Here are my commentaries, media hits, and speaking engagements from March 5, 2018 through May 30, 2018. The bulk of these hits concern the CUNY protest, as well as the travel ban.

 

Articles

1. Defiance and Surrender, 59 So. Texas L. Rev. (2018).

 

Commentary

1. Conservative and Libertarian Lawyers in the Era of Trump, Lawfare (May 29, 2018).
2. Dueling Cosmic Injunctions, DACA and Departmentalism, Lawfare (May 22, 2018).
3. The Easy Way Forward on Trump v. Hawaii, Lawfare (Apr. 25, 2018).
4. CUNY Law students heckled my talk on campus free speech, NY Daily News (Apr. 21, 2018).
5. Students at CUNY Law Protested and Heckled My Lecture about Free Speech on Campus, National Review (Apr. 12, 2018).
6. Testing California’s “Sanctuary Law,” Wall Street Journal (Mar. 13, 2018) (with Ilya Shapiro) (Reproduction).
7. Analysis of IRAP v. Trump Part I: The Fourth Circuit’s Reliance on Pre- and Post-Inauguration Statements, Lawfare (May 27, 2017).
8. Analysis of IRAP v. Trump Part II: The Fourth Circuit’s Misuse of Mandel, Din, Lemon, and Town of Greece, Lawfare (May 28, 2017).

 

