Lark Turner  //  1/24/18  //  Topic Update

IMMIGRATION

It’s been a year since President Trump first issued the executive order restricting travel by citizens of several largely Muslim countries; Voice of America collected stories about the year of the ban (Voice of America).

• The travel ban litigation gives the Supreme Court a historic choice regarding the scope of presidential power, writes Garrett Epps at The Atlantic.

• The U.S. will begin admitting refugees from the 11 countries identified in October’s immigration ban, subject to additional screening (LA Times, WaPo). 

Attorney General Jeff Sessions called for restrictions to legal and illegal immigration and an end to sanctuary cities (WaPo).

Immigrations and Customs Enforcement has access to a nationwide license plate database, permitting real-time location tracking (The Verge). 

• Despite ICE’s privacy policy, even citizens should be concerned about this capability, writes Matthew Feeney at Cato. 

• Federal Immigration Officials and state police circumvented state law as part of a crackdown on undocumented individuals, writes Gilles Bissonnette for the ACLU of New Hampshire.

Despite President Trump’s strong rhetoric regarding immigration from Mexico, the status quo remains relatively unchanged, writes Ioan Grillo at The New York Times. 

• President Trump’s immigration policies did not diminish the number of border crossings last year(CATO).

Attorney General Jeff Sessions to increase enforcement of harboring provisions, targeting individuals who assist undocumented migrants (Crimmigration). 

President Trump’s newly proposed immigration framework would result in the exclusion of 22 million legal immigrants over 50 years, according to calculations by the Cato Institute.  

• President Trump’s immigration proposal deserves a hard look by Democrats, argues Michael W. Doyle at The Washington Post.
• Democrats may not be willing to engage with President Trump over his reform proposal, suggests Jason L. Riley at The Wall Street Journal.
• Even with President Trump’s offer to provide a path to legalization, many Dreamers would not qualify (The Conversation).
• President Trump called for a “fair compromise” on immigration during State of the Union(WSJ, NPR, Hill).
• President Trump complained to Republican lawmakers at their annual retreat that Democrats are unwilling to progress on immigration or other issues that would benefit the country (NYT).
• The plan would fundamentally alter the U.S. immigration system, writes Donald Kerwin for The Hill.
• President Trump “poisoned” the debate on immigration, writes the Editorial Board of The Washington Post.

Undocumented minor immigrants are not entitled to government-provided lawyers in deportation proceedings, according to a 9th Circuit Court of Appeals ruling on Monday (LA Times). 

A federal judge criticized the Trump administration’s detention practices when she ordered immigration rights activist Ravi Ragbir to be released (WaPo).

There has been a recent increase in the number of arrests and detentions of immigration rights activists, points out Katie Egan at the ACLU.

President Trump deliberately turned the status of DACA recipients into a crisis in an effort to place Democrats in a bind, writes Thomas B. Edsall for the New York Times.

• If the decision to end DACA is not reversed, Social Security will take a hit (The Hill).
• Over 9,000 teachers who are currently protected by DACA are struggling to explain to their students the uncertainty of their future (NYT).

Almost 7,000 Syrian refugees will be allowed to stay in the U.S. for another 18 months (NYT).

The Trump Administration will prioritize recent asylum applications (WSJ). 

Acting ICE Director Thomas Homan warned against giving Democrats an extension of the DACA program without putting additional border security measures in place (Washington Examiner).

CIVIL RIGHTS

The Trump Administration refused to sign a statement in support of an Inter-American Court of Human Rights ruling on marriage equality and transgender rights (Human Rights Campaign).

The Lawyers’ Committee for Civil Rights Under Law sued the Departments of Justice and Homeland Security for blocking information related to the now-defunct Presidential Advisory Commission on Election Integrity (Lawyers’ Committee).

 A bill banning abortion after 20 weeks failed in the Senate, after receiving House approval in October (WaPo, NYT). 

President Trump signed an Executive Order to keep the Guantanamo Bay prison open (Politico)

• Read the EO here.
• Trump has chosen to embrace the lawlessness of Guantanamo, writes Noa Yachot for the American Civil Liberties Union.

DEMOCRACY

Gerrymandering is not the root of all political evil, writes Dan Balz at The Washington Post.

• Lawmakers in Maryland and Virginia should address partisan gerrymandering before the state judiciary does it for them, writes The Washington Post’s Editorial Board.

After the Pennsylvania Supreme Court struck down the state’s congressional districts as unconstitutionally gerrymandered, Pennsylvania Republicans brought their appeal to the Supreme Court, writes Amy Howe at SCOTUSblog.

• The Republicans appealed to Justice Alito, who has yet to respond, notes Rick Hasen at Election Law Blog.
• Redistricting court decisions are unlikely to have an impact on the outcome of the 2018 midterm elections, with the one big exception of Pennsylvania’s surprise state court ruling (Bloomberg Law).

