6/6/17  //  Commentary

A Munsingwear vacatur could be an intriguing compromise in the travel ban case that just might generate consensus on the Supreme Court. It would let the Justices avoid wading into treacherous constitutional waters. But it would also avoid giving the impression that the Court approved of a nationwide injunction about which the conservative Justices will, I suspect, have serious concerns.

6/6/17  //  Commentary

Let's explore the hypothesis that Trump is deliberately sabotaging the already weak case for sustaining the travel ban. This is extremely unlikely. As they say in medical school, when you hear hoofbeats, think horses, not zebras. The most obvious explanation--Trump is an ignorant racist with no impulse control--should dominate more intricate theories.

6/5/17  //  Quick Reactions

Thanks in part to the President's own recent tweets and public comments, the case for concluding that his revised travel ban is unconstitutional has now become overwhelming.

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.

6/1/17  //  Commentary

On a new episode of Versus Trump, Take Care's podcast, Easha and Jason dig into healthcare for the first time, as they take a deep dive into the House v. Price litigation that addresses whether certain payments to insurers under the Affordable Care Act have been properly appropriated. They also debate immigration rhetoric vs. action and discuss drug testing for unemployment benefits. Listen now!

6/1/17  //  Commentary

The Ninth Circuit can give life to one of the challengers' most powerful arguments against Supreme Court review.

5/31/17  //  Quick Reactions

An extraordinary concurrence by Judge Reinhardt of the Ninth Circuit condemns inhumanity and injustice in our immigration system.

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).

5/25/17  //  Quick Reactions

By Corey Brettschneider: As the Fourth Circuit recognized today, even if Kleindanst v. Mandel supplies the rule of decision and requires rationality review, animus is fatal to the Muslim Ban even under that standard.

5/23/17  //  Quick Reactions

Yesterday, AG Sessions issued his official interpretation of the executive order President Trump issued in January regarding sanctuary cities. The interpretation is notable for its narrowness. But ultimately, the memorandum is more of a retreat than a surrender.

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.

5/10/17  //  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.

5/9/17  //  Commentary

In the Fourth Circuit argument in IRAP v. Trump, Judge Keenan put her finger on a simple, basic reason why Section 2(c) of Executive Order 13769 is unlawful—and it doesn’t have much to do with the Establishment Clause. Rather, it’s a matter of everyday statutory interpretation, and the fact that President Trump has failed to establish the necessary precondition for the exercise of his statutory authority.

5/9/17  //  In-Depth Analysis

It's our first emergency podcast! Right after the full Fourth Circuit heard oral arguments in a major case regarding the Muslim Travel Ban, we hopped on the line to do a recap. The podcast includes excerpts from the oral argument audio.

5/8/17  //  Commentary

One of the founding principles of this nation is that our government welcomes those of all faiths and rejects religious intolerance. President Trump’s order contravenes our nation’s fundamental commitment to religious freedom and to the equal protection of the laws. Federal courts should declare it unconstitutional.