Lark Turner  //  9/3/17  //  Topic Update


Last week, Take Care hosted a symposium on Congress's Constitution, an important new book by Josh Chafetz. Contributors assessed Congress's role in the separation of powers, with a focus on developments thus far under President Trump.

  • A roundup of the posts is here.
  • Chafetz’s book is a masterpiece when viewed from the conventional conceptual lenses of political science and academic law, writes Mark Graber.
  • The book adds original and entertaining commentary to a much-discussed subject, comments David Fontana.
  • Chafetz comments on the eight contributions to the symposium that discuss his new book, Congress's Constitution


The latest episode of Versus Trump features analysis of web-hosting company Dreamhost’s refusal to cooperate fully with the Trump Administration’s broad request for information about the visitors to, a website allegedly used by those involved in an Inauguration Day riot.


Though U.S. Customs and Border Patrol said checkpoints remain open during Hurricane Harvey, ICE and CBP will not conduct immigration enforcement at relief sites like food banks and shelters (CNN).

The agencies’ joint statement is here.

The Ninth Circuit heard oral argument about which portions of the travel ban the Administration may enforce while the Supreme Court’s ultimate decision in the case is pending (Politico).

  • The three-judge panel appeared skeptical of the government’s argument (NYT).
  • Two judges suggested the Administration was reading words into the Supreme Court’s June order that were not there, recounts Lyle Denniston at Lyle Denniston Law News.

A series of lawsuits claim ICE is targeting people for deportation based on false allegations of gang affiliation, writes Christie Thompson at The Marshall Project.

U.S. Immigration and Customs Service (ICE) has requested approval for a plan to begin routinely destroying records related to its detention operations, including those related to sexual assaults, solitary confinement, and deaths in custody (ACLU).

A federal judge blocks Texas’ ban on ‘sanctuary cities’ (NYT).

  • The order enjoining Texas highlights the need to recognize cities as constitutional actors in their own right, argues Richard C. Schragger at Take Care.

USCIS will require in-person interviews for green cards where online or mail applications previously sufficed, making it more difficult for immigrants to gain permanent residency (Sacramento Bee).

The legal challenge that helped free detained travelers detained in the first days of President Trump’s travel ban has settled (NYT).

The settlement agreement, which requires the government to send a letter to every individual who was detained to inform them of free legal services organizations that can help them obtain visas or entry documents, is here.

DHS awarded several contracts for prototypes of President Trump’s proposed Mexican border wall (NYT).


Even fans of the President’s norm-defying behavior struggled to defend his response to Charlottesville when it bucked the norm against overt racism, argue Helen Klein Murillo and Leah Litman at Take Care.

State laws like Virginia’s that block local authorities from removing monuments in their localities stifle local governments and violate the First Amendment, contend Ira C. Lupu and Robert W. Tuttle at Take Care.

President Trump issued a memorandum formally implementing his bar on openly transgender individuals serving in the U.S. military (Politico).

  • The full memorandum is here.
  • Although candidate Trump purported to be pro-LGBT, the ban on transgender service members is just one of many anti-LGBT policies the President has enacted, argue Helen Klein Murillo and Leah Litman at Take Care.
  • No, Trump’s ban on transgender service members isn’t “frozen,” writes Eli Savit at Take Care.
  • The ACLU and Lambda Legal filed lawsuits arguing that the President’s ban on transgender troops is unconstitutional and discriminatory (PoliticoThe Hill).
  • The ACLU’s complaint is here, and Lambda Legal’s is here.
  • The ban appears less severe than the President’s initial tweets proposing the idea, argues Russell Spivak at Lawfare.  

DOJ’s support for a recently blocked Texas voter ID law represents a dramatic shift in the agency’s stance on voting rights, writes Christina Ford at Take Care.

An Arizona case sheds light on how a public official’s statements may factor into an intentional discrimination case, writes Charlotte Garden at Take Care.

The Ninth Circuit calls the Coast Guard’s racial profiling of Latino man an egregious Fourth Amendment violation (ImmigrationProf Blog).

Read the opinion here.


A ruling against President Trump for blocking Twitter users could prohibit elected officials from tweeting Bible verses from their official accounts, writes Eugene Volokh at The Washington Post.

Redrawn North Carolina redistricting maps head to judges for approval (AP).

An amicus filed in Wisconsin gerrymandering case Gill v. Whitford asks Court to apply the partisan symmetry standard (Election Law Blog).

Read the brief here.

A think tank funded by more than $21m in Google money fires a Google critic (NYTArs Technica).