Media

1. Quoted in What’s Missing From Stories on Campus Free Speech?, Education Writers Association (May 25, 2018).
2. Guest on The Michael Berry Show to discuss ruling about the President’s Twitter account (May 24, 2018).
3. Quoted in Gorsuch Takes Inside-Player Role in Second Term on Supreme Court, Bloomberg (May 24, 2018).
4. Guest on the Michael Berry Show to discuss the Supreme Court (May 23, 2018).
5. Cited in When it Comes to Sharing a Laugh at SCOTUS, the Late Justice Scalia is Still Supreme, Texas Lawyer (May 22, 2018).
6. Quoted in Kennedy retirement rumors shift into overdrive, The Hill (May 21, 2018).
7. Cited in First they came for Josh Blackman: why censorship isn’t the answer, Oxford University Press Blog (May 17, 2018).
8. Quoted in PETA lawsuit against Texas A&M turns Facebook comments into a First Amendment issue, Houston Chronicle (May 16, 2018).
9. Quoted in DACA’s legal labyrinth, Politico (May 14, 2018).
10. Quoted in Mobs Against Our Rule, Townhall (May 6, 2018).
11. Quoted in Five legal headaches facing Trump, The Hill (May 6, 2018).
12. Quoted in Tennessee Again Rejects Anti-Discrimination Ethics Rule, Bloomberg BNA (May 1, 2018).
13. Quoted in NBC reports Feds monitored Cohen’s phone, The Hill (May 3, 2018).
14. Quoted in Parsing presidential intent, World (May 3, 2018).
15. Guest on KURV to discuss the CUNY Protest (May 2, 2018).
16. Quoted in Trump Claims Immunity In Bid To Ditch Emoluments Case, Law360 (May 2, 2018).
17. Quoted in Texas lawsuit brings DACA déjà vu, CNN (May 2, 2018).
18. Quoted in Does Mueller’s probe infringe upon Trump’s constitutional authority?, Yahoo News (May 2, 2018).
19. Guest on the Texas Standard to discuss DACA Suit (May 2, 2018) (Audio).
20. Cited in Free Speech Norms should be Different on a Law School Campus, The Faculty Lounge (May 2, 2018).
21. Cited in Colleges: Anti-Diversity and Pro-Exclusion, Creators: Walter E. Williams (May 2, 2018).
22. Quoted in As the Supreme Court considers Trump’s travel ban, some want justices to remember a case they decided 74 years ago, WUNC North Carolina Public Radio (May 2, 2018).
23. Quoted in Lawyers have enhanced duty of confidentiality when engaging in public commentary, ABA Journal (May 1, 2018).
24. Quoted in Administrators at CUNY and Duke Aren’t Going to Do Anything About Students Who Disrupted Events, Reason (Apr. 27, 2018).
25. Quoted in 8 Minutes Hate, No Big Deal, Says CUNY Law Dean, Forbes (Apr. 27, 2018).
26. Quoted in US judge rules against Trump move to end DACA program, Tri-Lake Tribune (Apr. 27, 2018).
27. Guest on National Constitution Center – We the People Podcast: The Supreme Court considers the travel ban case (April 26, 2018) (Audio).
28. Guest on SCOTUS 101 Podcast (Apr. 26, 2014).
29. Quoted in La corte no permite a Trump finalizar DACA, pero abre la puerta a una victoria en la apelación, La Grane Poca (Apr. 26, 2014).
30. Supreme Court Notebook, A.P. (Apr. 26, 2018).
31. Quoted in Experts Say Trump Has Strong Position in Supreme Court’s Travel Ban Case, Lifezette (Apr. 25, 2018).
32. Quoted in As College Decision Day Approaches, Parents Should Beware, Townhall (Apr. 25, 2018).
33. Quoted in Kennedy, conservatives appear to back Trump on travel ban, CNN (Apr. 25, 2018).
34. Guest on WBAL News Now with Bryan Nehman to discuss the Travel Ban (Apr. 25, 2018).
35. Guest on KTRH’s Houston Morning News to discuss the Travel Ban (Apr. 25, 2018).
36. Guest on KPCC’s AirTalk with Larry Mantle to discuss the Travel Ban (Apr. 25, 2018).
37. Guest on BBC World Service to discuss the Travel Ban Case (Apr. 25, 2018).
38. Quoted in Courts Give Trump a Possible Path Through a Legal Minefield on Immigration, New York Times (Apr. 25, 2018).
39. Quoted in As Supreme Court hears travel ban, questions of presidential authority also on docket, Christian Science Monitor (Apr. 25, 2018).
40. Quoted in Why All Libertarians Should Hope that the Supreme Court Throws Out Trump’s Travel Ban, Reason (Apr. 25, 2018).
41. Quoted in When childish law students protest against speech with impunity, we all lose, The Hill (Apr. 25, 2018).
42. Quoted in Supreme Court appears split on Trump’s travel ban, Politico (Apr. 25, 2018).
43. Quoted in As Trump travel ban (finally) reaches Supreme Court, his talk and tweets are center stage, USA Today (Apr. 24, 2018).
44. Quoted in Federal judge orders complete restart of DACA, Washington Times (Apr. 24, 2018).
45. Quoted in The Supreme Court is about to weigh in on Trump’s Muslim ban, Salon (Apr. 24, 2018).
