman

U.C. Irvine School of Law

Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban 

5/10/17  //  Commentary

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.

Joshua Matz

Publisher

Judge Keenan Identifies The Most Straightforward Reason Why The Entry Ban Is Unlawful

5/9/17  //  Commentary

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.

Marty Lederman

Georgetown Law

Animus, Past and Present

5/9/17  //  Commentary

In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.

Leah Litman

U.C. Irvine School of Law

Versus Trump: Muslim Ban Argument Recap

5/9/17  //  In-Depth Analysis

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.

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Animus and the Travel Ban

5/8/17  //  Commentary

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.

Micah Schwartzman

University of Virginia School of Law

Nelson Tebbe

Brooklyn Law School

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

Comparisons between President Trump’s promise to exclude Muslims from the United States and vague off-the-cuff comments during campaign season are inapt.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

An amicus brief offered an alternative basis to find the Administration's travel ban unconstitutional.

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.

Updates | The Week of April 17, 2017

4/11/17  //  Daily Update

President Trump continues to sign executive orders on immigration, and advocates continue to fight them in the courts.

Take Care

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

Litigation challenging President Trump's revised immigration order continues in courts. Questions over President Trump's campaign statements and intent continue to linger.

Improper Commands from President Trump's Employees?

3/16/17  //  Commentary

Key White House personnel might be violating important limits on their lawful authority.

Nikolas Bowie

Harvard Law School

No Peeking? Korematsu and Judicial Credulity

3/22/17  //  Commentary

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.

Ian Samuel

Harvard Law School

Leah Litman

U.C. Irvine School of Law

McKayla Maroney Is Not Impressed (With DOJ's Brief in the Fourth Circuit)

3/27/17  //  In-Depth Analysis

The Department of Justice has filed a brief in the Fourth Circuit defending President Trump's revised entry ban. This is not an impressive brief: it is rife with misstatements of fact and incorrect legal arguments.

Leah Litman

U.C. Irvine School of Law

The Under-Inclusive Theory Of Discrimination (It's Not Going To Happen)

5/8/17  //  In-Depth Analysis

The Trump administration has repeatedly (and incorrectly) argued that a policy does not constitute discrimination unless the policy discriminates against all members of a particular group.

Leah Litman

U.C. Irvine School of Law

Judge Kozinski Asked The Wrong Question & Got The Wrong Answer

3/20/17  //  Commentary

Judge Alex Kozinski, among others, has argued that President Trump's campaign statements are irrelevant to assessing the Muslim Ban. But his argument starts with the wrong question, and inevitably reaches the wrong answer.

Amir Ali

Roderick & Solange MacArthur Justice Center

Justice Gorsuch, Executive Power, And Muslim Ban 2.0

3/20/17  //  In-Depth Analysis

A careful review of Judge Gorsuch's record reveals strong reason to believe that he would vote to uphold President Trump's revised Muslim Ban (and potentially many other executives abuses, too).

Leah Litman

U.C. Irvine School of Law

Amir Ali

Roderick & Solange MacArthur Justice Center

En Banc Review? How Can I Say No?

3/30/17  //  Quick Reactions

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.

Amir Ali

Roderick & Solange MacArthur Justice Center

The Problem with Palmer

5/7/17  //  Commentary

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.

John-Paul Schnapper-Casteras

The NAACP LDF, Inc.

An Update on DACA

3/31/17  //  Latest Developments

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.

Leah Litman

U.C. Irvine School of Law

The Establishment Clause and the Muslim Ban

3/18/17  //  Commentary

Why the Establishment Clause Has Emerged as the Chief Stumbling Block for Trump's Muslim Ban

Michael C. Dorf

Cornell Law School

The Standard Fare of Judges: What Happens When the Judiciary Does What It Always Does

3/28/17  //  Commentary

The Muslim Ban litigation does not involve a "revolt of the judges." As proven by a survey of major and minor cases from the legal canon, this litigation involves only the standard fare of judging.

Daniel Deacon

U.C. Irvine School of Law

Leah Litman

U.C. Irvine School of Law

The Attorney General, Hawaii Statehood, and National Injunctions

4/21/17  //  Quick Reactions

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.

Joshua Matz

Publisher

The President’s Dilemma

3/17/17  //  Commentary

An emergency appeal on the Muslim Ban may be both rational and his worst outcome.

Amir Ali

Roderick & Solange MacArthur Justice Center

The Trump Administration’s Immigration-Related Detentions

3/24/17  //  Commentary

The Supreme Court is considering a major constitutional challenge to federal immigration detention policies. Trump’s recent executive orders make that case even more significant.

