Checks & Balances

While the powers of the Presidency are vast, they are subject to the separation of powers.

The Solicitor General’s Expedited Removal Petition

8/19/19  //  Commentary

Intervening legal developments counsel against granting the Solicitor General’s recent petition for certiorari on the expedited removal system.

Leah Litman

Michigan Law School

Kyle Skinner

Harvard Law School

Versus Trump: Trump v. Everyone Who Wants His Taxes

8/1/19  //  In-Depth Analysis

This week on Versus Trump, Jason and Charlie are back from a hiatus to discuss the President's lawsuit against New York State and the House Ways and Means Committee, both of whom—he says—may be conspiring to release his New York State tax returns. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Supreme Court 2018 Term in Review: Waaaaay Too Soon to Say that Kavanaugh-for-Kennedy Was Not a Game Changer

7/31/19  //  In-Depth Analysis

We have only just begun to see the true nature of Roberts Court version 8

Michael C. Dorf

Cornell Law School

Can Congress Investigate Whether the President Has Conflicts of Interest, is Compromised by Russia, or Has Violated the Law?

7/29/19  //  In-Depth Analysis

The President's lawyers are urging courts to hold that Congress’s oversight and regulatory authorities simply don't extend to investigating the wrongdoing, foreign influence over, and possible conflicts of interest of, the President of the United States. That's wrong.

Marty Lederman

Georgetown Law

A Memorandum of Misunderstanding

7/22/19  //  Commentary

Mueller didn't indict Trump because DOJ policy prohibited him from doing so. That same policy points to the need for impeachment.

Updates | The Week of January 22, 2018

1/28/18  //  Daily Update

The House and Senate passed a three-week-long spending bill, clearing a path to end the shutdown of the federal government. Under President Trump, the Senate has not engaged in its customary independent review of judicial nominees.

Updates | The Week of January 15, 2018

1/21/18  //  Daily Update

The week began with Martin Luther King Jr. Day and ended with a government shutdown on the anniversary of President Trump's inauguration.

Jacob Miller

Harvard Law School

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

While the President holds an obligation to ensure faithful execution of the laws, Congress holds sole authority to appropriate resources for that power’s exercise and is therefore not duty-bound to provide resources necessary for the executive branch’s fulfillment of its constitutional functions.

Zachary Piaker

Columbia Law School

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

The Supreme Court will hear oral arguments about whether Courts of Criminal Appeals judges can constitutionally sit on Court of Military Commission Review, including the court at Guantanamo Bay.

Zachary Piaker

Columbia Law School

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

After almost a year, the Trump Administration’s Justice Department lacks Senate-confirmed appointees in leadership posts running the national security, criminal, civil rights and other key divisions.

Zachary Piaker

Columbia Law School

Updates | The Week of December 18, 2017

12/24/17  //  Daily Update

The recent withdrawal of three judicial nominees is an aberration from President Trump’s large success in nominating young conservation jurists to the federal bench over the last year.

The CBO-CBA Analogy, or What Wonks Could Learn from Each Other

3/17/17  //  In-Depth Analysis

Republican criticism of CBO's report on the American Health Care Act echoes long-standing criticism of cost-benefit analysis at OIRA. There are lessons to be learned here.

Jennifer Nou

University of Chicago Law School

Relitigating Whole Woman's Health v. Hellerstedt

2/12/18  //  Commentary

A recently filed amicus brief highlights how one court has departed from Whole Woman's Health and other cases.

Leah Litman

Michigan Law School

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

The Travel Ban and Inter-Branch Conflict

6/26/18  //  Commentary

The real problem is the Trump Administration itself. What feels like damage today is largely the echo of damage that already happened, rather than something new.

Richard Primus

University of Michigan Law School

Masterpiece Cakeshop and Protecting Both Sides

6/15/18  //  In-Depth Analysis

By Thomas C. Berg & Douglas Laycock: The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides

Take Care

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

It Was Legal for the President to Fire Comey. That’s the Problem.

5/10/17  //  Commentary

It’s already too late in the day to trust the executive branch to police itself. That lack of trust should extend to a special prosecutor, independent counsel, or whatever other nice terms you want to call it. At this point, only Congress can credibly investigate the President.

Nikolas Bowie

Harvard Law School

NFIB v. Sebelius As Anti-Canon (a.k.a. This Administration’s Galling Constitutional Hypocrisy)

3/23/17  //  In-Depth Analysis

The Trump administration is engaged in stunning constitutional hypocrisy. Measured against conservatives' professed commitment to "liberty" and "freedom," there is no serious distinction to be drawn between Obamacare and Trump's American Health Care Act.

Leah Litman

Michigan Law School

The Nuclear Option and Democratic Deterioration

4/10/17  //  Commentary

The Gorsuch nomination battle illustrates and exacerbates the dynamics of democratic deterioration. Reversing these trends will require elected officials to act with courage. It will also require significant structural changes to our political system.

Daniel P. Tokaji

Ohio State, Moritz College of Law

NIFLA v. Becerra: The Conservative Attack on Disclosure

3/15/18  //  Commentary

Disclosure laws further First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits.

Symposium on 'Constitutional Coup' by Jon Michaels

1/14/18  //  Latest Developments

Take Care is pleased to host a symposium on Constitutional Coup

Joshua Matz

Publisher

Congressional Power to Immunize the President Against State Court Litigation

3/26/18  //  In-Depth Analysis

Thoughts on a thus-far-hypothetical question

Michael C. Dorf

Cornell Law School

Versus Trump: The FOIA Spectacular!

9/21/17  //  Commentary

On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Barr’s Remarks Are Reassuring but Serious Questions Remain

1/15/19  //  Latest Developments

Barr's carefully-worded promise not to interfere with Mueller is welcome. But it also leaves room for Barr to impede significant parts of Mueller's work.

Andrew Coan

University of Arizona

An Unconstitutional Threat to Sanctuary Cities

3/21/17  //  Commentary

DOJ argues that courts can't hear challenges to Trump's executive order threatening to punish sanctuary cities. Its arguments are wrong and prove that Trump's policy is illegal.

Nikolas Bowie

Harvard Law School

Senator Collins's Shell Game On Roe v. Wade

7/3/18  //  Quick Reactions

Susan Collins claimed that there is no reason to worry about Justice Kennedy's replacement because the Chief Justice (!!!) and Justice Gorsuch (¯\_(ツ)_/¯) would never overturn Roe v. Wade. That's wrong.

Leah Litman

Michigan Law School

September and/or January 25th (or how the Solicitor General learned to stop worrying and love the President’s disavowal of anti-Muslim animus)

4/30/18  //  Commentary

The Solicitor General is apparently still trying to figure out why the entry ban is constitutional.

Leah Litman

Michigan Law School

Re-Privatizing The Military Would Be a Big Mistake

7/24/17  //  Commentary

The decision to engage militarily should remain the hardest decision a president has to make.

Jon D. Michaels

UCLA School of Law

You’re So Vain … You Probably Think This Book’s About You

1/8/18  //  Commentary

An introduction to this week's symposium on my new book, 'Constitutional Coup: Privatization’s Threat to the American Republic'

Jon D. Michaels

UCLA School of Law

Congress’s Personnel Power

8/22/17  //  In-Depth Analysis

Congress should engender a robust administrative separation of powers, ensuring that a forceful bureaucracy (and an engaged public) can advance congressional priorities and check those of the President

Jon D. Michaels

UCLA School of Law

Versus Trump: Kavanaugh's Coming, Plus Updates

7/12/18  //  Uncategorized

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!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

American Cognitive Dissonance

3/17/17  //  Commentary

Perhaps some good may come from Trump’s ham-fisted efforts to drain the swamp: a revitalization of the bureaucracy, which renders important services to the nation.

Jon D. Michaels

UCLA School of Law

Versus Trump: Judges of Christmas Future

12/21/17  //  Commentary

On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

John Roberts the Institutionalist?

6/22/19  //  Commentary

If his decision to join the dissent in Gundy v. United States is any sign of things to come, John Roberts the institutionalist has left the building

Gillian Metzger

Columbia Law School

The Blind Side In Trump’s War On The Administrative State

4/17/17  //  Commentary

Neomi Rao’s nomination to serve as Administrator of the Office of Information and Regulatory Affairs (OIRA) is part of Trump and Bannon’s war on the administrative state.

Leah Litman

Michigan Law School

Ian Samuel

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

Michigan Law School

Why Democrats Should Pack the Supreme Court

10/15/18  //  In-Depth Analysis

Republicans have broken the rules time and again. For Democrats not to respond in kind is to commit political suicide.

Michael Klarman

Harvard Law School

Hamilton Versus Trump

3/15/18  //  Commentary

'Talents for low intrigue, and the little arts of popularity'

Michael C. Dorf

Cornell Law School

Versus Trump: I Want Out!

7/13/17  //  Commentary

On this week’s episode of Versus Trump, Charlie and Easha discuss the cases against Trump University, the global settlement that was reached, and whether the pending challenge by a lone objector can—or should—alter the result. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

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

Michigan Law School

The President’s Twitter Account & the First Amendment

6/12/17  //  In-Depth Analysis

There are strong First Amendment arguments against President Trump blocking Twitter followers due to disagreement with their views.

Amanda Shanor

The Wharton School

SCOTUS And The Wall

3/4/19  //  Commentary

One of the Supreme Court’s pending cases is potentially relevant to one of the challenges to the President’s emergency declaration.

Leah Litman

Michigan Law School

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

The First Amendment Does Not Give Commercial Businesses a License to Discriminate

11/1/17  //  In-Depth Analysis

In Masterpiece, the Petitioner's argument would wreak havoc on long established First Amendment principles, giving businesses a right to disregard content-neutral regulations of their conduct

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

Michigan Law School

Closing the Courthouse Doors: Justice Kennedy’s Very Bad Day

6/22/17  //  Commentary

David Gans discusses Ziglar v. Abassi, a new SCOTUS ruling that makes it very hard for individuals to sue federal officials for trampling on federal constitutional rights

Take Care

American Democracy One Year into the Trump Administration

1/18/18  //  In-Depth Analysis

We can no longer take America’s democracy for granted

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

Versus Trump: The House Versus The FBI

2/8/18  //  Commentary

On the latest episode of Versus Trump, Charlie and Easha talk all things Russia investigation (or tangentially Russia investigation)—the Nunes #meh-mo, the fallout therefrom, and whether Trump will be interviewed by the Special Counsel.

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

A Tainting of Judicial Independence

10/8/18  //  In-Depth Analysis

Kavanaugh's potential perjury means that his seat on the Court may depend on continuing Republican control in Congress. This is plainly inconsistent with any account of judicial independence.

Tom Ginsburg

University of Chicago Law School

Aziz Huq

University of Chicago Law School

It’s Time To Pay Attention To Whom Trump Is Putting in Charge of Federal Agencies—And How He’s Doing It

3/17/17  //  Commentary

President Trump isn't nominating people to many positions requiring Senate confirmation. Instead, he's relying on employees who haven't been vetted through the advice & consent process. That's not okay.

Brianne J. Gorod

Constitutional Accountability Center

Finding a Floor for Inter-branch Conflict

11/2/18  //  In-Depth Analysis

Intensifying political conflicts are steadily shredding the buffers around our constitutional architecture. How should courts respond?

Zachary Price

U.C. Hastings College of the Law

The 'All of the Above' Approach to Justice Kavanaugh

10/7/18  //  In-Depth Analysis

Do progressives give up on the Court? Declare war on it? Pretend nothing has changed? Each of us will have to decide for ourselves. There is no 'right way' to respond to our new reality.

