National Security

The Trump Administration has invoked controversial national security theories to justify its actions.

Trump and North Korea: Where's Congress?

8/13/17  //  Commentary

Guest poster Eric Segall argues that Congress must act now to ensure that the President does not unilaterally commit an act of war without Congressional consent.

Take Care

Updates | The Week of July 10, 2017

7/16/17  //  Daily Update

The Trump Administration moved to restrict agencies from using products from a Russian cybersecurity firm due to hacking concerns. Commentary continued on President Trump's nominee for FBI Director, Christopher Wray.

Updates | The Week of July 3, 2017

7/9/17  //  Daily Update

The U.S. is weighing options to respond to North Korea’s latest missile test.

Updates | The Week of June 19, 2017

6/25/17  //  Daily Update

The President's understaffed national security team aims to change import policies in the name of safety. Local law enforcement communities should instead be a focus in the fight against ISIS.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

Secretary of State Rex Tillerson defends proposed cuts to his department, arguing it should focus on a narrower conception of security.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

President Trump's national security team was "blindsided" by his failure to reaffirm NATO Article 5, and commentators argue that President Trump's reaction to the London attacks portend his reaction to future attacks.

Ten Questions for a New FBI Director

6/6/17  //  Commentary

By Allison Murphy: Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director. It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. Here are 10 questions that require answers.

Take Care

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

The administration continued its hunt for a new FBI director, as it struggles to fill key posts across the executive branch. A certiorari petition at the Supreme Court asked it to resolve a long-running dispute over the jurisdictional scope of the Guantanamo military commissions. Meanwhile, the administration decided against a proposed ban on laptops on flights to the United States from Europe.

Helen Klein Murillo

Harvard Law School '17

Trump's Mistaken Signing Statement on Marijuana Enforcement

5/16/17  //  Commentary

Trump suggested in a recent signing statement that he could disregard an appropriations restriction on federal marijuana enforcement. But Trump is mistaken.

Zachary Price

U.C. Hastings College of the Law

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.

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

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

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

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.

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

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

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

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

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

The Administration continues to treat national security as "security theater" with a stunning "indifference to facts, accountability, and democratic oversight," argue critics.

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 May 1, 2017

5/7/17  //  Daily Update

President Trump's harsh rhetoric may be a gift to terrorist organizations abroad. While some intelligence agencies seek to dial back surveillance, it will likely only grow if Congress authorizes more options for the use of military force.

Take Care

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

President Trump signed an executive order on cybersecurity. The Department of Homeland Security will ban laptops and other large electronic devices in the cabin on flights from Europe.

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 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 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.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

Ashley Gorski, at the ACLU, analyzes Section 702's broad grant of power to the executive branch to examine Americans' emails.

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.