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Lark Turner  //  11/19/17  //  Topic Update

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PODCAST

On this week’s episode of Versus Trump, Jason and Charlie discuss a new lawsuit that forces courts to answer the question of whether the federal government needs a warrant to search people's electronic devices at the U.S. border, and they also respond to a discussion on the Supreme Court podcast First Mondays regarding the government's recent filing in the Hargan v. Garza abortion case. Listen now!

 

IMMIGRATION

Chicago, Atlanta, and nine other cities announce that they will join the growing list of jurisdictions that provide legal defense for undocumented immigrants in deportation hearings (NPR). 

The Future of the Deferred Action for Childhood Arrivals program remains uncertain (The Hill).

U.S. Postal Service delays led to the rejection of DACA applications that were mailed weeks in advance of the October 5 deadline (NYTimes).

• The applicants may get a reprieve (NPR).

The Ninth Circuit ruled that a portion of the third travel ban may take effect, allowing the government to prohibit the entry of individuals from certain countries who lack a bona fide relationship with a person in the United States (WaPo, WSJ).

• Presidential “travel bans” are not new, but President Trump’s is different in its scope, application, and the government’s objectives, notes David Bier at Cato at Liberty.

President Trump’s most recent executive order increasing the vetting of refugees from 11 countries is being challenged in a Washington federal district court (Religion Clause).

• The complaint in Jewish Family Services of Seattle v. Trump is available here.

Congress must act quickly on the Dream Act despite President Trump’s assurance that DACA recipients have “nothing to worry about,” argues Lorella Praeli at the ACLU’s blog. 

The Immigration Defense Project reported a 900% increase in arrests and attempted arrests at courthouses by ICE this year (Immigration Prof Blog).

The Trump Administration should not hire more border patrol agents to monitor an already secure southern border, and Customs and Border Patrol suffers from significant disciplinary and corruption issues which must be addressed before the agency can grow, argues Alex Nowrasteh on Cato at Liberty.  

Police departments with disturbing civil rights records are applying to Immigration and Customs Enforcement to participate in a program deputizing local law enforcement to carry out immigration enforcement, writes Sarah Gillooly at the ACLU's blog. 

 

CIVIL RIGHTS 

House Republicans and White House advisor Ivanka Trump are pushing two different paid family leave plans (The Hill).

An FBI report shows a rise in reported hate crimes, a drop in disability-related hate crimes, and sharp increase in anti-Muslim incidents (Disability Scoop; Religion Clause). 

A federal court granted a motion to allow the state of Washington to join Lambda Legal’s lawsuit challenging the transgender military service ban (Lambda Legal).

A novel argument that the civil rights law at issue in Masterpiece Cakeshop is not generally applicable has troubling implications, argues Jim Oleske at Take Care.

An officer from the Federal Highway Safety Administration determined that a rainbow-colored crosswalk in Lexington, Kentucky, designed to honor the LGBT community, is a safety hazard and should be removed (LA Times).

Human Rights Campaign identified five federal judicial nominees who present significant threats to LGBT rights (HRC).

Army Chief of Staff Gen. Mark Malley commented on the Pentagon’s recent approval of a gender reassignment surgery for a soldier, noting that their duty is to defend the Constitution, regardless of identity (The Hill).

Hargan v. Garza shows how states are limiting abortion access with little to no regard for Hellerstadt’s undue burden analysis requirement, argues Leah Litman on Take Care.

 

DEMOCRACY

DC Superior Court limited information DOJ investigators will be able to see about third party users in its investigation of Facebook and criminal rioting on Inauguration Day (The Hill).

Federal campaign finance law appears increasingly obsolete in light of the 2016 election (Election Law Blog).  

 The Solicitor General’s filing in Hargan v. Garza suggests the Trump Administration views the DOJ as a political tool, writes Leah Litman at Take Care.

President Trump’s attacks on CNN as “fake news” could render unconstitutional the Justice Department’s attempt to block the AT&T and Time Warner Merger, writes Michael Dorf at Justia.

After months of inactivity, the president’s commission on voter fraud exchanged emails noting the lack of prosecutions for voter fraud and suggesting the commission request a report from DOJ (HuffPo).

The DOJ inspector general will release a report this spring containing findings regarding the FBI’s investigation into Hillary Clinton’s private email server (The Hill, Politico).

Threats of arrest for a Texas driver with anti-Trump decal likely run afoul of the First Amendment, writes Eugene Volokh on The Volokh Conspiracy.

