Jacob Miller  //  2/25/18  //  Topic Update


The media and government focus on Dreamers may breed resentment for other undocumented immigrants in the United States (LA Times).

The Supreme Court is likely to take one of five approaches to the Trump Administration's request for expedited review of a lower court's block on terminating the DACA programwrites Lyle Denniston at his eponymous blog.

A lawsuit alleges that the Trump Administration is holding young adults indefinitely and illegally (NYT).

When releasing orders on Tuesday morning, the Supreme Court did not act on the federal government’s petition for review of the Trump Administration’s termination of the DACA program (SCOTUSblog).

Border Patrol is stretching its authority to search private property and extend its reach beyond the physical border (NYT).

Immigration experts are speculating that first lady Melania Trump’s parents may have received their permanent legal resident statuses through a process that President Trump has described as “chain migration” (WaPo).

Changes in technology are making it easier for ICE to track immigrants in the United States (ImmigrationProfBlog).

The American Immigration Council in Washington filed a class action lawsuit arguing that temporary protected status holders should be eligible for green cards (WashPo).

  • Read the complaint here

President Trump offered no justification for his six month delay to end DACA and the delay may undercut his argument that the program is unconstitutionalwrites Neil H. Buchanan at Verdict.

Article II gives President Trump the power to issue the Travel Ban 3.0 proclamationwrites Josh Blackman for Lawfare.

United States Citizenship and Immigration Services released a new mission statement in which it dropped the words “America’s promise as a nation of immigrants” and  “promoting an awareness and understanding of citizenship” (NPRVox).


Via tweet, President Trump blamed the FBI’s preoccupation on the Russian interference investigation for its failure to prevent last week’s school shooting in Florida (LA TimesThe Hill).

  • The White House announced that President Trump will meet with survivors on Wednesday (The Hill).
  • Survivors of the shooting announced plans to organize nationwide marches next month in support of gun control (WaPoThe HillPolitico).
  • Memorial services have been accompanied by calls to action (NYT).
  • House Speaker Paul Ryan met with President Trump at Mar-a-Lago on Sunday to discuss the Republican Party’s agenda, including gun control (The Hill).
  • While at Mar-a-Lago, President Trump reportedly surveyed members of the club on their opinions of gun control (WaPoThe Hill).
  • Some Republican lawmakers are reportedly considering support for gun control measures (WSJ).

The Trump Administration’s decision to repeal an Obama-era rule that barred recipients of Social Security disability benefits who designated a “representative payee” respected disability rightswrites Ari Ne’eman in Vox.

Funding is quickly running out for a popular Medicaid program that transitions people with disabilities from costly institutions to home and community-based living,” writesCourtney Perkes in Disability Scoop.

Lambda Legal filed a lawsuit against the Department of Health and Human Services alleging that the department provided funds to an organization that refused to allow a lesbian couple to even apply to serve as foster parents to refugee children (Lambda Legal).


Defense Secretary James Mattis is expected to propose to President Trump that transgender members of the U.S. military continue to serve (HillWashPo).


A tweet from President Trump could affect the outcome of California’s 2018 electionssuggests John Myers at The Los Angeles Times.

The Russian campaign of electoral interference highlights that the United States should rethink the way our institutions are designed to ward off the dangers of “faction,” and should consider electoral reforms like multi-member districts and ranked-choice votingwrites Danielle Allen in the Washington Post.

The Pennsylvania Supreme Court ordered new U.S. Congressional maps to rectify what it had previously ruled was an unconstitutional partisan gerrymanderwrite Jonathan Lai and Liz Navratil at Philly.com.

  • The court’s order can be found here. The dissenting opinions can be found herehere, and here.
  • State legislative Republicans say they intend to go to federal court to try to block the new maps from going into effect.
  • Rick Hasen doesn’t think state legislative Republicans’ litigation options are very good.
  • Lyle Denniston analyzes the decision at his eponymous blog here.

Transnational legal process may provide a framework for strategies to hold the Trump Administration accountable to international laws (Opinio Juris).

Despite increasing concerns about interference in American elections, local election administrators have few resources to dedicate to new voting equipmentwrites Kate Rabinowitz for ProPublica.

JUSTICE & SAFETY           

The use of lethal drones by the U.S. grew out of a historic “desire to pre-emptively neutralize foreign terrorist threats,” rather than an “overly militarized response to” September 11writes Christopher Fuller at Lawfare.

The October deaths of four American soldiers in Niger raise questions about the amorphous and expansive post-9/11 “war on terror” (NYT).

American hesitations about NATO commitments raise concerns for European states(NYT).