Michael C. Dorf

Cornell Law School

A Different Take On The New Cert Petition In Williams v. Louisiana

3/20/18  //  Quick Reactions

There's another reason the Court should take a close look at the cert petition in Williams v. Louisiana.

Leah Litman

Michigan Law School

Religious Freedom and the Masterpiece Case

10/31/17  //  In-Depth Analysis

Robbie Kaplan and I have filed a brief on behalf of Church-State Scholars addressing the Free Exercise Clause issues in this important case.

Joshua Matz

Publisher

The Government And Grandparents (What's The Big Deal?)

7/15/17  //  Quick Reactions

DOJ rushed to the Supreme Court to ensure that the government wouldn't have to admit grandparents. Its arguments are silly.

Leah Litman

Michigan Law School

Versus Trump: How Bad Is It?

9/6/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie ask the question that so many of us ask frequently: how bad is the Trump Administration? Is it better or worse than we should have expected back on election night in 2016? Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Versus Trump: DACA's Back!

1/18/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie discuss the big decision that forced the Trump Administration to restart the DACA immigration program. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Thoughts on Roberts and Trump

11/26/18  //  Quick Reactions

We have at once a highly political appointment process and a strong judicial ethos of being above politics.

Zachary Price

U.C. Hastings College of the Law

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

Michigan Law School

Second Thoughts About The Supreme Court’s Scheduling The Entry Ban Case

8/2/17  //  Commentary

The Court’s October Calendar Further Underscores That It Never Actually Intends To Resolve The Legality Of The Entry Ban

Leah Litman

Michigan Law School

There’s Unquestionably Standing in the CREW Case. Here’s Why.

4/19/17  //  In-Depth Analysis

The additional plaintiffs in the CREW case unquestionably have standing.

Jonathan Taylor

Gupta Wessler PLLC

Symmetric Constitutionalism for a Polarized Era

10/30/18  //  Commentary

Judges should strive toward constitutional understandings that protect the interests of people on different sides of the ideological spectrum

Zachary Price

U.C. Hastings College of the Law

How Donald Trump Will Fire Jeff Sessions

7/26/17  //  Commentary

Donald Trump’s Firing Of Jim Comey Provides A Template For How He Will Fire Jeff Sessions

Leah Litman

Michigan Law School

Waivers of Executive Privilege Can Be Informal

6/6/17  //  Commentary

Even Had He Wanted to Assert Executive Privilege, Trump May Have Waived Any Such Claim Over His Conversations With Jim Comey By Blabbing and Tweeting About Them

Leah Litman

Michigan Law School

Laurence H. Tribe

Harvard Law School

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

Michigan Law School

Amir Ali

Roderick & Solange MacArthur Justice Center

In Consumer Bureau Showdown, it’s Trump’s DOJ versus . . . Trump’s DOJ

4/12/17  //  Commentary

There's been a stunning development in the pending D.C. Circuit case about the CFPB's constitutionality: DOJ has recently filed a brief in another separation-of-powers case that directly and irrefutably contradicts the main argument in its brief attacking the CFPB.

Deepak Gupta

Gupta Wessler PLLC

Jonathan Taylor

Gupta Wessler PLLC

Jared Kushner's New SWAT Team More Like Neighborhood Watch

3/27/17  //  Quick Reactions

Trump's son-in-law will lead a new office to "overhaul the federal bureaucracy." But Kushner can't wield real power without crashing into federal anti-nepotism rules. So our new government efficiency czar can't make big decisions himself. Oh, the irony ...

Nikolas Bowie

Harvard Law School

Versus Trump: Stop The Wall!

2/21/19  //  Uncategorized

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!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Why SCOTUS Must Hear the Census Case on the Merits

4/1/19  //  In-Depth Analysis

The government's efforts to insulate Secretary Ross's decision from judicial review are wholly without merit. Here's why.

Joshua Matz

Publisher

Fury and Despair over the Masterpiece Cakeshop Ruling are Misplaced

6/6/18  //  Quick Reactions

Justice Kennedy makes an open-ended call for tolerance and compromise in his opinion. For that, he should be commended

Joshua Matz

Publisher

With Supreme Court Opinions, More Is Not Always More

6/29/17  //  In-Depth Analysis

Justice Gorsuch has already written seven separate opinions in his 78-day tenure on the Supreme Court. What should we make of that?

Nancy Leong

Sturm College of Law

The Value of Gerrymandering

10/7/17  //  Commentary

What is the value to democracy from political gerrymandering for partisan advantage? The intuitive answer is the right one: None.

G. Michael Parsons

NYU School of Law

Donald Trump's New Intelligence Slush Fund

1/22/18  //  Commentary

The continuing resolution that was signed by President Trump contains a provision that permits his intelligence agencies to spend billions of dollars on anything they want, without having to inform Congress about what they are doing. This seems like a bad idea.

Ian Samuel

Harvard Law School

The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court

10/7/18  //  In-Depth Analysis

By the time the Supreme Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control, even though Democrats have won a majority or plurality of the popular vote in seven of the twelve elections in that period.

Marty Lederman

Georgetown Law

Presidential Statements and the Entry Ban

5/10/18  //  Commentary

A different take on how presidential statements or the possibility of them might affect Trump v. Hawaii (the entry ban case).

Leah Litman

Michigan Law School

Stopping Conflicts of Interest in Federal Investigations: The Next Legislative Priority

12/21/18  //  In-Depth Analysis

Congress could take action to deter this type of pardon and accelerate the political backlash against pardons used to undermine investigations and the rule of law

Versus Trump: The First Shoe (with guest David Sklansky)

11/2/17  //  Uncategorized

On this week’s episode of Versus Trump, Jason, Charlie, and special guest David Sklansky discuss the first shoe to drop from the Mueller investigation: the indictment of Paul Manafort and Rick Gates, and the guilty plea of George Papadopoulos. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Masterpiece Cakeshop: The Loss that is a Win

6/5/18  //  Quick Reactions

In some cases, the public perception of a case — not its actual holding — is what is most important.

Amanda Shanor

The Wharton School

Due Process of Lawmaking and the Obamacare Repeal

7/25/17  //  Commentary

By Abbe Gluck: This is repeal for repeal’s sake. It’s not about policy. It’s all about politics. And of course, it’s also about human lives.

Take Care

The Russia Sanctions Bill Is Unconstitutional – and Unnecessarily So

7/26/17  //  Commentary

The bill to impose sanctions on Russia for meddling in the 2016 election is unconstitutional. And unnecessarily so.

Daniel Hemel

University of Chicago Law School

Versus Trump: Texas & Trump Versus The ACA

7/5/18  //  Commentary

This week, Jason, Charlie, and Easha are back with a regular episode to discuss a stunning recent development in Texas v. United States, a case by Texas seeking to invalidate the Affordable Care Act (Obamacare). Last month, the Trump Administration not only agreed with Texas that the individual mandate is unconstitutional, but it also told the district court that the requirement to cover everyone with a pre-existing condition on the same terms as healthy folks should be struck down as well. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Hargan v. Garza And The (Near) Future Of Abortion Access

11/16/17  //  Commentary

Hargan v. Garza is but one instance in a broader attack on abortion access.

Leah Litman

Michigan Law School

Kavanaugh, the Federal Marriage Amendment, and the Cost of an Incomplete Record

8/29/18  //  Commentary

To those outside of Washington, this battle might appear to be a dry dispute about documents. Nothing could be further from the truth.

Versus Trump: Versus DeVos (Re-Air)

9/7/17  //  Commentary

On this week’s episode of Versus Trump, as summer ends and a new school begins, we re-air Jason's interview with Toby Merrill, the director of the Project on Predatory Student Lending at Harvard Law School, about several lawsuits she's involved with against newly-confirmed Secretary of Education Betsy DeVos. We'll be back soon with new episodes.

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

President Trump Shouldn't Be Impeached If He Hasn't Committed a Crime

5/22/17  //  Commentary

It would be a grave mistake to call for President Trump's impeachment if he hasn't committed a crime. In an era of tit-for-tat partisanship, lowering the impeachment standard to “anything Congress thinks is wrong” is a recipe for dysfunctional government, one in which the House of one party could perpetually threaten to impeach the White House of another.

Nikolas Bowie

Harvard Law School

H.R. 1: Forging a Path for Pro-Democracy Reform

12/24/18  //  In-Depth Analysis

Stephen Spaulding: The pent-up demand for pro-democracy legislation is palpable. Next year, the House can forge a path forward. And it will do so with H.R. 1.

Take Care

On Judge Kozinski & Open Secrets

12/13/17  //  Commentary

The Senate’s confirmation process should be attentive to warning signs about nominees’ managerial temperaments.

Charlotte Garden

Seattle University School of Law

The Comey Firing in (Comparative) Context

5/11/17  //  In-Depth Analysis

President Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis? But are these even the right questions to pose?

Aziz Huq

University of Chicago Law School

Courting Disaster: Progressive Candidates’ Reticence on Judicial Nominations

6/25/19  //  Commentary

Will progressive candidates for national office be asked about judicial nominations and will these candidates make the federal judiciary a top-tier message? On paper at least, there are reasons to think progressive candidates will get it right this time.

The Comey Hearing: Lots of Big News

6/8/17  //  Quick Reactions

No GOP attack dogs; Lynch, Sessions, Rosenstein in trouble; McCain’s health

Jed Shugerman

Fordham Law School

De-Privatizing Our Public Philosophy

1/11/18  //  In-Depth Analysis

Michaels understates the danger posed by a lack of social solidarity in America, a state of alienation Americans feel from one another that has been deliberately fed by right-wing politicians for at least the last four decades.

Peter M. Shane

Ohio State, Moritz College of Law

Against Type Briefs

6/16/17  //  Commentary

Filing an amicus brief joined by Republicans critical of the Trump Administration and with some claim of expert knowledge made by these Republicans related to the constitutional issues can be a powerful tactic to use in courts.

David Fontana

George Washington University Law School

Versus Trump: The View From 10,000 Feet (Joshua Matz Speech)

4/19/18  //  Commentary

On a new episode of Versus Trump, we bring you a podcast version of the speech that Take Care publisher Joshua Matz gave at Harvard Law School on April 3, 2018. The talk, titled "The Legal Resistance to Trump," describes themes, achievements, and limitations of various lawsuits challenging the Trump Administration and its policies. Listen now!

Jason Harrow

Equal Citizens

Joshua Matz

Publisher

Versus Trump: Versus Whitaker (JH solo)

11/15/18  //  Uncategorized

On this week's episode of Versus Trump, Jason has a solo episode where he talks about a motion by Maryland contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!

Jason Harrow

Equal Citizens

Versus Trump: The Shutdown Special

1/10/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie, Jason, and Easha bring you a shutdown special, where they talk about the President's emergency powers as well as a lawsuit contending the government is violating federal labor law by not paying workers on time. Listen now!

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Versus Trump: A Gadfly Suit + Leah Litman

6/15/17  //  In-Depth Analysis

On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss a lawsuit against the President that's been brought by a D.C. gadfly who claims that Trump did not provide sufficient detail on the financial disclosure form he submitted as a candidate. Then, Easha talks with Leah Litman about the status of the Muslim ban litigation and the role of oral advocacy in this and other high-profile cases. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Versus Trump: Keeping the DREAM Alive

9/14/17  //  Commentary

On this week’s episode of Versus Trump, we discuss a major new lawsuit that challenges President Trump's announced revocation of the DACA immigration program. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Reinvigorating Defensive Crouch Liberal Constitutionalism Part 2: Will Clarence Thomas Save Abortion Rights?