 

JUSTICE & SAFETY

The Justice Department said it would vigorously prosecute protesters who damage pipelines (Reuters).

DOJ prosecutors are considering whether a special counsel should be appointed to investigate donations to the Clinton Foundation (NYT, WaPo, LA Times, Politico).

• Attorney General Jeff Sessions’s letter to Congress here.

The Trump Administration’s new drones policy may require countries that assist the U.S. in lethal operations outside areas of active hostilities to assess whether a particular situation is in line with international law (Just Security).

• A recent drone strike in Yemen raises questions about whether the United States follows its own drone strike rules and international law, write Farea Al-Muslimi and Sarah Knuckey at Just Security.

Tuesday’s Senate Foreign Relations Committee hearing is an important opportunity to revise U.S. launch policy and the authority of the executive, write Daryl Kimball and Kingston Reif at The Hill.

91 percent of President Trump’s federal judicial nominees are white and 81 percent are male, according to a recent Associated Press analysis.

Only 6 of 102 federal agencies met the Department of Homeland Security’s first deadline to uninstall compromised anti-virus software (The Hill). 

The Senate Homeland Security and Governmental Affairs Committee approved the nomination of Kirstjen Nielsen to lead the Department of Homeland Security (The Hill).

President Trump’s tour of Asia may not have have left allies feeling reassured about America’s role in the region (NYT).

The Trump Administration’s approach to detainees may provide insight into its counterterrorism strategies (Just Security).

The White House publicized its vulnerability equity process, the procedures it uses for determining which security flaws to use in surveillance and which to report to tech firms for them to fix (The Hill). 

• The Hill provides a review of the process from cybersecurity experts.

The conference committee’s report for the National Defense Authorization Act was approved by the House and is likely to be approved by the Senate, suggesting that it will be enacted into law as the 2018 NDAA (Lawfare).

The FBI has engaged in a dangerous crackdown on black identity extremists, argue Khaled A. Beydoun and Justin Hansford at The New York Times.

President Trump’s recent executive order rolling back restrictions and oversight on local law enforcement agencies gifted surplus military weapons and gear is an unreasonable attack on common-sense policies, argues John I. Dixon in The Hill.

Polls indicate that most Americans oppose the Trump Administration's “tough-on-crime” policies, and instead see a need for criminal justice reform, writes Udi Ofer at the ACLU.

 

CONFLICTS OF INTEREST

President Trump’s appointees may have many undisclosed conflicts of interest (NYTimes).

A recent golf tournament hosted at Trump International Golf Links and Hotel Doonberg in Ireland was funded in part by entities funded by the governments of Ireland and Northern Ireland (Citizens for Ethics).

Democratic lawmakers demanded an investigation into FCC Chairman Ajit Pai for potential partisanship in his dealings with Sinclair Broadcast Group, which has been favorable to the Trump Administration (ArsTechnica).

Brett T. Talley, Trump Administration nominee for federal court in Alabama, failed to disclose that his wife is an attorney in the White House (WaPo).

In the last year, Republicans and federal political committees have spent at least $1.27 million at Trump properties (WaPo).

Washington, D.C. and Maryland have standing to sue President Trump over Emoluments Clause violations, argue Seth Davis and Daniel Hemel at Take Care.

Kirstjen Nielsen, President Trump’s nominee to direct the Department of Homeland Security, has been advised in her confirmation process by a consultant who represents companies seeking DHS contracts, reports Nick Miroff in The Washington Post.

 

REGULATION

Significant differences remain between the House and Senate tax plans (LATimes) as the House passes its proposal 227-205 (NYTimes, Politico, WaPo, WSJ).

• The House bill emphasizes corporate tax cuts, (NYTimes); would eliminate tax benefits provided to graduate students and university employees (NYTimes);
• The House bill also includes language that would support efforts to undermine abortion rights, argues Brian Tashman at the ACLU.
• The tax bill may have significant implications for many workers who are classified as independent contractors, note Shu-Yi Oei and Diane Ring at On Labor.

• Gary Cohn, President Trump’s top economic adviser, appeared surprised to learn that few CEOs plan to invest more if the tax reform bill passes (WaPo).
• Repeal of the Affordable Care Act’s individual mandate, as proposed in the Senate Republican tax proposal, would take insurance from millions, argues Nick Bagley at Take Care. 
• Key Republican senators raised concerns about the bill (NYT, WaPo, The Hill).

