During the first week in June, my commentary and media hits were consumed by the Fourth Circuit’s decision in IRAP v. Trump, and later, Trump’s tweets.
- All The President’s Tweets, Lawfare (June 5, 2017).
- Analysis of IRAP v. Trump Part V: Judge Shedd and Judge Agee’s Dissents, and the Government’s Petitions for Certiorari and Applications for Stay, Lawfare (June 2, 2017).
- Analysis of IRAP v. Trump Part IV: Judge Niemeyer’s Dissent, Lawfare (June 2, 2017).
- Analysis of IRAP v. Trump Part III: The Concurring Opinions of Judges Thacker, Keenan, and Wynn, Lawfare (May 30, 2017).
- Quoted in Legal experts to Trump on travel ban: Twitter hurting cause, Associated Press (June 5, 2017).
- Guest on Making Money with Charles Payne to talk about the Travel Ban and the President’s Tweets, Fox Business Network (June 5, 2017) (Video, Post).
- Quoted in Trump undercuts his lawyers with tweets about travel ban, L.A. Times (June 5, 2017).
Legal experts said Trump’s latest comments not only undercut the government’s legal strategy, but cast doubt on the need for the Supreme Court to intervene.
“They said this was a matter of urgency. But if they are already doing the extreme vetting, why do you need an order from the court?” asked Josh Blackman, a Texas law professor and legal blogger.
“I don’t envy the solicitor general,” he added, referring to the government lawyer who represents the administration in the Supreme Court.
- Quoted in Trump calls it a travel ban — lawyers call it sabotage, The Hill (June 5, 2017).
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society, downplayed the degree to which Trump’s tweets will affect the current case.
“With respect to the Supreme Court, my reading of the case law is that the justices’ review is limited to the four corners of the executive order, so all of this is irrelevant,” Blackman said.
“But, no doubt, [the tweets] are giving the Justice Department serious grief now.”
- Quoted in Trump Promotes Original ‘Travel Ban,’ Eroding His Legal Case, N.Y. Times (June 5, 2017) (Page A1, above the fold).
There is a reason lawyers generally insist that their clients remain quiet while their cases move forward, said Josh Blackman, a professor at South Texas College of Law in Houston.
“Talkative clients pose distinct difficulties for attorneys, as statements outside the court can frustrate strategies inside the court,” Professor Blackman said. “These difficulties are amplified exponentially when the client is the president of the United States, and he continuously sabotages his lawyers, who are struggling to defend his policies in an already hostile arena. I do not envy the solicitor general’s office.”
- Quoted in Trump’s ‘TRAVEL BAN’ tweets may hurt his case at Supreme Court, USA Today (June 5, 2017).
“In general, talkative clients pose distinct difficulties for attorneys, as statements outside the court can frustrate strategies inside the court,” wrote conservative blogger Josh Blackman, associate professor at South Texas College of Law. “These difficulties are amplified exponentially when the client is the president of the United States, and he continuously sabotages his lawyers, who are struggling to defend his policies in an already-hostile arena.”
- Quoted in George Conway Cautions Trump About His Travel Ban, The Atlantic (June 5, 2017).
Lawyers from across the political spectrum reacted on Twitter with incredulity about Trump’s morning rant. “Its kinda odd to have the defendant in [Hawaii v. Trump] acting as our co-counsel,” wrote Neal Katyal, a former Obama administration official representing Hawaii in that state’s lawsuit against the president and his executive order. He continued: “We don’t need the help but will take it!” Josh Blackman, a conservative South Texas College of Law professor, described Trump as “his own worst enemy and quite possibly the worst client the [U.S. solicitor general] has ever had,” referring to the Justice Department official who would defend the travel ban at the Supreme Court if the justices take up the case.
- Cited in Trump’s Monday Morning Tweets Cause A Travel Ban Crisis, Buzzfeed (June 5, 2017).
- Quoted in Trump tweets might undercut travel ban case, The Hill (June 5, 2017).
