Lark Turner  //  10/15/17  //  Topic Update

PODCAST
On this week’s episode of Versus Trump, Easha and Jason discuss the Administration's drastic expansion of the number of companies that may now offer health insurance that does not cover birth control, as well as several lawsuits that were immediately filed challenging these new regulations. 

IMMIGRATION

To let “Dreamers” stay in the US, the Trump Administration will require a crackdown on children fleeing from Central America (NYT).

• The White House’s demands for the immigration bill could hinder congressional negotiations (NYT, WSJ, Hill).
• Deferred Action for Childhood Arrival ("DACA") legislation faces a “game of political chicken” (Vox).
• The bipartisan U.S. Conference of Mayors called for the Administration to continue the DACA program (ImmigrationProfBlog).
• Amnesties are central to how the U.S. legal system functions, argues Amanda Taub at The New York Times. 

In the wake of the expiration of the second entry ban, the Supreme Court vacated the judgment of the Fourth Circuit in Trump v. IRAP and remanded the case for dismissal as moot.

• The order is available here.
• A recap of the litigation and legal arguments is here.
• While the challenge to the entry ban is moot, there are lessons for future cases, writes Leah Litman at Take Care.
• Alison Frankel considers the arguments by the ACLU and DOJ about the travel ban’s mootness at Reuters.
• Attorney General Jeff Sessions urged Congress to enact stricter asylum rules, arguing that current policies have too many loopholes and suffer from “rampant abuse and fraud” (WaPo).
• Courts should consider whether it makes sense to apply strict scrutiny to laws and policies like the Travel Ban that are motivated by animus, writes Michael C. Dorf at Take Care.

The Director of ICE indicated agents will conduct new workplace and neighborhood raids in response to California’s new sanctuary law (The Hill).

Hawaii filed challenges to Trump’s latest immigration ban (Bloomberg)

• Read Hawaii’s brief on the merits and amended complaint here.
• Trump’s Immigration Ban Proclamation is not based on objective criteria, writes David Bier for Cato at Liberty.
• There is no public safety justification for the revised travel ban, argues Alex Nowrasteh at Cato at Liberty.

The Administration is urging Congress to overhaul immigration laws, but the Department of Homeland Security is also looking into how it could transform the U.S. immigration system on its own (Immigration Prof Blog).

The ACLU is suing DHS and Customs and Border Protection over a February 2017 incident where agents required passengers to show their documents to deboard after a domestic flight (WaPo, The Hill).

• The ACLU’s press release is here.

CIVIL RIGHTS

On Friday, Attorney General Sessions issued sweeping new guidance on religious freedom, triggering a backlash from civil rights groups who say the guidance is a license for discrimination (WaPo).

• You can read the statement of Attorney General Sessions here and the memorandum here.

The Trump Administration issued two interim final rules which will allow many more employers to exclude contraception from the insurance plans they offer to their employees (NYT).

• At Take Care, Nick Bagley argues that the two rules have both procedural and substantive legal deficiencies.
• HHS provided a press release explaining the two rules.
• California filed a lawsuit challenging the rules, as did Washington State.
• The ACLU also filed a lawsuit challenging the rules.
• Trump’s “Pro-Life” week is about controlling women, not protecting life, writes Rachel Tuchman at Take Care.
• Trump’s contraceptive mandate is based on dubious science, writes Aaron Carroll at NYT.
• Verdict analyzes the justifications.
• New exceptions to the federal contraception mandate are unprecedented in scale, writes Linda Greenhouse (NYTimes).
• An explanation of eligibility for religious exemptions can be found here.
• An explanation of eligibility for moral exemptions can be found here.  
• Pro-choice groups, such as the Planned Parenthood Action Fund and Emily’s List, believe the move will mobilize women (WaPo).

Congressional Democrats have asked for evidence that Trump consulted the Pentagon before issuing the transgender troops ban (The Hill).

The Trump Administration is taking cues from ultra-conservative Mississippi to enact policies that permit religiously-motivated discrimination against LGBT people, argues Marci Hamilton at Verdict.

President Trump has urged NFL team owners to fire team members who take a knee during the national anthem, but federal labor law might protect the players, writes Noam Scheiber at The New York Times.

• Collective action and worker solidarity can provide an effective response to the President’s attempt to interfere in private employer’s personnel decisions, writes Charlotte Garden at Take Care.

