Alexandra Widas  //  6/11/17  //  Topic Update


The Trump administration sought Supreme Court review of a nationwide injunction against its revised travel ban, which temporarily suspends entry to the United States from six majority-Muslim countries (NYTWaPoWSJ).

  • You can find the government’s certiorari petition here.
  • An updated guide to Take Care analysis of the travel ban is available here.
  • On Take Care, Leah Litman analyzes the stay requests accompanying the government’s petition for certiorari.
  • At Lawfare, Amira Mikhail and and Jordan Brunner summarize the government’s petition.
  • On SCOTUSblog, Edith Roberts provides a round up of commentary on the petition.
  • Adam Liptak explains the key issues, background, and likely course of Supreme Court action in the matter (NYT).
  • Amrit Cheng of the ACLU likewise analyzes the Supreme Court’s options in responding to the petition.
  • On Take Care, Marty Lederman argues that certiorari could be denied for the simple reason that the entry ban expires less than two weeks from now, making the appeal potentially moot.
  • Marty elaborates on his argument in response to two alternative theories offered by Will Baude.
  • Ilya Somin encourages the Supreme Court to strike down the travel ban, even though president could hypothetically have established such a ban for non-discriminatory reasons (WaPo). 

Analysis of the Fourth Circuit’s ruling in the travel ban litigation continued.

  • At Lawfare, Quinta Jurecic argues that the Fourth Circuit’s ruling is motivated in part by judicial doubt as to the sincerity of President Trump’s oath (Lawfare).
  • Josh Blackman finished his five-part analysis of the Fourth Circuit opinion at Lawfare. In Part IV, Blackman analyzes Judge Niemeyer’s dissent in the Fourth Circuit’s travel ban ruling. In Part V, he looks at dissents by Judges Shedd and Agee and at the government’s certiorari petition to the Supreme Court.

Even lawful permanent residents, whose immigration status is not covered by the travel ban, are declining to travel abroad, fearful that the unpredictable administration may prevent them from returning to the United States (LA Times).

In a series of early-morning tweets, President Trump said it was a mistake to revise his original entry ban, that it should be called a “travel ban,” and that the administration should return to a “much tougher version” rather than its current “watered down, politically correct version” (NYTPoliticoWaPoABA JournalNew Yorker).

  • President Trump’s tweets undermine a number of arguments critical to the administration’s legal defense of the ban,  explains Leah Litman at Take Care.
  • The President’s statements provide more evidence of anti-Muslim animus, argues Corey Brettschneider (Take Care).
  • Many commentators suggest President Trump’s statements will harm the government’s pending appeal before the Supreme Court (WaPoThe HillThe Atlantic).
  • George Conway, who recently withdrew from contention to run the Civil Division at DOJ, agrees (WaPo).
  • Laurence Tribe (CNN), Dahlia Lithwick (Slate), and Noah Feldman (Bloomberg) concur.
  • The real significance of President Trump’s morning tweets is their reaffirmation that the executive order is a Muslim Ban, argues Michael Dorf at Dorf on Law.
  • At Volokh Conspiracy, Eugene Kontorovich takes the opposite view.
  • The Washington Post points out the contradictions between each of the tweets and the government’s arguments before the Supreme Court.
  • At Lawfare, Josh Blackman surveys the various implications of the President’s statements.
  • At Just Security, Daphne Eviatar points out that President Trump’s tweet claiming “[i]n any event we are EXTREME VETTING . . .” undermines the stated purpose for the revised entry ban.
  • Trump’s statements directly contradict the White House’s repeated insistence that the ban was not a “travel ban” (WaPo).
  • At Balkanization, Gerard N. Magliocca poses the question of what to do when the President’s statements contradict arguments made in a brief to the court.
  • Also at Balkanization, Joseph Fishkin suggests the President’s tweets might indicate a desire to lose the case before the Supreme Court.
  • In response, Michael Dorf (Dorf on Law) argues President Trump does not have “the capacity to strategize his way into winning by losing in litigation.”

Aside from the President’s tweets, discussion continues about the pending entry ban case before the Supreme Court.

  • At The Volokh Conspiracy, Sam Bray suggests national injunctions, such as those issued in the entry ban cases, present serious constitutional and policy problems.
  • At Empirical SCOTUS, Adam Feldman argues the Supreme Court will seek to make the narrowest ruling possible.
  • At Cato at Liberty, David Bier argues that even the ban’s facial justification is faulty. 
  • Take Care provides a comprehensive roundup of all its analyses of the revised entry ban.
  • If the Supreme Court dismisses the entry ban case based on mootness, it might also vacate the lower appeals court decision, explains Dan Epps (Take CarePrawfsBlawg).
  • The government is opposing an attempt to force disclosure of a Trump campaign document that “may have served as the basis” for the original and revised entry bans (Politico).
  • President Trump’s Monday-morning tweetstorm could pose ethical quandaries for DOJ lawyers defending the entry ban in court (Reuters).
  • Press Secretary Sean Spicer affirmed that President Trump’s tweets are “official statements” of the President (WaPo).
  • At Vox, Dara Lind adds to the voices arguing that Trump’s Monday-morning tweets undermine the government’s arguments before the Court.
  • At Slate, Dahlia Lithwick and Mark Joseph Stern ask whether President Trump is trying to lose the case.

The timing of the revised entry ban belies the Trump Administration’s arguments regarding its urgencywrites Amir Ali at Take Care.

  • At NYT, Neeti Upadhye reports how President Trump’s tweets may undermine the Administration’s arguments in the pending Supreme Court case.

Led by Texas, 16 states have filed an amicus brief in support of President Trump’s entry ban in the Supreme Court (Law360Immigration Prof Blog).

  • At Take Care, Leah Litman and Ian Samuel outline a basic errors in the brief.

President Trump’s immigration policies will have disastrous effects for female asylum seekerswrites Deborah Ibonwa (Immigration Prof Blog).


Updates | The Week of January 22, 2018

1/28/18  //  Daily Update

Michael Dorf argued that litigation against the travel ban should be considered a success, regardless of the final result at the Supreme Court. A report shows that Customs and Border Protection repeatedly violated court orders issued during the first week of the travel ban litigation.

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

A federal court grants an injunction requiring the Trump Administration to resume accepting Deferred Action for Childhood Arrivals renewal applications.

Take Care

Update | The Week of November 27, 2017

12/4/17  //  Daily Update

President Trump's recent tweets may not help the government's defense of the latest iteration of the Travel Ban.

Jeffrey Stein

Columbia Law School