Asked about a strike on U.S.-backed forces in Syria, Defense Secretary James Mattis denied having any information (The Hill).

Relevant canons of statutory interpretation lead to the conclusion that Section 2703 of the Stored Communications Act allows the government to obtain disclosure of communications in extraterritorial electronic storage, an issue which the Supreme Court will rule on in United States v. Microsoftargues William S. Dodge in Just Security

President Trump signaled support for a Senate bill that would reinforce the requirement that federal agencies report all criminal infractions to the National Instant Criminal Background Check System and create financial incentives for states to do so as well (NYTWaPoWSJ).

Politics, not the Supreme Court’s Second Amendment jurisprudence, is blocking stricter gun control measuresargues Scott Lemieux in Los Angeles Times.

Lying to federal investigators should not be a crimewrites Stephen L. Carter in Bloomberg.

In response to the recent shooting at a Florida high school, President Trump announced that the Justice Department will propose regulations banning bump stocks, which can make semi-automatic rifles perform like an automatic weapon (NYT).

North Korea is growing and enhancing its cyber weapons programwrites Anna Fifield at The Washington Post.

Despite Saudi Arabia’s refusal to accept nonproliferation safeguards, the Trump Administration is seeking to sell nuclear reactors to the kingdom (WSJ).

Disagreements between China and the United States over American freedom of navigation operations in the South China Sea have flared in the last several weeks (Lawfare). 

The United States has played a large, though overlooked, part in the ongoing military conflicts in Yemen (Just Security).

The Supreme Court denied a petition of certiorari to hear a case on California’s waiting period for gun purchase (WaPo).

The United States has a moral duty and national security interest in assisting Rohingya Muslims in Myanmarargue Rep. Jackie Speier and Rep. Peter King at The Hill.

President Trump held a listening session including people affected by school shootings who urged action on gun control (NYT).

  • President Trump suggested that there should be an expansion of “concealed carry” at schools (Politico).
  • Students from the Florida high school where a gunman killed 17 protested at the Florida State Capitol and White House (WSJ).
  • President Trump’s notes for the listening tour have raised eyebrows, writes Aaron Blake at the Washington Post.
  • Gun control advocates should use the NRA’s playbook to succeed, argues Edward Burmila at the Washington Post.

President Trump may have difficulty acting unilaterally on gun controlexplains Jonathan H. Adler at the Volokh Conspiracy.

President Trump’s proposal for the Iran nuclear deal will create a troubling policy situationwrite Eric Edelman and Charles Wald at The Hill.

The State Department revealed that Vice-President Pence was scheduled to have a meeting with North Korean officials during the Winter Olympics before the North Koreans pulled out (NYT).

“Deep fakes,” videos that swap faces to produce highly realistic results, may present a major national security concernargue Robert Chesney and Danielle Citron at Lawfare.

The Trump Administration has concluded that U.S. troops can stay in Syria and Iraq indefinitely, without new legal authorization from Congress (NYTimes).

  • Read letters from the Pentagon and State Department here.

President Trump proposed using federal funds to pay teachers bonuses for carrying guns in schools (NYTimesSlateLATimes).

  • President Trump also said he supports comprehensive background checks and increasing the minimum age for purchasing bump stocks to 21 (Hill).

President Trump’s actions have been bad for civil-military relationswrites Philip Carter for Lawfare.


Donald Trump, Jr. plans to give a foreign policy address on Indo-Pacific relations during a visit to India to promote his family’s business interestsreports Annie Gowen in the Washington Post.

EPA Administrator Scott Pruitt cancelled a planned trip to Israel following increased scrutiny of his travel costs after it was reported he frequently travelled in first- or business-class seatsreport Juliet Eilperin and Ruth Eglash in the Washington Post.

Michael Cohen, President Trump’s lawyer, may have violated professional ethics rules by paying Trump accuser Stormy Daniels $130,000 for her silence on her alleged affair with the Presidentargues Michael Dorf at Dorn on Law.


Special Counsel Robert Mueller is investigating whether former Trump campaign manager Paul Manafort promised a banker a job in the White House in exchange for loansreport Tom Winter, Hallie Jackson, and Kenzi Abou-Sabe for NBC News.

The Inspector General of the National Labor Relations Board has concluded that Trump-appointed NLRB member William Emanuel should have recused from a decision due to a conflict of interest based on Emanuel’s former employer (On Labor).

After leaving the White House, President Trump’s former bodyguard Keith Schiller was given a “security consulting” contract by the Republican National Committee (CNBCWaPo).

Benjamin Wittes, editor of Lawfare blog, sued the State Department under the Freedom of Information Act over its failure to produce records related to its promotion of Mar-a-Lago (The Hill).