The United States Department of Agriculture is delaying implementation of Obama-era rules on the treatment of animals in the National Organic Program (Hill).

The CFBP published two notices in the Federal Register, seeking information about experiences with free credit reporting agencies and alerting the public to an updated free credit score access list (Consumer Finance Monitor).

The FDA approved a digital pill which will permit doctors to determine whether and when a patient takes the prescribed medication, generating concerns about patient privacy (NYT).

Alex M. Azar II, former president of pharmaceutical company Eli Lilly, was nominated by President Trump to succeed former secretary Tom Price as Secretary of Health and Human Services (NYT, LA Times, WSJ, Politico).

• During Azar’s tenure at Eli Lilly, drug prices rose dramatically for top-selling drugs (WSJ).

Democratic lawmakers weighed in on proposed FEC regulations for online political advertisements (The Hill).

American cities and states are fighting global warming even without the support of the federal government, write former New York City Mayor Michael Bloomberg and California Governor Jerry Brown at The New York Times.

Conservative legal advocacy groups are urging the Trump Administration to change Obama-era policies related to transgender students, Title IX, and school discipline (Regulatory Review).

An upcoming FCC vote could eliminate consumer protections that require internet providers to show that replacement services have the same capabilities as the discontinued network (Ars Technica).

A letter from congressional Democrats urges Secretary Betsy DeVos to make the Department of Education’s debate over policies on the borrower defense to repayment rule more transparent (The Hill).

CFPB Director Richard Cordray announced his resignation, several months prior to the end of his term (NYT, WSJ, Politico, The Hill, Consumer Finance Monitor).

The CFPB posted a notice that the Arbitration Agreements Rule signed by President Trump on November 1 has no force or effect (Consumer Finance Monitor).

A State Department plan to cut staff is raising security and diplomacy concerns for members of both parties in Congress (WaPo).

The Office of the Comptroller of the Currency has become more friendly to banks under the Trump administration, rolling back regulations without Congressional approval or formal rulemaking (NYT).

The resignation of Richard Cordray as director of the Consumer Financial Protection Bureau gives President Trump an opportunity to reshape the agency (NYTimes).

• Mick Mulvaney, director of the Office of Management and Budget and a CFPB critic, will likely be appointed interim director of the agency (WaPo, WSJ).

Under the Trump administration, the Office of the Comptroller of the Currency has taken a hands-off approach to financial regulation, report Ben Protess and Jessica Silver-Greenberg in The New York Times.

The Federal Communications Commission voted along party lines to eliminate rules limiting the ability of broadcast media outlets to merge (WaPo, WSJ).

The FCC voted along party lines to scale back a subsidy for low-income people to pay for broadband internet access (Ars Technica).

The FCC will likely vote to eliminate net neutrality rules in December (Ars Technica).

The Trump administration reversed an Obama-era ban on imports of elephant parts acquired through hunting in Zimbabwe and Zambia, then put the change on hold after an outcry (NYT).

President Trump nominated Johnny Collett to be assistant secretary of education for special education and rehabilitative services at the U.S. Department of Education (Disability Scoop).

President Trump’s slow pace of nominations for executive positions may have significant impacts on agencies in the near future, as acting officials reach their time limit under the Federal Vacancies Reform Act, writes Daniel Van Schooten at POGO Blog.

The Trump administration’s pro-coal policies may undermine the interests of the oil industry, argues Dan Farber at Legal Planet. 

Two Republican senators announced their intent to oppose Michael Dourson, President Trump’s nominee to lead the EPA’s chemical safety office, putting his confirmation in jeopardy (The Hill).

 

RULE OF LAW

President Trump should read the Constitution, writes the NYT Editorial Board. 

President Trump’s appointments are reshaping the judicial branch (NYT).

Antitrust enforcement would usually be cause for celebration, but the Justice Department’s motives are “completely suspect” with regard to the AT&T—Time Warner merger, writes the Editorial Board at the LA Times.

The Office of Special Counsel is investigating Securities and Exchange Commission whistleblower-retaliation allegations (WSJ).

President Trump’s decision to push for an investigation into Hillary Clinton goes against norms of American elections (NYT).

• The Washington Post considers how it could politicize the agency.
• The New York Times explains the hoax uranium deal story supposedly prompting the investigation.

President Trump’s nominations to the federal judiciary show that he is “exalting ideology and partisanship over professional credentials,” argues the Editorial Board of The Los Angeles Times.

Interior Secretary Ryan Zinke has failed to keep proper records of his travel since taking office (Politico, WaPo).

