8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

7/17/20  //  In-Depth Analysis

By Brian Kalt: In a recent piece in the Atlantic, Corey Brettschneider and Jeffrey Tulis contend that the Stone commutation is invalid. Regrettably, their legal argument is weak

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

1/28/18  //  Daily Update

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

1/21/18  //  Daily Update

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

1/14/18  //  Daily Update

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

1/14/18  //  Daily Update

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

1/14/18  //  Daily Update

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

12/24/17  //  Daily Update

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

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.

2/12/18  //  Commentary

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

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.

6/26/18  //  Commentary

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

6/15/18  //  In-Depth Analysis

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

3/16/17  //  Commentary

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

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.

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.

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.

3/15/18  //  Commentary

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

1/14/18  //  Latest Developments

Take Care is pleased to host a symposium on Constitutional Coup

3/26/18  //  In-Depth Analysis

Thoughts on a thus-far-hypothetical question

9/21/17  //  Commentary

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

1/15/19  //  Latest Developments

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

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.

7/22/19  //  Commentary

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

4/30/18  //  Commentary

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

7/24/17  //  Commentary

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

1/8/18  //  Commentary

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

8/22/17  //  In-Depth Analysis

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

7/12/18  //  Uncategorized

On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases. Listen now!

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.

12/21/17  //  Commentary

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

6/22/19  //  Commentary

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

9/17/19  //  In-Depth Analysis

In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.

10/15/18  //  In-Depth Analysis

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

3/15/18  //  Commentary

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

3/9/20  //  Commentary

The current coronavirus epidemic shows why it's often a good idea to vest specific executive authority in officers other than the President.

7/13/17  //  Commentary

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

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.

6/12/17  //  In-Depth Analysis

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

3/4/19  //  Commentary

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

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.

11/1/17  //  In-Depth Analysis

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

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.

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

1/18/18  //  In-Depth Analysis

We can no longer take America’s democracy for granted

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.

2/8/18  //  Commentary

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

10/8/18  //  In-Depth Analysis

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

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.

11/2/18  //  In-Depth Analysis

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

10/7/18  //  In-Depth Analysis

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

3/20/18  //  Quick Reactions

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

10/31/17  //  In-Depth Analysis

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

7/15/17  //  Quick Reactions

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

9/6/18  //  Commentary

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

1/18/18  //  Commentary

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

11/26/18  //  Quick Reactions

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

7/31/19  //  In-Depth Analysis

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

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.

10/8/19  //  Quick Reactions

It seems just last month Justice Gorsuch was saying his rule was not to “make it up" and was to "follow the law.” The Title VII cases allow us to see whether that's the case.

8/2/17  //  Commentary

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

4/19/17  //  In-Depth Analysis

The additional plaintiffs in the CREW case unquestionably have standing.

10/30/18  //  Commentary

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

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

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).

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.

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 ...

2/21/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie, Jason, and Easha discuss the early lawsuits that seek to stop the new sections of border wall that President Trump authorized through executive action. Listen now!

9/25/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

4/1/19  //  In-Depth Analysis

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

6/6/18  //  Quick Reactions

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

9/12/19  //  In-Depth Analysis

The Supreme Court recently made the exception into the rule for Establishment Clause cases, and signaled how it will refashion and discount disfavored precedent going forward.

6/29/17  //  In-Depth Analysis

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

10/7/17  //  Commentary

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

1/22/18  //  Commentary

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

10/7/18  //  In-Depth Analysis

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

5/10/18  //  Commentary

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

12/21/18  //  In-Depth Analysis

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

11/2/17  //  Uncategorized

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

6/5/18  //  Quick Reactions

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

7/2/20  //  Commentary

The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.

7/25/17  //  Commentary

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

7/26/17  //  Commentary

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

7/5/18  //  Commentary

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

11/16/17  //  Commentary

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

8/29/18  //  Commentary

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

9/7/17  //  Commentary

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

10/1/19  //  Commentary

How the Supreme Court facilitated DHS’s plan to indefinitely detain minors and their families.

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.

12/24/18  //  In-Depth Analysis

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

12/13/17  //  Commentary

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

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?

