Justice & Safety

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

~  Boumediene v. Bush (2008)

Announcing Our New Podcast: "Versus Trump"

4/20/17  //  Latest Developments

Take Care is pleased to announce the release of "Versus Trump," a new, affiliated podcast about the ways that the Trump Administration is breaking the law—and what people are doing about it.

Take Care

The Trump Administration May Already Have What It Needs for a Serviceable (and Unconstitutional) “Muslim Registry”

4/19/17  //  In-Depth Analysis

The Trump Administration may already have the tools it would need to predict with high accuracy the religious identity of a significant percentage of U.S. citizens and visiting Muslims. And software engineers, not lawyers, may be our first line of alarm and defense.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, Attorney General Jeff Sessions ushered in the "Trump Era," heralding increased enforcement of immigration offenses. The Department of Homeland Security has resurrected programs deputizing state and local police to enforce immigration laws. And Nikolas Bowie, writing for Take Care, argues that the internal review of Civil Rights Division consent decrees threatens its value as an unbiased source.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, commentary focused on U.S. military action against Syria. Joshua Matz and Marty Lederman both considered the legal reasoning for the strikes on Take Care.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, legal analysis focused on military action in Syria and the effect that action had on the international stage.

Information Wars Part II: Undermining Our Understanding of Police Practices

4/14/17  //  Commentary

As part of the Trump administration's war on information, the administration has started to roll back federal investigations into police violence and criminal justice.

Leah Litman

U.C. Irvine School of Law

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

This week, the Department of Justice ordered a nationwide review of consent decrees implemented to curb civil rights abuses. State governors are poised to fight back against Attorney General Jeff Sessions's federal marijuana policy. And a decline in incarceration rates is threatened by the Trump Presidency.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

This week, President Trump ordered a military strike on a Syrian air base in response to a deadly chemical weapon attack attributed to Bashar al-Assad's government. President Trump also shook up the National Security Council, including removing Chief Strategist Stephen Bannon from the NSC principals committee.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

The White House violated traditional security protocol when announcing Jared Kushner's visit to Iraq. Further, President Trump's proposed budget cuts may worsen a famine in Africa.

Constitutional Hurdles for Concealed Carry Reciprocity

3/16/17  //  In-Depth Analysis

President Trump favors federal legislation requiring states to recognize concealed carry licenses issued by other states. But that policy rests on shaky constitutional foundations.

Joseph Blocher

Duke Law School

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

What Happened on United Is Terrible, But What’s Going to Happen Everywhere Is Worse

4/11/17  //  Quick Reactions

The video of the United flight reveals more than just what happened. It also shows why DOJ oversight is so important.

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

Cruise Missiles More Dangerous Than the "Nuclear Option"

4/10/17  //  Commentary

If Congress does nothing now to further delineate the scope of presidential authority to deploy military force, it will effectively be forfeiting, now and forever, its constitutional authority to check presidential moves short of all-out state-to-state war.

Peter M. Shane

Ohio State, Moritz College of Law

Criminal Justice Reform and Disability – The Overlooked Opportunity

4/12/17  //  Commentary

Criminal justice agencies have become part of our communities' mental health services systems. They need to abide by the disability rights laws that govern mental health services

Eve Hill

Brown Goldstein & Levy

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

International Human Rights Law in the Trump Era

3/29/17  //  In-Depth Analysis

The Trump Administration’s actions thus far are not just an attack on human rights norms. And they’re not merely a rejection of international law. They’re also an assault on our national security and foreign policy.

When Due Process Reliance Defenses May Bar Enforcement

3/24/17  //  Commentary

In limited but vital ways, those who relied on Obama-era immigration and marijuana non-enforcement policies should be protected against sudden shifts in federal policy under President Trump.

Zachary Price

U.C. Hastings College of the Law

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

(Apparent) Administration Justifications for Legality of Strikes Against Syria

4/8/17  //  Commentary

A document seeking to justify the use of force in Syria has begun circulating outside the government that is said to have been developed within the Administration. But there are significant flaws in this justification as a matter of domestic and international law.

Marty Lederman

Georgetown Law

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

DOJ Begins to Turn Its Back on Policing Reform

4/4/17  //  Quick Reactions

AG Sessions’s eleventh-hour effort to avoid a consent decree in Baltimore is indefensible and unmistakably political. The court should not allow it.