7/19/18  //  Commentary

Would Justice Thomas really strike down federal legislation restricting abortion? We may soon find out.

Michael C. Dorf

Cornell Law School

Trump’s War On the Courts is a War on Democracy Itself

2/28/18  //  Commentary

Efforts to purge or delegitimize courts following rulings against government officials or their political party is a hallmark authoritarian move.

Versus Trump: 2017 Scorecard

1/4/18  //  Uncategorized

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!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

President Trump, Acting Appointments, and Why You Should Care

4/8/19  //  Commentary

President Trump has a pattern of ignoring the law to install acting officials of his own choosing

Brianne J. Gorod

Constitutional Accountability Center

An Inside Job? The Uneasy Case for Outside Special Prosecutors

1/15/19  //  In-Depth Analysis

Should special prosecutors come from within the administration or outside it? This is a harder question than you might think.

Daniel Hemel

University of Chicago Law School

The Comey Firing - Legal Analyses From Around the Web

5/15/17  //  Latest Developments

A day-by-day guide to legal analysis of the many questions raised by Trump's abrupt firing of FBI Director James Comey.

Take Care

Fake Transparency

5/9/17  //  Quick Reactions

As long as the Deputy Attorney General is writing memos making recommendations to the President, it is time to make a recommendation for the appointment of a special counsel.

Neil J. Kinkopf

George State University College of Law

The Court of Public Opinion

1/16/19  //  In-Depth Analysis

What does it mean to say that special prosecutors are ultimately answerable to 'the American people'?

Aziz Huq

University of Chicago Law School

Concluding Thoughts on Constitutional Coup

1/18/18  //  In-Depth Analysis

Final thoughts on the future of the administrative state under President Donald Trump

Jon D. Michaels

UCLA School of Law

What if Trump Fires Mueller or Starts Mass Pardons? It Would Backfire.

7/21/17  //  Commentary

There are more and more signals that Trump is exploring firing Mueller and pardoning anyone and everyone in his circle. So what would happen next? Those moves would backfire spectacularly.

Jed Shugerman

Fordham Law School

Masterpiece Cakeshop and the Effort To Rewrite Smith and its Progeny

9/21/17  //  In-Depth Analysis

A sleeper issue is brought center stage by two leading religious liberty scholars

Jim Oleske

Lewis & Clark Law School

A Free Press Requires a Strong and Independent Judiciary

10/20/17  //  In-Depth Analysis

A free press and a strong judiciary are among the best bulwarks against authoritarianism, and we need one to have the other.

Nancy Leong

Sturm College of Law

Something Is Rotten In States’ Execution Protocols And Capital Litigation at SCOTUS

4/15/19  //  In-Depth Analysis

Some recent cases suggest that, if anything, the Supreme Court should be harder on states in capital litigation proceedings. Instead, the Court has done the opposite.

Leah Litman

Michigan Law School

The Supreme Court is Enabling President Trump

6/28/18  //  Commentary

We have a President who thumbs his nose at the Constitution and the rule of law, and a Supreme Court that is willing to let him get away with it.

Requiem for Reinhardt, Chief Justice of the Warren Court in Exile

4/6/18  //  Commentary

Reinhardt kept alive a powerful vision of the Constitution

Michael C. Dorf

Cornell Law School

Yes, Hope is a Sufficient Basis for Obstruction of Justice

6/13/17  //  Commentary

I reviewed all federal circuit courts of appeals cases, federal district court cases, and state supreme court cases for obstruction of justice cases involving a defendant’s use of language similar to “I hope” or “I’m hoping.” The results are in line with what we would expect if “hope” verbiage is uncontroversially and generally understood as implying direction.

The Plaintiffs in CREW v. Trump Deserve To Have Their Claims Heard

8/14/17  //  In-Depth Analysis

Our amicus brief explains why the Justice Department’s jurisdictional arguments miss the mark

Daniel Hemel

University of Chicago Law School

Leah Litman

Michigan Law School

Nunes Recuses. Sort Of. Now What?

4/7/17  //  Quick Reactions

Chairman of the House Permanent Select Committee on Intelligence Devin Nunes will step aside from the committee’s Russia investigation. Sort of. What does this mean -- and what comes next?

Ian Samuel

Harvard Law School

Robert Bork’s America is Becoming Donald Trump’s America

7/15/19  //  Commentary

As President Trump puts additional judges on the federal courts for life and continues his own extreme policies, Bork’s America is coming to life more and more as Trump’s America.

Elliot Mincberg

People For the American Way

The President's Statements On The London Attacks

6/5/17  //  Commentary

The President's statements on the London attacks reveal how the President thinks about his entry ban, and also what he might do if there is ever an attack on the United States.

Leah Litman

Michigan Law School

Helen Klein Murillo

Harvard Law School '17

Trump Can’t Revoke DACA Without Going Through Notice and Comment

9/5/17  //  In-Depth Analysis

Dreamers should invoke administrative law to block Trump's DACA decision

Daniel Hemel

University of Chicago Law School

The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part II)

5/23/17  //  In-Depth Analysis

More reasons why the D.C. Circuit should not rely on the CFPB’s purported novelty to suggest the CFPB is unconstitutional

Leah Litman

Michigan 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

Michigan Law School

The Two Sides of Donald Trump in The @RealDonaldTrump Litigation

3/25/19  //  Commentary

The government’s brief is at war with itself with respect to the state action and government speech doctrines in the @realdonaldtrump litigation.

Kyle Skinner

Harvard Law School

Leah Litman

Michigan Law School

Trump And His Administration Are A Nightmare For The Dreamers

5/4/17  //  Commentary

ICE Continues To Undermine DACA Despite Trump’s Protestations To the Contrary

Leah Litman

Michigan Law School

Judges Shouldn’t Have the Power to Halt Laws Nationwide

10/31/18  //  Uncategorized

A hand-picked district court judge in Texas might soon enter an injunction prohibiting the enforcement of all or part of the Affordable Care Act across the entire country. Something is very wrong with that picture.

Nick Bagley

University of Michigan Law School

A Puzzle about Standing (and the Affordable Care Act)

6/6/18  //  Commentary

A group of states has filed a new constitutional challenge in an effort to bring down health reform. But do they have standing to sue?

Nick Bagley

University of Michigan Law School

Why Trump Can’t (Lawfully) Fire Mueller

6/13/17  //  Commentary

There’s been a great deal of noise from some of the President’s confidants over the past 48 hours suggesting that he might (try to) remove Special Counsel Robert Mueller.

Marty Lederman

Georgetown Law

Louisiana’s Ongoing Ethical Crisis: Why SCOTUS Should Weigh In On The Case Of Rogers Lacaze

8/22/18  //  Commentary

In the coming weeks, the U.S. Supreme Court will consider whether to grant Lacaze v. Louisiana, a case raising profound questions for the constitutional standards governing judicial recusal where a judge has --but does not even disclose--concrete connections to the case being tried before him.

Take Care

Two Recent Decisions Confirm the Pivotal Role of Trump-Appointed Judges

6/25/19  //  Commentary

In two divided decisions issued one day in late June, the Supreme Court came awfully close to rewriting the law in two different areas that could have produced devastating consequences for all Americans

Elliot Mincberg

People For the American Way

Trump, Pardons, and Guilt

7/25/17  //  In-Depth Analysis

By Mark Osler: Pardons by Trump would be a significant departure from what the pardon power has meant. Clemency is for the guilty, not the innocent.

Take Care

Versus Trump: Bet You Can't Untie This Knot

6/13/19  //  Uncategorized

This week on Versus Trump, Jason, Charlie, and Easha discuss a decision undoing the Trump Administration's new rules that would ban much online gambling. The opinion also leads them into a discussion of the powers of district judges, the Office of Legal Counsel, the Attorney General, and more. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Versus Trump: Mueller-ing Things Over

3/28/19  //  Commentary

The Mueller Report is kinda, sorta here, so, on this week's episode of Versus Trump, Charlie and Jason analyze the Barr summary and then dive into the legal troubles of famous Trump antagonist Michael Avenatti. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

The Self-Pardon Question: What Comes Next?

7/27/17  //  Commentary

By Jeffrey Crouch: Might Congress amend the Constitution to take the self-pardon question off the table permanently?

Take Care

Because President Trump Has Chosen Not To Go to Congress, Members of Congress Must Go to the Courts

6/14/17  //  Commentary

Today, Senator Richard Blumenthal, Representative John Conyers, and 194 other members of Congress have gone to federal court seeking to put an end to the President’s willful violations of the Constitution.

Brianne J. Gorod

Constitutional Accountability Center

The Constitution of Talk

8/25/17  //  In-Depth Analysis

There needs to be a separation of microphones just as much as a separation of powers, and Congress does not understand the microphone that 2017 requires.

David Fontana

George Washington University Law School

What to Make of Chief Justice Roberts’ Stay of the Juliana Case

10/25/18  //  Quick Reactions

What happens next in a lawsuit arguing that the United States has failed to protect against the ravages of climate change?

Ann Carlson

UCLA School of Law

Clarence Thomas's Misplaced Anti-Eugenics Concurrence in the Indiana Abortion Case

5/30/19  //  Commentary

Justice Thomas argues that because some people once favored a legal right to abortion for a bad reason, it should be banned today. That argument is mistaken.

Michael C. Dorf

Cornell Law School

What Is The Government’s Word Worth In Court? (Part II)

9/29/17  //  Commentary

How much does the Supreme Court consider what the government has said in previous cases?

Leah Litman

Michigan Law School

What’s Next for the Presidential Transition?

2/26/19  //  Commentary

Congress must take steps to ensure that any 2020 transition is an improvement over Trump's transition in 2016

Zachary Piaker

Columbia Law School

Executive Privilege(s) and the Testimony of James Comey

6/9/17  //  Commentary

The various references to executive privilege and unauthorized disclosures must be analyzed more closely.

Peter M. Shane

Ohio State, Moritz College of Law

Villains, Careerists, and Patriots: Thoughts on Kobach, Rosenstein, Comey, and McMaster

5/22/17  //  Commentary

When do a person's actions demonstrate that whatever they might have been in the past, they are now villains? When do their curious actions reveal them to be careerists? And when does the sacrifice of personal reputation serve a greater good?

Michael C. Dorf

Cornell Law School

The President’s Clarifying Memorandum And The Amicus Brief About Animus

6/20/17  //  Commentary

The President’s clarifying memorandum undercuts the legitimate rationale the executive order and DOJ had offered for the entry ban. An amicus brief filed in the Supreme Court explains why that matters.

Leah Litman

Michigan Law School

Complicity and Speech: The Right’s New Effort to Rewrite the First Amendment

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

What Is Dead May Never Die: An AHCA Update

5/3/17  //  Commentary

With the AHCA back on the table, it's time to remember that the GOP really doesn’t like the constitutional arguments it made against the ACA

Leah Litman

Michigan Law School

States And The Emoluments Clause

6/12/17  //  Commentary

In a new lawsuit, Maryland and D.C. allege that the President's violations of the Emoluments Clauses harm their sovereign, quasi-sovereign, and proprietary interests. Those interests get special solicitude in federal court.

Leah Litman

Michigan Law School

The Substance of the Supreme Court’s procedure

2/13/19  //  In-Depth Analysis

Last week’s Supreme Court stay orders say a lot about how the Court views the substance of the underlying constitutional claims in Dunn v. Ray and June Medical Services v. Gee.

Leah Litman

Michigan Law School

Revisiting The Presumption of Regularity

1/28/19  //  Commentary

Subsequent events have made clear that courts were--and are--right to recognize that all is not regular in the executive branch.

