The Constitutionality of the 5-5-5 Supreme Court Plan
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
When You Have Five, They Let You Do Whatever You Want
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
Relitigating Dunn v. Ray
The Supreme Court has insisted on relitigating and reaffirming its decision in Dunn v. Ray. So let's do that.
Updates | The Week of January 22, 2018
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
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.
Updates | The Week of January 15, 2018
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.
Updates | The Week of January 15, 2018
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.
Updates | The Week of December 18, 2017
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 Travel Ban and Inter-Branch Conflict
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.
Masterpiece Cakeshop and Protecting Both Sides
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
It Was Legal for the President to Fire Comey. That’s the Problem.
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.
The Nuclear Option and Democratic Deterioration
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.
Versus Trump: The FOIA Spectacular!
On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!
An Unconstitutional Threat to Sanctuary Cities
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.
Senator Collins's Shell Game On Roe v. Wade
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.
Congress’s Personnel Power
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
Versus Trump: Kavanaugh's Coming, Plus Updates
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!
American Cognitive Dissonance
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.
Versus Trump: Judges of Christmas Future
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!
No Peeking? Korematsu and Judicial Credulity
The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.
Versus Trump: I Want Out!
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!
SCOTUS And The Wall
One of the Supreme Court’s pending cases is potentially relevant to one of the challenges to the President’s emergency declaration.
Cruise Missiles More Dangerous Than the "Nuclear Option"
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.
Versus Trump: The House Versus The FBI
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.
A Tainting of Judicial Independence
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.
Versus Trump: How Bad Is It?
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!
Versus Trump: DACA's Back!
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!
Thoughts on Roberts and Trump
We have at once a highly political appointment process and a strong judicial ethos of being above politics.
The Comey Affair And Evidence Of Motive
The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.
Jared Kushner's New SWAT Team More Like Neighborhood Watch
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 ...
Versus Trump: Stop The Wall!
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!
The Value of Gerrymandering
What is the value to democracy from political gerrymandering for partisan advantage? The intuitive answer is the right one: None.
Donald Trump's New Intelligence Slush Fund
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.
Versus Trump: The First Shoe (with guest David Sklansky)
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!
Versus Trump: Texas & Trump Versus The ACA
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!
Versus Trump: Versus DeVos (Re-Air)
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.
President Trump Shouldn't Be Impeached If He Hasn't Committed a Crime
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.
The Comey Firing in (Comparative) Context
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?
De-Privatizing Our Public Philosophy
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.
Against Type Briefs
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.
Versus Trump: The View From 10,000 Feet (Joshua Matz Speech)
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!
Versus Trump: Versus Whitaker (JH solo)
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!
Versus Trump: The Shutdown Special
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!
Versus Trump: A Gadfly Suit + Leah Litman
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!
Versus Trump: Keeping the DREAM Alive
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!
Versus Trump: 2017 Scorecard
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!
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.
The Court of Public Opinion
What does it mean to say that special prosecutors are ultimately answerable to 'the American people'?
Yes, Hope is a Sufficient Basis for Obstruction of Justice
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.
Nunes Recuses. Sort Of. Now What?
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?
Judges Shouldn’t Have the Power to Halt Laws Nationwide
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.
Why Trump Can’t (Lawfully) Fire Mueller
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.
Trump, Pardons, and Guilt
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.
Versus Trump: Mueller-ing Things Over
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!
The Constitution of Talk
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.
States And The Emoluments Clause
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.
The Substance of the Supreme Court’s procedure
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.
The Attorney General, Hawaii Statehood, and National Injunctions
The AG's comments denigrating Hawaii statehood are objectionable for many reasons. But don't overlook his underlying complaint about national injunctions—which conservatives spent years developing and have suddenly, painfully discovered can be used against them.
What’s the Price of Tolerance?
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.
Versus Trump: Pardon Our Tone
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!
The Politics of Administrative Reform
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.
The Mandatory Guidelines Predicament
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.
Versus Trump: The ACA's Still Here...
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!
Animus, Past and Present
In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.
Versus Trump: Versus Kobach
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!
Trump’s Advisors Need to Step Up, Or Step Out
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.
Arresting the Deterioration of Democracy
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.
How the Russian Conspiracy Injured Real, Innocent People
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.
Congressional Oversight Is Not Presidential Harassment
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
Why Trump’s Firing of Comey is Terrifying
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.
Versus Trump: SABOTAGE!!
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!
Versus Trump: Trump vs. The CFPB
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!
Are We All Textualists Now?
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.
Trump and North Korea: Where's Congress?
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.
The Contingency of Partisanship
Both history and recent events make clear that President Trump can’t rely on partisan allegiance alone to save his presidency.
Versus Trump: Trump Versus ALJs?
