Helen Klein Murillo  //  3/26/17  //  Topic Update

This week saw extensive analysis of President Trump’s revised entry ban and the Ninth Circuit’s denial of en banc review in Washington v. Trump (here).

• Amir Ali argues that President Trump’s anti-Muslim campaign statements must be considered in analysis of the revised entry ban.
• Richard Primus argues that motives matter in constitutional law, and criticizes arguments by Judge Kozinski and Jeffrey Toobin (New Yorker).
• Jonathan Taylor walks through Judge Kozinski’s opinion defending the revised entry ban and explains why it is incorrect.
• Leah Litman and Amir Ali review Judge Gorsuch’s record in the Bush Administration and conclude he likely would uphold the entry ban.  
• Michael Dorf explains why the Establishment Clause has emerged as the main stumbling block for the revised entry ban.
• Also writing for Take Care, Amir Ali observes that President Trump likely will appeal very quickly, even though waiting to appeal would be the wiser course.
• At ACS Blog, Heidi Kitrosser considers the propriety of holding President Trump accountable for his campaign statements.
• Rick Hasen (Slate) argues that Judge Kozinski may have dissented with the goal of persuading Justice Kennedy to uphold the entry ban.
• And Lyle Denniston reports that Judge Chuang in Maryland is now considering a broader order against the revised entry ban.
• Angel Cabrera offers criticism in the Washington Post.
• The U.S. skipped hearings at the Inter-American Commission on Human Rights because they involved topics related to the revised entry ban (Just Security).
• Deloram Farzaneh explores the effect of the entry bans on Iranian perceptions of the United States at Just Security.
• At The Atlantic, Garrett Epps investigates whether judges should consider a president’s statements when analyzing the meaning of an executive order.  Bob Bauer also addresses this question on his blog.
• Ciara Torres-Spelliscy (Brennan Center) argues that Judge Gorsuch might vote against the entry ban on grounds of religious freedom.
• At Just Security, Daphne Eviatar argues that the revised entry ban “is doomed.”
• Lyle Denniston reports that the government has appealed one district court order (Maryland) and offers thoughts on why it has not yet appealed another (Hawaii).
• Jeffrey Toobin (New Yorker) argues that federal courts have erred in considering President Trump’s campaign statements in their constitutional analysis; at Concurring Opinions, Gerard Magliocca advances a similar argument.
• At Volokh Conspiracy, Will Baude notes that the question whether courts should treat government institutions as “black boxes,” or should probe more deeply, is familiar.

A federal judge in Hawaii denied a request to narrow the scope of his order against the revised entry ban.

• Lyle Denniston outlines arguments presented over the weekend and describes Judge Watson’s short order.

The Trump Administration asked the Fourth Circuit Court of Appeals to expedite its review of a ruling against its revised entry ban, reports Josh Gerstein (Politico).

• Here is the government’s motion.
• At Buzzfeed News, Chris Geidner analyzes why the Administration requested expedited review but asked the court not to rule for at least two weeks.
• Waiting to appeal lower court rulings is harmful to the Trump Administration’s arguments for the revised entry ban (San Francisco Chronicle).

The Fourth Circuit Court of Appeals ordered an expedited briefing schedule on the revised travel ban and set argument for May 8 (WSJ, Politico).

• Lyle Denniston details the administration’s scheduling requests.

U.S. District Judge Derrick Watson of Hawaii has been subject to threats in the wake of his ruling against the administration’s revised travel ban (NYT).

The Supreme Court Case that upheld Japanese interment during WW-II shows why courts must consider evidence of anti-Muslim animus in the entry ban cases, argue Ian Samuel & Leah Litman on Take Care.

A terrorist-statistic provision of the revised entry ban is meant to target Muslims, according to Faiza Patel of the Brennan Center (The Daily Beast).

• Data collection and reporting requirements are part of a Trump Administration strategy to paint immigrants in a negative light (Migration Policy Institute).
• The Sunlight Foundation warns against using “weaponized disclosure” to violate privacy norms, intimidate the public, and sow racial division.
• Federal reports on threats posed by immigrants are “misleading at best” (Rewire).

Diplomatic cables sent by Secretary of State Rex Tillerson instructing American embassies to increase scrutiny of visa applicants signaled the Trump Administration’s first step toward so-called “extreme vetting” (NYT, Reuters).

• At the Brennan Center, Andrew Lindsay warns that “extreme vetting” could, if taken to its extreme, criminalize Islam.
• At The Intercept, Alex Emmons details activists’ concerns with the move.
• At The Nation, Alex Kane details the effects of the travel ban on Muslim travelers.

Canada’s largest school district indefinitely suspended travel to the United States due to concerns about students being denied entry (NYT).

A leaked draft executive order would use receipt of public benefits as a basis to deny citizenship or as a basis for removal, according to Michael Fix and Randy Capps (Migration Policy Institute).

President Trump has requested proposals to build a “physically imposing” border wall, as reported by Ron Nixon (NYT).

President Trump's promised "border wall" raises legal questions about federal acquisition of private land, as Tracy Jan explains in the Washington Post. 

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