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society, called it confounding that Trump would blame the Justice Department for modifying the original travel ban when he himself signed it.
“He is the President of the United States. Lawyers in the Justice Department, as well as the White House Counsel, work for him,” he said in an email to The Hill.
“The buck stops at the Oval Office. He can’t blame his attorneys for implementing a policy he signed.”
- Quoted in Trump’s tweets could hurt his Supreme Court case on immigration: Experts, Washington Examiner (June 5, 2017).
Trump might be the “worst client” the solicitor general has ever had and is his own worst enemy, tweeted Josh Blackman, a South Texas College of Law professor who thinks the odds favor Trump on the travel ban at the Supreme Court.
In an analysis of the potential fallout from the president’s tweets, Blackman wrote that Trump’s tweets “show utter disregard for the Justice Department’s legal strategy.”
“According to the Solicitor General, the 90-day ban on entry from certain countries was never meant to be a permanent policy. Rather, it was a pause designed to provide the government an opportunity to reassess its vetting procedures,” Blackman wrote. “By insisting on calling the policy a ‘travel ban’ — notwithstanding his attorney’s insistence to the courts that this is not what the policy about — the President undermines the Solicitor General’s arguments about the nature of the policy.”
- Quoted in Will the Supreme Court take up Trump’s travel ban?, Washington Examiner (June 3, 2017).
While it’s hard to handicap any case before the Supreme Court, especially one that has not been granted, Blackman said he thinks if the Supreme Court adheres to precedent, Trump would win. He noted that the current court is “the most conservative court that will hear this case.”
“The court could change their precedents,” Blackman noted. “In that case, it’s like trying to predict tomorrow’s lottery numbers. If you ask me what were yesterday’s lottery numbers, I can tell you with 100 percent certainty what the numbers are. If you ask me what tomorrow’s numbers are, I don’t know.”
- Quoted in Trump’s Travel Ban Is Far from Dead, Vice News (June 3, 2017).
The Ninth Circuit could choose to unblock parts of the ban, said constitutional law expert Josh Blackman, allowing the administration to begin its review and revision of vetting processes even if not every aspect of the ban, like the actual travel restriction, in place. If that review wrapped up before the Supreme Court was able to hear the case, which Blackman believes would likely happen given the timetables involved, then the court would have no practical reason to hear the case and would likely drop it. . . .
Blackman also argues that while the lower courts have relied on a 2015 decision by Justice Anthony Kennedy that they say allows them to review executive actions for bad faith motives, they’ve actually misinterpreted that judge’s words. Blackman believes that Kennedy, a notorious swing voter many observers think could decide this case in a 5-4 decision, would likely rule in favor of the ban because the text of the order itself is sound and, in his eyes, Trump and his allies’ external statements would be irrelevant.
- Quoted in SEE YOU IN COURT indeed, Mr. President, Vox (June 2, 2017).
“More likely, the Trump administration’s aggressive requests for a stay will simply persuade the Court to agree to hear both cases — both the one the Trump administration lost last week and the one it’s still waiting to hear back from the Ninth Circuit on — on an “expedited” schedule in September.”
- Quoted in Supreme Court is asked to give an early verdict on Trump’s travel ban, L.A. Times (June 2, 2017).
Josh Blackman, a law professor at the South Texas College of Law in Houston and a frequent legal blogger, predicts the court will agree to hear the case but refuse to lift the orders blocking the travel ban.
“I don’t think there would be five votes to lift the stay” and allow the travel order to take effect, he said. But the administration has a strong argument that there are “significant executive power issues” at stake, Blackman said.
But, he added, much may turn on how the justices view the developments of the last few months. “We don’t know whether they see Trump as an existential threat or [believe] the lower courts are out of line,” he said.
- Cited in A New Jurisprudence for an Oathless Presidency, Lawfare (June 2, 2017).
- Guest on Seattle KOMO NewsRadio to discuss the travel ban appeal (June 2, 2017) (Audio).