6/25/19  //  Commentary

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

6/8/17  //  Quick Reactions

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

1/11/18  //  In-Depth Analysis

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

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.

4/19/18  //  Commentary

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

11/15/18  //  Uncategorized

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

1/10/19  //  Uncategorized

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

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!

3/19/20  //  Commentary

On this week’s Versus Trump, Jason talks with Aaron Belkin and Matt Lehrich of Take Back The Court. They talk about Aaron's idea for the Democrats to add four seats to the U.S. Supreme Court in response to what he sees as two "stolen" seats. Listen now!

9/14/17  //  Commentary

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

7/19/18  //  Commentary

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

2/28/18  //  Commentary

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

9/28/17  //  Commentary

1/4/18  //  Uncategorized

On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!

4/8/19  //  Commentary

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

1/15/19  //  In-Depth Analysis

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

9/23/19  //  In-Depth Analysis

If the House Ways and Means Committee lacked Article III standing, then the House’s subpoena power would be gutted, and the Executive Branch could defy valid congressional process with impunity

4/20/20  //  Quick Reactions

Ten thoughts on Ramos v. LA

3/17/20  //  In-Depth Analysis

Some are worrying about Republican-controlled legislatures eliminating the right to vote in a presidential election and just appointing Trump-supporting electors themselves. Don't worry: not only is the scenario unlikely, it couldn't legally happen.

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.

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.

1/16/19  //  In-Depth Analysis

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

3/30/20  //  In-Depth Analysis

HHS has recently tried to essentially repeal an important rule that prevents the Department from discriminating across its many programs. But, as contributor Harper Jean Tobin explains, its rule making is both substantively and procedurally illegal.

1/18/18  //  In-Depth Analysis

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

7/21/17  //  Commentary

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

9/21/17  //  In-Depth Analysis

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

10/20/17  //  In-Depth Analysis

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

4/15/19  //  In-Depth Analysis

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

6/28/18  //  Commentary

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

4/6/18  //  Commentary

Reinhardt kept alive a powerful vision of the Constitution

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.

8/29/19  //  Commentary

This week on Versus Trump, Jason and Charlie are back from a hiatus, and they discuss why the Trump Administration has been going to straight to the Supreme Court with emergency requests so frequently. Listen now!

8/14/17  //  In-Depth Analysis

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

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?

7/15/19  //  Commentary

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

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.

9/5/17  //  In-Depth Analysis

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

5/10/17  //  In-Depth Analysis

It'll only matter if they make it matter.

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

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.

3/25/19  //  Commentary

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

5/4/17  //  Commentary

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

10/31/18  //  Uncategorized

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

6/6/18  //  Commentary

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

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.

9/19/19  //  In-Depth Analysis

By David Strauss: Ideological lower court judges have challenged the Supreme Court by defying its precedent. There is one way for the Court to keep from being put in this position time and again. It should summarily reverse, making clear that only the Court will decide when its own precedent is no longer good law.

8/22/18  //  Commentary

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

6/25/19  //  Commentary

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

7/25/17  //  In-Depth Analysis

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

6/13/19  //  Uncategorized

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

3/28/19  //  Commentary

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

7/27/17  //  Commentary

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

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.

8/25/17  //  In-Depth Analysis

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

10/25/18  //  Quick Reactions

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

5/30/19  //  Commentary

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

9/29/17  //  Commentary

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

3/5/20  //  Commentary

On this week’s Versus Trump, Charlie and Jason discuss the D.C. Circuit's recent opinion holding that courts have no power to enforce subpoenas issued by the House. They discuss the opinion's rationale, whether it makes sense, and whether the House might—or should—take the court up on its offer to start jailing Trump Administration officials in their own brig. Listen now!

2/26/19  //  Commentary

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

6/9/17  //  Commentary

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

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?

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.

12/4/17  //  In-Depth Analysis

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

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

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.

2/13/19  //  In-Depth Analysis

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

1/28/19  //  Commentary

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

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.

12/22/17  //  Quick Reactions

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

8/29/17  //  Commentary

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

12/7/17  //  Commentary

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

8/25/17  //  Latest Developments

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

10/19/17  //  Commentary

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

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.

