Month: January 2017

New in Politico Magazine: Why Trump Had to Fire Sally Yates

Last night around 10:00 PM CT, an editor from Politico Magazine asked me if I could turn around a piece on Yates’s firing, based on my blog posts and tweets. In about 90 minutes, I put together this OpEd, which I think accurate characterizes my thoughts.

Here is the introduction:

Democrats are calling it the Monday Night Massacre. On Monday evening, Acting Attorney General Sally Yates announced that under her leadership, the Justice Department would not defend President Donald Trump’s executive order on immigration. After acknowledging that the Office of Legal Counsel had reviewed the policy, and noting that the Civil Division could defend it in court, she personally rebuffed the president’s judgment, which she did not find “wise or just.” Yates, a career prosecutor appointed by Barack Obama, is now being hailed for standing up to a supposedly “tyrannical” president, according to a statement blasted out by the Democratic National Committee.

But this has it wrong. If Yates truly felt this way, she should have told the president her conclusions in confidence. If he disagreed, she had one option: resign. Instead, she made herself a political martyr and refused to comply. Trump obliged, and replaced her with the U.S. attorney for the Eastern District of Virginia, Dana Boente. While this late-night termination may bring to mind President Richard Nixon’s infamous “Saturday Night Massacre,” the analogy is inapt. This is a textbook case of insubordination, and the president was well within his constitutional powers to fire her. Call it the Monday Night Layoff instead.

 But be sure to read down to the bottom, where I note the practical implications of this decision.

While I defend Trump’s constitutional authority to remove the acting attorney general, his message accompanying the termination warrants a careful study. Announcing her firing, the president wrote that Yates had “betrayed the Department of Justice by refusing to enforce a legal order.” Charges of betrayal will only serve to chill voices of dissent within the Justice Department, and limit internal checks on the White House. Though Yates erred egregiously by making her opinion public, rather than resigning, others within the executive branch should feel free to raise constitutional doubts to the White House. However, if those in the minority sense that they will be deemed traitors, the voices of reason within the government will be silenced for fear of persecution. I worry that Yates’s foolish last stand will poison the well of President Trump’s already-low estimation of lawyers that tell him “no.” Her selfish act of painless self-flagellation—which will no doubt be rewarded by a lifetime of adulation from the left—will in the long run be counterproductive, and unfortunately inhibit dissent within an already skittish agency. Yates’s plan backfired, big league.

This is not a one-time event. I fear this situation will deteriorate, quickly.

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ConLaw Class 6 – Scope of Federal Powers I

Class 6 – 1/31/17

Scope of Federal Powers I

  • Read Article I, Section 8 of the Constitution (xxxiii – xxxiv).
  • Federalist No. 10 (26-31).
  • The Commerce Clause (124 – 125)
  • Gibbons v. Ogden (126 – 134).
  • Evidence of the meaning of the word “Commerce” (134 – 138)
  • Progressive Era Cases (183 – 185)
  • United States v. E.C. Knight Co. (186 – 191)
  • Champion v. Ames (192 – 198)
  • Hammer v. Dagenhart (198 – 202)

The lecture notes are here.

This is Thomas Gibbons.

This is Aaron Ogden.

Hammer v. Daggenhart concerned the constitutionality of laws prohibiting child labor.



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Tonight in Houston: An Evening with Tony Mauro

On January 31, at 5:00, I will be welcoming to Houston my good friend Tony Mauro, as we discuss his legendary career covering the Court. Joining me will be Aaron Street (Baker Botts) and Robby Voyles (Halliburton GC). As an added bonus, we plan to watch the announcement of the SCOTUS vacancy, and I will be offering live commentary. The event will be held at the offices of Baker Botts. To obtain more information about this unique event, please contact The Texas Lawbook’s Sally Selio at [email protected]

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Prop1 Class 6 – The Bundle of Sticks

Class 6 – 1/31/17

The Bundle of Sticks

  • Note, 104
  • Jacque v. Steenberg Homes, 104-106
  • State v. Shack, 106-108
  • Notes, 108-110

The lecture notes are here.

Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.



Here is an article from 1970 discussing the case of State v. Shack.

Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m  going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.

This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.


And this is Richard Epstein.


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Replacing Acting Attorney General Sally Yates under the Federal Vacancies Reform Act of 1998

Tonight at 9:16 P.M, White House Press Secretary tweeted that Acting Attorney General Sally Yates has been relieved, and President named Dana Boente, the U.S. Attorney for the Eastern District of Virginia as acting Attorney General. (If only Nixon had Twitter during the Saturday Evening Massacre).

The White House released a statement saying that Yates “betrayed the Department of Justice.”


How does this work? The Federal Vacancies Reform Act of 1998 provides the general framework for what happens when an officer is removed. Generally, under 5 U.S.C. § 3345(b)(1), in the event of a vacancy, “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.” However, that is not the only path. 5 U.S.C. § 3345(b)(2) states that “notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity.” In other words, rather than the “first assistant” being promoted to acting officer, the President could appoint anyone else who has received Senate confirmation–such as a U.S. Attorney–to temporarily fill that vacancy.

That is precisely what happened here.

Update: This thread captures more of my thoughts.

Update 2: did the President select, of all officers, the U.S. Attorney for the Eastern District of Virginia? Under an executive order signed by President Obama on 2010, the U.S. Attorney for E.D.Va. is first in line.

One other note. The order is triggered if the Acting Attorney General has “died, resigned, or otherwise been unable to perform the functions and duties of the office of Attorney General.” I have been researching the emphasized portion, and it has never been litigated whether this includes firing. Now, Trump has set an executive-branch precedent that it does. This will be relevant for the repealing and replacing of Richard Cordray, which gave rise to this entire post.

Update 3: The Executive Order I cited above was revoked by President Obama on January 13, 2017, and a new order changed the order of succession to put the U.S. Attorney for the District of Columbia first in line. He perhaps anticipated Trump would fire Yates…


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Guest on “This World” on Australian Broadcasting Channel to Discuss Trump’s Executive Order on Immigration

On Monday, January 30, I was a guest on the Australian Broadcasting Channel’s primetime program “This World” to discuss President Trump’s executive action on immigration. My primary goal was to convey the chaos created by this unexpected order, which at a minimum, should not have impacted people already in transit. I also discussed the possible constitutional challenges that lie ahead.

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Google Honors Fred Korematsu’s Birthday

I don’t know if this Doodle was pre-planned, but the timing is impeccable.

This is a photograph of Korematsu wearing the Congressional Medal of Freedom, given to him by President Clinton in 1998. Also, in the background are representations of the barracks at the detention camp.

For my recent lecture on Korematu v. United States, and the other Japanese detention cases, see here.

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The Anatomy of a Twitter Response: “Yes X is partially correct, but Y is more correct.”

Without any coordination, countless Twitter replies have spontaneously adopted a very similar format. First, the reply notes that a person’s tweet is correct, or at least partially correct. This foray gives the responder some credibility, and sensibility–he is after all attempting to find some common ground. That sentiment is immediately followed by a conjunction, such as “but” or “however.” Following the conjunction, the responder states what is really correct.