Leah Litman

Michigan Law School

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

On The Ripeness of Potted Plants and Other Non Sequiturs

12/22/17  //  Quick Reactions

We offer a few quick reactions to yesterday's opinion dismissing one of the emoluments cases on standing grounds.

Leah Litman

Michigan Law School

Daniel Hemel

University of Chicago Law School

The Problem(s) With The Arpaio Pardon

8/29/17  //  Commentary

Like so much of what Trump has done, the Arpaio pardon raises multiple challenges to our constitutional system.

Leah Litman

Michigan Law School

What’s the Price of Tolerance?

12/7/17  //  Commentary

Robust protection of speech does not require gutting laws that help ensure that all persons—regardless of race, gender, religion, or sexual orientation—can buy the good and services they desire, free from discrimination.

Symposium on Congress's Constitution

8/25/17  //  Latest Developments

Take Care is pleased to host a symposium on Congress's Constitution—an important new book by Josh Chafetz

Take Care

Versus Trump: Pardon Our Tone

10/19/17  //  Commentary

On this week’s episode of Versus Trump, Easha, Jason, and Charlie discuss the President's pardon of Sheriff Joe Arpaio and the (so far unsuccessful) legal challenge to that pardon. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Congressional Standing Is Not an All-or-Nothing Proposition

6/19/17  //  Commentary

It is perfectly consistent to think the House lacks standing in House v. Price, but that members of Congress have standing to sue for Foreign Emoluments Clause violations.

Brianne J. Gorod

Constitutional Accountability Center

The Politics of Administrative Reform

1/10/18  //  In-Depth Analysis

Michaels is absolutely right in his diagnosis of the current state of administrative governance. And his book could well prove an important step towards fixing it. But if that fix comes, it is far more likely to be primarily via those politicians than by the judges they appoint.

Josh Chafetz

Cornell Law School

Information Wars: The Final Frontier

7/25/17  //  Commentary

Elements of the Republican Party have proposed eliminating the Budget Analysis Division of the Congressional Budget Office.

Leah Litman

Michigan Law School

Trump Is Ushering In A Kleptocracy. That's Why He Is Being Sued

6/14/17  //  Commentary

If recent events are any sign, the public will not stand idly by as Trump turns our nation into a banana republic.

Joshua Matz

Publisher

Ducking Day at the SCOTUS

6/5/18  //  Commentary

There are times when strategic ducking makes sense practically if not strictly legally

Michael C. Dorf

Cornell Law School

The Mandatory Guidelines Predicament

1/29/18  //  In-Depth Analysis

Prisoners sentenced under the mandatory Sentencing Guidelines are not faring well in the courts of appeals, and the Supreme Court won't have a ton of opportunities to correct those decisions, if it thinks they are wrong.

Leah Litman

Michigan Law School

Samantha Jaffe

Michigan Law

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

Another Illegal Executive Order--This Time National Monuments Are Under Attack

4/28/17  //  Commentary

Trump issued an order directing Interior Secretary to review a generation's worth of national monument designations. That order is likely illegal.

Michael Burger

Sabin Center for Climate Change Law at Columbia Law School

What About the Free Speech Clause Issue in Masterpiece?

6/13/18  //  Commentary

Robert Post of Yale Law considers the status of free speech objections to serving same-sex couples in light of the Court's opinion.

Robert Post

Yale Law School

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

Michigan Law School

Event Announcement! ACS @ AALS January 4th

12/20/17  //  Latest Developments

We'll be having a panel discussion on conventions, norms, and constitutional governance at AALS on Thursday, January 4th.

Leah Litman

Michigan Law School

In the End, What Should a Special Prosecutor Do?

1/17/19  //  In-Depth Analysis

Should a special prosecutor indict a sitting president?

Deborah Pearlstein

Cardozo Law School

How the President’s Clarifying Memorandum Destroys the Case for the Entry Ban

6/15/17  //  In-Depth Analysis

The President's "clarifying" memorandum undermines the facial legitimacy of the entry ban, and the government's stated purposes for the entry ban.

Take Care

Leah Litman

Michigan Law School

Republicans['] Own Constitutional Discourse

3/12/19  //  Commentary

Democrats used to dominate constitutional discourse. Now Republicans do.

David Pozen

Columbia Law School

Versus Trump: The ACA's Still Here...

2/7/19  //  Uncategorized

On this week's episode of Versus Trump, Jason and Charlie discuss last month's federal court decision holding that Maryland could not proceed in its lawsuit that sought a declaration that the Affordable Care Act is constitutional and must be enforced. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

(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

Is Congress a Watchdog Asleep on the Job?

3/20/18  //  Commentary

By Former Republican Congressmen Tom Coleman and Mickey Edwards

Take Care

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

Michigan Law School

SCOTUS Severely Narrows Civil Rights Suits Against Federal Officers

6/20/17  //  Commentary

Yesterday's SCOTUS ruling in Ziglar v. Abbasi makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages.

Michael C. Dorf

Cornell Law School

On Key Issues, Judge Gorsuch Is Pro-Presidential Power

3/20/17  //  In-Depth Analysis

Although Judge Gorsuch is often described as "good" for the separation of powers, on key issues he is a formalist and would take a decisively pro-presidential view.

Leah Litman

Michigan Law School

Versus Trump: Versus Kobach

7/20/17  //  Commentary

On this week’s episode of Versus Trump, we discuss the litigation against the newly-created Presidential Advisory Commission on Election Integrity, that has Kansas Secretary of State—and repeat defendant in voting rights litigation—Kris Kobach as its now-infamous Vice Chair. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Secretary Price Can’t Fix The CBO Score By Regulating

3/16/17  //  Commentary

HHS Secretary Price says the CBO report on the American Health Care Act is not believable because he will reduce costs through regulatory changes. Don't be fooled.

Nick Bagley

University of Michigan Law School

Trump’s Advisors Need to Step Up, Or Step Out

5/24/17  //  Commentary

Astounding revelations have erased any reasonable doubt that the President’s shortcomings endanger global security. The time has come to focus on Executive Branch officials who have a duty to guide and, if necessary, constrain Trump. They need to step up, or step out.

Dawn Johnsen

Indiana University Maurer School of Law

Legitimacy and the Supreme Court

6/19/19  //  Commentary

It is illegitimate to consider legitimacy. So say many conservatives who seem terrified that Chief Justice John G. Roberts Jr. might care about public perception of the U.S. Supreme Court. But they are wrong.

Stephen Vladeck

University of Texas

Leah Litman

Michigan Law School

Joshua Matz

Publisher

Chief Justice John Roberts’ Next Move Will Tell Us A Lot

2/13/19  //  Commentary

While Roberts deserves some praise for his vote last week, the story of this Louisiana law is far from over. And what Roberts does next will tell us a lot—about him and the trajectory of the Court he leads.

Brianne J. Gorod

Constitutional Accountability Center

Arresting the Deterioration of Democracy

3/31/17  //  Commentary

Troubling signs abound for American constitutional democracy. It isn't (yet) too late to halt the decline. But that will require the creation and implementation of a robust democracy agenda.

Daniel P. Tokaji

Ohio State, Moritz College of Law

Trump's ACA Sabotage and the President's Constitutional Take Care Duty

10/17/17  //  Quick Reactions

The President has not even tried to suggest that he is using his power in the law's interest. Rather, he has boasted that he is using his power to kill it

Abbe Gluck

Yale Law School

How the Russian Conspiracy Injured Real, Innocent People

5/16/18  //  Commentary

On Thursday, the one year anniversary of Special Counsel Robert Mueller’s appointment, attorneys for Donald Trump will stand up in a court of law to answer questions for the first time related to Russia. But it won’t be in the Mueller investigation.

Erwin Chemerinsky

U.C. Irvine School of Law

The Two Sides Of Donald Trump, As Reflected in The Government's Motion to Dismiss in the CREW Emoluments Case

6/12/17  //  Quick Reactions

The government's motion to dismiss alternately characterizes CREW's lawsuit as a case involving "official action" and a case involving solely a private "business venture." The different descriptions go to the core of CREW's lawsuit, which is that given the President's business affairs, we don't know when he's acting as President or as a businessman.

Leah Litman

Michigan Law School

The Trump Administration’s Newest Target: Administrative Law Judges

7/30/18  //  In-Depth Analysis

The Trump Administration is changing the rules around hiring and firing of Administrative Law Judges, and is doing so in disturbing ways.

Two Cheers for the Non-Unitary Executive?

3/18/19  //  Quick Reactions

Current events provide an occasion for the Court to rethink its agreement with the unitary executive theory. In fact, it’s already done so.

Leah Litman

Michigan Law School

Polarization, Deregulation, and Situational Legalism

1/16/18  //  Commentary

Highlights from a recent conference on deregulation in the Trump era

Zachary Price

U.C. Hastings College of the Law

Paul Manafort's Many-Flawed Challenge to Prosecutorial Authority

1/4/18  //  Commentary

This lawsuit likely will face early dismissal.

Peter M. Shane

Ohio State, Moritz College of Law

No, the Chief Justice Did Not Just Embrace Obergefell

6/27/17  //  Commentary

Many commentators have misunderstood the significance of a per curiam ruling by the Supreme Court yesterday.

Joshua Matz

Publisher

A Conservative’s Conservative Before He Was Nominated and An Open-Minded Jurist After

7/31/18  //  Commentary

Judge Brett Kavanaugh’s supporters claimed that his nomination would mean a sharp right turn for the Court; but since his nominated, they have promised he will review cases as they come.

Helen Marie Berg

Michigan Law

Abigail DeHart

Michigan Law School

Leah Litman

Michigan Law School

Congressional Oversight Is Not Presidential Harassment

2/21/19  //  In-Depth Analysis

Congress’s power to investigate—a power with deep roots in our nation’s history and precedent—is incredibly broad, and it allows Congress to look into lots of matters that the President would apparently rather remain unexplored

Brianne J. Gorod

Constitutional Accountability Center

Why Trump’s Firing of Comey is Terrifying

5/10/17  //  Commentary

Our country has a very strong, very important norm of apolitical law enforcement. But this norm, ironically, is enforced mostly by politics, not law—and Trump’s action has risked doing it irreparable damage. Going forward, here's what to watch at the state and federal levels.

Zachary Price

U.C. Hastings College of the Law

When You Have Five, They Let You Do Whatever You Want

5/14/19  //  In-Depth Analysis

While several of the essays in the edited collection of Reproductive Rights And Justice Stories talk about social movements that have influenced the law, some recent events suggest we should have those discussions without losing our focus on courts themselves

Leah Litman

Michigan Law School

Appoint a Special Prosecutor, not an Amicus, to Challenge Arpaio’s Pardon

9/12/17  //  Commentary

This would ensure that the novel constitutional questions surrounding the pardon receive full adversarial testing

Andrew Crespo

Harvard Law School

Versus Trump: SABOTAGE!!

8/16/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie begin their run of shows with Easha on leave and discuss a fascinating new lawsuit contending that the Trump Administration is unconstitutionally "sabotaging" the Affordable Care Act as a whole. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Should the United States Have Special Elections for the Presidency?

3/27/17  //  Quick Reactions

Proposals for a "special election," potentially in response to evidence of Russian interference with the 2016 Presidential Election, raise major constitutional, political, and policy questions.

Ian Samuel

Harvard Law School

The Fire Alarm Function of Office-Holding

6/19/17  //  Commentary

Trumps can fire Mueller only by issuing a directive to Acting AG Rod Rosenstein. Here's why -- and why it really matters.