Former advisors of Vice President Mike Pence during his stint as governor of Indiana have received millions to lobby Vice President Pencereports Maya Gold at Citizens for Responsibility and Ethics in Washington.

A Florida businessman set to be the next Ambassador to Barbados pledged thousands of dollars to fund a gala at Mar-a-Lago just two weeks before President Trump nominated him (WaPo).

White House Counsel Don McGahn has consistently played fast and loose with the law, making him a terrible White House Counselargues Cristian Farias at New York Magazine.


Following criticism over his travel expenses, EPA Administrator Scott Pruitt cancelled his scheduled trip to Israel (NYT).

Secretary of State Rex Tillerson denied that vacancies in the State Department evidence a dismantling of the agency (The Hill).

Some Republican senators are pressuring the Office of Management and Budget to get involved in reviewing tax regulations, breaking long-standing precedent whereby such reviews are handled internally by the Treasury Department and IRSwrites Richard Rubin in the Wall Street Journal.

President Trump’s attempt to try to unilaterally rescind President Obama’s Clean Power Plan is an abuse of the unclear mandates in the Clean Air Actwrite Ross Sandler and David Schoenbrod in The Regulatory Review.

AT&T is arguing in court that “President Trump's hatred of CNN played a role in the DOJ's attempt to block AT&T's purchase of Time Warner Inc.,”writes Jon Brodkin in Ars Technica.

The recent bipartisan spending deal included a provision establishing a congressional select committee to craft a federal rescue of hundreds of “multiemployer pension plans” currently hurtling towards insolvency (NYT).

Environmental Protection Agency (EPA) Administrator Scott Pruitt has a long history of advocating for environmental deregulation, and his tenure as Administrator has been marked by calculated efforts to undermine the agencydetails Rebecca Leber at Mother Jones.

  • Laura Peterson discusses the significant drop in EPA enforcement of environmental regulations at Project on Government Oversight.

While state and local action on climate change in response to the Trump Administration is admirable, it is unlikely to yield results without significant federal actionargue Cary Coglianese and Shana Starobin on The Regulatory Review.

As a condition of a recent civil rights lawsuit, the Department of Housing and Urban Development (HUD) will implement the delayed Small Area Fair Market Rent rule, which will provide more housing opportunities for low-income residents of metropolitan areas(The Hill).

On the heels of Russian indictments, the DOJ announced plans for a cybersecurity task force primarily focused on election interference (The Hill).

  • Homeland Security Secretary Kirstjen Nielson issued a statement promoting the department’s engagement with state and local officials on election cybersecurity (The Hill).
  • But state election officials have voiced concerns that the administration is providing insufficient information to prepare (NYT).

Alaska state legislators are seeking to introduce Medicaid work requirements after the Trump administration agreed to allow states to seek those requirements (The Hill).

The Department of the Treasury released a report calling for limits on the “ordinary liquidation authority” for banks authorized under the Dodd-Frank Act (The Hill).

Democratic members of Congress sent a letter to interim Consumer Financial Protection Bureau director Mick Mulvaney expressing concern about plans to reorganize the CFPB’s Office of Fair Lending (CFPB Monitor).

The Trump administration’s offshore oil drilling proposal is likely legalsuggests Jay Austin at ACS Blog.

President Trump met with labor union leaders to discuss trade policy (WSJ).

Other red states may follow Idaho’s decision to allow insurers to sell healthcare plans out of compliance with the ACA, and the courts are unlikely to intervenewrites Nick Bagley at Take Care.

The Trump Administration took its first major step toward tightening the work requirements for food stamp eligibility (WaPo). 

The FCC claims to preempt states from regulating net neutrality, but it may have undermined that argument in the repeal of its own net neutrality rules (ArsTechnica).


Supporters of President Trump are increasingly calling for him to exercise his pardon power to protect targets of Special Counsel Mueller’s investigationreports Darren Samuelsohn in Politico

The handling of the Rob Porter security clearance scandal exemplifies the Trump Administration’s demagogic governing stylewrites Bob Bauer in Lawfare.

Jared Kushner is at risk of losing his access to classified information due to his inability to acquire a security clearance, prompting conflict with Chief of Staff John KellyreportJulie Hirschfeld Davis and Maggie Haberman in the New York Times.

Trump attorney Michael Cohen likely violated Rule 1.8(e) of the Model Rules of Professional Responsibility by paying Stormy Daniels to remain silent about an affair with President Trump, and the rule is warrantedargues Diane Klein at Dorf on Law.