To state it differently: “Yes X is partially correct, but Y is more correct.”

Consider a few easy examples:

  • Yes President Obama took broad executive executives, but President Trump’s actions far more egregious.
  • Sure Justice Scalia said some inappropriate things, however Justice Ginsburg’s statements about Trump cross a line.
  • It is true that the ACA is not working perfectly, but don’t forget that Republicans have spent the last 7 years sabotaging it.

Once you see it, you can never unsee it. I’ve endeavored not to use this frame in any of my Twitter replies. Pardon me if I slip.

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Video: “The Fate of Obamacare” at University of Pennsylvania Federalist Society

On Wednesday, January 25, the University of Pennsylvania Federalist Society Chapter hosted me for a discussion of the “The Fate of Obamacare in the Trump Administration.” Professor Kermit Roosevelt kindly provided commentary. This talk provides an overview of where Obamacare has been since 2010, and where it will likely go.

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Media Hits in Week 1 of the Trump Presidency

More often than not, court watchers know (roughly) when big news will drop. When a new controversial law is about to go into effect, the emergency TRO is expected. When a lower court does something with huge stakes, the application for a stay to the Supreme Court is imminent. Never schedule anything for the last week in June, because that is when the Supreme Court will drop its biggest decisions. However, the past week was perhaps the most intense week of breaking legal news developments in my short career, between the executive order on Obamacare, the Emoluments Clause suit, the impending SCOTUS nomination, the executive orders on immigration, and more. The ad-hoc, chaotic manner in which everything happened has been stunning, and tough to keep up with (as I write this, a SCOTUS nomination may drop any minute).

Here is an overview of my media hits from the inauguration to the present (and a few older bits I forgot to include on my CV).

Emoluments Clause

  1. Quoted in Trump says lawsuit claiming he violated the Constitution is ‘without merit’, Politico (Jan. 22, 2017).
  2. Quoted in Law Profs Butt Heads Over Suit Filed Against Trump, National Law Journal (Jan. 23, 2017).
  3. Quoted in Trump’s Foreign Dealings Violate Constitution, Suit Claims, Bloomberg Politics (Jan. 23, 2017).
  4. Quoted in What is the ‘Emoluments Clause’? Does it apply to President Trump?, Washington Post (Jan.23, 2017).
  5. Quoted in Taxpayers Will Defend Trump in Suit Charging Constitutional Violations, New York Times (Jan. 23, 2017).
  6. Quoted in Why the New Ethics Lawsuit Against Trump Is Probably Dead on Arrival, The Fiscal Times (Jan. 23, 2017).
  7. Quoted in Does the emoluments clause lawsuit against President Trump stand a chance?, Washington Post (Jan. 23, 2017).
  8. Quoted in ‘Emoluments’ Lawsuit Against Trump May Get Kicked Out Of Court, Huffington Post (Jan. 23, 2017).
  9. Quoted in Democrats-linked ethics group sues Trump over ‘unconstitutional’ DC hotel, RT (Jan. 24, 2017).
  10. Guest on KRLD 1080AM Dallas to discuss the Emoluments Clause (Jan. 25, 2017).
  11. Quoted in Will Politics Derail Suit Over Trump Business Deals? Bloomberg BNA Law Week (Jan. 26, 2017).



  1. Quoted in Obamacare Executive Order Has Little Effect on Litigation, Bloomberg BNA Health Reporter (Jan. 27, 2017).
  2. Quoted in Employers’ ACA burden: Overlooked, or oversimplified, in Trump executive order?, ACA Insights (Jan. 25, 2017).
  3. Cited in Can President Trump’s executive order unravel the Affordable Care Act?, The Washington Post (Jan. 23, 2017).
  4. Quoted in Exclusive: Andy Slavitt’s next mission is saving Obamacare, Politico (Jan. 23, 2017).
  5. Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s executive action on Obamacare (Jan. 23, 2017) (Audio).
  6. Quoted in Trump May Use Obama’s Executive Branch Power Grabs to Destroy Obamacare, Reason (Jan. 23, 2017).
  7. Quoted in How Trump can use Obamacare to kill Obamacare, Politico (Jan. 22, 2017).
  8. Quoted in How Will Trump Shrink Obamacare? The Same Way Obama Did, Forbes (Jan. 21, 2017).
  9. Guest on Chris Oaks Morning Show, WFIN AM1330 Toledo, to discuss Obamacare (Jan. 19, 2017) (Audio).



  1. Guest on To The Point (KCRW Public Radio), to discuss Trump’s executive action on immigration (Jan. 26, 2017) (Audio).
  2. Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s executive action on immigration (Jan. 26, 2017).
  3. Guest on KURV 710AM McAllen to discuss Trump’s executive action on immigration (Jan. 26, 2017).



  1. Guest on WHDT Naples to discuss Supreme Court nomination, (Jan. 29, 2017).
  2. Quoted in Fans have fantasy sports, Supreme Court nerds have FantasySCOTUS, USA Today (Jan. 26, 2017).
  3. Quoted in Lawyers are being replaced by machines that read, Quartz (Jan. 25, 2017).
  4. Quoted in Neil Gorsuch Said to be a Leading SCOTUS Contender, ABA Journal (Jan. 23, 2017).
  5. Quoted in Predicting Donald Trump’s pick for the Supreme Court, The Economist’s Democracy in America Blog (Jan. 23, 2017).
  6. Guest on the Texas Standard to discuss How Trump’s Supreme Court Nominee Could Affect Texas Cases (Jan. 20, 2017).
  7. Quoted in GOP has an opportunity to make Obama’s legacy a mere BLIP in American history, Conservative Review (Jan. 20, 2017).
  8. Quoted in Game of Robes: Rampant Speculation over a Supreme Court pick, CQ Roll Call (Jan. 11, 2017).


Perhaps my favorite media hit of the week was from La Libre, a French-language newspaper in Belgium. I was interviewed about a range of constitutional questions concerning the Trump Administration.

I don’t speak French, though a friend who is fluent translated it for me (Google Translate made no sense). My favorite quote.

Et quand bien même les juges mettraient de côté leurs sensibilités politiques, ils ne pourront bloquer le président que dans ses actions qui violeraient la Constitution. Or, souligne M. Blackman, “tout ce qui est stupide n’est pas anticonstitutionnel” .

And while the judges put aside their political inclinations, they won’t be able to block the president except in his actions that violate the Constitution. Or, emphasizes Mr. Blackman, “not everything that is stupid is unconstitutional.”

That one’s for you, Nino.

What a crazy week. Can’t wait till next week.

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The Procedural Aspects of “The Airport Cases”

Late Saturday evening and early Sunday morning, four district court issued orders enjoining the enforcement of President Trump’s executive order on immigration. This rapid-fire episode yielded important decisions about constitutional law. In this post, as the situation has calmed down, I’d like to walk through the procedural aspects of what (I am calling for lack of a better term) The Airport Cases. (For background see my from post last night).

Darweesh et al v. Trump et al (EDNY)

This suit arose from the detentions of Hameed Khalid Darweesh and Sameer Abdulkhaleq Alshawi at JFK Airport. The ACLU’s petition, however, was also brought “on behalf of themselves and all others similarly situated.” Concurrently with the petition, the ACLU also filed a motion for class certification.

