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!

6/22/20  //  In-Depth Analysis

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

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.

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.

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.

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!

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.

12/4/17  //  Daily Update

President Trump has signaled to friends his belief that a government shutdown would help him politically.

11/26/17  //  Daily Update

Any infringement on the president's power to remove executive branch officials may violate separation of powers principles.

11/6/17  //  Daily Update

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.

8/6/17  //  Daily Update

Commentary continues on the possibility that President Trump will fire the Attorney General.

7/23/17  //  Daily Update

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.

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.

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.

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!

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.

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

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.

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.

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

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!

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!

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.

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?

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!

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!

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!

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

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.

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!

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

3/25/19  //  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

6/9/17  //  Commentary

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

7/25/17  //  Commentary

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

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.

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.

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!

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!

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.

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.

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.

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?

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.

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!

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.

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.

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?

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.

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.

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.

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.

9/8/17  //  Commentary

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

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.

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.

5/25/17  //  Commentary

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

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!

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.

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!

4/10/17  //  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.

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!

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.

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!

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.

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!

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.

3/20/18  //  Commentary

The firing of James Comey closely parallels McCabe's firing

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!

6/7/17  //  Quick Reactions

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

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.

5/11/17  //  Commentary

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

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!

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!

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.

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!

5/30/17  //  Commentary

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

4/11/18  //  Commentary

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

3/24/17  //  Quick Reactions

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

5/9/17  //  Commentary

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

4/5/17  //  Commentary

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

5/17/17  //  Commentary

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

5/17/17  //  Quick Reactions

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

6/14/18  //  Commentary

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!

6/18/17  //  Daily Update

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

5/7/17  //  Daily Update

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

4/30/17  //  Daily Update

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

4/2/17  //  Daily Update

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

6/11/17  //  Daily Update

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

4/9/17  //  Daily Update

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

7/16/17  //  Daily Update

The Senate Judiciary Committee began hearings for Christopher Wray, President Trump's nominee for FBI Director, and passed along four other nominees.