46. Cited in The Problem With Social Media Isn’t The Media, It’s The Social, The Federalist (Apr. 24, 2018).
47. Quoted in Trump’s Travel Ban Comes Before Supreme Court in Test of Presidential Power, Bloomberg (Apr. 23, 2018).
48. Quoted in Supreme Court justices to weigh in on Trump’s powers with travel ban case, Washington Times (Apr. 23, 2018).
49. Cited in Student group disrupted law professor’s talk because dean ‘failed to provide a safe space’, College Fix (Apr. 23, 2018).
50. Cited in CUNY law students explain what protesters meant when they said ‘f**k the law’ at conservative speech, Twitchy (Apr. 23, 2018).
51. Cited in CUNY National Lawyers Guild actually issued a Statement on “What We Mean When We Say “F*ck the Law’”, Legal Insurrection (Apr. 23, 2018).
52. Quoted in Travel ban case comes as Supreme Court’s first dive into Trump Policy, A.P. (Apr. 23, 2018).
53. Guest on WBUR’s On Point to discuss the travel ban (Apr. 23, 2018) (Audio).
54. Quoted in CUNY law professors refuse to speak about student mob that disrupted scholar’s talk on free speech, The College Fix (Apr. 23, 2018).
55. Quoted in Supreme Court takes on Trump’s travel ban, Washington Examiner (Apr. 23, 2018).
56. Quoted in Senate Judiciary Committee drafts bill to protect Mueller from Trump firing, Washington TImes (Apr. 22, 2018).
57. Quoted in In travel ban case, Supreme Court considers ‘the president’ vs. ‘this president’, Washington Post (Apr. 22, 2018).
58. Quoted in Mobs Win at CUNY and Duke, Commentary (Apr. 22, 2018).
59. Quoted in More campus concerns, The Oklahoman Editorial Board (Apr. 21, 2018).
60. Quoted in Supreme Court to consider Trump’s travel ban, The Hill (Apr. 21, 2018).
61. Quoted in ‘F*** the Law!’: CUNY Law School Students Disrupt Professor’s Lecture on Free Speech, Fox News (Apr. 19, 2018).
62. Guest on Tucker Carlson Tonight, Fox New Channel to discuss CUNY Protest (Apr. 19, 2018) (Video).
63. Quoted in On the ground in Josephine Co.: Why some want cannabis grows gone, Portland Business Journal (Apr. 19, 2018).
64. Cited in Are CUNY Administrators Mobsters?, Accuracy in Academia (Apr. 19, 2018).
65. Quoted in Heckled law prof: CUNY Law would have sicced cops on pro-life protest of Ruth Bader Ginsburg, The College Fix (Apr. 18, 2018).
66. Guest on Federalist Society Podcast – Preview of Trump v. Hawaii (Apr. 16, 2018) (Audio).
67. Cited in Yes, student protesters are capable of controlling themselves, The College Fix (Apr. 18, 2018).
68. Quoted in Conservative Law Prof Heckled by CUNY Protestors Warns of Troubling Trend, National Law Journal (Apr. 17, 2018).
69. Quoted in “‘It is a bizarre thing to say “f-ck the law” when you are in law school’” The College Fix (Apr. 17, 2018).
70. Quoted in University won’t punish students who disrupted conservative professor’s speech, The College Fix (Apr. 17, 2018).
71. Quoted in CUNY’s Law Dean Is Wrong About the Attempted Shutdown of Josh Blackman, Reason (Apr. 17, 2018).
72. Cited in Blame The Left For The Rise Of Moralizing In America, The Federalist (Apr. 17, 2018).
73. Guest on The Michael Berry Show to Discuss the CUNY Protest (Apr. 16, 2018).
74. Cited in KCRW’s Left, Right, and Center (Apr. 15, 2018).
75. Cited in Travel Ban Case Is Shadowed by One of Supreme Court’s Darkest Moments, N.Y. Times (Apr. 16, 2018).
76. Quoted in CUNY Law’s Disgrace, City Journal (Apr. 16, 2018).
77. Cited on WBAL’s Brett Hollander Show regarding CUNY Protest (Apr. 15, 2018).
78. Guest on The Laura Ingraham Show to Discuss CUNY Law Protest (Apr. 13, 2018).
79. Quoted in Using Speech to Disrupt Speech – Drawing Sensible, Constitutional Lines, In a Crowded Theater (Apr. 13, 2018).
80. Quoted in ‘F*** the law’: Watch law students disrupt law professor’s speech. His topic is sadly ironic, The Blaze (Apr. 13, 2018).
81. Guest on WLS’s Big John and Ramblin’ Ray to discuss CUNY Potest (Apr. 13, 2018) (Audio).
82. Quoted in Campus free speech is threatened. But how much?, Washington Post (Apr. 13, 2018).
83. Quoted in Professor Talks of Heckling — at Free Speech Lecture, Lifezette (Apr. 13, 2018).
84. Quoted in CUNY students call law prof ‘racist’ for supporting free speech, Campus Reform (Apr. 13, 2018).
85. Quoted in New York Law Student: ‘F*** The Law!’, Daily Caller (Apr. 12, 2018).
86. Guest on Cam and Company, Student Hecklers Disrupt Campus Free Speech Lecture (Apr. 12, 2018) (Video).
87. Quoted in CUNY Students Tried to Shout Down Josh Blackman. Here’s Why They Failed, Reason (Apr. 12, 2018).
