Updates | The Week of September 11, 2017
Lark Turner // 9/17/17 //
IMMIGRATION
The battle over Trump’s end to DACA continues.
- The University of California system, led by Janet Napolitano, sues the Trump Administration over ending DACA (NYT).The complaint can be found here.
- The California Values Act would safeguard immigrants at risk of deportation during certain activities (Immigration Prof Blog, The Sacramento Bee).
- Attorneys General from California, Maine, Minnesota and Maryland have filed suit in federal district court for the Northern District of California alleging that President Trump violated the Constitution when the administration ended DACA (LA Times, Politico). The complaint can be found here.
- Pope Francis criticizes President Trump’s termination of DACA (Newsweek).
- Plaintiffs in DACA lawsuits seeking to rely on President Trump’s anti-immigrant campaign rhetoric face greater obstacles than challengers to the travel ban, argues Michael Dorf at Dorf on Law.
- Former secretary of DHS Janet Napolitano explains why she sued over the DACA rescission.
- Democratic attorneys general might be able to save DACA, reports Sean Illing at Vox.
- Jason Harrow and Charlie Gerstein discuss President Trump’s revocation of DACA and the lawsuit filed by several state attorneys general challenging the revocation (Take Care).
- There are a number of differences between the approaches of the DACA and travel ban litigation, notes Michael C. Dorf at Dorf on Law.
- Bishop Garrison, writing for Just Security, details the effects the termination of DACA could have on veterans and service members.
- The lawsuits challenging the revocation of DACA can succeed solely on the basis of alleging a racist President, writes Josh Blackman on his blog.
Congressional Democrats and President Trump agree to work together to find a solution for DACA (WaPo, NYT, LA Times, WSJ).
- Some DACA recipients remain skeptical of President Trump’s commitment to the DREAM Act (LA Times).
- Some conservatives disagree with President Trump’s apparent willingness to support Dreamers (NYT).
- Mario H. Lopez, writing for the Hill, outlines a pro-DACA argument for Congress.
- Alfonso Aguilar, writing for the Hill, sees hope for the DACA program in President Trump’s tweets.
- Alex Nowrasteh, writing for CATO, outlines the fiscal case for the DREAM Act.
The Supreme Court granted the Trump administration’s emergency request to stay the Ninth Circuit’s travel ban ruling, which would enable about 24,000 refugees with formal assurances from U.S. resettlement agencies to enter the country (WaPo, NYT, The Hill).
- The Supreme Court’s order can be found here.
- The Court may reach the merits in the travel ban case if it determines that a similar case would arise in the future, explains Peter Margulies on LawFare.
- The ACLU summarizes the issues in Trump v. IRAP, as does Steven Mazie in The Economist.
- The text of the state’s brief opposing that outcome is here.
- Lyle Denniston analyzes the response on Law News.
- The decision signals the Court’s desire to spend more time on this subject, writes Lyle Deniston on his blog.
- It is unlikely the Court will protect sponsored refugees from the travel ban prior to oral argument on October 10, writes Peter Margulies at Lawfare.
- The Department of Homeland Security is expected to soon submit a report to President Trump on whether the travel ban should be extended, reports Matt Zapotosky at The Washington Post.
Thirty-two percent of immigrants with criminal histories deported during President Obama’s final two years had an immigration offense as their most serious conviction, reports César Hernández on Crimmigration.
The Constitution and various statutes support cities’ ability to declare themselves sanctuary cities, argue Seth Davis, Annie Lai, and Christopher Lasch on Take Care.
- Sheriffs struggle to balance demands by the White House and the courts (NYT).
The Department of Homeland Security has waived environmental and historical preservation laws to speed construction of border barriers in Southern California (Hill).
Arizona, Maryland and Wyoming have signed up for the Department of Homeland Security’s RIDE program, which augments the accuracy of the E-Verify system using state-level DMV records (CATO).
The Trump Administration has imposed visa sanctions on countries that refuse to take back deportees (NYT).