Petitioners and the proposed class, by and through their attorneys, hereby respectfully move this Court for an order certifying a representative class of Petitioners, pursuant to United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Petitioners ask this Court to certify a class consisting of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order.

In the 1974 case of U.S. ex rel. Sero v. Preiser, the Second Circuit held that though Federal Rule of Civil Procedure 23 does not apply directly to habeas corpus actions, citing the All Writs Act, the court fashioned a procedure similar to class action certification for habeas corpus. Wang v. Reno (EDNY 1994) described the caselaw this way:

Habeas class actions are an appropriate procedural vehicle in certain limited situations. Although habeas actions are not strictly governed by the Federal Rules of Civil Procedure and therefore the class action provisions of the rules do not automatically apply to habeas actions, a court retains the power “to fashion for habeas actions ‘appropriate means of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.’ ” Sero v. Preiser, 506 F.2d at 1125 (quoting Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 (1969)); see generally Bertrand v. Sava, 684 F.2d 204 (2d Cir.1982); Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1203 (9th Cir.1975) (class certification appropriate in “unique” circumstances); Williams v. Richardson, 481 F.2d 358 (8th Cir.1973); United States ex rel. Walker v. Mancusi, 338 F.Supp. 311, 315–16 (W.D.N.Y.1971), aff’d, 467 F.2d 51 (2d Cir.1972) (habeas corpus class certification for 38 prison inmates); Martin v. Strasburg, 689 F.2d 365, 374 (2d Cir.1982).
Though Rule 23 does not apply directly, courts have applied the traditional four requirements: numerosity, common questions of law, typical defenses, and fair representation. Nonetheless, the courts have still held that classes must be “certified” by court order.
The motion for class certification has not yet been acted upon. Yet, in the Emergency Motion for Stay of Removal, the ACLU asked the court to stay the removal of “putative class members.”

Therefore, on behalf of themselves and all others similarly situated putative class members, Petitioners respectfully move this Court to immediately grant a class-wide stay of removal during the pendency of this habeas petition for the reasons stated in the attached Memorandum of Law.

In other words, the ACLU asked the court to grant class-wide relief to a class that had not yet been certified. Judge Donnelly did just that in her late-night order. Her order purported to apply all aliens that were being detained under the Executive Order:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.

Without certifying a class–even under the 2nd Circuit’s habeas protocol–this order was ultra vires with respect to individuals other than Darweesh and Alshawi. In other words, absent a class-action certification, courts cannot grant relief to unnamed and unknown parties. (If anyone can find a precedent where a court grants an emergency habeas corpus petition for unknown parties, please send it to me). Subsequent to her opinion, Judge Donnelly issued an order that the government is required “to provide a list of individuals detained, pursuant to the January 27, 2017 Executive Order.” This is an important step necessary to certify a class–a step that should have preceded any 11th-hour injunction.

Yet, there is a further wrinkle. By the time Judge Donnelly issued her order, both Darweesh and Alshawi had already been released. At that point, the habeas corpus petition should have been moot. Some colleagues on Twitter last night suggested that this may be a case where the “Capable of Repetition Yet Evading Review” standard applies. I’m not persuaded. At that very time, others were being detained at airports across the United States. There were many other opportunities to issue orders with respect to people who were in fact being detained, unlike Darweesh and Alshawi.

The emergency motion to stay removal, however, was not moot. Even if the two individuals were released, they were still potentially subject to removal during the pendency of the current action. Judge Donnelly’s order prohibited the respondents from “removing” them, as opposed to releasing them from custody. Indeed, in hindsight, nothing in the order actually ordered the government to release from detention aliens in custody. It only said the government could not deport them. (I think I tweeted otherwise last night in my haste; I apologize for that).

So in short, Judge Donnelly’s emergency motion for a stay of removal was not moot, but was ultra vires, in that there was no formal class certification, even under the 2nd Circuit’s lax habeas rules.

One final note about Judge Donnelly’s opinion. Her final opinion stated:

It is further ordered that to assure compliance with the Court’s order, the Court directs service of this Order upon the United States Marshall for the Eastern District of New York, and further directs the Unite States Marshals Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

The very last paragraph made me think of Ex Parte Merryman. First, Roger Taney held General Cadwalader (Merryman’s jailer) in contempt, and ordered his Marshal to arrest the Union General. The poor Marshal wasn’t allowed to enter Fort McHenry (no surprise there). Later, Taney ordered the clerk of court to deliver Taney’s opinion to President Lincoln. Good luck with that. I will update this post as I analyze the other three opinions.

Aziz et al v. Trump et al (EDVA)

This case arose from the detention of various individuals at Dulles Airport. The Legal Aid Justice Center, joined by Andy Pincus and his colleagues at Mayer Brown, filed an emergency application for a temporary restraining order, as opposed to an emergency stay from removal in Darweesh. The application names three individuals: Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz. Plus, the complaint includes John Does 1-60.

Petitioners are 50 to 60 Lawful Permanent Residents (“LPRs”) currently detained at Dulles Airport. Respondents have detained these individuals or otherwise barred them from exiting the airport or continuing their transit into the United States. Respondents have denied these individuals access to lawyers. Upon information and belief, respondents imminently intend to remove these individuals from the United States.

Pursuant to Fed. R. Civ. P. 65, petitioners respectfully request that this Court issue a temporary restraining order that (a) orders respondents to permit undersigned counsel or other lawyers access to petitioners, and (b) forbids respondents from removing petitioners from the United States for a period of 7 days.

Petitioners JOHN DOES 1-60 are approximately 50-60 lawful permanent residents of the United States, most of whom are returning from trips abroad, all of whom are
nationals of one of the following seven countries: Lybia, Iraq, Iran, Yemen, Syria, Sudan, Somalia. All are in the very same situation as the Aziz brothers. All are presently being held against their will by CBP officers in the international arrivals area of Dulles Airport. All are
being held in an area where other passengers disembarking from international flights can see and hear them; accordingly, there is no reason that their attorneys could not be permitted to meet
with them.

Counsel offered the following prayer for relief:

Issue a temporary restraining order that (a) compels respondents to permit lawyers to meet with the individuals currently detained at Dulles airport and (b) forbids respondents from removing petitioners from the United States for a period of 7 days.

Late Saturday evening, Judge Leonie M. Brinkema issued a two sentence order.

This order suffers from the same problem as Darweesh. Who are the petitioners? The court ordered the government not to remove unnamed John Does. Indeed, it is difficult for a court to hold a government official in contempt for violating an order against an unnamed party. I do not know whether either of the named petitioners were released, so I can’t comment on the mootness argument.

John Doe 1, John Doe 2 v. Trump et al (D.Wash).

This case, filed by the Northwest Immigrant Rights Project, in the Western District of Washington, does not name any detained aliens. Yet, Judge Thomas S. Zilly issued an order granting an emergency stay of removal:


This order suffers from the same problems as the others, and more: it doesn’t name an actual person in custody.

Louhghalam et al v. Trump et al (D.Mass).