88. Quoted in CUNY Law Students Disrupt Free-Speech Lecture, National Review (Apr. 12, 2018).
89. Quoted in Students At CUNY Attempt To Shut Down Speech By Law Professor Josh Blackman, Hot Air (Apr. 12, 2018).
90. Quoted in Can Donald Trump fire Special Counsel Robert Mueller?, Politifact (Apr. 12, 2018).
91. Quoted in Organized Heckling at CUNY School of Law of Prof. Josh Blackman Talk on Free Speech, Reason (Apr. 12, 2018).
92. Quoted in Law Students Shout ‘F–k the Law’ While Disrupting Free Speech Lecture, Law & Crime (Apr. 12, 2018).
93. Quoted in Justice Gorsuch forms conservative triumvirate on Supreme Court, Washington Times (Apr. 8, 2018).
94. Guest on WNYC’s The Takeaway to discuss Justice Gorsuch’s first year (Apr. 10, 2018).
95. Quoted in Four Circuits to Watch as Trump Nominees Face Time Hurdle, Bloomberg BNA (Apr. 4, 2018).
96. Quoted in Justice Gorsuch confirms conservatives’ hopes, liberals’ fears in first year on Supreme Court, USA Today (April 8, 2018).
97. Quoted in In Extraordinary Filing, Former Nat Sec Officials Urge SCOTUS To End Travel Ban, Daily Caller (April 6, 2018).
98. Quoted in Trump v. California: The Biggest Legal Clashes, N.Y. Times (April 5, 2018).
99. Quoted in The executive branch pushes the boundaries of the separation of powers, ABA Journal (April 1, 2018).
100. Quoted in Judge’s death gives Trump the opportunity to overhaul the liberal 9th Circuit, Washington Examiner (Mar. 31, 2018).
101. Guest on Fox 5 New York to discuss Justice Stevens’s proposal to repeal 2nd Amendment (Mar. 28, 2018).
102. Quoted in Orange County Pushes Back against California’s Sanctuary-State Laws, National Review (Mar. 28, 2018).
103. Quoted in New judicial litmus test, used to select Gorsuch, aims to shrink the ‘administrative state’, ABA Journal (Mar. 28, 2018).
104. Guest on KLIF 570 News to discuss Justice Stevens’s proposal to repeal 2nd Amendment (Mar. 28, 2018).
105. Guest on KNX Radio (Los Angeles) to discuss Justice Stevens’s proposal to repeal 2nd Amendment (Mar. 27, 2018).
106. Quoted in Trump’s New Judicial Litmus Test: Shrinking ‘the Administrative State’, N.Y. Times (Mar. 26, 2018).
107. Quoted in Justice Dept. Proposes Banning Bump Stocks, Setting Aside Its Own Recommendations, N.Y. Times (Mar. 23, 2018).
108. Guest on AirTalk with Larry Mantle – 89.3 KPCC to discuss Zervos v. Trump (Mar. 21, 2018).
109. Quoted in Trump’s Newest Tweet Target: Solicitor General Noel Francisco, National Law Journal (Mar. 21, 2018).
110. Quoted in How Trump Could Fire Mueller, Valuewalk (Mar. 20, 2018).
111. Quoted in Constitutional and legal ethics scholar Ronald Rotunda dies at 73, ABA Journal (Mar. 20, 2018).
112. Mentioned on The Jim Bohnannon Show with respect to Obamacare individual mandate (Mar. 18, 2018).
113. Quoted in The NRA’s lawsuit against Florida is flimsy, The Economist (Mar. 17, 2018).
114. Guest on Daily Journal Podcast, “Sanctuary and Supremacy,” (Mar. 16, 2018).
115. Quoted in Jeff Sessions made ‘error’ in DACA legal memo, says Justice Department, Washington Times (Mar. 14, 2018).
116. Quoted in Defense Dept. charged nearly $140,000 at Trump branded properties, CNN (Mar. 14, 2018).
117. Quoted in Jeff Sessions’ Case Against California’s Sanctuary Cities Is a Constitutional Loser, Reason (Mar. 14, 2018).
118. Quoted in Pressured by Trump, A.T.F. Revisits Bump Stock Rules, N.Y. Times (Mar. 13, 2018).
119. Guest on Supreme Court Landmark Case – Yick Wo v. Hopkins, C-SPAN (Mar. 12, 2018) (Video).
120. Quoted in Can ‘Texas v. United States’ Set Us Free From Obamacare?, The American Spectator (Mar. 12, 2018).
121. Quoted in Suing California: What Washington’s move means for future conflicts, Christian Science Monitor (Mar. 8, 2018).
122. Guest on AirTalk with Larry Mantle – 89.3 KPCC to Discuss the new Sanctuary CIty suit (Mar. 7, 2018) (Audio)
123. Quoted in Campus Speech Protest Draws Call to Discipline Law Students, Bloomberg Law (Mar. 7, 2018).
124. Quoted in Lawyers for Mexican journalist blame his detention in the U.S. on Trump’s ‘anti-Mexican bias’, L.A. Times (Mar 6. 2018).
125. Quoted in The Supreme Court May Revive a Legal Theory Last Used to Strike Down New Deal Laws, Slate (Mar. 5, 2018).
126. Quoted in The resistance is using the courts to fight Trump, but Trump is winning there, too, Washington Examiner (Mar. 5, 2018).
127. Quoted in DACA case could hit the Supreme Court in a matter of months, experts say, Washington Examiner (Mar. 5, 2018).