CIVIL RIGHTS
The DOJ has filed an amicus brief in support of a Christian baker who refused to make a cake for a same-sex wedding (WaPo, WSJ).
- The brief can be found here.
- The Trump Administration’s stance in the case is merely the latest letdown for LGBT advocates, reports Carrie Johnson at NPR.
- The DOJ’s brief in the case is cynical, dishonest, and embarrassing, argues Mark Joseph Stern at Slate.
Education Secretary Betsy DeVos’s plans to rework the Department’s approach to Title IX could change sexual assault policies for the better, argues Ruth Marcus at the Washington Post.
President Trump tweeted his support for churches seeking FEMA money after Harvey (WaPo; Reuters).
- A complaint filed by three churches seeking FEMA money post-Harvey, filed last Monday, can be found here.
Through changes in regulation and approaches to litigation, the Trump administration is promoting socially conservative policies, write Ben Protess, Danielle Ivory, and Steve Eder in The New York Times.
- A bipartisan group of senators released legislation to block the Trump administration’s proposal to prohibit transgender people from serving in the military (The Hill).
- The HRC has released a report on the Trump Administration’s effect on the LGBTQ community.
- With the Equal Employment Opportunity Commission and the Justice Department advocating different Title VII interpretations, the Trump administration’s argument that Title VII does not ban discrimination based on sexual orientation could backfire, writes Alison Frankel at Reuters.
- Two senators propose an amendment to the National Defense Authorization Act that would block President Trump’s ban on transgender military service members (CNN).
- Alex Wagner and Richard Eisenberg challenge factual inaccuracies in President Trumps’ order regarding transgender military service members at LawFare.
- The ACLU has asked a federal court to immediately halt the ban on transgender individuals serving in the military (The Hill).
- Chase Strangio, a Staff Attorney with the ACLU, has explains why the ACLU is suing.
The ACLU will challenge warrantless searches of phones and laptops at the border (ACLU, The Hill).
- The suit is the first of its kind, reports Cyrus Farivar with ARS Technica.
President Trump’s nominee to lead the Department of Justice’s Civil Rights Division, Eric Dreiband, draws mixed reviews (The Hill).
DEMOCRACY
Jack Goldsmith ponders whether President Trump will inflict lasting damage on the presidency (The Atlantic).
President Trump’s voting commission will consider a proposal to require background checks of all voters (LA Times, Kansas City Star).
- The commission, criticized for its secrecy, holds its second meeting (NPR).
- Hans von Spakovsky, a member of the commission, reportedly wrote a letter to Attorney General Jeff Sessions objecting to the appointment of any Democrats or mainstream Republicans to the Commission (HuffPost, Gizmodo).
- Bob Bauer calls for von Spakovsky’s reisgnation from the Commission.
- The Commission itself, and its vice chairman Kris Kobach, remain controversial (TPM, NYT, Portland Press Herald).
Repeated, harassing emails to government officials and their offices may be criminally prosecutable (WaPo).
President Trump nominates Trey Trainor, a Texas lawyer and opponent of campaign finance regulation, to the Federal Election Commission (Election Law Blog).
The Office of Government Ethics has reverses policy to allow aides caught in the Russia probe to receive anonymous gifts for their legal defense funds (Politico).
In a lawsuit before the Seventh Circuit challenging the disenfranchisement of residents of U.S. Territories, the Department of Justice has argued that the remedy to the equal protection violation would be stripping other residents of those rights (Pacific Daily News).
Benjamin Wittes sues the FBI to uncover documents that would refute President Trump’s statements about the “turmoil” the agency experienced under Former Director Jim Comey’s leadership (Lawfare).
JUSTICE & SAFETY
In tweeting about North Korea, President Trump must remember that only Congress can declare war, writes Christopher Anders at the ACLU.
Attorney General Jeff Sessions and Director of National Intelligence Dan Coats ask Congress to permanently reauthorize the controversial Section 702 surveillance program (The Hill).