The final entry in the Airport Cases quartet involved two individuals detained at Logan Airport in Boston. The ACLU filed a petition for a writ of habeas corpus, and sought declaratory and injunctive relief on their behalf.

(1) Issue a Writ of Habeas Corpus requiring Respondents to release Petitioners;

(2) Issue an injunction ordering Respondents not to detain any individual solely on the basis of the EO;

(3) Enter a judgment declaring that Respondents’ detention of Petitioners is and will be unauthorized by statute and contrary to law;

Here, the ACLU did not file an emergency motion for a stay of removal.

Despite no request for a TRO, Judge Allison D. Burroughs granted a TRO early Sunday morning. Further, despite the fact that the ACLU of Massachusetts did not seek relief on “similarly situated” parties, the court granted such relief:

1. The petitioners have met their burden of establishing a strong likelihood of success in establishing that the detention and/or removal of the petitioners and others similarly situated would violate their rights to Due Process and Equal Protection as guaranteed by the United States Constitution;

2. Absent a stay of removal, petitioners and others similarly situated, including lawful permanent residents, citizens, visa-holders, approved refugees, and other individuals from nations who are subject to the January 27, 2017 Executive Order, are likely to suffer irreparable harm.

My emphasis added, as the order specifically reaches those “similarly situated,” without even the hint of an impending class certification.

Josh Block of the ACLU offered a few cases from the 9th Circuit where courts could issue class-wide injunctive relief, even where a class has not yet been certified. For example, Lavan v. City of Los Angeles (C.D. CA 2011) provides:

Finally, the Court notes that Federal Rule of Civil Procedure 65(d) provides that an injunction or restraining order only binds: “(A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with [the parties].” Although this lawsuit is stylized as a class-action, the equivalent of class-wide relief may still be appropriate despite the fact that a class has not yet been certified. In Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir.1996), the Court held that “[w]hile injunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification, an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit-even if it is not a class action — if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Easyriders Freedom F.I.G.H.T., 92 F.3d at 1501-02 (internal citations omitted) (emphasis in original). As discussed, the allegations in the Complaint indicate that the City is seizing and destroying property that has been temporarily left in public places by its owner, but not abandoned. Thus, it would likely be impossible for the City to determine whose property is being confiscated — i.e. whether it is one of the named Plaintiffs or another homeless person — and a preliminary injunction, as fashioned below, is necessary to “give prevailing parties the relief to which they are entitled.” Id.

Another case, Justin v. City of Los Angeles (C.D. Ca 2000), involved similar circumstances:

As discussed, the allegations in the Complaint indicate that the City is seizing and destroying property that has been temporarily left in public places by its owner, but not abandoned. Thus, it would likely be impossible for the City to determine whose property is being confiscated—i.e. whether it is one of the named Plaintiffs or another homeless person—and a TRO, as fashioned below, is necessary to “give prevailing parties the relief to which they are entitled.” Id.

In these two cases, because of the transitory nature of homeless people, who often leave their property in various places, “it would likely be impossible for the City to determine whose property is being confiscated.” This warranted an exception to the usual rule. Such an expansive injunction is justified to ensure the relief is provided.

This sort of analysis does not seem apt for a specific set of individuals currently being held in detention. Rather, the problem in the airports is that the challengers do not know who is actually being held in captivity. But the government most certainly does know.

I could only find a handful of decisions outside the 9th Circuit that relied on this line of precedent. The District of Connecticut (which is within the 2nd Circuit) cited Easyriders, but declined to expand the injunction beyond the named party:

Traditionally, the rule is that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Under Federal Rule of Civil Procedure 65(d), an injunction “is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Injunctive relief generally should be limited to apply only to named plaintiffs where no class has been certified, see Zepeda, 753 F.2d at 727–28 & n. 1, however, “an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir.1987) (emphasis in original); see also Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 15011502 (9th Cir.1996). No class has been certified and there is only one named plaintiff in this action. An injunction applying only to Plaintiff—i.e., barring Defendant from enforcing § 526(a)(4) against him—will provide Plaintiff with complete relief. It is not necessary to make the injunction any broader.
Zelotes v. Adams, 363 B.R. 660, 667 (D. Conn. 2007), rev’d sub nom. Adams v. Zenas Zelotes, Esq., 606 F.3d 34 (2d Cir. 2010)

(The 2nd Circuit remanded in light of intervening SCOTUS precedent, and did not address the scope of the injunction).

The Southern District of Ohio, furthermore, distinguished the case: Easyriders concerned a “permanent” injunction, and not “preliminary injunction.”

Having recognized the possibility of a Division-wide injunction under the appropriate circumstances, the Court concludes that such possible relief is not appropriate here. The posture of today’s decision is a preliminary injunction order and not a final decision on the merits resulting in permanent injunctive relief as in Easyriders. That latter case’s rationale is not applicable here to permit Best and Bowman to pursue Division-wide relief; unlike in Easyriders, extending the benefit of any preliminary injunction so broadly is not necessary to afford the two moving plaintiffs the relief to which they are entitled. See also Bresgal, 843 F.2d at 1170-71 (upholding broad injunction in order to grant named plaintiffs complete relief); Zepeda v. U.S. INS, 753 F.2d 719, 727-28 & n. 1 (9th Cir.1985) (concluding that a preliminary injunction that benefitted non-parties must be limited only to the individual plaintiffs in the absence of class certification). It is possible to grant effective relief the individual plaintiffs, Best and Bowman, without inevitably covering those within the possible class.

Lee v. City of Columbus, Ohio, No. 2:07-CV-1230, 2008 WL 2557255, at *4 (S.D. Ohio June 24, 2008)

However both Lavan and Justin concern a temporary restraining order, not permanent relief.

Josh also pointed to the SDNY decision in Strouchler v. Shah by Judge Scheindlin:

As an initial matter, I must decide whether it is appropriate to consider evidence regarding the putative class members when adjudicating plaintiffs’ motion for a preliminary injunction. Because no class has yet been certified, defendants argue that “only the [named plaintiffs’] claims are relevant to the determination of whether they are likely to succeed on the merits.”[75] It is true that named plaintiffs must have standing to assert claims on behalf of the class and that, in order to satisfy the typicality prong of Rule 23(a), named plaintiffs must assert that they have suffered the same injuries as class members.[76] But that does not mean that I should ignore the alleged harm to putative class members or the likelihood that their injuries will enable the plaintiffs to succeed on the merits.

It is well established that “[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class” and that the “court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.”[77] Less frequently discussed, however, is whether a court may rely primarily on likely harm to the putative class members — rather than harm to the named plaintiffs — at the preliminary injunction stage.

The Court found that though the class-action certification process has not been completed, it is likely that the plaintiffs will meet Rule 23’s requirements:

According to the Second Circuit’s guidance in LaForest, plaintiffs should be permitted to “adduce evidence of harm representatively” if they can show that they are similarly situated to the putative class members and such evidence will be admissible if the class is subsequently certified. Preliminarily examining plaintiffs’ entitlement to class status is therefore appropriate, both for determining the likelihood of irreparable harm and the appropriate scope of any injunctive relief. Plaintiffs have moved for class certification but the parties’ briefs are not yet fully submitted. Based on the evidence described below, however, it is likely that plaintiffs will be able to meet the Rule 23 prerequisites of numerosity, commonality, typicality, and adequacy.