 

Academic Presentations

1. Presidential Speech, Yale Freedom of Expression Scholars Conference (Apr. 29, 2018).
2. The Presidency Beyond Trump: The Perils of Judging Executive Action by Motives, NYU Law School (Mar. 30, 2018).
3. The Irrepressible Myths of Cooper v. Aaron, Northern Kentucky University Faculty Workshop (Mar. 14, 2018).

 

Events

1. Free Speech on Campus, Educational Writers Association National Seminar (May 16, 2018).
2. Cosmic Injunctions and DACA, Chicago Federalist Society Lawyers Chapter (May 15, 2018).
3. Debate: The Affordable Care Act, Boston College Federalist Society Chapter (Apr. 18, 2018).
4. Predicting the Supreme Court, Vermont Law School Federalist Society Chapter (Apr. 12, 2018).
5. Debate: Restoring the Lost Confirmation, Roger Williams Federalist Society Chapter (Apr. 12, 2018).
6. Debate on the Emoluments Clauses: University of Chicago Federalist Society Chapter (Apr. 9, 2018).
7. Panel Discussion on Immigration, University of North Dakota Federalist Society Chapter (Apr. 6, 2018) (Video).
8. Predicting the Supreme Court, Rutgers-Camden Federalist Society Chapter (Apr. 4, 2018).
9. Debate: The Second Amendment after Parkland, SMU Federalist Society and American Constitution Society (Apr. 2, 2018).
10. Presidential Maladministration, NYU Federalist Society Chapter (Mar. 28, 2018).
11. Bioethics and the Supreme Court, Villanova Federalist Society Chapter (Mar. 28, 2018).
12. Economic Liberty and the Criminal Law, Waynesburg University (Mar. 15, 2018).
13. Richard Cordray, Donald Trump, and the CFPB: Constitutional Questions, Cincinnati Federalist Society Lawyers Chapter (Mar. 15, 2018).
14. Debate on the Travel Ban, Northern Kentucky University Federalist Society Chapter (Mar. 13, 2018).
15. The Travel Ban and Sanctuary Cities, Indianapolis Federalist Society Lawyers Chapter (Mar. 12, 2018).
16. Becoming an Academic: 2018 Federalist Society National Student Symposium (Mar. 10, 2018).
17. Debate on Sanctuary Cities, McGeorge Federalist Society Chapter (Mar. 7, 2018) (Video).
18. Debate on the Travel Ban, Santa Clara Federalist Society Chapter (Mar. 5, 2018).
19. Fake News and the First Amendment, Houston Bar Association (Feb. 3, 2018).