Chiraag Bains

Harvard Law School

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

Reliance Defenses in the Trump Era and Beyond

3/23/17  //  Commentary

The transition to President Trump has massively shifted federal enforcement priorities. Does the Constitution protect people who relied on Obama's immigration, healthcare, or marijuana policies?

Zachary Price

U.C. Hastings College of the Law

When Free Speech Suits the President

4/6/17  //  Commentary

A federal judge has refused to dismiss a suit alleging that President Trump incited violence against protesters at one of his campaign rallies last year. The bitter irony to Trump's defense is that it seeks to expand free speech rules; usually, he prefers to trash them.

Amanda Shanor

Yale Law School

Information Wars Part I: The Challenge To The Census

4/13/17  //  Commentary

The Trump administration has enacted several policies to conceal, subvert, or manipulate information. It has retracted a proposal to add LGBTQ identification to the U.S. census and eliminated LGBTQ identification from HHS surveys. These policies and others attempt to deny the existence of a problem by disappearing the (inconvenient) facts.

Leah Litman

U.C. Irvine School of Law

Why Jeff Sessions’s Reversal on Private Prisons Is Dangerous

3/23/17  //  Commentary

The Attorney General’s embrace of private prisons is a victory for the industry, but it threatens the safety of correctional officers and prisoners.

Chiraag Bains

Harvard Law School

Trump's Immigration Policy & The Cross-Border Shooting Case

3/30/17  //  Commentary

President Trump's immigration enforcement policy has massively raised the stakes in Hernandez v. Mesa, where the Supreme Court is considering a cross-border shooting by a U.S. agent.

Leah Litman

U.C. Irvine School of Law

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

Why Did Trump Believe the Syria Strike Was Lawful?

4/10/17  //  Commentary

When the President unilaterally decides that America will start killing people in foreign countries, the least we can expect is a sound justification for that action under domestic and international law. Yet Trump has yet to offer one.

Joshua Matz

Publisher

Those Who Do Not Know History

4/12/17  //  Commentary

On the first full day of Passover, the Trump Administration offered several lessons about institutionalized racism and ethnic cleansing.

Leah Litman

U.C. Irvine School of Law

Joshua Matz

Publisher

Reinvigorating Civil Rights in the Era of Trump

4/13/17  //  Commentary

Given the nativist overtones of his campaign and his administration’s signature policies — from the Muslim ban to an immigration crackdown that equates being a foreign-born minority with criminality — Trump has exploded the fiction that we live in a post-racial society.

Chiraag Bains

Harvard 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

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

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

Republican (and Democratic) Hypocrisy on Faithful Execution

3/17/17  //  Commentary

President Obama pushed the limits of enforcement discretion. Trump may be worse. Will anyone check him if he is?

Zachary Price

U.C. Hastings College of the Law

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

Commentators discussed President Trump's multiple front onslaught on international law and institutions this week.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

The Trump Administration has signalled a reduced commitment to human rights internationally, and President Trump's proposed cuts to the State Department may hamper U.S. foreign policy.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

Private prisons have newfound influence in the White House and have benefitted from the Trump Administration's Justice Department policy reversal.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

Attorney General Jeff Sessions’s memorandum outlining task forces on various policies, including federal marijuana policy, has some state governors poised to fight back: governors of four Western states warned Attorney General Sessions and Treasury Secretary Mnuchin against interfering with state laws legalizing marijuana use

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

This past week, America and Britain barred personal electronic devices on flights from several Muslim-majority countries. Ivanka Trump's proposed role within the White House may also pose a national security threat.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Zachary Price argued at Take Care this week that individuals who relied on Obama-era immigration and marijuana non-enforcement policies should be protected against sudden enforcement by the Trump Administration.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Democrats in Congress have been stepping up claims that Russian interference in the U.S. presidential election constituted an act of war. Further, President Trump has proposed cuts to the State Department while stepping up airstrikes abroad.

The Story Thus Far: International Law

3/16/17  //  Daily Update

Trump has promised a foreign policy of America First. His conduct thus far suggests that he will follow through on that promise, but in ways that risk violating domestic and international law. Here are some useful analyses of the story thus far.

The Story Thus Far: National Security

3/16/17  //  Daily Update

From Guantanamo Bay to wiretapping to foreign intrigue, these have been a busy two months for the Trump Administration. Here are some useful analyses of the story thus far.