Because class certification is likely, I will consider the facts relating to putative class members in order to adjudicate this motion. This is done without prejudice to revisiting the class certification question de novo upon submission of briefs by all parties.

Ultimately, SDNY issued a partial injunction to some, but not all members of the putative class, based on some very specific factors associated with the receipt of home care for the elderly and disabled.

I think the bottom line is that courts, in a pinch, have turned to generally-defined equitable powers to reach the putative class, even in the absence of a certification. Another case from the Middle District of Tennessee, pointed by a colleague on the ConLaw list serve, makes this point directly:

Neither must Plaintiffs seek Rule 23 certification in order to enjoin the conduct about which they complain. “[A] district court may, in its discretion, award appropriate classwide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers.” Thomas v. Johnston, 557 F. Supp. 879, 917 (W.D. Tex. 1983) (citation omitted). See also Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013) (“The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.” (internal quotation marks and citation omitted)), subsequent determination, WL 3776962 (N.D. Ill. July 18, 2013); Kaiser v. County of Sacramento, 780 F. Supp. 1309, 1312 (E.D. Cal. 1991) (granting class-wide injunctive relief even though the court had only provisionally certified the class and had not yet fully addressed defendants’ class certification arguments); NEWBERG ON CLASS ACTIONS § 4:30 (5th ed. 2013) (“[A] court may issue a preliminary injunction in class suits prior to a ruling on the merits.”).

And, in the always cited Strawer v. Strange:

Courts in this District and others have previously issued a preliminary injunction concurrently with certifying a class or even prior to fully certifying a class. See e.g. Harris v. Graddick, 593 F.Supp. 128 (M.D.Ala.1984) (certifying a plaintiff and defendant class concurrently with issuing a preliminary injunction); Kaiser v. County of Sacramento, 780 F.Supp. 1309, 1312 (E.D.Cal.1991) (granting class-wide injunctive relief even though the court had only provisionally certified the class and had not yet fully addressed defendants class certification arguments); Thomas v. Johnston, 557 F.Supp. 879, 916 n. 29 (W.D.Tex.1983) (“It appears to be settled … that a district court may, in its discretion, award appropriate classwide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers.”). Here, Plaintiffs are not seeking monetary damages and the court has given Attorney General Strange and Judge Davis ample opportunity to address the preliminary injunction issues. The Court finds that no further briefing or evidentiary materials are necessary. Plaintiffs have clearly met their burden for issuance of a class-wide preliminary injunction against the enforcement of state marriage laws prohibiting same-sex marriage.

In a vacuum, the proper sequencing would be to (1) ascertain who is in custody, (2) file complaints on their behalf, (3) seek injunctive relief on their behalf.  Due to the haze of war yesterday, with good reason, the various groups skipped step 1, and filed briefs on behalf of unknown parties. In any event, I am still skeptical that the courts had an adequate justification to grant relief to a putative class here consisting of unnamed members, when the unnamed individuals could have been ascertained given a few more hours. Though, I am not blind to the circumstances of yesterday. People were being detained in violation of the law, and dedicated attorneys were scrambling to draft habeas petitioners, often while sitting on the floors of airports. They should be commended for their valor. This post purely seeks to analyze the procedural issues from an abstract perspective.

The relief portion of the Massachusetts order is, by far, the most involved of the four.

First, respondents:

shall limit secondary screening to comply with the regulations and statutes in effect prior to the Executive Order, including 8 U.S.C. s. 1101(a)(13)(C):

This remedy is not limited to a stay of removal, but also orders the respondents to stop enforcing portions of the executive order, altogether.

Second, respondents:

shall not, by any manner of means, detain or remove individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, lawful permanent residents, and other individuals from Iraq, Syria, Sudan, Libya, Somalia and Yemen who, absent the Executive Order, would be legally authorized to enter the United States.

This remedy is even broader. The EDNY order was limited to removal. This also concerns detention, meaning that if they arrive in the United States, they have to be let through customs.

Third, to make sure that people are actually allowed to board planes to Logan–where they cannot be detained:

Customs and Border Protections shall notify airlines that have flights arriving at Logan Airport of this Order and the fact that individuals on these flights will not be detained or returned based solely on the basis of the Executive Order.


This the key provision, that allows foreign airlines to permit people to board flights bound to Logan (but not other airlines).

I’ll note in closing one general note about the distinction between judgments and precedents. This order, in particular, doesn’t purport to certify a class–even on an interim basis. It also only applies to Logan Airport. Yet, the government will likely treat this as a nationwide injunction binding all parties at all points of entry. This decision operates than as persuasive precedent, and not binding judgments.

Final Update

Please read through this long thread for all the final nuances:

Final Update: After some more reflection, here is a general summary of the issues at play. With respect to the Brooklyn order, the ACLU sought to certify a class. Under 2nd Circuit precedent, courts can issue injunctive relief to putative classes of unnamed members, even in habeas corpus actions. However, Judge Donnelly’s order, drafted under very tight circumstances (with good reason), fails to make the appropriate findings to recognize such a prospective class. Because it is vulnerable to a future appeal, Judge Donnelly should issue a modified opinion explaining the basis for the likelihood that a class would be certified.

With respect to the Boston case, the ACLU never sought to certify a class, but only brought the case on behalf of two individuals. Despite this fact, the district court still purported to issue injunctive relief to a putative class, without making any of the requisite findings. This order too, is extremely vulnerable to a future appeal. The court should modify the opinion.
Mootness is not that big of a problem. First, under the voluntary cessation doctrine, if the policy is changed, or (more likely) re-interpreted, courts can maintain jurisdiction if the government is likely to re-offend and break the law. Second, with respect to the Brooklyn order, it applies to “removal,” rather than detention, so it is not mooted by the release of the individuals from JFK. With the Boston order, it orders the restoration of screening policies from before the Executive Order, but impacts flights inbounds to Logan (in Boston).
Both judges should take steps to clarify their rulings, now that they have time, and make clear that they are granting preliminary injunctive relief on behalf of a putative class of unnamed members, even though the proper certifications have not been complete. This has generally been understood to be within the court’s inherent equitable powers, though it is ill-defined.

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Nationwide Injunction (Stay, really) issued in Darweesh v. Trump

Shortly after 9 p.m. ET, Judge Ann Donnelly (EDNY) granted the ACLU’s Emergency Motion for Stay of Removal on behalf of a number of people who arrived at U.S. airports, pursuant to lawful visas or refugee applications, but were not admitted entry.

The order states that petitioners have shown a “strong likelihood of success” and that their removal would violate the Due Process and Equal Protection clause, and cause irreparable injury. (Note, this order only applies to those already in the country, and thus protected by the Constitution; the same analysis does not apply to those outside the United States).