DEMOCRACY

There is no value to democracy from political gerrymandering for partisan advantage, writes G. Michael Parsons at Take Care.

President Trump’s bully pulpit has serious consequences, since presidential speech carries more import than almost any other expression, contends Mark Joseph Stern at Take Care.

We can defend against fake news by protecting real news from personal injury suits designed to limit the free press, contends Lark Turner at Take Care.

On Twitter, Trump threatened to revoke the NFL’s tax exemption and attacked an ESPN journalist who had criticized his response to national anthem protests (NYTimes, WSJ)

• Retaliating against the NFL based on athletes’ expression would violate the First Amendment, writes Eugene Volokh at The Washington Post.
• Following Trump’s criticism of NFL protests, team owners discuss whether to require that players stand during the anthem (WSJ).
• The White House supports the NFL policy change (The Hill).

Senate Majority Leader Mitch McConnell will no longer allow senators to block judicial nominees (WaPo).

• The move is part of an ongoing fight over the judiciary (Politico, The Weekly Standard).

The D.C. Superior Court said DOJ overstepped when it sought 1.3 million IP addresses that had logged into a website that helped organize anti-Trump protests on Inauguration Day (ArsTechnica).

The self-professed anti-Trump resistance is part of a “thinly veiled legal revolt,” argues Josh Blackman at the National Review.

A group of former Obama Administration lawyers moved for a temporary injunction against the President’s Election Integrity Commission, arguing it threatened the proper functioning of our democracy (McClatchy).

President Trump tweeted that it’s “frankly disgusting the way the press is able to write whatever they want to write” (WaPo) and suggested broadcast licenses should be limited depending on network coverage (NYTimes).

• The President then clarified that he doesn’t think the press should be limited (WaPo).
• What would happen if President Trump cracked down on media critiques?, asks Paul Waldman at WaPo.
• Though often compared to Putin, the media comments resemble Turkish President Erdogan, argues Philip Bump at WaPo.
• President Trump’s response to the press is Nixonian, writes Aaron Blake at The Washington Post.
• President Trump neither values nor understands a free press, contends Callum Borchers at The Washington Post.

JUSTICE & SAFETY

The Trump Administration is divided over how to handle the detention of an American citizen who is suspected to have supported ISIS (NYT).

• Marty Lederman provided three observations on the detention at Just Security.

The United States is lifting sanctions on Sudan after two decades of embargo (WaPo).

The President’s anger over the Iran deal has caused White House aides to scramble for possible compromises (WaPo).

• Decertifying the Iran Deal could create major political and diplomatic blowback, writes Elena Chachko at Lawfare.
• If Trump does not certify the Iran nuclear deal, Congress should “avoid taking the bait,” writes Tess Bridgeman at Just Security.
• European allies and fellow Republicans are increasingly pressuring President Trump to preserve the Iran nuclear deal (NYT, WSJ).

• Undoing the deal would undermine the longstanding power of America’s word in global security, writes Roger Cohen at The New York Times.
• Even Ehud Barak, the former Israeli Prime Minister well-known as a hawk, urged the President to keep the deal (NYT).

President Trump is seeking a significant increase in the number of nuclear weapons in the country’s arsenal, bucking the trend of recent presidential administrations (WaPo).

• The President insists he seeks to modernize, not to increase, the arsenal (WSJ).

President Trump is increasingly suggesting it’s “possible” the U.S. will drop out of NAFTA (NYT).

The newly relaxed rules of engagement in Afghanistan are indicative of the Trump administration’s determination to enhance the effect of U.S. combat power in Afghanistan, writes Geoffrey S. Corn at Just Security.

Attorney General Sessions is pressuring Congress to reverse a statutory provision that prohibits DOJ prosecutions of medical marijuana users and sellers in states with legal pot laws (LA Times).

Complacency over the American citizen being held in military custody is appropriate, writes Benjamin Wittes at Lawfare.

The Department of Justice intends to aggressively pursue access to encrypted information (WSJ).  

• DOJ calls for “responsible encryption” (Ars Technica)

Congress should exercise its constitutional power to withdraw U.S. armed forces from unauthorized hostilities in Yemen, write Representatives Ro Khanna, Walter Jones, and Mark Pocan.

Courts should reject the argument that the president has exceptional powers simply because an issue relates to national security or foreign affairs, argue Ganesh Sitaraman and Ingrid Wuerth at Lawfare.