1 in 5 black adults in Florida cannot vote, and Florida should scrap its racist felon disenfranchisement voting laws, writes The Washington Post’s Editorial Board.

Low voter turnout hurts both parties by empowering extreme candidates. We should adopt universal vote by mail, write Gilad Edelman and Paul Glastris at The Washington Post.

President Trump’s alleged payment to former adult-film star Stormy Daniels may violate the Federal Election Campaign Act (Harvard Law Review Blog). 

A bill instituting retaliatory measures in response to cyber-meddling in elections is gaining traction in the Senate (The Hill).  

To prepare for President Trump’s first State of the Union address, here’s a list a lessons drawn from a year of fact-checking his statements (NYT).

CONFLICTS OF INTEREST 

For the first time, names of campaign donors will appear in the background during the livestream of President Trump’s State of the Union address (WaPo).

The FEC proposes new rules for political ads on social media for 2018 election cycle (Bloomberg).

In 2017, D.C. lobbying activity reached its highest level since 2010 (USA Today).  

The director of the Centers for Disease Control and Prevention, Dr. Brenda Fitzgerald, resigned after reports emerged that she traded tobacco stocks amid an anti-smoking campaign (Politico, NYTimes).

Housing and Urban Development lawyers warned Secretary Ben Carson that having his son help organize a “listening tour” last June could violate federal ethics rules (WaPo).

The Republican Attorneys General Association spent more than $75,000 at two different properties owned by President Trump in the second half of 2017, according to the group’s most recent filing with the IRS (Citizens for Responsibility and Ethics in Washington).

JUSTICE & SAFETY

The homicide rate is falling in New York, Los Angeles, and other major hubs of the drug trade, but the Trump administration sees “carnage,” writes Nick Miroff at The Washington Post.

A bipartisan group of 54 lawmakers urged the Trump administration to reinstate an Obama-era policy giving states leeway to allow for recreational marijuana (The Hill).

A lawyer to Koch Industries left a meeting with Attorney General Jeff Sessions saying that Sessions is “totally on board” with administration plans to reform America’s prison system (The Hill).

Florida police officers are claiming the protection of the state’s Stand Your Ground law (NYT).

The military is reviewing security guidelines following reports that GPS-based fitness trackers may reveal confidential data regarding bases and other sites (WaPo, NYT). 

Attorney General Jeff Sessions is directing federal agents to focus on illicit online opioid sales (WaPo). 

The Department of Defense has sealed once-public information on the war in Afghanistan (WSJ).

• A federal watchdog group criticizes the DOD for classifying the data.

Treasury Secretary Steven Mnuchin announced new sanctions against certain Russian oligarchs and government officials (WSJ).

• Lawfare sorts through the new sanctions’ implications.
• The New York Times explains the reaction of the new sanctions in Russia.

The DOJ Inspector General is investigating an apparent delay by Andrew McCabe—who recently resigned as deputy director of the FBI—in investigating Hillary Clinton’s emails (WaPo).

President Trump’s top pick for U.S. Attorney in Manhattan is under scrutiny after it was revealed that Trump personally interviewed him (The Hill).

The Trump administration seems poised to expand the use of nuclear weapons—a move that could have devastating consequences, explain Richard A. Clarke and Steven Andreasen at The Washington Post.

President Trump abandons choice for ambassador to South Korea over personal disagreement on North Korea relations (WaPo).

The Federal Bureau of Investigation is imploring the White House not to release the memo alleging FISA surveillance abuses (WSJ, WaPo, CNN).

• The legal claim behind the memo is dubious, writes Orin Kerr for Lawfare.
• FBI Director Wray could face a showdown with the White House over the memo (WaPo).

Trump addressed national security concerns during the State of the Union (Lawfare).

• Defense Secretary James Mattis told House and Senate GOP lawmakers the Trump administration will request $716 billion for defense spending for the new fiscal year (The Hill).

The third-highest-ranking official in the State Department announced his retirement Thursday, departing as the agency faces deep budget cuts and has been sidelined by the White House on some of the most significant foreign policy endeavors (WaPo, AP).

The Trump Administration claimed that Bashar al-Assad’s government has adapted its chemical weapons program since a 2013 disarmament deal and appears to be continuing to produce and employ banned chemical munitions (PBS, WaPo).

House Science, Space and Technology Committee Chairman Lamar Smith is threatening to force the Department of Homeland Security to turn over documents on Kaspersky Lab, a producer of anti-virus software which may have ties to Russian intelligence (The Hill).

RULE OF LAW 

FBI Deputy Director Andrew McCabe resigned, allegedly under pressure from President Trump and Attorney General Sessions (CBS News, NYTimes, Politico, WaPo, WSJ).  