Leah Litman

U.C. Irvine School of Law

A Compilation of Travel Ban Legal Analyses From Around the Web

5/5/17  //  Latest Developments

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.

Take Care

Embracing Federalism

3/16/17  //  Commentary

It is time for progressives to embrace federalism and to use Supreme Court precedents protecting states’ rights to fight against Trump administration policies

Erwin Chemerinsky

U.C. Irvine School of Law

Information Wars Part V: Immigrant Crime Disinformation

4/20/17  //  Commentary

In its war on information, the Trump administration is not just trying to hide the facts. It’s also trying to misrepresent them.

Leah Litman

U.C. Irvine School of Law

The First Amendment Belongs Only to Americans? Wrong

3/29/17  //  Commentary

The First Amendment makes America great for everyone, not just for citizens.

Nikolas Bowie

Harvard Law School

Leah Litman

U.C. Irvine School of Law

Judicial Deference to President Trump

5/8/17  //  In-Depth Analysis

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?

Dawn Johnsen

Indiana University Maurer School of Law

Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose

4/6/17  //  Commentary

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.

Joshua Matz

Publisher

Travel Ban Misconceptions II: Animus & Non-Citizen/Foreign Muslims

5/3/17  //  Commentary

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.

Amir Ali

Roderick & Solange MacArthur Justice Center

Joshua Matz

Publisher

A Guide to All Take Care Analysis of the Travel Ban

5/5/17  //  Latest Developments

Take Care hereby presents in a single, organized post all commentary we have published about the revised travel ban. We hope you find it useful.

Take Care

The Imperatives of Structure: The Travel Ban, the Establishment Clause, and Standing to Sue

4/3/17  //  In-Depth Analysis

In the Fourth Circuit travel ban appeal, DOJ contends that the plaintiffs lack standing. But a deeper examination of the Establishment Clause proves that the plaintiffs’ claims must be heard on the merits.

Ira C. Lupu

George Washington University Law School

Peter J. Smith

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

A Rough Guide to Amicus Briefs In the Travel Ban Cases

4/24/17  //  Latest Developments

Take Care offers a quick, rough breakdown of the amicus briefs filed last week concerning President Trump's revised executive order.

Take Care

Misconceptions Part I: Trump, Muslims, and the Travel Ban

5/2/17  //  Commentary

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.

Amir Ali

Roderick & Solange MacArthur Justice Center

Joshua Matz

Publisher

Why Courts Have Probed Trump’s Motives for the Travel Ban

4/4/17  //  Commentary

Perceptions of presidential bad faith have given judges the fortitude to do what the law already demands of them, even though their actions might prompt the President to bash them by name on TV or Twitter.

Joshua Matz

Publisher

The Muslim Ban: Answering Tough Questions About Motive

4/21/17  //  In-Depth Analysis

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.

Richard Primus

University of Michigan Law School

Motive Matters in Assessing the Travel Ban

3/20/17  //  Commentary

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.

Richard Primus

University of Michigan Law School

A Different View of Why the Muslim Ban Violates the Establishment Clause

4/20/17  //  Commentary

A diverse group of leading constitutional law scholars—representing many different views about the Establishment Clause—has filed an amicus brief challenging the Muslim Ban. Here's what you need to know.

Joshua Matz

Publisher

Sherley You’re Joking

3/27/17  //  Commentary

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.

Nick Bagley

University of Michigan Law School

See You In Court 2.0

3/16/17  //  In-Depth Analysis

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.

Leah Litman

U.C. Irvine School of Law

The World Is Not Made Brand New Every Morning

3/20/17  //  Commentary

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.

Jonathan Taylor

Gupta Wessler PLLC

Trump’s Approach to Crime & Punishment

3/16/17  //  Commentary

The president has continued existing policies, but also signaled a misplaced (and dangerous) reliance on immigration enforcement and incarceration to protect the public.

Chiraag Bains

Harvard Law School

Travel Ban Misconceptions Part III: False Analogies To “Imprecise” Campaign Talk

5/4/17  //  Commentary

Trump's promise to ban Muslims was no vague, imprecise, or passing comment made on the fly during campaign season. It was a deliberate, carefully considered, and oft-repeated promise that fit perfectly into Trump's broader vision of discrimination against American Muslims.

Amir Ali

Roderick & Solange MacArthur Justice Center

Joshua Matz

Publisher

Youngstown Zone Zero

3/16/17  //  Commentary

Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.

Leah Litman

U.C. Irvine School of Law

Ian Samuel

Harvard Law School

Faith in the Ninth Circuit

3/16/17  //  Commentary

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.

Daniel Hemel

University of Chicago Law School

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 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.

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.