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!
Judicial Deference to President Trump
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?
The Rule of Law and the Resistance Police
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.
The (Other) Dark Side Of The Comey Affair
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.
Versus Trump: Where There's A Gil... (On Partisan Gerrymandering)
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!
Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose
Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.
Encouraging Legislative Expertise-Forcing
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
Why Impeachment Must Remain A Priority
The appointment of Special Counsel Robert Mueller must not lead progressives to put the thought of impeaching President Trump on a back-burner.
Versus Trump: Versus Whitaker, In-Depth
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!
Ten Questions for a New FBI Director
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.
SCOTUS Goes Online
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.
The Faces of Congressional Power
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.
Goodbye, U.S. Senate?
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.
Trump DOJ's Flipped Positions
Republicans may not be advancing their agenda through legislation, but they're getting it done in other ways.
Trump Administration Appointments
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.
The Audacity of The President’s "Hope"
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.
Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
To Save Obamacare, Repeal the Mandate
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.
Reliance Defenses in the Trump Era and Beyond
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?
Can the President Pardon Himself? Well, He Can Try.
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.
Korematsu And The Entry Ban (Again)
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.
A Reply to Larry Solum
A response to Professor Solum’s comments on my posts about the Consumer Financial Protection Bureau.
Not So Fast, Mr. President
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.
DOJ Goes Big So Prisoners Can't Go Home
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’).
A Note Of Caution About Timbs v. Indiana
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.
Versus Trump: An Immigration Omnibus
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!
Tweetstorm Round Deux
The President's latest statements on Twitter undermine DOJ's defense of the entry ban, and continue the President's efforts to blame everyone (including DOJ and the courts) but himself.
Entry Ban Animus Revisited
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.
The Constitutional Challenge To The CFPB
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.
Versus Trump: Versus Mueller
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!
Real Reasons To Worry About Filibuster Repeal
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.
Versus Trump: A Two-Level Versus Trump Case
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!
Prosecuting the President
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?
Masterpiece Cakeshop And The Entry Ban
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.
Birth Control Is Not Abortion
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.
Alternative Facts & History, and Alarming Implications, in DOJ's CFPB Brief.
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.
Chafetz and the Separation of Powers
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
Versus Trump: (Judicial) Independence Day Spectacular!
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!
A Reality Check On Proceedings Related To The Entry Ban Injunctions
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).
Versus Trump: 100!
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!
Confusion Over The Essential Health Benefits
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.
Advancing a Left-Liberal Jurisprudence
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.
Justice Kavanaugh Said No On Roe
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?
Versus Trump: N.Y. Versus Wilbur Ross
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!
The Acosta Hearing & the “Deconstruction” of Federal Agencies
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.
A Response to Will Baude on Mootness in the Entry Ban Case
I've argued that the Supreme Court shouldn't grant review of the travel ban case because 33 hours after the Respondents file their response to the petition for certiorari on June 12, the entry ban will no longer be operative. Here I respond to two purportedly “plausible” alternative interpretations of the executive order offered by William Baude.
Versus Trump: "What About Congress? + Steven Wu"
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!
That Time When Republicans Re-Regulated Retirement Savings
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.
Attacking North Korea Would Be Illegal
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.
An introduction to the Take Care symposium on my new book, Congress's Constitution
Versus Trump: How Do We Protect Our Democracy?
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!
By Kate Shaw: Congress must find new opportunities for successful engagement with the public, by both individual members and the body as a whole
Versus Trump: #MeToo vs. Trump
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!
The One Question Worth Asking
Here's the most important question to ask about indictments, pardons and self-pardons, and obstruction of justice.
Versus Trump: Movin' Right Along
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!
Getting To No On Roe: It Continues
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.
Versus Trump: To End a Presidency? (Interview with Joshua Matz)
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!
A Landmark Victory for LGBT Rights (And The Path Ahead)
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.
Why Did Trump Believe the Syria Strike Was Lawful?
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.
Where are the Facts?
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.
Law, Politics, and Interbranch Conflict
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?
Why Hasn’t Rod Rosenstein Recused Himself From the Russiagate Probe?
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.
Legal Innocence and Federal Habeas
A recent article shows why federal courts can and should revisit the convictions and sentences of many federal prisoners affected by Sessions v. Dimaya.
Versus Trump: Stop The Drills!
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!
How Might Congress Reinforce NATO?
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.
Remedial Convergence and Collapse
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.
Stare Decisis, The Supreme Court, And Roe
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.
Motive Matters in Assessing the Travel Ban
To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.
SCOTUS Warns Against Appointing "Unfit Characters"
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.
Federalism and the Senate
Nothing valuable about our federalism depends on letting each state appoint the same number of representatives in the Senate
What If There’s a Fake Tape?