• President Trump reportedly berated McCabe after President Trump fired FBI Director James Comey. Trump allegedly told McCabe that his wife was a “loser” (NBC News).  
• White House Press Secretary Sarah Sanders claimed that President Trump had no role in McCabe’s departure (Politico).  

The Department of Justice dropped its corruption case against New Jersey Senator Bob Menendez (Politico).           

REGULATION

President Trump used his platform at Davos to try and reassure the world’s political and financial leaders that “America First” did not imply a rejection of international cooperation (NYT).

• But Davos showed that geopolitical momentum lies in Beijing, not Washington, writes Keith Bradsher for The New York Times.

A rise in oil prices and a shale drilling spree in the United States has led to a resurgence in American oil production, enabling the U.S. to challenge Saudi dominance (NYT).

The Department of Interior is acting with contempt for government integrity and good governance, writes Holly Doremus at LegalPlanet.

Hedge funds are spending money behind the scenes to create the appearance of authentic support for their interests (Bloomberg Businessweek).

The Trump administration is considering a proposal to nationalize the 5G mobile network to protect against cybersecurity threats from China (Ars Technica, Axios, NYTimes). 

• The commissioners of the Federal Communications Commission expressed opposition to the proposal (CNN, WSJ). 
• While Chinese cybersecurity threats are significant, nationalization of the 5G mobile network is not a viable solution, suggests Paul Rosenzweig at Lawfare.  

Conservative groups urged the Trump administration to issue an executive order indexing capital gains taxes to inflation (The Hill).  

The Freedom of Information Act is an essential tool for limiting the effects of the Trump administration’s deregulatory efforts, argues Michael R. Lemov in The Hill.  

The Trump administration’s deregulatory initiatives have been less significant than the administration has suggested, writes Cary Coglianese in The Regulatory Review. 

• The difficulty of changing a formal agency rule could indefinitely stall the Trump administration’s deregulation goals,  argues Richard J. Pierce, Jr. at The Regulatory Review.
• The Environmental Protection Agency delayed the Obama administration’s Clean Water Rule another two years while seeking to repeal it (The Hill).
• New York Attorney General Eric Schneiderman announced a multi-state lawsuit against the Trump Administration for delaying the major water pollution rule (The Hill).

Whether Medicaid work requirements are legal is a matter of interpretation, argues Nick Bagley at The JAMA Network.

Self-aggrandizing tweets and posts by federal agencies could be illegal (Notice & Comment).

New HHS Secretary Alex Azar will face obstacles in fulfilling promise of lower drug prices, explains Rachel Sachs at Bill of Health.

In an attempt to avoid federal preemption, California Senate defies FCC and votes to impose net neutrality restrictions (Ars Technica).

The Trump Administration’s support of school choice legislation has far-reaching consequences, writes Heather L. Weaver at the ACLU.

The DOJ and SEC are investigating whether Apple violated security laws when its latest update purportedly caused phones to slow down (Ars Technica).

President Trump’s rejection of the TPP a year ago has proved to be a loss for the U.S., explains Robert J. Samuelson at The Washington Post.

The D.C. Circuit Court of Appeals upheld the constitutionality of the Consumer Financial Protection Bureau (Politico, LATimes).

South Carolina Representative Trey Gowdy, who chaired the panel investigating Benghazi, announced he would not run for re-election (LATimes).

Sen. Orrin Hatch pressed National Credit Union Administration Chairman Mark McWatters on his efforts to loosen restrictions on credit union activities (The Hill).

House Democrats are calling on the Department of Labor to withdraw its proposed tip-pooling rule after evidence emerged that agency officials hid an unfavorable economic analysis of the rule (The Hill).

The Federal Communications Commission voted to create an Office of Economics and Analytics which will engage in cost-benefit analyses that will benefit the agency, writesCass R. Sunstein for Bloomberg.

CHECKS & BALANCES

Although there are no vacancies on the Supreme Court, a conservative group with ties to the Koch brothers is already mobilizing for the next seat (McClatchy).

White House Counsel Don McGahn has moved quickly to place conservatives at all levels of the judiciary, writes Ariane de Vogue for CNN.

Independence and accountability are essential to the DOJ’s relationship with the president and it must remain that way, argues Jack Goldsmith at Lawfare.

FEDERALISM

In deciding whether to allow states to impose sales tax obligations on retailers who lack a physical presence in the state, the Supreme Court shouldn’t worry about retroactivity, writes Daniel Hemel on Medium.

The California State Senate approved a bill to impose net neutrality restrictions on Internet service providers, but the Electronic Frontier Foundation has warned that the proposed law may be overturned by courts on preemption grounds (ArsTechnica).

REMOVAL FROM OFFICE

Special Counsel Robert Mueller has reportedly zeroed in on a statement penned by President Trump and his advisors aboard Air Force One last July that sought to explain a meeting between Russians and top campaign officials during the previous summer (NYT).

