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.
Updates | The Week of July 10, 2017
Judge Janice Rogers Brown of the DC Circuit announced plans to step down, giving President Trump another opportunity to continue moving the federal judiciary to the right.
Versus Trump: I Want Out!
On this week’s episode of Versus Trump, Charlie and Easha discuss the cases against Trump University, the global settlement that was reached, and whether the pending challenge by a lone objector can—or should—alter the result. Listen now!
A Reality Check On Proceedings Related To The Entry Ban Injunctions
Some commentators are seizing on court orders in the proceedings related to the scope of the injunction against the entry ban as an indication that courts are rethinking their decisions against the entry ban. That's wrong (with a cautionary note about the federal courts).
Updates | The Week of May 8, 2017
The relationship between President Trump and the judiciary is already different than that of previous administrations. Dark money might be affecting the judicial appointments process.
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.
The Comey Affair And Evidence Of Motive
The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.
Against Type Briefs
Filing an amicus brief joined by Republicans critical of the Trump Administration and with some claim of expert knowledge made by these Republicans related to the constitutional issues can be a powerful tactic to use in courts.
Versus Trump: 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!
States And The Emoluments Clause
In a new lawsuit, Maryland and D.C. allege that the President's violations of the Emoluments Clauses harm their sovereign, quasi-sovereign, and proprietary interests. Those interests get special solicitude in federal court.
Animus, Past and Present
In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.
Why Trump’s Firing of Comey is Terrifying
Our country has a very strong, very important norm of apolitical law enforcement. But this norm, ironically, is enforced mostly by politics, not law—and Trump’s action has risked doing it irreparable damage. Going forward, here's what to watch at the state and federal levels.
Judicial Deference to President Trump
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?
The Rule of Law and the Resistance Police
Trump’s defenders have long ascribed illegitimate motives to his critics. Now they’re doing that to the judges who have found Trump’s policies unlawful. That’s not okay.
Versus Trump: Where There's A Gil... (On Partisan Gerrymandering)
On this week’s episode of Versus Trump, we discuss a lurking issue with opposing Trump in upcoming elections: partisan gerrymandering. Charlie and Easha take a close look at the case of Gil v. Whitford, a case the Supreme Court recently announced it will take up next fall. In Gil, the Supreme Court may boldly announce a new rule that might seriously curb partisan gerrymandering—or the Court may entirely stop courts from being able to hear these cases at all. Listen now!
Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
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.
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: (Judicial) Independence Day Spectacular!
On this week’s episode of Versus Trump, we celebrate Independence Day with a look at the past, present, and future of judicial independence. Jason and Easha discuss the origins of judicial power, and then talk about what the Trump Administration has done that may undermine the authority of the judiciary—and where that kind of talk might lead us. Listen now!
A Response to Will Baude on Mootness in the Entry Ban Case
I've argued that the Supreme Court shouldn't grant review of the travel ban case because 33 hours after the Respondents file their response to the petition for certiorari on June 12, the entry ban will no longer be operative. Here I respond to two purportedly “plausible” alternative interpretations of the executive order offered by William Baude.
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.
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.
Faith in the Ninth Circuit
An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.
Updates | The Week of April 17, 2017
Advocates continue to discuss the politicization of the Supreme Court and President Trump may have nominate three new Third Circuit judges.
Updates | The Week of March 27, 2017
Niko Bowie argues on Take Care that the Supreme Court's recent warnings against appointments of "unfit characters" and "family connection" may be relevant to legally dubious Trump Administration appointments. Leah Litman and Dan Deacon explain that the judicial backlash to President Trump's revised entry ban is standard judicial practice in response to extraordinary events. And the Chief Justice of California used her State of the Judiciary Address to critique President Trump's immigration policies.
Updates | The Week of May 1, 2017
President Trump's bashing of the judiciary may only reinforce the perception that his immigration ban is unconstitutional.
Updates | The Week of March 20, 2017
Experts questioned whether Judge Neil Gorsuch would provide a robust check on President Trump if confirmed to the Supreme Court and whether Obama-era legal precedents will provide dangerous latitude to the new administration.