1/10/18  //  In-Depth Analysis

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

2/18/20  //  Commentary

The administration often tries to foist blame on the courts for its politically unpopular policies--or to have the courts effectuate its politically unpopular policies for the administration.

7/25/17  //  Commentary

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

4/27/20  //  Quick Reactions

On what the Supreme Court's opinions today suggest about next term's challenge to the ACA.

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.

9/6/19  //  In-Depth Analysis

The zone of interests test shouldn't apply to constitutional claims seeking injunctive relief. But even if it does apply, it doesn't prevent federal defenders from challenging arbitrary limits on attorney access under the Sixth Amendment.

4/27/20  //  Quick Reactions

The dissenters in the New York gun case confirm that their reasoning in RNC v. DNC was a makeweight shell game.

6/22/20  //  In-Depth Analysis

A recent article evaluates President Obama's clemency initiative and its lessons for criminal justice reform.

6/5/18  //  Commentary

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

12/23/19  //  Commentary

An HLS Clerkship Blog encapsulates some of the challenges to the profession in light of Trump’s reshaping of the federal judiciary.

1/29/18  //  In-Depth Analysis

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

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.

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

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.

10/10/19  //  Commentary

Under Article I of the Constitution, Congress can require the President to keep troops in particular locations

6/13/18  //  Commentary

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

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.

12/20/17  //  Latest Developments

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

1/17/19  //  In-Depth Analysis

Should a special prosecutor indict a sitting president?

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.

3/12/19  //  Commentary

Democrats used to dominate constitutional discourse. Now Republicans do.

2/7/19  //  Uncategorized

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

3/23/20  //  In-Depth Analysis

By Ashwin Phatak and Charlie Miller: This Term, the Supreme Court will hear a pair of consolidated cases concerning Congress’s oversight and investigative powers. A number of amicus briefs filed in the Court explain in different ways the broader issues at stake in these cases.

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.

3/20/18  //  Commentary

By Former Republican Congressmen Tom Coleman and Mickey Edwards

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.

8/19/19  //  Commentary

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

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.

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.

7/20/17  //  Commentary

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

3/6/20  //  Commentary

Congress has historically exercised its broad oversight authority to investigate public health crises and the executive branch’s responses to them, and it can do the same here.

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.

8/1/19  //  In-Depth Analysis

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

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.

6/19/19  //  Commentary

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

2/13/19  //  Commentary

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

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.

6/7/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

10/17/17  //  Quick Reactions

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

5/16/18  //  Commentary

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

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.

12/19/19  //  Quick Reactions

The U.S. Court of Appeals for the Fifth Circuit just gave the Republican Party a huge and unjustified gift.

7/30/18  //  In-Depth Analysis

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

4/27/20  //  Commentary

By Ashwin Phatak: Although DOJ has recently taken the position in litigation that the House of Representatives lacks standing to bring a civil action to enforce a subpoena against an Executive Branch official, that position conflicts with prior DOJ precedents

3/18/19  //  Quick Reactions

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

1/16/18  //  Commentary

Highlights from a recent conference on deregulation in the Trump era

1/4/18  //  Commentary

This lawsuit likely will face early dismissal.

7/29/19  //  In-Depth Analysis

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

6/27/17  //  Commentary

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

7/31/18  //  Commentary

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

2/21/19  //  In-Depth Analysis

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

12/19/19  //  Commentary

Senators who vote on removal following impeachment trials must take an oath akin to that of a juror. The oath requires them to be impartial and vote regardless of the president's party affiliation. Will Senators do that here?

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.

5/14/19  //  In-Depth Analysis

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

9/12/17  //  Commentary

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

8/16/18  //  Commentary

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

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.

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.

9/3/19  //  In-Depth Analysis

The Supreme Court’s decision to stay the injunction against the President’s construction of the border wall made no sense. It is also part of a troubling trend of restricting remedies against unlawful government action.

3/3/19  //  Commentary

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

4/26/17  //  Quick Reactions

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

8/24/17  //  Commentary

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

12/5/18  //  Commentary

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

8/13/17  //  Commentary

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

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.