• This revelation potentially has significant implications for the scope of the Mueller investigation, write Alex Whiting and Ryan Goodman for Just Security.

RUSSIAN INTERFERENCE 

Responding to reports that President Trump considered firing Special Counsel Robert Mueller over the summer, several Republican lawmakers urged the President against firing Mueller (WSJ).

• Not all Republicans were on board: House Majority Leader Kevin McCarthy said there was no need to pass a measure to protect Mueller and defended the Trump administration’s handling of Mueller’s probe (WaPo).
• Ryan Goodman offered three insights into the attempted firing and obstruction of justice.

President Trump’s lawyers have been looking to a 1990s court ruling that could delay any discussions he might have with Special Counsel Robert Mueller (WSJ).

• The 1990s ruling from the story is In Re: Sealed Case, a 1997 D.C. Circuit case available here.
• Special Counsel Mueller’s questions for President Trump may ultimately involve President Trump’s understanding of the rule of law, writes Amy Davidson Sorkin in The New Yorker.   
• Trump supporters’ claims that a Special Counsel interview of President Trump would be a “perjury trap” are misplaced and politically motivated, argues Alex Whiting at Just Security.   

White House Counsel Don McGahn seems to be the subject of recent revisionism; it’s unclear if this is an attempt to set the record straight or to lay the groundwork to leave the administration, writes Jack Goldsmith at Lawfare.

• Bob Bauer, Former White House Counsel to President Obama, offered his thoughts on McGahn at Lawfare.

Election interference is likely to worsen in 2018, writes Miles Parks at NPR.

President Trump and House Republicans released a controversial secret memo on the Russia investigation (NYTimes).  

• Rep. Nunes’ memo lacks credibility, and there is no conflict of interest for Mueller’s investigative team, write Noah Bookbinder, Norman Eisen, Caroline Fredrickson, and Kristin Amerling in a newly published report. Read the report here.  
• The release of Rep. Nunes’ memo is actually aimed at inhibiting Robert Mueller’s investigation into President Trump, argues Charlie Savage for the New York Times.
• DOJ had warned that releasing the memo without review would be “extraordinarily reckless” (WaPo).
• FBI Director Christopher Wray stated publicly he had “grave concerns” about House Republicans’ plan to release Rep. Nunes’ memo criticizing the bureau’s surveillance of a former Trump campaign adviser (NYTimes, WaPo, Politico, LATimes, WSJ).
• Releasing classified information through Rep. Nunes’ memo without vetting it first sets a dangerous precedent and increases the chances of a constitutional crisis, writes Rep. Adam Schiff (D-Calif.) for The Washington Post.
• Top White House aides worried that FBI Director Christopher Wray would quit upon release of the memo (CNN).
• The content of the memo is less important than the abnormal process used to release it, writes Joshua Geltzer at Just Security. 
• Firing Rod Rosenstein may be the initial step to firing Special Counsel Robert Mueller, notes Aaron Blake in The Washington Post.  
• Rosenstein’s departure would be the result of a “big lie,” argues Benjamin Wittes in Lawfare.  
• The “release the memo” campaign is a political attempt to discredit the FBI, suggests Julian Sanchez at Just Security. 
• It is time for members of the intelligence community to publicly state their position on the propriety of releasing the memo, writes Gen. Michael Hayden for Lawfare.
• Former Homeland Security Secretary Jeh Johnson warned against releasing the classified memo (The Hill).

Sen. Mark Warner (D-VA), the senior Democrat on the Senate Intelligence Committee, claimed that “new information...raises more questions” about Russian interference in the 2016 election (Politico).  

House Democrats pushed House Oversight Committee Chairman Trey Gowdy (R-SC) to subpoena records related to 2016 election hacking after the Department of Homeland Security allegedly withheld them (The Hill).  

The New York State Department of Financial Services may be able to investigate whether the Trump organization participated in Russian money laundering, notes Daniel S. Alter at ACS Blog. 

White House allows deadline for imposing sanctions on Russia for meddling in the 2016 election to pass (WaPo).

• Yet CIA Director Mike Pompeo still thinks that Russians are likely to interfere again.
• The Washington Post explains that Congress likely can’t force the President to impose the sanctions. 

President Trump asked Deputy Attorney General Rod Rosenstein if he was “on his team” during a December meeting (CNN).

The Trump Administration did not violate federal law when it failed to issue new sanctions on Russia, writes Robert Chesney for Lawfare. 

Senators Marco Rubio (R-FL) and Bob Menendez (D-NJ) asked Secretary of State Rex Tillerson to bring up the issue of potential Russian Interference in elections throughout the world during his travel to Mexico and Latin America (CBS News).

Two top Russian spy chiefs met with CIA Director Mike Pompeo, raising concerns among some U.S. officials (WaPo).