Gundy, Raich, and Faustian Bargains
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.
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!
Federalism and the Senate
Nothing valuable about our federalism depends on letting each state appoint the same number of representatives in the Senate
Updates | The Week of February 19, 2018
Special Counsel Robert Mueller filed a new charge against Paul Manafort while Richard Gates pled guilty. Meanwhile, President Trump's proposal to arm teachers drew controversy in Washington.
Updates | The Week of February 5, 2018
The Nunes memo set off aftershocks; agencies scrambled to implement the Trump Administration's policies to mixed effect; and Congress passes a budget after a brief overnight shutdown.
Updates | The Week of January 15, 2018
The Trump Administration begins allowing states to impose work requirements for Medicaid recipients. Net neutrality measures are gaining momentum in state legislatures, despite the FCC’s claim that state laws are preempted.
Updates | The Week of December 18, 2017
Following the logic and example of Clinton v. Jones, sitting presidents should also be subject to suit in state courts. A New York state legislator has introduced a net neutrality bill designed to serve as an end-run around the FCC's repeal of net neutrality.
Updates | The Week of November 13, 2017
The House passes its version of a tax bill that would dramatically alter the tax code as President Trump faces trouble over the diversity of his federal judicial nominees and the fitness of his appointees to office, some of whom have alleged conflicts of interest.
Why California Stands in the Way of Trump's EPA
President Trump recently announced that EPA will reconsider fuel efficiency standards. But so long as California remains free to set its own, more protective standard, Trump's decision may not matter very much. And the law is squarely on California's side.
An Unconstitutional Threat to Sanctuary Cities
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.
Versus Trump: SALT In The Wounds
On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss a new lawsuit by four blue states contending that the new cap on deducting state and local taxes—passed as part of the 2017 tax bill—is unconstitutional. 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: The Great Marijuana Debate
On a new episode of Versus Trump, Easha, Charlie, and Jason continue their investigation of the relationship between federal and state law by debating the Trump Administration's reversal of Obama-era guidance about marijuana enforcement. Listen now!
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!
Versus Trump: 2017 Scorecard
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!
The Attorney General, Hawaii Statehood, and National Injunctions
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.
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!
It is time for progressives to embrace federalism and to use Supreme Court precedents protecting states’ rights to fight against Trump administration policies
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.
Versus Trump: SABOTAGE!!
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!
Versus Trump: Trump Versus California
On a new episode of Versus Trump, Easha, Charlie, and Jason discuss the Trump Administration's lawsuit against California. The lawsuit seeks to prevent the state from enforcing three new state laws that the federal government says will undermine enforcement of immigration law. Listen now!
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!
Graham-Cassidy Is Unconstitutional
Graham-Cassidy has a constitutional flaw: the funding formula for the block grants to states that form the bill’s core is unconstitutional.
Asymmetric Geographical State Standing
The recent DC/Maryland emoluments case reflects a truth known to the Framers: jurisdictions geographically closer to the national capital would have a different relationship with federal power.
Arizona’s Problems with Immigration Federalism
State officials are seeking out ways to intensify federal efforts to enforce immigration law, but they are thereby intensifying larger problems plaguing our national immigration system
California v. DOJ on Immigration Enforcement
An exchange of letters between the California Chief Justice and Attorney General Sessions offers valuable lessons for states considering immigrant protective policies that respect human rights and dignity (but might annoy the Trump Administration).
Versus Trump: ACS Live Show Preview + Twitter Case Update
On this week's episode of Versus Trump, Easha and Jason preview their live show at the ACS National Convention and then discuss the recent decision concluding that President Trump violated the First Amendment when he blocked seven Twitter users from responding to his tweets. Listen now!
The Attack on American Cities
Trump's anti-urban rhetoric has fanned the flames of a war by state governments against progressive cities. We see this in battles over sanctuary cities, LGBT rights, gun regulation, employee rights. The time has come for a campaign on behalf of city power.
Versus Trump: So, Can California Really Do That?
On this week’s episode of Versus Trump, Charlie and Jason discuss a recently-passed bill awaiting the signature of California Governor Jerry Brown that, if signed into law, would require presidential candidates to disclose five years of federal of tax returns in order to appear on the ballot in California. Jason and Charlie ask each other whether California has the constitutional power to do that, and, if so, whether it's a good idea. Listen now!
Versus Trump: Versus The Trump Foundation
On this week's episode of Versus Trump, Jason and Charlie discuss the New York Attorney General's petition to dissolve the Trump Foundation and ban President Trump and his children from serving as directors of charities in the future. They then do some a hit on the new Mueller indictment. Listen now!
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.
Taking the Nuclear Option Off the Table
Last Thursday, fifteen states and the District of Columbia moved to intervene in House v. Price, the case about the ACA’s cost-sharing reductions. At the same time, they asked the court to hear the case promptly. This is a bigger deal than it may seem, and could offer some comfort to insurers that are in desperate need of it.
The Bearable Lightness of Janus
The Supreme Court's ruling in Janus sounds like a pretty big problem for organized labor. But it doesn’t have to be.
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 May 29, 2017
The Chief Justice of the California Supreme Court is gaining notoriety in her responses to the challenges posed by the Trump administration.
Updates | The Week of September 25, 2017
Commentary continued on President Trump's response to the growing crisis in Puerto Rico and the U.S. Virgin Islands in the wake of Hurricane Maria. The California legislature passed a law requiring the disclosure of tax returns by presidential candidates.
Updates | The Week of October 23, 2017
The Administration continued to struggle to respond to the crisis in Puerto Rico. The Solicitor General filed a brief in a critical federalism case before the Supreme Court.
Updates | The Week of September 18, 2017
The California Attorney General is suing the Trump administration over its plans to build a wall between the U.S. and Mexico. Fourteen "alliance states" are on track to meet their portion of pledges under the Paris climate agreement despite President Trump's decision to withdraw the United States.
Updates | The Week of April 17, 2017
States are leading efforts to preserve the Clean Power Plan, to require tax return disclosure for presidential candidates, and to protect against a crackdown on marijuana legalization.
Updates | The Week of October 2, 2017
The federal government continued to struggle with hurricane relief efforts. The President criticized San Juan's mayor for "poor leadership" on Twitter but later deleted the tweet.
Updates | The Week of May 1, 2017
State Attorneys General wrote to the Department of Education criticizing student loan lender practices after the agency rolled back Obama-era reforms protecting student borrowers. California is again looking to revamp the state's climate policy.
Updates | The Week of April 10, 2017
President Trump signed a law nullifying an Obama-era regulation forbidding states from removing reproductive health care providers such as Planned Parenthood from Medicaid. Federal and state governments pose threats to city autonomy during the Trump administration.
Updates | The Week of April 3, 2017
Attorney General Jeff Sessions’s memorandum outlining task forces on various policies, including federal marijuana policy, has some state governors poised to fight back—governors of four Western states warned Attorney General Sessions and Treasury Secretary Mnuchin against interfering with state laws legalizing marijuana use.
Updates | The Week of March 27, 2017
Cities and states have taken action in the wake of President Trump's executive order threatening to revoke federal funding from sanctuary cities. Further, California may thwart President Trump's plans to gut Obama-era fuel emissions standards.
Updates | The Week of March 20, 2017
Federalism principles protect sanctuary cities from President Trump's executive order, and state attorneys general may be key actors in challenging President Trump's policies.
Updates | The Week of October 16
Coverage of President Trump's response to Hurricane Maria and Puerto Rican needs continues. California signed the California Religious Freedom Act into law, which would prevent participation by state and local officials in any federal “Muslim registry.”