Versus Trump: The ACA's Still Here...
On this week's episode of Versus Trump, Jason and Charlie discuss last month's federal court decision holding that Maryland could not proceed in its lawsuit that sought a declaration that the Affordable Care Act is constitutional and must be enforced. Listen now!
Versus Trump: Versus Whitaker, In-Depth
On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!
Versus Trump: Versus Whitaker (JH solo)
On this week's episode of Versus Trump, Jason has a solo episode where he talks about a motion by Maryland contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!
Versus Trump: N.Y. Versus Wilbur Ross
On this week's episode of Versus Trump, Jason and Charlie talk about the fight over Commerce Secretary Wilbur Ross's potential testimony in an important lawsuit over the census. Listen now!
Updates | The Week of January 15, 2018
After almost a year, the Trump Administration’s Justice Department lacks Senate-confirmed appointees in leadership posts running the national security, criminal, civil rights and other key divisions.
Update | Week of October 30, 2017
Many of President Trump’s US Attorney nominees have the strong backing of the NRA, raising questions about their willingness to enforce gun laws. The nominee to head the DOJ's National Security Division testified that he would not interfere with the Russia investigation.
Updates | The Week of July 17, 2017
Transgender students are turning to the courts to fill the void left by the Department of Education under President Trump. Litigation over the immigration ban may change the scope of the plenary-power doctrine.
It Was Legal for the President to Fire Comey. That’s the Problem.
It’s already too late in the day to trust the executive branch to police itself. That lack of trust should extend to a special prosecutor, independent counsel, or whatever other nice terms you want to call it. At this point, only Congress can credibly investigate the President.
The Nuclear Option and Democratic Deterioration
The Gorsuch nomination battle illustrates and exacerbates the dynamics of democratic deterioration. Reversing these trends will require elected officials to act with courage. It will also require significant structural changes to our political system.
Versus Trump: The FOIA Spectacular!
On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!
Versus Trump: Kavanaugh's Coming, Plus Updates
On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases. Listen now!
American Cognitive Dissonance
Perhaps some good may come from Trump’s ham-fisted efforts to drain the swamp: a revitalization of the bureaucracy, which renders important services to the nation.
Versus Trump: The House Versus The FBI
On the latest episode of Versus Trump, Charlie and Easha talk all things Russia investigation (or tangentially Russia investigation)—the Nunes #meh-mo, the fallout therefrom, and whether Trump will be interviewed by the Special Counsel.
Versus Trump: The First Shoe (with guest David Sklansky)
On this week’s episode of Versus Trump, Jason, Charlie, and special guest David Sklansky discuss the first shoe to drop from the Mueller investigation: the indictment of Paul Manafort and Rick Gates, and the guilty plea of George Papadopoulos. Listen now!
Versus Trump: Texas & Trump Versus The ACA
This week, Jason, Charlie, and Easha are back with a regular episode to discuss a stunning recent development in Texas v. United States, a case by Texas seeking to invalidate the Affordable Care Act (Obamacare). Last month, the Trump Administration not only agreed with Texas that the individual mandate is unconstitutional, but it also told the district court that the requirement to cover everyone with a pre-existing condition on the same terms as healthy folks should be struck down as well. Listen now!
Versus Trump: Versus DeVos (Re-Air)
On this week’s episode of Versus Trump, as summer ends and a new school begins, we re-air Jason's interview with Toby Merrill, the director of the Project on Predatory Student Lending at Harvard Law School, about several lawsuits she's involved with against newly-confirmed Secretary of Education Betsy DeVos. We'll be back soon with new episodes.
The Comey Firing in (Comparative) Context
President Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis? But are these even the right questions to pose?
Versus Trump: A Gadfly Suit + Leah Litman
On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss a lawsuit against the President that's been brought by a D.C. gadfly who claims that Trump did not provide sufficient detail on the financial disclosure form he submitted as a candidate. Then, Easha talks with Leah Litman about the status of the Muslim ban litigation and the role of oral advocacy in this and other high-profile cases. Listen now!
Versus Trump: Keeping the DREAM Alive
On this week’s episode of Versus Trump, we discuss a major new lawsuit that challenges President Trump's announced revocation of the DACA immigration program. Listen now!
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.
Versus Trump: Versus Kobach
On this week’s episode of Versus Trump, we discuss the litigation against the newly-created Presidential Advisory Commission on Election Integrity, that has Kansas Secretary of State—and repeat defendant in voting rights litigation—Kris Kobach as its now-infamous Vice Chair. Listen now!
Trump’s Advisors Need to Step Up, Or Step Out
Astounding revelations have erased any reasonable doubt that the President’s shortcomings endanger global security. The time has come to focus on Executive Branch officials who have a duty to guide and, if necessary, constrain Trump. They need to step up, or step out.
Versus Trump: Trump vs. The CFPB
On this week’s episode of Versus Trump, Jason and Charlie talk about the Trump Administration's position in a lawsuit contending that the structure of the Consumer Financial Protection Bureau—commonly known as the CFPB—is unconstitutional, because its sole director does not serve at the pleasure of the President but instead serves a set term and can be terminated only for-cause. Listen now!
Trump and North Korea: Where's Congress?
Guest poster Eric Segall argues that Congress must act now to ensure that the President does not unilaterally commit an act of war without Congressional consent.
Versus Trump: Trump Versus ALJs?
On this week's episode of Versus Trump, Jason and Easha discuss a new executive order and accompanying guidance by the Trump Administration that dramatically change the rules for hiring Administrative Law Judges (ALJs) across the entire federal government. Listen now!
Judicial Deference to President Trump
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?