The incompetent mainstream media gave us President Trump, argues Jed Shugerman on his blog.

The hated “Deep State” and the media will save our democracy, argues Jeffrey Smith at Lawfare.

Federal judge Jed S. Rakoff dismissed Sarah Palin’s defamation suit against The New York Times (NYTWaPo). Read the opinion and order here.


The White House is pressuring intelligence officials to find Iran in violation of the 2015 nuclear agreement (The Guardian).

  • An upcoming report is like to show that Iran is largely compliant, but a finding could otherwise end the deal (NYT).

President Trump signed an executive order allowing local police departments to receive surplus military equipment, reversing an Obama-era policy barring such transfers (The HillWaPo).

  • The executive order is here.
  • Attorney General Jeff Sessions announced the policy change in a speech to the National Fraternal Order of Police. The speech is here.

The Illinois Attorney General sued to seek court-enforceable police reform in Chicago, accusing DOJ of abandoning the matter after it found routine constitutional violations and use of excessive force (WaPoNYT).

DOJ’s original report, conducted during the Obama Administration, is here.

North Korea launched an intermediate range ballistic missile over Japan, a “direct challenge” to President Trump one week after he threatened to rain “fire and fury” on North Korea if it put the U.S. in danger (NYT).

  • President Trump and Japanese Prime Minister Shinzo Abe agreed that the U.S. and Japan should further increase pressure on North Korea (WaPo).
  • President Trump also stated that “all options are on the table” for a U.S. response (NYT).
  • The missile’s “main target” was not Japan but the Trump Administration’s credibility, argues Gordon G. Chang at The Daily Beast.
  • Humanitarian concerns and international human rights law cannot be ignored in our discussion of the North Korean nuclear problem, argues Julia Sherman at Take Care.
  • South Korea and the U.S. should temporarily end large, joint military exercises, argues Herb Lin at Lawfare.
  • The Administration is sending mixed messages about the U.S.’s response to North Korea’s nuclear threats (CNN).
  • After President Trump tweeted that “talking is not the answer,” Secretary of Defense James Mattis said the U.S. is “never out of diplomatic solutions” (BBC).

Former Deputy Assistant to the President Sebastian Gorka, who was forced out of the White House over the weekend, appeared to confirm that the U.S. uses its covert cyber sabotage program to target North Korea’s missile program (The Hill).

Secretary of State Rex Tillerson announces plan to cut special envoys from the State Department roster (CNN).

  • Tillerson’s letter to Senator Bob Corker, Chair of the Senate Committee on Foreign Relations, is here.
  • Initial details on which envoys will be downgraded or eliminated are here.
  • Notable eliminations include the representative for climate change and the ambassador assigned to help close Guantanamo Bay (Miami Herald).

Iran upheld the convictions of an Iranian-American father and son accused of collaborating with the U.S., a new source of tension amid President Trump’s efforts to find Iran in violation of the nuclear deal (NYT).

The FBI and DOJ must protect the free press in its investigation of leaks, writes Jeffrey H. Smith at Lawfare.

The Trump Administration ordered Russia to close three diplomatic facilities, including its San Francisco consulate, as retaliation against Russia’s order for the U.S. to shrink its Moscow embassy staff by more than 700 people (NYTWaPo).


While President Trump ran for office, the Trump Organization sought a deal to build a Trump Tower in Moscow (WaPo).

Donald Trump’s presidency has changed the rules of influence in the nation’s capital, argues Nicholas Confessore in The New York Times Magazine.

An amicus brief filed in support of President Trump in the CREW emoluments suit misrepresents historical sources, writes Jed Shugerman at Take Care.


Trump’s review of national monuments is “arbitrary, opaque, and full of mischaracterizations,” writes Nicholas Bryner at Legal Planet.

President Trump’s fledgling attempt to take on the tax code presents a lot of minefields, writes Patricia Cohen for The New York Times.

  • Tax reform has historically been bipartisan and can be again, argues Robert Cresanti at The Hill.

The Trump Administration is close to breaking a longstanding presumption that government should not interfere with the content of scientific inquiry, contends Dov Fox at Take Care.

Thirteen Democratic state attorneys general have accused EPA Administrator Scott Pruitt of using informal guidance to sidestep the full regulatory and legal process and delay President Obama’s Clean Power Plan (The Hill).

  • The AGs’ letter to the EPA is here


Trump pardons Joe Arpaio, the former Maricopa County sheriff convicted of criminal contempt for defying a court order to stop unconstitutional racial profiling (NYTWaPo).