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.
Sherley You’re Joking
A confused and poorly reasoned decision by the U.S. Court of Appeals for the D.C. Circuit shouldn’t be read to shield agencies from judicial review whenever they happen to be following an executive order.
Dark Money and Judicial Nominations Under Trump (And Beyond)
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.
See You In Court 2.0
Last night, a federal judge in Hawaii blocked Trump's revised entry ban. Here is a detailed analysis of its decision and an assessment of what likely will happen next in that litigation.
The World Is Not Made Brand New Every Morning
Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.
Congress’s Vital Power of the Purse
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.
Presidential Bad Faith
If the President cannot be trusted to “take Care that the Laws be faithfully executed,” then that obligation falls on “We the People."
Will Trump’s Lawyers Rewrite and Invert the Emoluments Clause?
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.
Versus Trump Podcast: Prosecuting Trump FAQ + James Williams
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.
Congress’s Constitution, the President’s Politics?
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?
An Ode to the Career Bureaucracy
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.
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.
Youngstown Zone Zero
Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.
The Bearable Lightness of Janus
The Supreme Court's ruling in Janus sounds like a pretty big problem for organized labor. But it doesn’t have to be.
The Court of Public Opinion
Because the special prosecutor answers ultimately to the court of public opinion, he must answer to that court in his final report
First Tragedy, Now Farce
Those who forget history are indeed doomed to repeat it. But when history repeats, it often shifts in the repetition: first acts come as tragedy and then return as farce. By many measures, Nixon was a tragic figure. Trump, by contrast, is pure farce. And unlike tragedies, farces don’t end with a flash of recognition—a moment of self-awareness like King Lear’s on the heath. Farces just keep going until someone cries "enough!"
Faith in the Ninth Circuit
An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.
Partisan Gerrymandering Returns to the Supreme Court
Partisan gerrymandering at its core is viewpoint discrimination pure and simple, and it cannot be squared with our Constitution’s promise that voters choose their representatives, not the other way around.
Versus Trump Live: Fairweather Federalism?
On this week's special live episode of Versus Trump, Easha, Charlie, and Jason share the stage at the ACS National Convention in Washington, DC with Maryland Attorney General Brian Frosh and Stanford Law's Pamela Karlan. They discussed several important cases brought by states against the Trump Administration as well as the broader federalism issues presented by Democratic Attorneys General being involved in so many lawsuits against the federal government. Listen now!
Updates | The Week of February 5, 2018
The Nunes memo set off aftershocks; agencies scrambled to implement the Trump Administration's policies to mixed effect; and Congress passes a budget after a brief overnight shutdown.
Updates | The Week of June 12, 2017
The Senate Intelligence Committee will not investigate whether President Trump attempted to obstruct justice, leaving the inquiry to special counsel Robert Mueller. Questions remain about the legal basis for Attorney General Jeff Sessions’s refusal to answer questions before the Senate Intelligence Committee.
Updates | The Week of October 23, 2017
The future of the blue slip remains uncertain. A federal judge refused to erase Sheriff Joe Arpaio's conviction, even after the President's pardon.
Updates | The Week of April 17, 2017
Advocates continue to discuss the politicization of the Supreme Court and President Trump may have nominate three new Third Circuit judges.
Updates | The Week of September 11, 2017
Trump's decision to end DACA spurs a flurry of legal challenges; his election fraud commission gets into more trouble; and the Supreme Court stays the Ninth Circuit's latest trvel ban ruling.
Updates | The Week of May 1, 2017
The Senate passed a spending bill to avert government shutdown. Republican Senators criticized President Trump's rant against Senate rules.
Updates | The Week of September 4, 2017
The President orders an end to DACA and has Attorney General Jeff Sessions announce the change; Trump Jr.'s June 2016 meeting with a Russian lawyer undergoes more scrutiny; Trump's 16 nominations to the federal judiciary spur challenges and concern.
Updates | The Week of April 17, 2017
Rep. Adam Schiff (D-Calif.) writes that the NSA and U.S. Cyber commend should be split and the government released its annual FISA Court report.
Updates | The Week of March 20, 2017
Congress continued its investigations of former National Security Advisor Michael Flynn. One Representative argued that Congress should block the administration’s proposed budget cuts to the State Department.
Updates | The Week of March 27, 2017
Niko Bowie argues on Take Care that the Supreme Court's recent warnings against appointments of "unfit characters" and "family connection" may be relevant to legally dubious Trump Administration appointments. Leah Litman and Dan Deacon explain that the judicial backlash to President Trump's revised entry ban is standard judicial practice in response to extraordinary events. And the Chief Justice of California used her State of the Judiciary Address to critique President Trump's immigration policies.