The (Other) Dark Side Of The Comey Affair
James Comey’s firing threatens more than just the rule-of-law norm against self-investigation. It also threatens the rule-of-law norm against politically motivated policing and prosecutions.
Ten Questions for a New FBI Director
By Allison Murphy: Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director. It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. Here are 10 questions that require answers.
Trump DOJ's Flipped Positions
Republicans may not be advancing their agenda through legislation, but they're getting it done in other ways.
The Audacity of The President’s "Hope"
Senator Risch asked Jim Comey whether a person has been charged for obstruction of justice or any other criminal offense, where they said or thought they hoped for an outcome. We hope he finds our research instructive.
A Reply to Larry Solum
A response to Professor Solum’s comments on my posts about the Consumer Financial Protection Bureau.
Versus Trump: An Immigration Omnibus
On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss recent important cases in the world of immigration, including a new lawsuit contending that the Trump Administration may not pursue its apparent policy of legally separating immigrant children from adults that they enter the country with. Listen now!
Tweetstorm Round Deux
The President's latest statements on Twitter undermine DOJ's defense of the entry ban, and continue the President's efforts to blame everyone (including DOJ and the courts) but himself.
The Constitutional Challenge To The CFPB
The major constitutional challenge to the Consumer Financial Protection Bureau rests on the claim that the President of the United States does not have enough power over the agency.
Versus Trump: Versus Mueller
After two special interview episodes of Versus Trump, Jason and Charlie get back to the usual format and talk about the leaked Dowd memo arguing that President should not be required to sit for an interview with the Special Counsel. Listen now!
Real Reasons To Worry About Filibuster Repeal
The filibuster repeal itself is ultimately far less important than some deeper trends it reflects concerning partisanship, institutional norms, and the separation of powers in our constitutional order.
Versus Trump: A Two-Level Versus Trump Case
On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all. Listen now!
Versus Trump: (Judicial) Independence Day Spectacular!
On this week’s episode of Versus Trump, we celebrate Independence Day with a look at the past, present, and future of judicial independence. Jason and Easha discuss the origins of judicial power, and then talk about what the Trump Administration has done that may undermine the authority of the judiciary—and where that kind of talk might lead us. Listen now!
Versus Trump: "What About Congress? + Steven Wu"
On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss Congress's role and powers in investigations of the Executive. Then, Jason talks with Steven Wu, a Deputy Solicitor General in the Office of New York Attorney General Eric Schneiderman, about the case against Trump University, the active role of states in recent years, and other issues in which New York is adverse to the President. Listen now!
Attacking North Korea Would Be Illegal
President Trump threatened this week to launch "fire and fury like the world has never seen" against North Korea. That is not something the Constitution lets him do without Congress.
Versus Trump: #MeToo vs. Trump
On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Listen now!
Versus Trump: Movin' Right Along
On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!
Versus Trump: To End a Presidency? (Interview with Joshua Matz)
On this week's episode of Versus Trump, Jason talks about the past, present, and future of impeachment with Joshua Matz. Joshua is the publisher of Take Care and the co-author, with Laurence Tribe, of the acclaimed new book To End a Presidency: The Power of Impeachment. Listen now!
A Landmark Victory for LGBT Rights (And The Path Ahead)
The en banc Seventh Circuit has held that Title VII protects against sexual orientation discrimination. SCOTUS is likely to grant review of this important issue in the near future. But it remains unclear what position the Trump Administration will take.
How Might Congress Reinforce NATO?
President Trump's overseas trip has cast doubt on longstanding consensus features of U.S. foreign policy, particularly our commitment to NATO. Here are some ways Congress might respond.
Remedial Convergence and Collapse
The Supreme Court's recent summary reversal in Kisela v. Hughes demonstrates some serious issues with the Court's approach to remedies in cases of executive violations of constitutional rights.
SCOTUS Warns Against Appointing "Unfit Characters"
A decision this week reminds us that President Trump is bound by laws, which he is violating, in making key appointments. The Acting U.S. Trade Representative, for instance, might well be occupying that role unlawfully.
Dark Money and Judicial Nominations Under Trump (And Beyond)
Our treasure of an independent judiciary is built upon an assumption of independence, of transparency about influence and potential conflicts, and accountability to the democratic process. When massive amounts of dark corporate money can affect those political processes, we are in grave danger of damaging that national treasure.
Congress’s Vital Power of the Purse
The upcoming budget fights will be ugly and brutal, but they implicate the most important practical means of constraining this president (or any other)—Congress’s power over appropriations. But the nature and limits of that power remain shockingly undefined.
Versus Trump Podcast: Prosecuting Trump FAQ + James Williams
On today's two-part episode of Versus Trump, Take Care's podcast, we answer three burning questions related to whether the sitting President can face criminal charges, and how that prosecution could be started. We also have an interview with James Williams, the County Counsel for Santa Clara County, where he discusses his County's lawsuit against Trump Administration that has so far successfully prevented the Trump Administration from enforcing an executive order that would have withdrawn federal funding from so-called sanctuary cities.
Versus Trump Live: Fairweather Federalism?
On this week's special live episode of Versus Trump, Easha, Charlie, and Jason share the stage at the ACS National Convention in Washington, DC with Maryland Attorney General Brian Frosh and Stanford Law's Pamela Karlan. They discussed several important cases brought by states against the Trump Administration as well as the broader federalism issues presented by Democratic Attorneys General being involved in so many lawsuits against the federal government. Listen now!
Updates | The Week of June 12, 2017
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.
Upates | The Week of May 1, 2017
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.
Updates | The Week of April 24, 2017
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 March 27, 2017
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 June 5, 2017
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 July 10, 2017
The Senate Judiciary Committee began hearings for Christopher Wray, President Trump's nominee for FBI Director, and passed along four other nominees.