As a result, the court issues what is effectively a nationwide stay, enjoining all of the named respondents, including President Trump, Secretary Kelly, and the acting director of the CBP, from the “commission of further acts and misconduct  in violation of the Constitution as described in the Emergency Motion for Stay of Removal.”

The critical part is what they are enjoined from doing:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.

Further, the court orders the Marshal for the Eastern District of New York to “take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.”

This opinion, though, only affects the small number of people who were in-transit when the order was issued, and arrived after it went into effect. The Constitution attaches to their status, and they cannot be held in violation of the Due Process Clause. The same analysis does not apply to aliens outside the United States.

Larry Tribe and I agree on the relief portion of the analysis, at least.

In any event, faster than you can say Trump, immigration advocates have switched positions, and are now supporting this nationwide injunction. It was appropriate in Judge Hanen’s court, and is appropriate in Judge Donnely’s court.

At this moment, somewhere in Washington, D.C., Noel Francisco is deciding whether to seek a stay from SCOTUS, as the 2nd Circuit is very unlikely to take any action here.

Update: See this thread for further thoughts:

Update 2: I downloaded a PDF of the order from Pacer. You can download it here.

Update: A Judge in EDVA granted a TRO forbidding the removal of petitioners stuck at Dulles International Airport, and requiring that they be given access to counsel.

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Pretext and the Establishment Clause

As the debate over President Trump’s executive order swirls, one argument has started to gain some ground: that the provision favoring “minority religions” that are persecuted amounts to a violation of the Establishment Clause. On it’s face, the executive order is neutral, and does not single out Christians or any other faith for preferential treatment.

(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

David Cole of the ACLU, however, counters that under the Establishment Clause, courts should scrutinize both the “intent and effect” of the order. For example, Cole noted:

Trump told Christian Broadcast News that it was intended to give priority to “Christians” seeking asylum over “Muslims.”

What we have here is a situation where the intent of the government official (an executive here, not the legislature) can import a non-secular purpose to a facially neutral law.

One of my first published articles addressed just this question: how the Court’s Establishment Clause jurisprudence analyzes the intent behind a law, even if it was facially neutral. In other words, to what extent are Courts willing to smoke out “pretext” in the context of adopting a law that favors one religion over another, or at all. I wrote This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose for a 3L seminar on the First Amendment, and it was published by the George Mason Civil Rights Law Journal.

The Court had adopted a fairly open-ended approach to divining non-secular purposes behind government actions.  For example, in McCreary County v. ACLU, Justice Souter explained:

In McCreary,195 Justice Souter asserts that “purpose matters” in the First Amendment context but relegates his cursory explanation of this critical question to an unremarkable footnote.196 He alludes to Justice Holmes’s famous maxim that a dog knows the difference between being kicked and being stumbled over197 and finds that “it will matter to objective observers whether posting the [Ten] Commandments [in a court- house] follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose.”198 Justice Souter continues, remarking that posting the Decalogue results in an “ostensible indication of a purpose to promote a particular faith [that] will have the effect of causing viewers to understand the government is taking sides.”199

This framework gave rise to the so-called “objective observer” test.

Inquiring into purpose under the Establishment Clause, according to Justice Souter, is neither “unpredictable [n]or disingenuous.”205 Justice Souter reasons that the purpose could in fact be objectively discovered and hints that searching for religious purpose, for instance, is a simple task, noting the “straightforward nature of the test.”206 Of what, exactly, this test consists, he does not say. But he does manifest the “objective observer” who considers the “external signs” that emerge from the “‘text, legislative history, and implementation of the statute.’”207 How to glean and aggregate the external signs seems to be an ad hoc process. Justice Souter finds that “scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.”208

In the remainder of the article, I walked through a number of the Court’s Establishment Clause cases, which look at various forms of extrinsic evidence to ascertain the purpose of the action.

First, in Epperson v. Arkansas, the Court relied on an advertisement placed in a newspaper, in support of the law forbidding the teaching of evolution in public schools.

Second, in Stone v. Graham, the Court invalidated a Kentucky law that required posting of the Ten Commandments in public schools. The Court offered no explanation as to why there was a forbidden purpose, stating perfunctorily, “the pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.” The Court pronounced that “no legislative recitation of a supposed secular purpose can blind [them] to the fact” that the Ten Commandments are a religious symbol.

Third, in Santa Fe Independent School District v. Doe, the Supreme Court found that a student-led, student-initiated prayer before high school football games violated the First Amendment and rejected the government’s proffered secular purpose. Here too, the Court cited post-enactment legislative history.

Fourth, in Wallace v. Jaffree, the Court struck down a law requiring a moment of silence in public schools, concluding that it lacked a clearly secular purpose. Unlike Epperson and Stone, where the Court did not even attempt to analyze legislative history, Justice Stevens devoted several pages of Jaffree to examining a detailed history of the enactment of the statute. Alas, much of it was post-enactment legislative history from a single member.

Chief Justice Burger strongly rebuked Justice Stevens’s strong reliance on this post-enactment legislative history and proclaimed, “The sole relevance of the sponsor’s statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that post-enactment statements by individual legislators are relevant in determining the constitutionality of legislation.”238

In general Burger is right, but the statements of the “sole organ” of government are, I think, especially relevant. I have argued for several years that President Obama’s statements about the scope of his executive power, with respect to DAPA and DACA are relevant to the constitutional analysis. In my article on the Take Care Clause, I wrote:

This conclusion is bolstered by the fact that prior to the defeats of DACA and DAPA, President Obama—the “sole organ” of the Executive Branch—consistently stated that he lacked the power to defer the deportations of millions by himself.19 Once the bills were voted down, however, he conveniently discovered new fonts of authority.

And, as I noted in the Harvard Law Review:

When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States govern- ment.411 This oft-cited dictum from United States v. Curtiss-Wright Export Corp.,412 originally voiced by Representative John Marshall in 1800, is seldom taken literally.413 Usually, courts listen to the “sole organ” speak through the form of general policy statements issued by an executive branch agency, or even developed by the Justice Department during the course of litigation. Seldom do we see such specific reflections from the Commander in Chief himself. Here, the President personally explained the contours of his own authority on a consistent and reasoned basis. That the comments of the only person elected to the highest office in the land were unscripted — and not prepared by an army of speechwriters — elevates this discourse. Further, these were not simply barbs about policy disputes, but explications about his presidential oath to “preserve, protect, and defend the Constitution of the United States.”414 As the President acknowledged during a town hall meeting on police violence, “I’m aware that my words matter deep- ly.”415 This may be particularly true when the President is, to borrow a phrase from Justice Frankfurter, “learned . . . in the law.”416 Indeed, President Obama has opined that his experience as an attorney makes his statements on executive power more authoritative than those made by members of Congress who are not “constitutional lawyers.”417 Per- haps most importantly, President Obama has defined the bounds of his own power in response to questions from we the people, the ultimate sovereigns in the United States and the source of his authority.418 These presidential pronouncements are not hollow utterances.