8/2/18  //  Commentary

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

10/29/19  //  Commentary

The President does not have constitutional authority to withhold foreign aid that Congress has mandated by statute.

3/29/17  //  Commentary

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

8/3/18  //  In-Depth Analysis

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

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?

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.

5/13/19  //  Commentary

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

6/20/20  //  Quick Reactions

The Trump administration's apparent desire to force out the U.S. Attorney for SDNY could have implications for several major Supreme Court cases this term.

9/11/17  //  In-Depth Analysis

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

10/10/17  //  In-Depth Analysis

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

6/11/18  //  In-Depth Analysis

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

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.

6/29/17  //  Commentary

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

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.

8/24/17  //  In-Depth Analysis

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

1/15/19  //  In-Depth Analysis

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

11/12/18  //  Commentary

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

6/7/18  //  Quick Reactions

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

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.

12/18/18  //  Commentary

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

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.

5/23/18  //  Commentary

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

6/6/18  //  Commentary

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

12/6/18  //  Uncategorized

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

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.

5/8/18  //  Commentary

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

11/13/17  //  Commentary

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

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.

6/2/17  //  Quick Reactions

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

7/12/18  //  In-Depth Analysis

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

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

8/25/17  //  In-Depth Analysis

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

9/12/19  //  Commentary

On this week's episode of Versus Trump, Charlie and guest-host Alexandra Brodsky discuss a recent opinion invalidating the FBI's terrorism watch-list. They discuss the implications of the opinion for the Trump administration (and beyond), the merits (and demerits) of the court's reasoning, and all sorts of other cool stuff, including how annoying it is when people think they're important enough to be spied on by the FBI. Listen now!

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.

9/8/17  //  Commentary

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

6/29/17  //  Commentary

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

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.

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.

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.

12/21/18  //  Commentary

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

6/5/19  //  Quick Reactions

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

9/28/17  //  Commentary

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

1/7/18  //  In-Depth Analysis

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

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?

9/26/17  //  In-Depth Analysis

Now former DOJ officials are calling him on it.

7/9/18  //  Commentary

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

7/21/17  //  Commentary

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

2/4/19  //  In-Depth Analysis

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

1/3/20  //  In-Depth Analysis

Since 2015, lawsuits by the House of Representatives have been authorized not by a vote of the full House but by majority of a standing, 5-member committee. Is this structure constitutional?

6/30/20  //  Quick Reactions

The Court’s decision in Espinoza is similar to the trajectory of the law of racial discrimination in some respects, it also offers a striking contrast in others

5/17/19  //  Commentary

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

5/25/17  //  Commentary

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

6/24/20  //  Commentary

The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.

11/24/17  //  In-Depth Analysis

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

10/26/17  //  In-Depth Analysis

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

12/6/17  //  In-Depth Analysis

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

2/25/19  //  Quick Reactions

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

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.

5/31/18  //  Uncategorized

On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss recent important cases in the world of immigration, including a new lawsuit contending that the Trump Administration may not pursue its apparent policy of legally separating immigrant children from adults that they enter the country with. Listen now!

9/9/19  //  Quick Reactions

The oral argument in the TPS case featured a line of questioning that suggested one of the judges had not read the relevant Supreme Court case.

1/12/18  //  In-Depth Analysis

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

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.

7/1/19  //  Commentary

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

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.

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.

7/25/17  //  Commentary

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

6/25/18  //  In-Depth Analysis

Many of the Supreme Court’s recent decisions tell us what we need to know: Under any meaningful standard for assessing government motives, the entry ban must fail.

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.

8/7/17  //  In-Depth Analysis

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

6/28/18  //  Commentary

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

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?

8/28/17  //  In-Depth Analysis

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

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.

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.

4/17/19  //  In-Depth Analysis

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

4/15/19  //  In-Depth Analysis

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

8/30/18  //  Commentary

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

2/24/19  //  Commentary

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

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.

1/14/19  //  In-Depth Analysis

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

10/30/17  //  In-Depth Analysis

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

1/9/18  //  In-Depth Analysis

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

6/4/18  //  Quick Reactions

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

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.