  • The pardon demonstrates Trump’s disregard for the rule of law, writes Michael C. Dorf at Take Careas does Bob Bauer at Lawfareas does Maggie Haberman at the New York Times.
  • Few, if any, judges would consider accepting a pardon an admission of guilt, writes Eugene Volokh at The Washington Post.
  • The pardon both follows and challenges the law, writes Adam Liptak at The New York Times.
  • The substance of Arpaio’s violations, and not any threat to the rule of law, should be the focus of commentators’ outrage, argues Josh Chafetz at PostEverything.
  • The pardon presents more than one problem, write Leah Litman and Lark Turner for Take Care.
  • The wall between the White House and the DOJ is there for a reason, writes Chiraag Bains for Take Care. 
  • The President’s pardon power could lead to his impeachment, argues Philip Lacovara at The Washington Post.
  • No, President Trump’s pardon power is not absolute, writes Neil H. Buchanan for Dorf on Law.
  • The pardon “constitutes the most forthright racist incitement of the Trump era,” writes Michael Gerson at The Washington Post.

The president had previously asked whether the contempt investigation could be dropped altogether (NYT).

  • The pardon could be a test-run for shutting down the Russia investigation, writes Bob Bauer at the Washington Post.

Advocacy organizations have sent a letter to officials in the Public Integrity Section of the DOJ Criminal Division arguing that President Trump’s pardon of Joe Arpaio exceeds constitutional limits (Free Speech For People).

  • The letter is here.
  • The pardon is likely within the President’s enumerated powers, but could still undermine the Constitution (ACS Blog).
  • The suit is unprecedented, but so is Trump’s use of the pardon, writes Jennifer Rubin at the Washington Post.
  • Separation of powers jurisprudence suggests President Trump’s pardon of Joe Arpaio may exceed the pardon power’s broad limits, writes Brad Miller at Justia.
  • The language of the constitution suggests that courts can hear and adjudicate presidential pardons just as they can any other constitutional question, argues Neil H. Buchanan at Dorf on Law.
  • The pardon is ugly but constitutional, argues William Galston at the Wall Street Journal. 

Just Security previews a new book on Supreme Court jurisprudence and the expansion of executive power.


The Supreme Court may not react well to Trump DOJ’s flip-flops (NYT).


President Trump’s failure to properly staff the federal government will have acute consequences related to diplomatic dealings in Asia, argues Fred Kaplan at Slate.


Congress should begin a formal impeachment inquiry, argue Jane Chong and Benjamin Wittes at Lawfare.

Collusion may be “too kind a word” for Trump’s actions on Russia, writes Jennifer Rubin at the Washington Post.

Trump advisers Gary Cohn, Rex Tillerson, and James Mattis distance themselves from the President in recent remarks (Weekly Standard).

Trump is a nineteenth-century president stuck in the 21st, writes Julia Azari at FiveThirtyEight.

Questions about Trump’s mental health could spell the end of the Goldwater Rule, writes Jeannie Suk Gersen at the New Yorker

In new poll, just 16 percent of Americans say they “like” President Trump’s in-office conduct (WaPo). But the poll also reveals that those who approve of Trump generally like him because of what’s he been up to as president, writes Philip Bump for The Washington Post.

A Moscow deal could make “our boy” president, Trump associate wrote to Trump lawyer in 2015 (NYT).

  • The extent of President Trump’s Russia dealings becomes clearer — and broader — all the time, argues Jennifer Rubin at WaPo. 
  • A timeline of Trump’s attempts to make business deals in Russia (WaPo).   
  • Recent revelations about a Trump real estate project in Russia poses a conflict of interest and may lead to more severe obstruction charges out of the Mueller investigation, argues Ryan Lizza at the New Yorker. 

Special counsel Robert Mueller has teamed up with New York Attorney General Eric Schneiderman in its investigation into Paul Manafort (Politico).

An NBC report that Paul Manafort took notes on his phone during the Trump Jr. meeting could mean Manafort was more involved than previously thought, suggests Aaron Blake at the Washington Post.

Updates | The Week of February 19, 2018

2/25/18  //  Daily Update

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.

Jacob Miller

Harvard Law School

Updates | The Week of February 5, 2018

2/11/18  //  Daily Update

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 22, 2018

1/28/18  //  Daily Update

At Take Care, Eli Savit argued that the Trump Administration's threats against sanctuary cities are baseless, but that the rhetoric is nonetheless dangerous. The Justice Department subpoenaed letters from sanctuary cities across the country.