Checks & Balances

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

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

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

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

U.C. Irvine School of Law

An Open Letter to Sen. Ben Sasse

6/21/17  //  Latest Developments

I recently wrote an open letter to Senator Ben Sasse regarding the American Health Care Act. Here's the conclusion.

Richard Primus

University of Michigan 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

U.C. Irvine School of Law

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

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

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 June 12, 2017

6/18/17  //  Daily Update

The Trump Administration is undermining the role of the inspectors general in federal agencies. President Trump declared that he has “passed more legislation” than any president besides FDR, but history says otherwise.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

Commentators assessed the Supreme Court's role in considering the Trump Administration's travel ban.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

Despite the Republican majority, Democrats in Congress have important tools to oppose President Trump's policies.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

Allison Murphy discusses what must be asked of any FBI nominee; Alison Frankel examines the impact President Trump's tweets may have on DOJ arguments for the travel ban.

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

Some argue that President Trump is making life difficult for Republicans on Capitol Hill and that Congress could use its appropriations power to pressure the Administration to maintain its NATO obligations.

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

Constitutional Hurdles for Concealed Carry Reciprocity

3/16/17  //  In-Depth Analysis

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

Joseph Blocher

Duke Law School

Improper Commands from President Trump's Employees?

3/16/17  //  Commentary

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

Nikolas Bowie

Harvard Law School

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

U.C. Irvine School of Law

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

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

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

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

3/27/17  //  In-Depth Analysis

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

Leah Litman

U.C. Irvine School of Law

The 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

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

5/8/17  //  In-Depth Analysis

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

Leah Litman

U.C. Irvine School of Law

Judge Kozinski Asked The Wrong Question & Got The Wrong Answer

3/20/17  //  Commentary

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

Amir Ali

Roderick & Solange MacArthur Justice Center

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

The Comey Affair And Evidence Of Motive

5/12/17  //  In-Depth Analysis

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

Leah Litman

U.C. Irvine School of Law

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

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

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

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

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

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: 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

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

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.

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

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

U.C. Irvine School of Law

Helen Klein Murillo

Harvard Law School '17

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

U.C. Irvine School of Law

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

3/28/17  //  Commentary

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

Daniel Deacon

U.C. Irvine School of Law

Leah Litman

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

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

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

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

The Attorney General, Hawaii Statehood, and National Injunctions

4/21/17  //  Quick Reactions

The AG's comments denigrating Hawaii statehood are objectionable for many reasons. But don't overlook his underlying complaint about national injunctions—which conservatives spent years developing and have suddenly, painfully discovered can be used against them.

Joshua Matz

Publisher

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

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

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

The Trump Administration’s Immigration-Related Detentions

3/24/17  //  Commentary

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

Leah Litman

U.C. Irvine School of Law

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

U.C. Irvine School of Law

(Apparent) Administration Justifications for Legality of Strikes Against Syria

4/8/17  //  Commentary

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

Marty Lederman

Georgetown Law

Animus, Past and Present

5/9/17  //  Commentary

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

Leah Litman

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

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

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

U.C. Irvine School of Law

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

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

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

U.C. Irvine School of Law

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

The First Amendment Belongs Only to Americans? Wrong

3/29/17  //  Commentary

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

Nikolas Bowie

Harvard Law School

Leah Litman

U.C. Irvine School of Law

Judicial Deference to President Trump

5/8/17  //  In-Depth Analysis

It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?

Dawn Johnsen

Indiana University Maurer School of Law

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

U.C. Irvine School of Law

Helen Klein Murillo

Harvard Law School '17

Take Care

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

U.C. Irvine School of Law

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

4/6/17  //  Commentary

Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.

Joshua Matz

Publisher

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

Information Wars Part II: Undermining Our Understanding of Police Practices

4/14/17  //  Commentary

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

Leah Litman

U.C. Irvine School of Law

Helen Klein Murillo

Harvard Law School '17

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

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

Ian Samuel

Harvard Law School

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 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

U.C. Irvine School of Law

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

5/10/17  //  Commentary

Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.

Joshua Matz

Publisher

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

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

U.C. Irvine School of Law

[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

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

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

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

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

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

U.C. Irvine School of Law

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

U.C. Irvine School of Law

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

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

U.C. Irvine School of Law

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

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

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

U.C. Irvine School of Law

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

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

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

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

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

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

U.C. Irvine School of Law

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

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

U.C. Irvine School of Law

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

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

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

U.C. Irvine School of Law

The World Is Not Made Brand New Every Morning

3/20/17  //  Commentary

Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.

Jonathan Taylor

Gupta Wessler PLLC

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

U.C. Irvine School of Law

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

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

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

U.C. Irvine School of Law

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

Youngstown Zone Zero

3/16/17  //  Commentary

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

Leah Litman

U.C. Irvine School of Law

Ian Samuel

Harvard Law School

First Tragedy, Now Farce

5/15/17  //  In-Depth Analysis

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!"

Jon D. Michaels

UCLA School of Law

Faith in the Ninth Circuit

3/16/17  //  Commentary

An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.

Daniel Hemel

University of Chicago Law School

Republican (and Democratic) Hypocrisy on Faithful Execution

3/17/17  //  Commentary

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

Zachary Price

U.C. Hastings College of the Law

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

Judge Neil Gorsuch was sworn in as a Supreme Court justice.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

Advocates continue to discuss the politicization of the Supreme Court and President Trump may have nominate three new Third Circuit judges.

Take Care

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

The Senate passed a spending bill to avert government shutdown. Republican Senators criticized President Trump's rant against Senate rules.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

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.

Take Care

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

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.

Helen Klein Murillo

Harvard Law School '17

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

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.

Upates | The Week of May 1, 2017

5/7/17  //  Daily Update

President Trump has signed more executive orders in his first 100 days than any president since Harry Truman, but it's uncertain whether he has increased the powers of the presidency.

Take Care

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

The Trump Administration has more executive orders in its first 100 days than any administration since FDR, but done little governing. Politico lists the hundreds of federal positions President Trump has yet to fill.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

Commentators continued to discuss the implications of the invocation of the "nuclear option" to confirm Judge Neil Gorsuch, President Trump's Supreme Court nominee.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

This week, Jared Kushner was tapped to head a new "Office of Innovation." Niko Bowie and John D. Michaels provided commentary on Take Care. The White House's decision to prevent acting Attorney General Sally Yates from testifying demonstrates the administration's aggressive approach to executive privilege.

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

The relationship between President Trump and the judiciary is already different than that of previous administrations. Dark money might be affecting the judicial appointments process.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

President Trump threatened to break up the Ninth Circuit Court after a disfavorable ruling against the revised travel ban.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

President Trump's bashing of the judiciary may only reinforce the perception that his immigration ban is unconstitutional.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

A federal judge has allowed a lawsuit against President Trump for inciting violence at a campaign rally to go forward.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Rep. Devin Nunes, Chairman of the House Intelligence Committee, disclosed that he made a visit to the White House to view intelligence files regarding President Trump's wiretapping claims. Commentators argued that this disclosure makes it hard for Republicans to claim impartiality as they investigate Russian interference.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

This week, a government shutdown loomed as President Trump proposed to condition funding for the increasingly-popular ACA on funding for the border wall.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

Experts questioned whether Judge Neil Gorsuch would provide a robust check on President Trump if confirmed to the Supreme Court and whether Obama-era legal precedents will provide dangerous latitude to the new administration.

Helen Klein Murillo

Harvard Law School '17