Lark Turner // 9/17/17 //
The battle over Trump’s end to DACA continues.
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).
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.
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).
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.
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.
President Trump’s nominee to lead the Department of Justice’s Civil Rights Division, Eric Dreiband, draws mixed reviews (The Hill).
Jack Goldsmith ponders whether President Trump will inflict lasting damage on the presidency (The Atlantic).
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).
Advisors to President Trump have recommended a more aggressive U.S. response to Iran’s forces (Reuters).
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).
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).
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).
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
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.
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’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.
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).
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.
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).
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).
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 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).
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.
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.
Former National Security Advisor Michael Flynn has refused a second subpoena to testify before the Senate Intelligence Committee (CNN).
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.
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).