 

FEDERALISM 

A coalition of 20 states and 50 cities pledge to follow the Paris climate accord commitments and pursue carbon emission reductions, even if President Trump withdraws (The Hill, Politico).

President Trump’s judicial nominees are the least diverse group since President Reagan’s nominees (Roll Call).

President Trump’s nomination of Brett Talley to serve as a district judge in the Middle District of Alabama likely forced the President’s first black nominee to a different district (HuffPo). 

 

CHECKS & BALANCES

Senator Dianne Feinstein requested documents related to Jared Kushner’s involvement in the terminations of James Comey and Michael Flynn (The Hill).                               

Representative Adam Schiff, senior Democrat on the House Intelligence Committee, rejected efforts to discredit the Trump dossier compiled during the 2016 presidential election, noting that its allegations of Russian interference with the election were accurate (WSJ).

Senate Judiciary Committee Chairman Chuck Grassley (R-IA) announced that he would begin holding hearings on certain judicial nominees without “blue slips” from home state senators (BuzzFeed, Politico)

• Democrats objected to the elimination of the “blue slip,” as well as the fast pace of judicial nomination hearings (CNN).
• Judicial nominees may be one of President Trump’s most significant legacies, reports Andrew Chung at Reuters.
• The Federalist Society has had a significant role in President Trump’s judicial nominations, notes Lydia Wheeler in The Hill.

 

REMOVAL FROM OFFICE 

Six House Democrats introduced articles of impeachment against President Trump (The Hill).

 

RUSSIAN INTERFERENCE

As Mueller investigates, President Trump declares that he believes President Putin, who denies interfering in 2016 election (NYTimes, NPR, WaPo).

• President Trump cannot claim to side with American intelligence officials while also announcing that he believes Putin, write Ryan Goodman and John Sipher for Just Security.
• Former US intelligence officials say Trump is being “played” (WaPo, WSJ).

Mueller is investigating former National Security Advisor Mike Flynn’s alleged role in the forced removal of Fethullah Gulen, a Muslim cleric, from the U.S. and delivery to Turkey in exchange for millions of dollars (WSJ).

• The news has legal and political significance, write Susan Hennessey and Benjamin Wittes at Lawfare.

Donald Trump Jr. communicated via private message on Twitter with WikiLeaks during the 2016 campaign; those communications were provided by Trump Jr. to Congressional committees investigating Russian interference (NYT, The Hill, WSJ, Ars Technica, Politico).

• Just Security has the full text of the exchanges here.
• Vice President Mike Pence, who in October 2016 said that “nothing could be further from the truth” when asked about the campaign’s ties to Wikileaks, denied knowledge of the communications (LA Times).
• The messages do not alone provide clear evidence of a crime (The Atlantic).
• But The Washington Post’s timeline suggests coordination between the group and Donald Trump, Jr.
• WikiLeaks founder Julian Assange publicly offered Donald Trump, Jr. the opportunity to serve as “ambassador” on behalf of whistleblowers (The Hill).  
• The Senate Judiciary Committee announced that Jared Kushner had undisclosed contacts with Wikileaks and individuals tied to the Russian government (NYTimes, WaPo).

Attorney General Jeff Sessions provided testimony to the House Judiciary Committee on his contacts with Russia during the 2016 presidential campaign (WaPo; NYT).

• The Hill explores Sessions’s statement that the Trump campaign was “a form of chaos every day.”
• Lawfare provides a live blog and video of the hearing.
• Trump advisers frequently cannot recall key information when questioned about Russian interference, writes Matt Zapotosky at The Washington Post.

The FBI is examining more than 60 Russian foreign ministry wire transfers that included a memo line that said “to finance election campaign of 2016” (The Hill).

The Special Counsel issued a subpoena to President Trump’s campaign seeking documents related to Russia (WSJ).

Laundered money from Russian interests may be supporting President Trump’s legal defense, argue Alex Tausanovitch and James Lamond at Just Security. 

The Special Counsel is likely to interview White House Communications Director Hope Hicks in the coming weeks (Politico).

Reza Zarrab, a Turkish businessman charged with violating U.S. sanctions on Iran, may be cooperating with Special Counsel Robert Mueller’s investigation into former National Security Advisor Michael Flynn, writes Katie Zavadski at The Daily Beast.

If President Trump attempts to fire Special Counsel Robert Mueller, senior Department of Justice officials may not comply, notes Victoria Bassetti at ACS Blog.

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