Zachary Price

U.C. Hastings College of the Law

Might the SCOTUS be Wrong in its Unanimous Ruling that Dead Judges Can't Judge?

3/3/19  //  Commentary

The decision is justifiable as a bright-line rule, but the case was not quite the no-brainer that the justices imagined

Michael C. Dorf

Cornell Law School

Standing Up For Standing in CREW v. Trump

4/26/17  //  Quick Reactions

Everyone should give a tip of the hat to the new plaintiffs in the CREW v. Trump lawsuit.

Leah Litman

Michigan Law School

Versus Trump: Trump vs. The CFPB

8/24/17  //  Commentary

On this week’s episode of Versus Trump, Jason and Charlie talk about the Trump Administration's position in a lawsuit contending that the structure of the Consumer Financial Protection Bureau—commonly known as the CFPB—is unconstitutional, because its sole director does not serve at the pleasure of the President but instead serves a set term and can be terminated only for-cause. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Are We All Textualists Now?

12/5/18  //  Commentary

Trump's executive order closing the government today out of respect to George H.W. Bush violates the plain text of a federal statute. If we really were all textualists now, that would be taken seriously.

Neil J. Kinkopf

George State University College of Law

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

The Contingency of Partisanship

3/27/17  //  In-Depth Analysis

Both history and recent events make clear that President Trump can’t rely on partisan allegiance alone to save his presidency.

Josh Chafetz

Cornell Law School

Versus Trump: Trump Versus ALJs?

8/2/18  //  Commentary

On this week's episode of Versus Trump, Jason and Easha discuss a new executive order and accompanying guidance by the Trump Administration that dramatically change the rules for hiring Administrative Law Judges (ALJs) across the entire federal government. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

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

Michigan Law School

Judge Kavanaugh on Separation of Powers

8/3/18  //  In-Depth Analysis

By Carolyn Shapiro: Judge Kavanaugh has a troubling and one-sided view of liberty and how to protect it.

Take Care

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

The Rule of Law and the Resistance Police

6/1/17  //  Commentary

Trump’s defenders have long ascribed illegitimate motives to his critics. Now they’re doing that to the judges who have found Trump’s policies unlawful. That’s not okay.

Leah Litman

Michigan Law School

Helen Klein Murillo

Harvard Law School '17

Take Care

Fiscal Hardball: House Democrats Need to Use Their Appropriation Authority to Reign in the Out-of-Control GOP

5/13/19  //  Commentary

By Eric J. Segall: The Democrats in Congress hold the power of the power of the pursue and they should use it to address norm breaking behavior by President Trump (and his GOP allies)

Take Care

Can Congress Call A Special Election if Trump and Pence Are Impeached?

9/11/17  //  In-Depth Analysis

Congress has the legal authority to remove the President and Vice-President and to call a special election to replace them. But the odds that it would ever do so are vanishingly small.

Richard Primus

University of Michigan Law School

The Supreme Court, Animus, And Amicus

10/10/17  //  In-Depth Analysis

Some thoughts on a brief in a case the Court had scheduled to hear today.

Leah Litman

Michigan Law School

The Federal Courts and the Road to Impeachment

6/11/18  //  In-Depth Analysis

We must think more carefully about the role that federal courts can and should play at earlier stages of what may become impeachment investigations

Stephen Vladeck

University of Texas

The (Other) Dark Side Of The Comey Affair

5/15/17  //  Commentary

James Comey’s firing threatens more than just the rule-of-law norm against self-investigation. It also threatens the rule-of-law norm against politically motivated policing and prosecutions.

Leah Litman

Michigan Law School

Versus Trump: Where There's A Gil... (On Partisan Gerrymandering)

6/29/17  //  Commentary

On this week’s episode of Versus Trump, we discuss a lurking issue with opposing Trump in upcoming elections: partisan gerrymandering. Charlie and Easha take a close look at the case of Gil v. Whitford, a case the Supreme Court recently announced it will take up next fall. In Gil, the Supreme Court may boldly announce a new rule that might seriously curb partisan gerrymandering—or the Court may entirely stop courts from being able to hear these cases at all. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

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

Encouraging Legislative Expertise-Forcing

8/24/17  //  In-Depth Analysis

A promising way for Congress to check the Executive, as well as to enhance its own efficacy and public standing, is by promoting expertise in the executive branch

Bijal Shah

Sandra Day O’Connor College of Law

The Special Prosecutor and Government Institutions

1/15/19  //  In-Depth Analysis

Does the special prosecutor qualify as an 'institution'? Does it matter? (Hint: Yes, it does.)

David Marcus

UCLA Law School

The Justice Department’s New Tactic

11/12/18  //  Commentary

The government is not entitled to play leapfrog whenever it loses in federal court

Joshua Matz

Publisher

The Supreme Court’s Upside-Down Decision In Masterpiece

6/7/18  //  Quick Reactions

By Nelson Tebbe & Larry Sager: Now is the time to solidify our understanding of Masterpiece, because other wedding vendor cases are still pending in the Supreme Court and in lower courts.

Nelson Tebbe

Brooklyn Law School

Why Impeachment Must Remain A Priority

5/23/17  //  Commentary

The appointment of Special Counsel Robert Mueller must not lead progressives to put the thought of impeaching President Trump on a back-burner.

Laurence H. Tribe

Harvard Law School

Two Texas Consultants Don’t Have Standing to Take Down Obamacare

12/18/18  //  Commentary

There is no good legal argument for thinking that two guys from Texas have standing to challenge a law that doesn’t require them to do anything.

Nick Bagley

University of Michigan Law School

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

Michigan Law School

Helen Klein Murillo

Harvard Law School '17

Shielding Mueller: Thoughts on Morrison v Olson

5/23/18  //  Commentary

Identifying a major flaw in arguments that Congress can't shield Mueller

Richard Primus

University of Michigan Law School

Jennings v. Rodriguez, Immigration Sins Of the Past, And The Forced Separation Of Families

6/6/18  //  Commentary

Jennings v. Rodriguez underscores how prior administrations, with the agreement of the federal courts, argued for expansive authority over immigration and immigration detentions that were ripe for abuse.

Leah Litman

Michigan Law School

Versus Trump: Versus Whitaker, In-Depth

12/6/18  //  Uncategorized

On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

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

The Solicitor General's Post-Factual World

5/8/18  //  Commentary

The SG's letter of correction to the Supreme Court says more about the kind of misstatements he will tolerate rather than the kind he won't.

Leah Litman

Michigan Law School

Hargan v. Garza As The Trump Administration's Vision For DOJ

11/13/17  //  Commentary

DOJ's conduct in Hargan v. Garza is the clearest example of how this administration wants to use DOJ for political purposes.

Leah Litman

Michigan Law School

Trump Is Responsible For What ICE Is Doing To the Dreamers

5/5/17  //  Commentary

Basic principles of constitutional structure mean Trump is, and should be held, personally responsible for ICE’s egregious treatment of the DREAM-ers.

Leah Litman

Michigan Law School

The Travel Ban And The Supreme Court

6/2/17  //  Quick Reactions

The government's petition for certiorari and stay requests raise some difficult timing issues in the travel ban litigation.

Leah Litman

Michigan Law School

SCOTUS Goes Online

7/12/18  //  In-Depth Analysis

By John Paul Schnapper-Casteras: This might be the year that the Supreme Court begins to meaningfully grapple with the constitutional implications of emerging technologies.

Take Care

The Basic Error In Texas’s Amicus Brief In The Travel Ban Case (aka Youngstown Zone Zero Redux)

6/7/17  //  Commentary

Texas’s Amicus Brief Makes An Argument That Is So Obviously Wrong Some People Thought It Was Not Worth Responding To

Leah Litman

Michigan Law School

Ian Samuel

Harvard Law School

The Faces of Congressional Power

8/25/17  //  In-Depth Analysis

By Mark Graber: Congress has considerable tools to influence public policy. How effectively Congress may use those tools depends in part on the skill with which they are exercised, but also on more durable features of the times in which they are exercised.

Take Care

Goodbye, U.S. Senate?

4/7/17  //  Quick Reactions

Abbe Gluck explains that the Republicans’ win-at-all-costs strategy will almost certainly lead next to the end of the filibuster for legislation, not just nominations, which would fundamentally change the culture of the Senate and be a tragic loss for our democracy.

Take Care

Trump DOJ's Flipped Positions

9/8/17  //  Commentary

Republicans may not be advancing their agenda through legislation, but they're getting it done in other ways.

Leah Litman

Michigan Law School

The Administration's Travel Ban Guidance

6/29/17  //  Commentary

The administration has again attempted to push the boundaries to see what it can get away with on the travel ban guidance.

Leah Litman

Michigan Law School

Trump Administration Appointments

4/4/17  //  Commentary

Between the torpor of President Trump’s sub-cabinet nominations, and his frequent preference to nominate persons lacking prior government experience, the deconstruction, or perhaps reconstruction, of the administrative state may be well under way.

Peter L. Strauss

Columbia Law School

The Audacity of The President’s "Hope"

6/13/17  //  In-Depth Analysis

Senator Risch asked Jim Comey whether a person has been charged for obstruction of justice or any other criminal offense, where they said or thought they hoped for an outcome. We hope he finds our research instructive.

Daniel Epps

Washington University Law School

Leah Litman

Michigan Law School

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

To Save Obamacare, Repeal the Mandate

12/21/18  //  Commentary

If congressional intent is the key to the Texas decision invalidating the Affordable Care Act, Congress can intervene. And the best way for it to do so is not to enter the litigation. It’s to legislate.

Nick Bagley

University of Michigan Law School

Richard Primus

University of Michigan Law School

The Letter On The Census And The Supreme Court

6/5/19  //  Quick Reactions

Recent revelations in the census case at the Supreme Court are also relevant to another case at the Court--partisan gerrymandering.

Leah Litman

Michigan Law School

What Is The Government’s Word Worth In Court? (Part I)

9/28/17  //  Commentary

How much does the Supreme Court consider what the government has said in previous cases?

Leah Litman

Michigan Law School

Against Cutting the President’s Purse Strings

1/7/18  //  In-Depth Analysis

No, Congress doesn't have a duty to provide the resources necessary for the executive branch to adequately fulfill its constitutional functions.

Zachary Price

U.C. Hastings College of the Law

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

Sessions Changed DOJ's Longstanding Position on Voter Purges in a Key SCOTUS Case.

9/26/17  //  In-Depth Analysis

Now former DOJ officials are calling him on it.

Samuel Bagenstos

University of Michigan Law School

The Fourteenth Amendment Turns 150 Today: Will Trump’s New Nominee Follow Its Text and History?

7/9/18  //  Commentary

When exercising its role of advice and consent in coming weeks, the Senate must ensure that President Trump’s nominee is willing to respect the whole Constitution, not just the parts of our national charter that fit the President’s agenda.

Can the President Pardon Himself? Well, He Can Try.

7/21/17  //  Commentary

By Brian Kalt: Presidential pardons are an important part of our constitutional system of powers, checks, and balances. A self-pardon would test several others parts of that system. As interesting as that might be, here’s hoping that it never happens.

Take Care

Korematsu And The Entry Ban (Again)

2/4/19  //  In-Depth Analysis

Recently revealed errors in the report that the administration created pursuant to the second entry ban further underscore the parallels between Korematsu v. United States and the entry ban.