Veterans Affairs Secretary David Shulkin claimed he had the White House’s permission to investigate “subversion” at the agency after several news stories about misuse of public funds by Secretary Shulkin (Politico).


For the second year in a row, rumors are swirling in Washington that Justice Anthony Kennedy is considering retirementwrites Adam Liptak in the New York Times.

Handling of judicial nominations continues to cause division in the Senate Judiciary Committee as Senator Chuck Grassley again advanced nominees without “blue-slip” approval from their home-state Senators (The Hill).


President Trump’s proposed military parade would violate longstanding norms surrounding civilian-military relationscontends Dakota S. Rudesill at Lawfare.


In the absence of Congressional action, states should take steps to protect their elections from foreign meddlingwrite Ian Vandewalker and Larry Norden in the San Francisco Chronicle.

In the wake of the Trump Administration’s withdrawal from the Paris climate agreement, subnational units can take important steps to combat climate changewrite Craig Segall and David Hults in The Regulatory Review.

President Trump touted the possibility of pulling Immigration and Customs Enforcement agents out of California in response to the state’s handling of gang violence (LA Times).


Following Friday’s indictment by Special Counsel Robert Mueller of 13 Russians associated with a “troll factory” allegedly used to interfere with the U.S. election, a former employee of the “troll factory” compared the experience to George Orwell’s 1984.(WaPo).            

  • Excerpts from the interview with the employee here.                                    

In a series of Sunday morning tweets, President Trump blamed President Obama and Democrats for doing too little to prevent or stop Russian interference in U.S. elections(NYTWaPoWSJ).

  • President Trump also claimed he never denied Russia may have interfered with the election (The Hill).
  • President Trump’s refusal to condemn Russia for election interference may leave the United States vulnerable (NYTWaPo).
  • Senator Bernie Sanders referred to President Trump’s actions as a “horror show” (The Hill).

Former Trump campaign advisor Richard Gates will testify against Paul Manafort, as part of a plea deal with Special Counsel Robert Mueller (LA TimesThe Hill).

Senator Bob Casey warned Robert Mueller against releasing a report of his investigation near the 2018 midterm elections (The Hill).                       

Attorney General Jeff Sessions defended his recusal from participating in the Mueller investigation (The Hill).

Because legislation protecting Special Counsel Robert Mueller from being fired would likely be unconstitutional, the Justice Department should issue regulations ensuring the special counsel’s independence, in the model of Robert Bork during Watergate, argueNeal K. Katyal and Kenneth W. Starr in the New York Times.

Special Counsel Robert Mueller’s investigation of Jared Kushner “has expanded beyond his contacts with Russia and now includes his efforts to secure financing for his company from foreign investors during the presidential transition” (CNN).

The Special Counsel’s indictment of Russian nationals for activities interfering in the 2016 presidential election carry foreign policy costs for the United Statesargues Jack Goldschmidt in Lawfare.

Recent indictments of Russians who allegedly interfered in the 2016 presidential election indicate Special Counsel Mueller may have sufficient evidence to charge Trump campaign officials with criminal conspiracynotes Jed Shugerman on Shugerblog.

A lawyer involved with Rick Gates and Paul Manafort pled guilty to making false statements to Special Counsel Robert Mueller in the course of the investigation into Russian election meddling (NYTPoliticoBuzzfeed News).

The Special Counsel has filed new charges against former Trump campaign manager Paul Manafort and his associate Rick Gates, but the charges were filed under seal(Reuters).

Trump associates may need to decline offered pardons, as such pardons may serve as admissions of guilt by state prosecutorsargues Ryan Goodman at Just Security.

Former Trump campaign advisor Sam Nunberg will be interviewed by the Special Counsel (Politico).

In a tweet, President Trump again pressured Attorney General Jeff Sessions to end the Russia investigation and open investigations into purported crimes by the Obama administration (PoliticoWSJ).

Special Counsel Robert Mueller filed a new indictment against Paul Manafort for allegedly using income from their work for a Ukrainian political party to boost their personal finances ahead of joining the Trump campaign (WaPo).

  • The indictment also launches similar charges against campaign deputy Rick Gates (NYT). 

Mueller hasn’t alleged that Russian nationals or companies swayed the election outcome, and he probably never willargues Charlie Dunlap at Lawfare.

A Putin ally said to control the Russian mercenaries that attacked U.S. troops in Syria this month had close communication with Kremlin and Syrian officials leading up to the attack, says U.S. intelligence (WaPo).

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

President Trump attempted to fire Special Counsel Mueller in June 2017 over his obstruction of justice probe, but refrained after White House Counsel Don McGahn threatened to quit.