The Senate Appropriations Committee restored nearly $11 billion in funds for the State Department and foreign aid that were cut in President Trump’s proposed budget (Just Security).
Russia quietly weakened its sanctions against North Korea (WaPo, NYT, LA Times).
Advisors to President Trump have recommended a more aggressive U.S. response to Iran’s forces (Reuters).
- While the U.S. nuclear deal with Iran’s long-term fate remains in question, President Trump waives sanctions against Iran for this month (WaPo, WSJ).
A coalition of civil liberties and public policy organizations signed open letters to Congress regarding the 1033 program, which gives military gear to local police departments (Cato).
The House has voted to curb federal asset forfeitures, a program Attorney General Jeff Sessions had reinstated (WaPo).
- The ACLU praised the vote.
While some Congress members have voted to extend a controversial warrantless surveillance program, they have also pushed for limits to the law (The Hill).
The Malaysian Prime Minister, while visiting the White House, urged President Trump to support progressive Muslim regimes (The White House).
North Korea expressed dissatisfaction with the United States’ role in crafting the U.N. sanctions (WaPo).
- Meanwhile, the United States remains dissatisfied with China’s unwillingness to impose harsh sanctions on North Korea.
Two former US Attorneys air their opposition to Attorney General Jeff Sessions’ charging guidelines, which direct prosecutors to charge the most serious offense in almost all cases (National Review).
President Trump’s new approach to Afghanistan is just a repackaging of old ideas, reinforces the dilemma between Pakistan and India, and ignores China, criticizes Sahar Khan at CATO.
President Trump doubled down on his assertions that both sides are to blame for the violence in Charlottesville (NYT).
The Department of Homeland Security ordered all government agencies to stop using Russian produced software from Kaspersky Lab (Hill).
- Facebook remains uncertain of the extent of Russian ad buys during the election (CNN).
- Facebook ads purchased by a Russian entity in conjunction with the 2016 election may have violated US election law, reports Debra Cassens Weiss at ABA Journal.
President Trump has blocked a Chinese-government-owned investment firm from acquiring a maker of field-programmable gate arrays, citing national security concerns (ARS Technica).
Jared Kushner is soliciting recommendations for improvements to mentoring and job training programs in prisons (WaPo).
CONFLICTS OF INTEREST
The Malaysian Prime Minister and his delegation stayed in Trump International Hotel in Washington amid ethics concerns about violations of the emoluments clauses (WaPo, Politico).
- WaPo released a video outlining the emoluments concerns.
Despite extensive efforts, Jared Kushner’s real estate company has been unable to secure foreign investors for its building at 666 Fifth Avenue in New York, report Michael Kranish and Jonathan O’Connell at The Washington Post.
Treasury Secretary Steven Mnuchin is again receiving criticism for trying to use the government’s private jet—and taxpayers’ money—for personal use (NYT, LA Times).
- Mnuchin responded that the flight request was “not about convenience” (Politico).
REGULATION
Many scientists and local political leaders are concerned about the Trump administration’s refusal to address climate change in the wake of Hurricanes Harvey and Irma, writes Lisa Friedman in the New York Times.
The Department of Health and Human Services will decide this week whether to continue grants for the “navigator” program authorized by the Affordable Care Act (The Hill).
The Consumer Financial Protection Bureau settled litigation and enforcement actions with Zero Parallel, a lead aggregator (Consumer Finance Monitor).
The Energy Department announced funding for infrastructure resilience and cybersecurity projects (The Hill).
A group of Republican senators, led by Lindsey Graham and Bill Cassidy, proposed legislation that would repeal and replace the Affordable Care Act, but it is unclear whether the bill would attract sufficient support in the Senate (Health Affairs, NYT, WaPo).
- The Trump administration endorsed the proposal.
The Trump administration’s proposed “one in, two out” requirement for federal regulations will likely lead to legal challenges and will not increase efficiency, writes Sarah Kramer at The Regulatory Review.