Uniformly, defenders of DAPA told me that these informal statements are irrelevant, because they represent political statements that are not meant to be informed legal analyses. Indeed, there was no precedent for this conclusion–Hamdan is to the contrary–a point which I conceded in my imagined opinion by Justice Scalia in U.S. v. Texas:

The president’s public statements, while not dispositive of his constitutional obligations, are relevant to the Take Care Clause calculus. Critically, these statements-against-interest are not “self-serving press statements.” Youngstown, 343 U.S. at 647 (Jackson, J., concurring); cf. Hamdan v. Rumsfeld, 548 U.S. 557, 623 n.52 (2006) (refusing the invitation to “defer[] to comments made by [Executive] officials to the media”).

I continue to maintain that these statements are relevant to ascertain pretext. (I am working on a piece titled “Sole Organ” of Social Media–use your imagination what that’s about).

One note in closing. Virtually all commentators assume that the Establishment Clause controls the President’s decisions concerning admissibility–an antecedent question to visa issuance–in the same fashion as does the Equal Protection Clause for people in the United States. This is not self-evident, and to my knowledge, no court has ever held this to be the case. The President has in many cases, under his Article II powers, favored some religious groups over others–Soviet Jews, for example, were preferred over Soviet Christians, precisely because of threats of religious persecution. Additionally, these cases have the chance to backfire on the ACLU. If the Supreme Court ultimately upholds the President’s decisions, citing his Article II powers over national security, as well as those powers delegated by Congress, it will further cement the plenary power of the Executive Branch over immigration.


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Will the Trump Administration Repudiate DAPA OLC Opinion?

One week into the Trump Administration, despite all of the other executive actions taken with respect to immigration, DACA and DAPA are still on the books. Indeed, DHS is still accepting DACA applications. Yet, the pieces seem to be in place not only to suspend those policies, but also repudiate the grounds on which they were issue. In the President’s executive order on “Enhancing Public Safety in the Interior of the United,” there are six references to “faithful execution.”

“order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed

“We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”

“Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens”

“Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States”

“I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens”

“Enforcement Priorities.  In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress”

The import of these statements is unmistakeable: the prior President’s actions were not faithful executions of the law. As a constitutional matter, I agree. (See my various amicus briefs, and articles making that point).

Bolstering this conclusion is a leaked draft memorandum, surfaced by Vox, which recommends the President rescind DAPA and DACA in light of the Take Care Clause.

Here we have yet another case where the President, pursuant to his own oath of office, interprets the Constitution without judicial guidance. If my students learn anything from me, the courts do not have a monopoly on interpreting the Constitution. But it is not enough to withdraw the DAPA and DACA policies.

Formalizing this decision, however, would also entail rescinding the November 2014 OLC Opinion that gave the green light to DAPA and DACA.  Section 5 of the proposed executive order does just that, instructing the Justice Department to not rely on that memo:

This step is short of OLC formally withdrawing the memo, as a future administration could (in theory at least) simply rescind the instant executive order, and choose to follow the opinion authored by Obama appointee Karl Thompson. The far-more preferable solution would be to ask OLC to take a second look at this opinion, and revisit it in light of the 5th Circuit’s opinion in U.S. v. Texas, the discover from Judge Hanen’s court about how much “discretion” was actually used, and even my articles criticizing the factual errors made by OLC). There is ample ground to determine the November 2014 opinion can no longer stand.

So far, there has not been any movement from OLC concerning DAPA and DACA. Carrie Johnson reported that DOJ would not comment if the OLC had approved the White House’s orders. “No comment,” they said. This is a non-story, as OLC seldom publicly comments on advice it provides to the President. Only a handful of opinions are actually published on the OLC web site. Former OLC chiefs Caroline Krass and Karl Thompson admitted that fewer and fewer formal opinions are sought to avoid FOIA requests.

This is a mistake. Unless an opinion has national security implications or classified information, there is no valid reason why the people should not be aware of the government’s constitutional justifications for their actions. My friend Alan Morrison is currently litigating this issue, arguing they should all be released under FOIA. But, they are not. For example, the Office informally “orally advised” the administration  concerning DACA, which we only learned about in a footnote for the DAPA opinion. Nor did the office release any opinion concerning hostilities in Libya–indeed, they opted not to reduce the opinion to writing because the President wasn’t going to follow it. Charlie Savage reported in Power Wars:

The not-hostilities rationale the administration put forward was controversial, even before the administration made it public. Other lawyers on Obama’s team did not endorse Bauer’s and Koh’s interpretation of the War Powers Resolution. Johnson told Bauer he was sticking with what he said in his discussion paper. Krass made clear that if Bauer asked the Office of Legal Counsel to write a formal, authoritative memo analyzing the question, she was unlikely to give the White House the answer it wanted to hear. DeRosa, who was subordinate to Bauer, kept her head down; her position was also in a state of flux, as she was slated to step down and hand over the role of National Security Council legal adviser to her deputy, Avril Haines, in early June. Late in the process, Holder— who had the authority to override the Office of Legal Counsel and come up with the official Justice Department interpretation of the law himself— told the White House that he was backing Krass. But Obama had already made the decision by then, and Holder registered the point mildly.

If indeed OLC was not consulted before these orders were issued–notwithstanding any public commentary–it would be, well, sad. The office has been defenestrated and degraded over the last sixteen years. I hope that in the Trump Administration, it makes a modicum of credibility.


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Movement Builds to use Congressional Review Act to Rescind Unconstitutional Social-Security Administration Gun Grab

In July, I co-authored a regulatory comment on behalf of the Cato Institute, opposing a proposed rule that would designate Social Security recipients who receive a “representative payee” as “mentally defective,” and thus disqualified to purchase firearms. This regime, which failed to offer even the most basic elements of due process, deprived people with disabilities of their civil rights. Much to my disappointment, the Obama administration published the final rule on December 19–just enough time for it to go into effect on the eve of the inauguration. Perhaps the outgoing government thought they pulled a fast one–not so fast.

Almost immediately after the rule was finalized, I engaged in talks with members of the Disability Rights community, as well as Senate and House staffers, to utilize the Congressional Review Act to nullify this midnight regulation. (I discuss the operation of the CRA here). In particular, I worked closely with Dara Baldwin of the National Disability Rights Network, and Samantha Crane of the Autistic Self Advocacy Network, to put together an editorial in The Hill to make the case for the CRA. Writing this piece was a valuable experience, because we had to find a unifying ground that would appeal to all parties, without reference to party. I think the essay accomplishes that goal. Here is a sample from Congress should rescind Social Security regulation that violates civil rights of those with disabilities:

Near the end of the Obama administration, a number of new regulations were published, including one from the Social Security Administration that crossed an unfortunate line. Under recently finalized rules, millions of Americans with a disability, who have shown no propensity to harm others, could be barred from acquiring firearms. This regulation stigmatizes Social Security recipients with a disability who request help to manage their financial affairs. Even worse, it deprives them of their civil rights without due process of law.

Fortunately, the 115th Congress can rescind this discriminatory rule through the Congressional Review Act, which allows the House and Senate to disapprove of a recently-finalized regulation. If the president agrees, the regulation is nullified. On this important issue, members on both sides of the aisle should stand together: individuals with a disability should not be scapegoated to advance gun control.