The U.S. military flew strategic bombers over the Korean peninsula as President Trump met with top defense officials to discuss possible responses to any threat from North Korea (Reuters).

Military officials at the Guantanamo Bay prison are waiting longer to intervene with medical attention when detainees go on hunger strikes (NYT).

President Trump will nominate Kirstjen Nielsen, deputy White House chief of staff and a cybersecurity expert, to replace John Kelly as Secretary of Homeland Security (WaPo).

The Trump Administration worked with the Pakistani Government to free Caitlan Coleman, an American woman who along with her husband and their three children was held hostage by militants in Afghanistan (NYT).

President Trump again suggested that Puerto Rico is partly to blame for its current crisis and threatened to abandon recovery efforts on the island (NYT, WaPo).

A bill enhancing whistleblower protections for federal employees is headed to President Trump for signature, following unanimous passage by the House (The Hill).

CONFLICTS OF INTEREST

The Government Accountability Office reported that the Trump transition team violated established practices related to ethics (The Hill).

A new advocacy group plans to bring legal challenges to President Trump’s conflicts of interest (Politico).

In a letter to federal agency directors, the acting director of the Office of Government Ethics reiterated ethical requirements in the wake of scandals over the misuse of private aircraft by Cabinet members (WaPo).

REGULATION

The Environmental Protection Agency proposed a new regulation that would repeal the Obama-era Clean Power Plan, which governs carbon emissions from power plants under the Clean Air Act (NYTimes, Politico, The Hill).

• The formal announcement can be found here.
• The EPA’s decision disregards the agency’s own analysis of the costs and benefits of doing so, notes Eli Savit at Take Care.
• The repeal and likely replacement reflect a narrow construction of the Clean Air Act, argues John Timmer at Ars Technica.
• The proposed rule does not go as far as many climate change skeptics wanted, and is vulnerable to legal challenge, writes Dan Farber at Legal Planet.
• New York Attorney General Schneiderman says he will sue over the plan’s repeal (The Hill).
• The EPA must share its rationale for discarding the Obama Administration’s Clean Power Plan, writes Cass Sunstein at Bloomberg.

The Trump Administration will end a critical Obamacare subsidy and the results will be disastrous, explains Nicholas Bagley at Take Care.

President Trump signed an executive order directing agencies to develop regulations to expand access to health insurance policies that are less expensive and comprehensive than those currently on the market (NYT, WaPo, L.A. Times, WSJ).

• The order will likely expand access to “association health plans,” which lack many of the protections required by the Affordable Care Act, and may effectively gut the law’s protections (LATimes, Politico, Vox).
• The Trump Administration is reducing funds for “navigator” organizations that assist consumers with health care enrollment (NYT).

• Full text of the executive order is available here.
• Video of the executive order signing here.
• The New York Times outlines eleven ways President Trump has weakened the Affordable Care Act since taking office.
• The Washington Post explains key provisions of the executive order and their effect on the Affordable Care Act.
• The effects of the order will not be apparent for several months, writes The Los Angeles Times.
• The Wall Street Journal notes that while the executive order may have negative impacts on some insurance companies, it will be a positive development for others.
• Changes following from the executive order will not undermine Obamacare, argues Michael Cannon at Cato at Liberty.

President Trump’s decisions to rescind the Clean Power Plan and DACA are motivated by a spiteful desire to repudiate his predecessor rather than any coherent policy goal, argues the Los Angeles Times editorial board.

CMS intends to increase enforcement on qualified health plans’ coverage of abortions outside the Hyde Amendment (Health Affairs Blog).

A new Treasury Department report recommends making significant changes to the Dodd-Frank Act (NYT).

The Army Corp of Engineers is pushing back the deadline of a court-ordered environmental review of the Dakota Access pipeline project (The Hill).

President Trump’s tax plan is similar to one adopted in Kansas which did not boost the state’s economy, writes Jim Tankersley in The New York Times.

Sonny Perdue, Secretary of Agriculture, suggested that restricting access to food stamps for adults who can work would help lower enrollment in the plan (WSJ).

A rule to require opioid testing for certain groups of transportation workers is undergoing final review by the Department of Transportation (The Hill).

A House subcommittee questioned Energy Secretary Rick Perry about his recent proposal to provide support to coal and nuclear power plants (The Hill). 

The IRS suspended a contract with Equifax in light of the company’s recent data breach (The Hill).

RULE OF LAW

Members of the Trump Administration who use private email accounts may violate the Presidential Records Act, writes Andy Wright at Just Security.