The Mine Safety and Health Administration has proposed relaxing an Obama-era mine inspection rule (WaPo).
The rescission of DOE’s 2011 Title IX guidance letter will undo a move that “effectively eliminated centuries of due-process rights at” U.S. colleges, claims Daniel Henninger at the Wall Street Journal.
- Betsy “DeVos’s Education Department is particularly ill-suited to deal carefully with” the difficult issue of campus sexual assault, observes Neil Buchanan at Dorf on Law.
The Trump administration has not maintained the website for the Office of Information and Regulatory Affairs (OIRA), shielding its activities from public view, notes Cass Sunstein at Bloomberg.
The President’s flip-flops on tax reform and other issues are probably for the best, writes Gail Collins at The New York Times.
President Trump tweeted that Sen. Bernie Sanders’s proposed single-payer health care plan is a “curse on the U.S. & its people” (Politico).
- Here’s a thorough breakdown of the proposed Medicare-For-All Act of 2017, courtesy of Katie Keith and Timothy Jost at HealthAffairsBlog.
- Sanders’s “biggest ally in his push for single-payer health insurance may well be the Republican Party,” claims David Leonhardt at the New York Times.
- The country is more likely to get to universal healthcare if Democrats and Republicans alike start from “a baseline of reality,” argues Catherine Rampell at the Washington Post.
- Eugene Robinson disagrees, claiming the bill has the most important thing of all going for it: “It’s the right thing to do” (WaPo).
- Republicans’ proposed Graham-Cassidy Act is better than the status quo under the ACA, argues The Wall Street Journal editorial board.
Courts could stop ACA waivers from taking effect even if HHS grants them, argues Nicholas Bagley at Notice & Comment.
The House voted Wednesday to strip funding for an Obama-era pollution rule at the EPA (Hill).
Reports suggest the Trump administration may replace, instead of only repealing, the Clean Power Plan, to the ire of conservative commentators (Politico).
Two Democratic Senators are threatening to delay the confirmation of two key EPA enforcement officers (Hill).
RULE OF LAW
Ending DACA is just one of several instances where President Trump’s Department of Justice has flipped on Obama-era positions, write Leah Litman and Lark Turner at Take Care.
The judge overseeing Joseph Arpaio’s case should appoint a special prosecutor to challenge Arpaio’s pardon, urges Andrew Crespo at Take Care.
- Douglas Berman, writing for Sentencing Law and Policy, doubts that a court would overturn the pardon.
- The Department of Justice argues that President Trump’s power to pardon Arpaio is absolute (WaPo).
- Two advocacy groups have filed briefs arguing that President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio is unconstitutional (Politico). A brief from the MacArthur Justice Center is available here. A brief from the Protect Democracy Project is available here.
White House Press Secretary Sarah Huckabee Sanders suggested that former FBI director James Comey broke the law by sharing details of unclassified memos regarding conversations with President Trump (CNBC, Politico).
- Suggesting that Comey broke the law is both baseless and an abuse of power, argue Susan Hennessey and Benjamin Wittes at Lawfare.
- Sanders also suggested that ESPN reporter Jemele Hill should be fired for calling President Trump a “white supremacist” (WaPo).
A Senate Select Committee report noting concern about inadequate whistleblower protection for the intelligence community did not go far enough, argues Liz Hempowicz at the Project on Government Oversight.
President Trump sharply criticized former national security adviser Susan Rice for unmasking the names of his aides in intelligence reports and said the unmasking is “just the tip of the iceberg” (Hill).
- Audio of the exchange is available here from the Washington Post.
- The entire Susan Rice affair is a “faux scandal,” charges Max Boot at The Los Angeles Times.
CHECKS AND BALANCES
President Trump must act soon to prevent the Federal Election Commission from shutting down, writes Dave Levinthal at the Center for Public Integrity.
A recent article by Sanford Levinson and Mark Graber suggesting that courts should be less deferential to an incompetent president raises several theoretical and practical concerns, argues Eric Posner at his eponymous blog.