Although the appropriate response to gun violence can be a divisive question, these new regulations should alarm civil rights advocates. We must not respond to gun violence by scapegoating the disability community. Advocates across the political spectrum should come together and oppose this misguided regulation.

On the same day that our op-ed ran, Representative Kevin McCarthy, the House majority leader, flagged the social-security rule in his WSJ editorial:

The bureaucracy under President Obama has also threatened America’s constitutional rights. A new rule from the Social Security Administration would increase scrutiny on up to 4.2 million disabled Americans if they attempt to purchase firearms. This would elevate the Social Security Administration to the position of an illegitimate arbiter of the Second Amendment. And in an affront to basic due process, the bureaucracy has attempted to blacklist from federal contracts any business accused of violating labor laws—before the company even has a chance to defend itself in court.

With President Trump’s signature, every one of these regulations will be overturned. In the weeks to come, the House and Senate will use the Congressional Review Act to repeal as many job-killing and ill-conceived regulations as possible. That’s how to protect American workers and businesses, defend the Constitution, and turn words into actions.

And, in perhaps the most important development, the NRA supports this repeal:

“Congress’s decision to review the Obama administration’s back-door gun grab is a significant step forward in protecting a fundamental constitutional right for law-abiding gun owners,” Chris Cox, the NRA’s top lobbyist, said in a statement Wednesday.

“The NRA has been fighting this unconstitutional government overreach since its as first discussed and we look forward to swift congressional action,” he added.

But this is not strictly a gun-control issue. As our Hill op-ed reveals, this issue is of great importance to the disability rights community. There is more coverage in the AP and Reuters.

Congress should rescind this unconstitutional deprivation of civil rights, and permanently disable the agency from enacting a “substantially similar” rule.


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South Dakota v. Dole, NFIB v. Sebelius, and Sanctuary Cities

Once, and only once, has the Supreme Court held that clawing back federal funding violates the principles of federalism. Under the Affordable Care Act (ACA), if a state refused to expand its Medicaid rolls, the federal government threatened to withhold all of its Medicaid funding. For example, the Obama administration warned Arizona that it stood to lose nearly $8 billion of federal funding, which was nearly a quarter of its state budget. The Supreme Court observed that across the board, “Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs.” In other words, states stood to lose on average 10 percent of their budgets for failing to comply with Obamacare. Back in 2012, California and a dozen other states urged the Supreme Court that this policy was perfectly lawful. “Although withdrawing from” Medicaid “may be difficult and politically unpopular,” they wrote, “it remains an option.”

Fortunately for California and other sanctuary states—today at least—seven Justices disagreed with their position.  The ACA’s “financial ‘inducement,’” explained Chief Justice Roberts, “is much more than ‘relatively mild encouragement’—it is a gun to the head.” Because “pressure turned into compulsion,” the Court concluded, the ACA’s Medicaid expansion was unconstitutional. Today, blue states proudly shroud themselves in the Obamacare decision they once opposed.

Alas, not every effort to withhold money from noncompliant states is unconstitutional. Congress routinely dangles aid to encourage states to comply with federal programs. For example, South Dakota challenged a law that would withhold 5 percent of otherwise available federal highway funds if the state refused to raise its drinking age to 21. In 1987, the Supreme Court upheld this law, finding that “Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose.” However, the amount at issue was miniscule. In the Obamacare case, the Court pointed out that “the federal funds at stake,” roughly $4 million, “constituted less than half of one percent of South Dakota’s budget at the time.”

President Trump’s recent executive order on immigration threatens to withhold from sanctuary jurisdictions all “Federal grants, except as deemed necessary for law enforcement purposes.” New York City’s comptroller general indicated that the City could lose roughly $9 million in grants. The Big Apple has a total budget of nearly $90 billion. The withheld funds would constitute less than one-hundredth of one percent of the City’s budget. This falls far short of the 10 percent figure at issue in the Obamacare case, an amount that progressive states told the Supreme Court was not coercive. But if California and New York seek to urge the Court to expand its federalism principles, and make it harder for the federal government to coerce states to act, I would be all too happy to join along in their fight.

As I wrote in on NRO shortly before the inauguration, Conservative attorneys general, rather than waiting on the sidelines, should gladly point out to the Court this necessary departure from the Obamacare case. And more specifically, they can flag all of the other federal programs, which threaten to withhold comparably small amounts—including many environmental regimes—are now at risk of invalidation in subsequent litigation. In the long run, a unanimous decision that puts more teeth into the spending-clause jurisprudence inures to the benefit of red states.


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USA Today Profiles FantasySCOTUS Prediction Market. We predicted Kagan. Will it be Gorsuch?

Since the beginning of December, Judge Gorsuch has been firmly perched atop the short-list on the FantasyJustice prediction market from LexPredict. I recently spoke with Dick Wolf at USA Today, who profiled our market.

WASHINGTON — Before the last time a Supreme Court seat was filled, court watchers and legal beavers who ventured on to the “FantasySCOTUS” website correctly predicted it would be Elena Kagan.

If the survey proves prescient again, Colorado’s Neil Gorsuch could be President Trump’s guy.

Gorsuch, 49, who sits on the U.S. Court of Appeals for the 10th Circuit, has led a field of 22 potential nominees listed on the site since shortly after Trump’s election. At last count, he had 649 votes to 512 for Alabama’s more controversial William Pryor, the early favorite among both conservatives and cognoscenti.

The Supreme Court nerds who frequent FantasySCOTUS aren’t as impressed with the other two judges said to be among Trump’s finalists. Michigan’s Raymond Kethledge is in 8th place with 160 votes; Pennsylvania’s Thomas Hardiman is 10th with 91.

“I was shocked that Judge Gorsuch shot up so quickly at the outset,” says Josh Blackman, a South Texas College of Law professor who founded the online prediction market in 2009. “I think this is one case where the ‘wisdom of the crowds’ actually identified the leading candidate long before everyone else.”

FantasySCOTUS allows attorneys, law students and others to predict how justices will vote on cases pending before the high court, with winners and prizes announced at the end of each term. The chance to guess who will fill a vacancy has only come around once since the site was created.

That was in 2010, when President Obama chose Kagan, then the U.S. solicitor general and a former Harvard Law School dean, to replace the retiring Justice John Paul Stevens. Voters on the site were way ahead of Obama, predicting early that Kagan would outpace other potential nominees — including federal appeals court Judge Merrick Garland, who got the nod after Justice Antonin Scalia’s death last year but was blocked by Senate Republicans.

“These are not random people on the street,” Blackman, 32, says of the thousands who participate on FantasySCOTUS. “They’re people who follow this closely.”

That doesn’t mean the voting is completely reliable. Some participants tried to game the system by voting multiple times, until a filter was used to prevent more than one vote per IP address. “They have an interest in their guy winning,” Blackman says.

Trump’s favorites are thought to be federal appeals court judges — including, at least until recently, Wisconsin’s Diane Sykes, who is fifth in FantasySCOTUS voting. But ahead of her is Minnesota Supreme Court Justice David Stras, a 42-year-old long shot, with more than 400 votes. And Sen. Ted Cruz is a credible seventh with 170 votes — despite not being on Trump’s list at all.

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