Monthly Archives: February 2017

Weekly Roundup, February 25th 2017

The issue of immigration continues to take several forms. President Trump has assigned the Department of Homeland Security and Justice Department to build a case legally justifying the ban’s necessity, though Benjamin Wittes and Susan Hennessey argue that it is possible the administration may want to examine available data more closely before dictating the report’s outcome.  The logistics continue to be called into question legal experts, who insist that the reported number of travelers affected by the ban has been misrepresented. While the Department of Homeland Security issued a request for proposals for a plan to build the oft-promised border wall between the United States and Mexico, it has also been directed to hire 10,000 agents to assist in the enforcement of immigration policy. The New York Times would like to remind us that “the federal government spends more each year on immigration enforcement through Immigration and Customs Enforcement and the Border Patrol than on all other federal law enforcement agencies combined” even before these proposed expenses come into effect. President Trump would end the week using Twitter to note that the national debt has declined in recent weeks.

As the media examines the presidential administration’s political ties to Eastern Europe, Helen Klein Murillo examines the Law of Recusal to determine whether Attorney General Jeff Sessions ought to recuse himself from the investigation.

Reversing the policies of the previous administration continues to be a priority. The Justice Department announced that a plan to phase out private, for-profit prisons will no longer be considered. Eduardo Porter previously considered the ramifications of privatizing the prison system. In a similar move, the Justice and Education Departments jointly rescinded the guidance which granted transgender students protection under Title IX.


Weekly Roundup, February 18th 2017

As the week opened, many groups remained engaged in providing perspective to the actions of the presidential administration. Najja Parker and Ryan Stultz compiled a list of every executive order signed by President Trump, paired with the context of the executive orders established by previous presidential administrations. Likewise, Ephrat Livni consulted with Erwin Chemerinsky to provide additional context for the possible legal paths that could stand in the way of the travel ban. Josh Blackman critiques the Ninth Circuit’s decision in critical detail, though Michael Ramsay argues that some of Blackman’s analysis may have gone astray in places. Virginia federal district court Judge Leonie Brinkema issued a preliminary injunction against the executive order on immigration, citing “the president’s statements about a ‘Muslim ban’ and the link Rudy Giuliani established between those statements and the EO” as reason to consider it to be an infringement on religious freedom. President Trump has since noted an intent to redraft his executive order. However, Jessica Brandt makes the point at Lawfare that Congress can step in any time and revise the executive authority over immigration.

As anxieties about the fate of undocumented immigrants mount, the Associated Press has uncovered a memo detailing a plan to utilize the National Guard to enforce the Department of Homeland Security’s enforcement of Immigration Policy. Though the proposal was rejected, members of the legislative branch have expressed lingering concerns. President Trump continues to stress his administration’s intent to produce “the most substantial border security measures in a generation.”

With accusations of libelous media flying seemingly everywhere and a high-profile white house resignation, Ambassador Douglas W. Kmiec speculates on the spectre of presidential impeachment. Often invoked in casual discussion, what is actually needed for an impeachment to take place, and is there enough warranted concern to begin proceedings? Kmiec suggests that a fair trial would be possible with respect to constitutional law, even at this early stage in the presidency.


Weekly Roundup, February 11th 2017

This week, the US was abuzz with coverage of the issue of Executive Order 13769, the travel ban that sparked a thousand protests. Given the intricate legalities of the issue, several authorities have both raised concerns and offered explanations.

Early in the week, Josh Blackman suggested some potential actions that the Supreme Court had available while reviewing the order, as well as potential outcomes for each. With the ninth circuit court of appeals declining to overturn a temporary restraining order on Thursday, Adam Liptak posits a revised view on these options.

With the president implying that he may abandon this endeavor entirely and simply draft a new order, U.S. District Judge Leonie M. Brinkema reports “begging” the administration to “provide some evidence” for the order’s continued existence.

All this occurs amid reports of a surge in crackdowns from U.S. Immigration and Customs Enforcement (ICE), though the organization itself argues that such raids are part of normal operations.

But how will these tumultuous early days be remembered in thirty years? Political Scientist Daniel P. Franklin notes the reconstructive properties inherent in the zeitgeist surrounding this administration, with a view toward historical precedent. Trump’s support and methodology, Franklin argues, reflect a “unique ability to question the central precepts of the last 60 years,” which tends to appeal to a populace clamoring for change. While invoking the legacies of Jackson, FDR, and Reagan, he considers the “bias in our minds toward bold leadership, no matter where it takes us,” and where that bias might lead.


Trump Entry Ban: The Ninth Circuit Lands a Stiff Jab, but the Fight is in the Early Rounds

I spent much of my working time yesterday reading a manuscript containing John Selden’s 1628 arguments before the House of Lords on habeas rights. On this point Selden’s core argument is very simple: if  individuals can be held by the king without legal remedy, then every subject in the realm has been deprived of “liberty of person.” As Selden’s list of precedents in his speech makes clear, this was already old news to judges by the time he was delivering his address. But the argument had to be made, and made forcefully, in the face of an over-reaching king whose authoritarianism would run roughshod over the nation’s constitutional traditions.

How little things have changed. Perhaps most striking in the legal battle over Trump’s entry ban are the sweeping arguments for executive power made by the government’s lawyers. In the oral arguments before the Ninth Circuit Court of Appeals’ three-judge panel, one judge after the next is gobsmacked by the government’s refusal to offer evidence of the threats to national security to which the Executive Order purports to respond. The government refused to say much of anything beyond what is stated in the text of the order itself, that foreign-born nationals have been known to commit crimes, and that adverse conditions in the seven countries affected create security problems. When pressed by the judges as to the perceived insufficiency of measures Congress had already taken to stiffen visa requirements for these countries’ nationals, the government argued that the president determined that there remained a grave risk. Pressed further still on why no evidence of such a risk had been presented, the government could only argue that ultimately the executive is the branch of government entrusted with national security, and that its determinations on such matters are not reviewable by the courts.

And there it is: the Trump Doctrine, by which the executive can simply shout an emergency into existence and trample on all law in putting out its imaginary fires. The judges were unpersuaded, and pointed out in their decision that the Supreme Court has already demolished this view in the context of the war on terror. The political branches, in the memorable words of Boumediene v. Bush (2008), do not have “the power to switch the Constitution on or off at will.” And in Holder v. Humanitarian Law Project (2010), the Court similarly declares that its “precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role,” though the decision concedes that the courts have limited ability to collect evidence and draw factual inferences in these areas.


Continue reading at The Huffington Post.

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