Leah Litman

Michigan Law School

The Constitutionality of the 5-5-5 Supreme Court Plan

5/17/19  //  Commentary

It would be constitutional to have a 15-person Supreme Court consisting of five Republican-affiliated justices, five Democratic-affiliated Justices, and five more justices unanimously selected by the first ten from judges of the federal court of appeals for a single-year term

Daniel Epps

Washington University Law School

Ganesh Sitaraman

Vanderbilt Law School

A Reply to Larry Solum

5/25/17  //  Commentary

A response to Professor Solum’s comments on my posts about the Consumer Financial Protection Bureau.

Leah Litman

Michigan Law School

Not So Fast, Mr. President

11/24/17  //  In-Depth Analysis

Under Dodd-Frank, now that Richard Cordray has resigned as Director, the CFPB’s Deputy Director is the Bureau’s acting Director. President Trump may decide he doesn’t care what Dodd-Frank says, but he doesn’t get the final say.

Brianne J. Gorod

Constitutional Accountability Center

DOJ Goes Big So Prisoners Can't Go Home

10/26/17  //  In-Depth Analysis

DOJ now argues that people who are in prison based on mistaken understandings of criminal statutes must stay there. The Supreme Court should consider granting certiorari to correct its mistake (and the Eleventh and Tenth Circuits’).

Leah Litman

Michigan Law School

Three Problems With the SG's Klan Hypo in the Masterpiece Cakeshop Oral Argument

12/6/17  //  In-Depth Analysis

If the baker loses in Masterpiece, could the government compel an African American sculptor to sculpt a cross for a Klan service? No, it could not.

Michael C. Dorf

Cornell Law School

A Note Of Caution About Timbs v. Indiana

2/25/19  //  Quick Reactions

The concurring opinions in Timbs v. Indiana raise some concerns about how (some of) the Justices would address the Trump administration’s treatment of undocumented minor women.

Leah Litman

Michigan Law School

[UPDATED] Trump's Innocence and the Rule of Law

5/12/17  //  Commentary

Even if Trump fired Comey because Trump knows himself to be innocent of Russia-related wrongdoing, that would still be unacceptable.

Richard Primus

University of Michigan Law School

Versus Trump: An Immigration Omnibus

5/31/18  //  Uncategorized

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!

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Privatization’s Other Frontiers

1/12/18  //  In-Depth Analysis

By Kate Shaw: We must also focus on ideological outsourcing and privatization by state governments

Take Care

States Can Require Financial Disclosure by Presidential Candidates to Safeguard Electoral Transparency

4/6/17  //  In-Depth Analysis

Many states are considering bills requiring future federal presidential candidates to release tax returns, or comparable information, in order to be listed on the ballot. Such requirements are good policy and should be upheld under the Constitution.

Danielle Lang

The Campaign Legal Center

Constitutional Blindspot: How The Roberts Court Is Betraying Our Democracy

7/1/19  //  Commentary

The Roberts Court has a constitutional blindspot. It consistently ignores the many parts of the Constitution that help preserve and protect a vibrant democracy open to all.

Tweetstorm Round Deux

6/5/17  //  Commentary

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.

Leah Litman

Michigan Law School

Echoes of History in Objections to Federal Enforcement of Voting Rights

4/21/17  //  Commentary

A letter about how to fix DOJ’s Civil Rights Division has some interesting parallels to a recent voting rights dissent.

Leah Litman

Michigan Law School

Another Day, Another Smear By Trump

7/25/17  //  Commentary

Democracy depends on good faith engagement and distinguishing “honest dissent” from “disloyal subversion.”

David Sklansky

Stanford Law School

Entry Ban Animus Revisited

6/25/18  //  In-Depth Analysis

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.

Leah Litman

Michigan Law School

Abigail DeHart

Michigan Law School

The Constitutional Challenge To The CFPB

5/19/17  //  Commentary

The major constitutional challenge to the Consumer Financial Protection Bureau rests on the claim that the President of the United States does not have enough power over the agency.

Leah Litman

Michigan Law School

The Functions and Potential (but Fixable) Flaws of the “Protect Mueller” Bills

8/7/17  //  In-Depth Analysis

The bills to protect the special counsel from removal have some rough spots that can and should be worked out.

Marty Lederman

Georgetown Law

Versus Trump: Versus Mueller

6/28/18  //  Commentary

After two special interview episodes of Versus Trump, Jason and Charlie get back to the usual format and talk about the leaked Dowd memo arguing that President should not be required to sit for an interview with the Special Counsel. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Ethics Complaints Against Lying Trump-Administration Lawyers

4/7/17  //  Commentary

There might still be some lies that people won't tolerate. Even from lawyers. And even from lawyers who are also politicians. Should those lies be the basis for discipline under legal ethics rules?

Charlie Gerstein

Civil Rights Corps

Congress’s Constitution, Redux

8/28/17  //  In-Depth Analysis

Here I respond to insightful comments on Congress's Constitution.

Josh Chafetz

Cornell Law School

Real Reasons To Worry About Filibuster Repeal

4/10/17  //  Commentary

The filibuster repeal itself is ultimately far less important than some deeper trends it reflects concerning partisanship, institutional norms, and the separation of powers in our constitutional order.

Zachary Price

U.C. Hastings College of the Law

Trump's DOJ Budget Puts The Money Where His Mouth Has Been

6/2/17  //  Commentary

The budget for the Civil Rights Division underscores how the administration will turn a blind eye toward many forms of discrimination while stoking anti-immigrant sentiment.

Leah Litman

Michigan Law School

Relitigating Dunn v. Ray

4/17/19  //  In-Depth Analysis

The Supreme Court has insisted on relitigating and reaffirming its decision in Dunn v. Ray. So let's do that.

Leah Litman

Michigan Law School

What Congress Can Do To Obtain President Trump’s Taxes

4/15/19  //  In-Depth Analysis

Here are the steps Congress can (and should) take to review the President's tax returns as expeditiously as possible

Brianne J. Gorod

Constitutional Accountability Center

Versus Trump: A Two-Level Versus Trump Case

8/30/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Is Trump's Emergency Unconstitutional or 'Merely' Illegal? And Does it Matter?

2/24/19  //  Commentary

And because Trump is a threat to constitutional democracy, the stakes over whether to call his bogus emergency 'merely' unlawful or also unconstitutional are non-trivial.

Michael C. Dorf

Cornell Law School

The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part I)

5/22/17  //  In-Depth Analysis

This two-part series explains why the CFPB’s purportedly novel structure is not a sign that the CFPB’s structure is unconstitutional.

Leah Litman

Michigan Law School

Prosecuting the President

1/14/19  //  In-Depth Analysis

Why have presidents appointed special counsels when they are not required to do so? Why do presidents tolerate special counsels, even when they can fire them?

Andrew Coan

University of Arizona

Masterpiece Cakeshop and Reading Smith Carefully: A Reply to Jim Oleske

10/30/17  //  In-Depth Analysis

Thomas C. Berg and Douglas Laycock respond to criticism of their amicus brief in the Masterpiece Cakeshop case.

Take Care

Bureaucratic Exit and Loyalty under Trump

1/9/18  //  In-Depth Analysis

Fostering a greater sense of bureaucratic loyalty will help to ensure that when the going gets tough, the tough don’t get going.

Jennifer Nou

University of Chicago Law School

Masterpiece Cakeshop And The Entry Ban

6/4/18  //  Quick Reactions

In Masterpiece Cakeshop, Justice Kennedy tells us a lot about why the Court should reject the government's arguments on the First Amendment claim in the entry ban case.

Leah Litman

Michigan Law School

On Standing In CREW v. Trump Part I: Defining The Injury

4/27/17  //  In-Depth Analysis

Critics of the standing arguments in CREW v. Trump are defining the new plaintiffs’ injury in the wrong way.

Leah Litman

Michigan Law School

Birth Control Is Not Abortion

9/7/18  //  Quick Reactions

By Greg Lipper: At his confirmation hearing, Judge Kavanaugh used the phrase “abortion-inducing drugs" while referring to a case he heard on the DC Circuit. This description of the case is at odds with modern science and suggests his hostility to foundational privacy precedents.

Take Care

Alternative Facts & History, and Alarming Implications, in DOJ's CFPB Brief.

4/17/17  //  In-Depth Analysis

DOJ's brief attacking the CFPB is riddled with alternative facts and offers a fictional history of the separation of powers. It may inflict lasting damage on DOJ's credibility. And the implications of DOJ's position for the SEC, Federal Reserve, and U.S. Postal Service, among other federal agencies, are alarming.

Neil J. Kinkopf

George State University College of Law

The Character of the Special Prosecutor

1/16/19  //  In-Depth Analysis

How do we evaluate the character of the current special prosecutor?

Take Care

Chafetz and the Separation of Powers

8/23/17  //  In-Depth Analysis

By Victoria Nourse: It is one of the great paradoxes of American life that Americans love democracy but hate their most democratic institution, the Congress—that is, until they need Congress to fight a rogue President

Take Care

Our (Ongoing) Coverage of the Comey Firing

5/11/17  //  Uncategorized

An organized guide to all Take Care coverage and analysis of President Trump's abrupt termination of FBI Director Comey

Take Care

Versus Trump: (Judicial) Independence Day Spectacular!

7/6/17  //  Commentary

On this week’s episode of Versus Trump, we celebrate Independence Day with a look at the past, present, and future of judicial independence. Jason and Easha discuss the origins of judicial power, and then talk about what the Trump Administration has done that may undermine the authority of the judiciary—and where that kind of talk might lead us. Listen now!

Easha Anand

San Francisco

Let’s Not Make A Constitutional Case Out Of This

1/11/18  //  In-Depth Analysis

Is an administrative separation of powers mandated by the Constitution, as Michaels suggests that it is?

Immigration Lies And The Supreme Court

1/23/19  //  Commentary

A recently leaked document highlights the perils of government lawyering on behalf of the Trump administration.

Leah Litman

Michigan Law School

A Reality Check On Proceedings Related To The Entry Ban Injunctions

7/13/17  //  In-Depth Analysis

Some commentators are seizing on court orders in the proceedings related to the scope of the injunction against the entry ban as an indication that courts are rethinking their decisions against the entry ban. That's wrong (with a cautionary note about the federal courts).

Leah Litman

Michigan Law School

Versus Trump: 100!

3/21/19  //  Commentary

On this week's 100th episode of Versus Trump, Charlie, Easha, and Jason offer a few quick hits and then have a discussion about the effect of litigation against the President personally and against the Administration. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Looking Back On The Entry Ban Justifications

9/25/17  //  Commentary

The government and the courts have proven that one of the administration’s justifications for the now expired entry ban was a joke.

Leah Litman

Michigan Law School

Against Deference: Considering the Trump Travel Ban

12/8/17  //  Commentary

By Vicki Jackson & Judith Resnik: Upholding the third travel ban out of deference to the President on matters of foreign affairs would be a tragic mistake.

Take Care

Confusion Over The Essential Health Benefits

3/24/17  //  Quick Reactions

Last night, House Republicans released the text of the final manager’s amendment to the American Health Care Act. If it becomes law, the individual insurance market will likely collapse nationwide in 2018.

Nick Bagley

University of Michigan Law School

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 Establishing Shots of a Heist: The Trump DOJ Meets the Affordable Care Act

6/7/18  //  Commentary

DOJ's argument that the Affordable Care Act reforms are not severable from the now unconstitutional mandate is not worth the Courier font it is typed in.

Ian Samuel

Harvard Law School

Leah Litman

Michigan Law School

Another Legally Questionable Acting Official Who’s Not Wasting Any Time Before Making Big Decisions

1/15/19  //  In-Depth Analysis

Joe Otting, the new Acting Director of the Federal Housing Finance Agency, has a questionable entitlement to powers that he's already misusing.