9/7/18  //  Quick Reactions

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

3/23/20  //  Commentary

Congress has a crucial role to play in keeping us safe from COVID-19. Notwithstanding baseless continued attacks on the Affordable Care Act, Congress is fully empowered to legislate on these issues.

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.

1/16/19  //  In-Depth Analysis

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

8/23/17  //  In-Depth Analysis

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

5/11/17  //  Uncategorized

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

7/6/17  //  Commentary

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

1/11/18  //  In-Depth Analysis

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

1/23/19  //  Commentary

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

7/13/17  //  In-Depth Analysis

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

3/21/19  //  Commentary

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

9/25/17  //  Commentary

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

12/8/17  //  Commentary

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

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.

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.

6/7/18  //  Commentary

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

1/15/19  //  In-Depth Analysis

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

10/16/18  //  In-Depth Analysis

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

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.

7/2/18  //  Commentary

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

3/9/18  //  In-Depth Analysis

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

10/15/19  //  In-Depth Analysis

In Hernandez v. Mesa, the Supreme Court should hold that victims of cross-border shootings have a cause of action to seek damages against law enforcement officers who violate the Constitution

6/24/19  //  Quick Reactions

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

9/11/18  //  Commentary

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

10/11/18  //  In-Depth Analysis

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

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.

6/8/17  //  Commentary

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

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.

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.

3/20/18  //  Commentary

The firing of James Comey closely parallels McCabe's firing

1/15/20  //  Commentary

The government's filings on why the Court should delay hearing the case only underscore the reasons for the Court to end this litigation now.

1/24/19  //  In-Depth Analysis

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

6/26/19  //  In-Depth Analysis

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

6/29/17  //  Commentary

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

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!

5/25/17  //  Quick Reactions

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

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.

10/4/17  //  In-Depth Analysis

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

6/21/17  //  Quick Reactions

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

1/18/19  //  In-Depth Analysis

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

6/7/17  //  Quick Reactions

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

2/1/19  //  Uncategorized

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

8/10/17  //  Commentary

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

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.

6/30/20  //  Commentary

I've found 79 cases where Trump-nominated appeals court judges have written or joined opinions that are so extreme that even other Republican-appointed judges have disagreed with them

5/11/17  //  Commentary

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

6/6/19  //  Commentary

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

10/17/18  //  In-Depth Analysis

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

8/21/17  //  In-Depth Analysis

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

2/14/19  //  Uncategorized

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

4/22/19  //  Commentary

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

11/14/17  //  In-Depth Analysis

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

8/23/17  //  In-Depth Analysis

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

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).

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.

1/8/19  //  Quick Reactions

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

12/14/17  //  In-Depth Analysis

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

6/13/17  //  Commentary

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

5/6/18  //  Latest Developments

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

7/25/17  //  Commentary

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

4/12/18  //  In-Depth Analysis

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

1/29/19  //  In-Depth Analysis

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

6/21/18  //  In-Depth Analysis

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

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.

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.

11/6/19  //  Commentary

The Supreme Court will hear arguments next week in a case about whether the Trump Administration can revoke DACA. But progressives ought to be wary of the long-term effects of prevailing. A win here could very well make it very hard to undo the lax enforcement policies of the current Administration.

4/7/20  //  Commentary

By Brianne Gorod and Becca Damante: Congress’s $2 trillion relief legislation is the largest aid package in modern American history. That’s a lot of discretion to give to an Administration in which self-dealing and corruption are disturbingly common. There is thus an urgent need for vigorous congressional oversight.

3/1/18  //  Commentary

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

8/24/17  //  In-Depth Analysis

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

1/14/19  //  Commentary

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

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.

6/7/18  //  In-Depth Analysis

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

6/14/19  //  Commentary

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

11/5/19  //  In-Depth Analysis

On this week’s Versus Trump, Jason, Charlie, and Easha talk executive privilege. They outline the legal landscape of several hard questions in this area, like can the President completely prevent executive officials from testifying, and what role do the courts play here? Listen now!