- The Levinson and Graber article is available here.
The Interior Department’s Office of the Inspector General is investigating reassignment of Senior Executive Service members (WaPo).
Members of the House Foreign Affairs Committee has inquired about the Office of Management and Budget’s role in the reorganization of the State Department and USAID (The Hill).
Senate Majority Leader Mitch McConnell has endorsed a proposal to eliminate the “blue slip” procedure that would allow Democrats to block President Trump’s circuit court nominees from their home state (NYT).
- Senate Republicans should retain the blue slip as a check on the executive, argues Dahlia Lithwick in Slate.
- Here are ten things to know about blue slips, courtesy of Chris Kang at ACSblog.
In the midst of a controversy over Senator Feinstein’s questions to a Catholic judicial nominee, the Senate Judiciary Committee approved several of President Trump’s nominations (WSJ).
REMOVAL FROM OFFICE
A law providing for a special election in the event that President Trump and Vice President Pence are impeached would be constitutional, but such a law would be inadvisable, argues Richard Primus at Take Care.
Offenses committed prior to taking office can be impeachable, Bob Bauer concludes in an essay at Lawfare.
President Trump could be removed from office for incompetency under the 25th Amendment, writes Eric Posner in the Washington Post.
RUSSIAN INTERFERENCE
Special Counsel Mueller is wisely “following the money” in the Russian interference investigation, writes John McKay at Lawfare.
A great deal of insight into Donald J. Trump Jr.’s legal strategy can be gained from his statement to Congress, notes Renato Mariotti at Lawfare.
The arguments reportedly made by President Trump’s lawyers challenging obstruction of justice charges are weak, write Harry Litman and Mark Greenberg at Lawfare.
White House Communications Director Hope Hicks has retained a lawyer in the Russian interference investigation (Politico).
Special Counsel Robert Mueller may have to consider the decision of whether to grant President Trump immunity in order to compel him to testify before a grand jury regarding Russian interference, notes Bennett Gershman at The Daily Beast.
The Trump campaign has provided documents to Robert Muller’s office as part of the investigation into possible collaboration between the campaign and Russia (The Hill).
In order to protect its investigation, the FBI should consider declining to reveal information about Russian interference to the House Intelligence Committee given the committee’s penchant for politically motivated disclosures, argues Asha Rangappa at The Hill.
White House lawyers debated whether Jared Kushner should step down from his position as advisor to the president following the initiation of Robert Muller’s investigation (WaPo, WSJ).
Former National Security Advisor Michael Flynn has refused a second subpoena to testify before the Senate Intelligence Committee (CNN).
- There are several legal means by which Flynn can resist these subpoenas, write Kate Brannan and Andy Wright at Just Security.
- Special Counsel Robert Mueller is also investigating the lobbying activities of Flynn’s son (WaPo).
- While working in the White House, Flynn promoted a nuclear power initiative that he had worked on in the private sector (WSJ).
Contact between Trump lawyer Michael Cohen and Felix Sater regarding a proposed change to U.S. policy on Ukraine likely began during the presidential campaign, argues Ryan Goodman at Just Security.
Special Counsel Robert Mueller’s investigation is homing in on the role of social media in Russia’s attempts to disrupt the 2016 presidential election (Bloomberg; Hill).
- Similarly, Rep. Adam Schiff, top Democrat on the House Intelligence Committee, stated that Representatives of social media platforms should testify before the committee as to Russian influence in the election (Hill).
President Trump berated Attorney General Jeff Sessions and called for his resignation shortly after Robert Mueller’s appointment, report Michael Schmidt and Maggie Haberman at The New York Times.
The spokesman of former Trump campaign chairman Paul Manafort will testify before a grand jury in connection with an investigation into Manafort’s business transactions (Politico).
Tags:
Immigration Rule of Law Conflicts Checks & Balances Regulation Democracy Civil Rights Justice & Safety Removal from Office Russian Interference