Kellyanne Conway’s response to criticism of President Trump by Sen. Bob Corker (R-TN) reflects a dangerously authoritarian attitude, writes Aaron Blake in The Washington Post.

The government of Indiana is refusing to release thousands of emails that Vice President Pence sent using a private email account while he served as the state's governor (LATimes).

CHECKS & BALANCES

The EPA’s Office of Inspector General is expanding a probe into EPA Administrator Scott Pruitt’s taxpayer funded travel (The Hill).

House Minority Leader Nancy Pelosi urged Congress to adopt legislation to restrict the preemptive use of nuclear weapons (The Hill).

REMOVAL FROM OFFICE

A comprehensive new report concludes that President Trump likely committed criminal obstruction of justice through his efforts to impede the Russia investigation, including by firing former FBI Director James Comey (Brookings).

• The report “should scare the daylights out of . . . Trump supporters, family members and aides,” argues Jennifer Rubin in the Washington Post.
• While the report makes a meaningful contribution by analogizing between President Trump’s conduct and the obstruction case law, obstruction charges still may not be plausible, argue Benjamin Wittes and Emma Kohse at Lawfare.

President Trump’s words reveal his inability to carry out his oath of office and provide a basis for impeachment, argues Jennifer Rubin (WaPo).

• President Trump’s misuse of the English language, while egregious, is a violation of custom, not law, writes Greg Weiner (NYTimes).

Democratic Rep. Al Green (Tex.) read an impeachment resolution on the House floor Wednesday but did not appear later that day to offer the resolution for a vote (WaPo).

The Impeachment Clause is broad enough to allow for impeachment on the basis of incompetence, not just criminal activity, argues Gene Healy at Cato at Liberty.

Other members of the House of Representatives may introduce impeachment articles in the coming weeks, writes Nicholas Fandos at The New York Times.

• Full text of Congressman Al Green’s impeachment resolution is available here.

When is President Trump’s apparent inability or unwillingness to fulfill his Presidential responsibilities a ground for impeachment?, asks Jennifer Rubin at The Washington Post.

President Trump is more likely to be removed from office via the 25th Amendment than through impeachment, writes Paul Waldman at The Washington Post.

RUSSIAN INTERFERENCE

White House officials are cooperating with the Special Counsel in the hope that Mr. Mueller will declare that President Trump is not a target of the Russia inquiry (NYT).

• Lawyers for President Trump may permit, or even encourage, special counsel Robert Mueller to interview the president (Politico).

A June 2016 email between a Russian lawyer and Trump campaign officials fails to clear up the real purpose of the meeting (The Hill).

Google discovered evidence that Russian operatives purchased ads on Youtube, Gmail, and Google Search products in an effort to interfere with the 2016 election (WaPo, NYT).

• The Russian government targeted U.S. military personnel and veterans on social media as part of its effort to influence the 2016 election (The Hill).
• The Department of Homeland Security and the FBI are working with state and local officials to “improve election security” in advance of the 2018 election (NBC).
• Senate Democrats fear the Trump administration is dragging its feet on dealing with a Russian cyber threat that could impact upcoming races and sway which party controls the Senate (Politico).
• The House Permanent Select Committee on Intelligence will release Russian-backed Facebook ads from the 2016  election season after officials from Facebook, Google, and Twitter testify (WaPo, WSJ).
• Pinterest joins the growing list of internet companies who report their websites were used by Russian actors to influence the 2016 election (The Hill).
• Facebook acknowledged misuse of its services by Russian actors in the election and will cooperate with investigations  (WSJ).
• Facebook removed a significant number of posts and advertisements involved in the Russian interference, making them no longer available to the public or to researchers (WaPo).

Despite allegedly recusing himself from the Russia investigation, House Intelligence Committee Chairman Devin Nunes (R-CA) has signed off on new subpoenas (The Hill).

Trump campaign foreign policy advisor Carter Page has refused to testify before the Senate Intelligence Committee (The Hill).

The Russian government has used anti-virus software manufactured by Kaspersky Lab as an espionage tool; officials say this could only have happened with the knowledge and consent of the company (WSJ).

• The House Committee on Science, Space, and Technology is planning to hold a series of hearings on Kaspersky Labs (The Hill).

The House Intelligence Committee requested information from data mining firm Cambridge Analytica for its investigation into Russian interference in the election (The Hill).