Brianne J. Gorod

Constitutional Accountability Center

Advancing a Left-Liberal Jurisprudence

10/16/18  //  In-Depth Analysis

Winning elections isn’t enough. Progressive majorities need to be willing to invest significant political capital in judges who are committed to a left-liberal jurisprudence.

Jon D. Michaels

UCLA School of Law

Justice Kavanaugh Said No On Roe

2/11/19  //  Quick Reactions

In June Medical Services, Justice Kavanaugh did exactly what reproductive justice advocates said he did on the court of appeals, and warned he would do once he got to the Supreme Court. Are you listening Susan Collins?

Leah Litman

Michigan Law School

See You In Court: Ninth Circuit Round 2

6/12/17  //  Quick Reactions

A quick recap of the Ninth Circuit's decision in Hawaii v. Trump with thoughts about what it portends for the Supreme Court.

Leah Litman

Michigan Law School

Why Senator Collins Should Be Worried About Justice Gorsuch and Roe

7/2/18  //  Commentary

Justice Gorsuch may have written a book about the law of precedent, but that didn’t stop him from ignoring the law of precedent in case after case this year

Brianne J. Gorod

Constitutional Accountability Center

Trump's Politicization of Law Enforcement is Authoritarian in Nature

3/9/18  //  In-Depth Analysis

Trump’s actions to quash the independence of federal law enforcement mirror the approach of autocratic leaders around the globe.

United States v. Davis: And Now Comes The Good Part

6/24/19  //  Quick Reactions

The reach of the Supreme Court’s opinion in United States v. Davis will be dictated by a host of procedural rules.

Leah Litman

Michigan Law School

Rand Paul Must Reverse His Position On Judge Kavanaugh’s Supreme Court Nomination – Or Betray His Anti-War Legacy

9/11/18  //  Commentary

By Daniel Levine-Spound: Rand Paul’s support for Kavanaugh constitutes a betrayal of his opposition to the United States’ ever-expanding and seemingly interminable 'War on Terror'

Take Care

Versus Trump: N.Y. Versus Wilbur Ross

10/11/18  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason and Charlie talk about the fight over Commerce Secretary Wilbur Ross's potential testimony in an important lawsuit over the census. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

The Acosta Hearing & the “Deconstruction” of Federal Agencies

3/24/17  //  Quick Reactions

Hearings on President Trump's nominee for Secretary of Labor revealed little about the future of labor policy. But the hearings made crystal clear that Trump's executive orders and proposed budget threaten even popular and effective government programs.

Charlotte Garden

Seattle University School of Law

The Government’s Vanishing National Security Rationale (aka Round 10000 In The Incompetence Versus Malevolence Debate)

6/8/17  //  Commentary

The government’s litigation strategy in the travel ban litigation undermines the purported national security rationale for the entry ban.

Leah Litman

Michigan Law School

The Road to United States v. Trump is Paved with Prosecutorial Discretion

5/21/17  //  In-Depth Analysis

Should former FBI Director Robert Mueller decide to bring criminal charges against President Trump for obstruction of justice, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted.

Andrew Crespo

Harvard Law School

A Response to Will Baude on Mootness in the Entry Ban Case

6/3/17  //  Commentary

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.

Marty Lederman

Georgetown Law

Even If McCabe Committed Wrongdoing, He Was Likely Fired for 'This Russia Thing'

3/20/18  //  Commentary

The firing of James Comey closely parallels McCabe's firing

Michael C. Dorf

Cornell Law School

Final Thoughts on Prosecuting the President

1/24/19  //  In-Depth Analysis

Thoughts on the past, present, and future of special prosecutors

Andrew Coan

University of Arizona

Gundy, Raich, and Faustian Bargains

6/26/19  //  In-Depth Analysis

In Gundy, the liberal justices' desire to protect the administrative state led them to uphold an exceedingly punitive law. But this was a bad bargain. The conservatives will still reinvigorate the non-delegation doctrine, and a terrible law will still remain on the books.

Gregory Lipper

Clinton & Peed

Making Sense of the SCOTUS Per Curiam in Arkansas SSM Birth Certificate Case

6/29/17  //  Commentary

The challenged Arkansas law most certainly violated Obergefell's call for equal access to the constellation of benefits that accompany marriage. The per curiam got it right.

Michael C. Dorf

Cornell Law School

Versus Trump: "What About Congress? + Steven Wu"

6/8/17  //  Commentary

On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss Congress's role and powers in investigations of the Executive. Then, Jason talks with Steven Wu, a Deputy Solicitor General in the Office of New York Attorney General Eric Schneiderman, about the case against Trump University, the active role of states in recent years, and other issues in which New York is adverse to the President. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

See You In Court 3.0

5/25/17  //  Quick Reactions

A quick recap of the Fourth Circuit's decision in IRAP v. Trump.

Leah Litman

Michigan Law School

That Time When Republicans Re-Regulated Retirement Savings

4/11/17  //  In-Depth Analysis

Congressional Republicans care about one thing far more than their professed values and far more than the American people they claim to represent: protecting the financial services industry. This was recently made clear when they undid two key DOL rules.

Danielle D'Onfro

Washington University Law School

Justice Kennedy, The First Amendment, and Partisan Gerrymandering

10/4/17  //  In-Depth Analysis

By David Gans: Will Justice Kennedy carve out a partisan redistricting exception from foundational First Amendment principles?

Take Care

The Clarifying Memorandum Is Not A Reason For A Stay

6/21/17  //  Quick Reactions

An analysis of DOJ's latest filing at SCOTUS in the travel ban cases.

Leah Litman

Michigan Law School

Prosecuting the President and the Importance of Information

1/18/19  //  In-Depth Analysis

It's vital for the public to understand why we have a special prosecutor and how to ensure he's free to complete his work

Lisa Manheim

UW School of Law

Seven Reactions to Today’s Coats/Rogers Testimony

6/7/17  //  Quick Reactions

Jed Shugerman analyzes today's live testimony before the Senate Intelligence Committee.

Jed Shugerman

Fordham Law School

The National Emergencies Act Is Not a Blank Check

2/1/19  //  Uncategorized

The National Emergencies Act doesn't give the President unlimited power to declare a national emergency even when no emergency exists

Brianne J. Gorod

Constitutional Accountability Center

Attacking North Korea Would Be Illegal

8/10/17  //  Commentary

President Trump threatened this week to launch "fire and fury like the world has never seen" against North Korea. That is not something the Constitution lets him do without Congress.

Zachary Price

U.C. Hastings College of the Law

Policing is Always Political, So Politicians Should Control It

5/24/17  //  In-Depth Analysis

Recent Harvard Law graduate, and soon to be civil rights lawyer, Shakeer Rahman offers some second thoughts about celebrating federal law enforcement’s independence.

Take Care

On Presumptions Of Regularity, And Incidents Of Irregularity

5/11/17  //  Commentary

The Presumption of Regularity, Like All Presumptions, Is Rebuttable, Not Conclusive Evidence

Leah Litman

Michigan Law School

Versus Trump: Listener Mailbag

6/6/19  //  Commentary

This week on Versus Trump, Jason and Charlie answer listener mail and talk about nationwide injunctions at Gregory's request; talk more about court packing at the request of Micah; and respond to Ben's thoughts on subpoena enforcement. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

A Progressive Yankee in John Roberts’ Court

10/17/18  //  In-Depth Analysis

Instead of seeking to restructure or undermine the Supreme Court, progressives should focus on advancing their cause through conservative arguments

Daniel Hemel

University of Chicago Law School

Congress's Constitution

8/21/17  //  In-Depth Analysis

An introduction to the Take Care symposium on my new book, Congress's Constitution

Josh Chafetz

Cornell Law School

Versus Trump: How Do We Protect Our Democracy?

2/14/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie sits down for a fun, casual conversation with Anne Tindall and Cameron Kistler of Protect Democracy about, well, protecting our democracy. Listen now!

Charlie Gerstein

Civil Rights Corps

The Constitutional Rule Against Bans On Previability Abortions Applies to Mississippi

4/22/19  //  Commentary

We recently filed an amicus brief asking the Fifth Circuit to apply the well settled rule that states may not prohibit women from accessing abortions prior to viability.

Leah Litman

Michigan Law School

Take Care

Doubling Down on a Deeply Troubling Argument in Masterpiece Cakeshop

11/14/17  //  In-Depth Analysis

Tom Berg and Douglas Laycock defend a novel theory that could eviscerate civil rights laws

Jim Oleske

Lewis & Clark Law School

Congress’s Rhetoric

8/23/17  //  In-Depth Analysis

By Kate Shaw: Congress must find new opportunities for successful engagement with the public, by both individual members and the body as a whole

Take Care

It Matters How and When SCOTUS Reviews the Muslim Ban

5/30/17  //  In-Depth Analysis

A detailed guide to how and when the Muslim Ban might reach the Supreme Court (and why this question really matters).

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 Constitutional Law of Shutdowns

1/8/19  //  Quick Reactions

A quick explainer: how does Congress's power of the purse interact with the Executive's constitutional authority?

Zachary Price

U.C. Hastings College of the Law

Versus Trump: #MeToo vs. Trump

12/14/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Sessions Preview and Review

6/13/17  //  Commentary

The already strong case for felony false statement might get unbearably stronger

Jed Shugerman

Fordham Law School

Correcting the Record in the Travel Ban Case

5/6/18  //  Latest Developments

Amir Ali has filed a letter at the Supreme Court concerning an erroneous factual representation by the Solicitor General

Joshua Matz

Publisher

The One Question Worth Asking

7/25/17  //  Commentary

Here's the most important question to ask about indictments, pardons and self-pardons, and obstruction of justice.

Daniel Hemel

University of Chicago Law School

Versus Trump: Movin' Right Along

4/12/18  //  In-Depth Analysis

On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Getting To No On Roe: It Continues

1/29/19  //  In-Depth Analysis

Another recent decision from a court of appeals (this time the Fifth Circuit) illustrates how states and courts can undermine women’s right to decide to end their pregnancies without formally overruling the relevant Supreme Court decisions.

Leah Litman

Michigan Law School

Versus Trump: To End a Presidency? (Interview with Joshua Matz)

6/21/18  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason talks about the past, present, and future of impeachment with Joshua Matz. Joshua is the publisher of Take Care and the co-author, with Laurence Tribe, of the acclaimed new book To End a Presidency: The Power of Impeachment. Listen now!

Jason Harrow

Equal Citizens

A Landmark Victory for LGBT Rights (And The Path Ahead)

4/5/17  //  Commentary

The en banc Seventh Circuit has held that Title VII protects against sexual orientation discrimination. SCOTUS is likely to grant review of this important issue in the near future. But it remains unclear what position the Trump Administration will take.

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

Where are the Facts?

3/1/18  //  Commentary

At oral argument in Janus v. AFSCME, Council 31, an important case about public sector unions, there were a lot of empirical questions—but not a lot of answers.

Brianne J. Gorod

Constitutional Accountability Center

Law, Politics, and Interbranch Conflict

8/24/17  //  In-Depth Analysis

By demonstrating the dangers of vesting so much power in one individual, will Trump bring about a revitalization of Congress and a corresponding diminution of the Presidency?

Zachary Price

U.C. Hastings College of the Law

Clear Statement: The Barr Memo is Disqualifying

1/14/19  //  Commentary

His dangerously misguided legal analysis demonstrates that William Barr is the wrong man to serve as Attorney General

Neil J. Kinkopf

George State University College of Law

Why Hasn’t Rod Rosenstein Recused Himself From the Russiagate Probe?

5/22/17  //  Commentary

Deputy Attorney General Rod Rosenstein should recuse himself from the probe into the Trump campaign’s ties to Russia and the President’s apparent attempt to obstruct the FBI’s inquiry. Rosenstein himself played a key role in the events at the center of the controversy, and his continued involvement casts a shadow over the ongoing investigation.

Daniel Hemel

University of Chicago Law School

Masterpiece Cakeshop– A Troublesome Application Of Free Exercise Principles By A Court Determined To Avoid Hard Questions

6/7/18  //  In-Depth Analysis

A system that threatens to overturn any administrative decision that appears tainted – even harmlessly – by signs of religious bias is one that will inevitably favor religious interests over other concerns

Robert W. Tuttle

George Washington University Law School

Ira C. Lupu

George Washington University Law School

Why a Loss for the House in Court Last Week Wasn’t All Bad News

6/14/19  //  Commentary

Although Judge McFadden made clear that he did not need to decide whether the House has standing to enforce subpoenas, what he said nonetheless strongly suggests that he would conclude that they do

Brianne J. Gorod

Constitutional Accountability Center

Legal Innocence and Federal Habeas

5/22/18  //  Commentary

A recent article shows why federal courts can and should revisit the convictions and sentences of many federal prisoners affected by Sessions v. Dimaya.

Leah Litman

Michigan Law School

Historical Practice and Case Law Support Broad Congressional Oversight Powers

1/30/19  //  In-Depth Analysis

By Ashwin Phatak: Here's how Congress can use its investigatory powers to hold the Trump Administration accountable

Take Care

UCI Commencement Speech

6/10/19  //  Quick Reactions

My remarks at the UCI Law commencement.

Leah Litman

Michigan Law School

Versus Trump: Stop The Drills!

4/4/19  //  Commentary

This week on Versus Trump, Jason and Easha discuss a recent decision reversing President Trump's attempt to de-protect Arctic Ocean waters and permit drilling in the Great White North. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Making Bureaucracy Great Again: Trump’s New Office of Innovation

3/27/17  //  Quick Reactions

Jared Kushner says he will run government like a business. But this administration has no understanding of government, or of business. And it doesn't respect the distinctive, unbusinesslike practices and principles of running a government.

Jon D. Michaels

UCLA School of Law

How Might Congress Reinforce NATO?

5/30/17  //  Commentary

President Trump's overseas trip has cast doubt on longstanding consensus features of U.S. foreign policy, particularly our commitment to NATO. Here are some ways Congress might respond.

Zachary Price

U.C. Hastings College of the Law

Remedial Convergence and Collapse

4/11/18  //  Commentary

The Supreme Court's recent summary reversal in Kisela v. Hughes demonstrates some serious issues with the Court's approach to remedies in cases of executive violations of constitutional rights.

Leah Litman

Michigan Law School

Versus Trump: Preventing The Prevention Of The Teen Pregnancy Prevention Program

5/17/18  //  Commentary

On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss a series of recent rulings that have stopped the Trump Administration from revoking federal grants to entities that have been working to reduce teen pregnancy. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

On Standing In CREW v. Trump Part II: More Distinctions Without A Difference To Competitor Standing Cases

4/28/17  //  Commentary

The various ways that standing skeptics have distinguished cases supporting standing in CREW are unpersuasive.

Leah Litman

Michigan Law School

Versus Trump: Trump Versus Anti-Discrimination Laws (with guest Joshua Matz)

12/7/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha are joined by Take Care publisher Joshua Matz to talk about the Masterpiece Cake Shop oral argument, plus the status of Muslim Ban litigation and the future of Take Care.

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Stare Decisis, The Supreme Court, And Roe

7/9/18  //  Commentary

Some further evidence that a mere belief in stare decisis and judicial precedent does not mean a judge will not overrule cases, as Susan Collins has (falsely) suggested.

Leah Litman

Michigan Law School

In A Major Immigration Case, The Government Says “We’re Going Big, So Go Home”

10/2/17  //  In-Depth Analysis

The government is arguing it can deprive noncitizens of their legal rights simply by making it too difficult and painful to vindicate those rights.

Leah Litman

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

SCOTUS Warns Against Appointing "Unfit Characters"

3/24/17  //  Quick Reactions

A decision this week reminds us that President Trump is bound by laws, which he is violating, in making key appointments. The Acting U.S. Trade Representative, for instance, might well be occupying that role unlawfully.

Nikolas Bowie

Harvard Law School

The Hypocrisy of the 'Skinny' Repeal

7/27/17  //  Commentary

The Republicans Themselves Said It Would be Disastrous

Abbe Gluck

Yale Law School

Federalism and the Senate

11/15/18  //  In-Depth Analysis

Nothing valuable about our federalism depends on letting each state appoint the same number of representatives in the Senate

Richard Primus

University of Michigan Law School

What If There’s a Fake Tape?

6/13/17  //  Commentary

Many are speculating about whether President Trump recorded his conversations with fired FBI Director Jim Comey, and Wikileaks has even offered a reward for any Trump-Comey recordings. But new technology allows creation of fake recordings with real people's voices. Now is a good time to start thinking about this technology's implications for our democracy and legal system.

Zachary Price

U.C. Hastings College of the Law

Desuetude and Immigration Enforcement

3/16/17  //  Commentary

It's time to force Congress back into the conversation about immigration enforcement. Here's how.

Jamal Greene

Columbia Law School

Yesterday's Other Story: Republican Knowledge of Russian Interference?

5/18/17  //  Commentary

Yesterday, a Washington Post story indicated that Republican House leadership may have known that Russia had hacked the DNC and was delivering the contents of the hack to the Trump campaign.

Leah Litman

Michigan Law School

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

Two Branches, Two Leaders, Two Speeches to Adolescent Boys

8/9/17  //  Commentary

Contrasting Trump with a grownup professional human being reminds one that Trump does not merely give horrible speeches; he is a horrible person.

Michael C. Dorf

Cornell Law School

Dark Money and Judicial Nominations Under Trump (And Beyond)

5/9/17  //  Commentary

Our treasure of an independent judiciary is built upon an assumption of independence, of transparency about influence and potential conflicts, and accountability to the democratic process. When massive amounts of dark corporate money can affect those political processes, we are in grave danger of damaging that national treasure.

Dawn Johnsen

Indiana University Maurer School of Law

How Much of a Problem is the Senate?

11/12/18  //  In-Depth Analysis

I'd like to raise a few questions about the current bout of Senate skepticism that rests on first principles

Michael C. Dorf

Cornell Law School

The Ideological Balance of the Supreme Court Hangs On The Midterm Elections— But Not Because Of Kennedy

6/29/18  //  Quick Reactions

Whoever controls the Senate in the next two years may well determine who fills Justice Thomas’s seat.

G. Michael Parsons

NYU School of Law

Can a Sitting President be Sued in a State Court?

12/21/17  //  Commentary

A pending defamation suit against President Trump in New York state court raises this important question.

Richard Primus

University of Michigan Law School

Why the Spotlight On Chief Justice Roberts May Soon Be Brighter—and Why That Matters

6/13/19  //  Commentary

Chief Justice Roberts would preside over any impeachment trial of President Trump. Here's why that matters.

Brianne J. Gorod

Constitutional Accountability Center

Can Trump Treat the Consumer Bureau’s Director Like a Contestant on Celebrity Apprentice?

4/13/17  //  Commentary

The future of the CFPB remains murky. With political attacks and judicial challenges piling up, here's what you need to know about the path ahead for Elizabeth Warren's crowning achievement.

Deepak Gupta

Gupta Wessler PLLC

Jonathan Taylor

Gupta Wessler PLLC

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

Michigan Law School

On The Entry Ban, The Supreme Court Says It’s Up To Us

6/26/18  //  Quick Reactions

In Trump v. Hawaii, the Court reminded us that the courts will not be there to save us. It is up to us, instead.

Leah Litman

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

Congress’s Vital Power of the Purse

4/5/17  //  Commentary

The upcoming budget fights will be ugly and brutal, but they implicate the most important practical means of constraining this president (or any other)—Congress’s power over appropriations. But the nature and limits of that power remain shockingly undefined.

Zachary Price

U.C. Hastings College of the Law

Information Wars Part III: Climate Changing the Facts

4/18/17  //  Commentary

The Trump administration is engaging in climate denial by concealing information relevant to environmental policy.

Helen Klein Murillo

Harvard Law School '17

Leah Litman

Michigan Law School

Trump, Arpaio, and the Danger of Politicizing DOJ

8/29/17  //  In-Depth Analysis

Trump asked if DOJ could drop the case against Arpaio. Such interference with prosecutive decisions threatens the legitimacy of the Justice Department.

Chiraag Bains

Harvard Law School

Presidential Bad Faith

3/16/17  //  Commentary

If the President cannot be trusted to “take Care that the Laws be faithfully executed,” then that obligation falls on “We the People."

Laurence H. Tribe

Harvard Law School

Will Trump’s Lawyers Rewrite and Invert the Emoluments Clause?

4/18/17  //  In-Depth Analysis

NYT has leaked one of DOJ's theories in the emoluments clause case: that this is a "political question." Any such argument, however, would be exceptionally weak as a matter of text, precedent, and purpose, and would completely invert the basic operation of the Foreign Emoluments Clause.

Joshua Matz

Publisher

Special Prosecutors and the Structure of Office-Holding

1/18/19  //  In-Depth Analysis

Trump can't control Mueller directly. He must instead act through the Attorney General. That's a very important restriction.

Zachary Price

U.C. Hastings College of the Law

Versus Trump Podcast: Prosecuting Trump FAQ + James Williams

5/17/17  //  Commentary

On today's two-part episode of Versus Trump, Take Care's podcast, we answer three burning questions related to whether the sitting President can face criminal charges, and how that prosecution could be started. We also have an interview with James Williams, the County Counsel for Santa Clara County, where he discusses his County's lawsuit against Trump Administration that has so far successfully prevented the Trump Administration from enforcing an executive order that would have withdrawn federal funding from so-called sanctuary cities.

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

A Few Cheers For The Appointment Of A Special Counsel

5/17/17  //  Quick Reactions

In a welcome development, Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as a special counsel to investigate Russia-related (criminal) wrongdoing.

Leah Litman

Michigan Law School

Congress’s Constitution, the President’s Politics?

8/22/17  //  In-Depth Analysis

By Julia Azari: Is Congress doomed to react to Trump, and to wallow in the political discourse he has created like a toddler in a soiled diaper? Or can members of Congress create their own counter-narratives about the meaning and stakes of policy and process?

Take Care

Morales-Santana and the "Mean Remedy"

6/12/17  //  Commentary

Justice Ginsburg's opinion in Sessions v. Morales-Santana exacerbates many of the shortcomings of our immigration system.

Ian Samuel

Harvard Law School

An Ode to the Career Bureaucracy

1/10/18  //  In-Depth Analysis

It would be a delicious irony if the President’s attempts to circumvent the internal checks on his authority were ultimately to serve to revitalize the external constraints on presidential power, as has been a legacy of presidents past.

Rebecca Ingber

BU Law School

Undemocratic Pardoning

7/24/17  //  In-Depth Analysis

By Bernadette Meyler: History teaches that Trump should not be considering whether he possesses the power to pardon himself but rather what the consequences of employing that power would be.

Take Care

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

Michigan Law School

Ian Samuel

Harvard Law School

The Bearable Lightness of Janus

6/27/18  //  Quick Reactions

The Supreme Court's ruling in Janus sounds like a pretty big problem for organized labor. But it doesn’t have to be.

Aaron Tang

UC Davis School of Law