 

Court Filings and Comments

1. Comments on states considering the adoption of Model Rule 8.4(g).

 

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.

Commentary

• 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).

 

Media

• 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).

 

Over the past month, due to grading and other commitments, I have fallen behind updating my CV with all of my media hits. I will upload my appearances in several blog posts throughout this week. Here are my entires from May 22 through May 29, which began as a fairly slow week, but was punctuated at the end by the Fourth Circuit’s decision in IRAP v. Trump.

Commentary

• Analysis of IRAP v. Trump Part II: The Fourth Circuit’s Misuse of Mandel, Din, Lemon, and Town of Greece, Lawfare (May 28, 2017).
• Analysis of IRAP v. Trump Part I: The Fourth Circuit’s Reliance on Pre- and Post-Inauguration Statements, Lawfare (May 27, 2017).
• Could Trump Remove Special Counsel Robert Mueller? Lessons from Watergate, Lawfare (May 23, 2017).

 

Events

• Unraveled: Obamacare, Religious Liberty, and Executive Power at Federal Bar Association of the Southern District of Texas (May 25, 2017) (Video).

 

Media

• Quoted in Racist trademark, secular activities at churches cases among anticipated Supreme Court decisions, The Washington Times (May 29, 2017).

“Whatever happens here will probably dictate whatever happens in the Redskins’ case,” said Josh Blackman, a professor at South Texas College of Law.

Legal scholars also are looking to the high court to decide whether religious nonprofits should be treated like churches or like secular organizations with regard to laws on retirement plans. Churches are allowed greater freedom to structure their plans under the Employee Retirement Income Security Act of 1974 (ERISA).

“If this case comes out against the Christian health care network, a lot of religious organizations will now be subject to ERISA, and the consequences of that are significant for the contraceptive mandate,” said Mr. Blackman, referencing the series of challenges religious nonprofits have lodged against Obamacare’s mandate requiring most organizations’ health plans to cover contraceptives.

• Quoted in Trump travel ban on shaky ground, The Hill (May 28, 2017).

“If the 9th Circuit issues an opinion and there’s no circuit split, there’s the distinct possibility the court will decide not to take the case,” said Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society.

“It would be insane, because there have been so many errors made in the lower court.”

But Blackman said the high court refused to take the case challenging same-sex marriage until at least one lower court had ruled that it was lawful, creating a split.

Even without a lower court split, Blackman claims the government has a number of options to choose from on how to proceed.

“The government said they want to appeal to the Supreme Court, but they didn’t say when,” he said. “The statement was somewhat open-ended.”

He claims the administration could seek a rehearing in the 9th Circuit “not if, but when they lose,” petition for a Supreme Court review of the 4th Circuit’s decision now, ask the Supreme Court for an emergency stay of that ruling or ask concurrently for a stay and for the court to take its case.

• Quoted in Supreme Court travel ban case could test Trump’s reach, Associated Press (May 27, 2017).

Josh Blackman, a professor at the South Texas College of Law in Houston, said he thinks the Trump factor that was central to the 4th Circuit’s ruling could be less pronounced at the Supreme Court.

The court could pay more attention to declarations from Attorney General Jeff Sessions and Homeland Security Secretary John Kelly in support of the policy. “The justices recognize their decisions will long outlive Donald J. Trump. They’ll be a little more careful to recognize that this isn’t only for or about Trump,” Blackman said.

• Cited in The Fourth Circuit and the Refugee EO: Establishing Confusion, Lawfare (May 26, 2017).
• Quoted in Appeals court upholds block on Trump’s extreme vetting policy, The Washington Times (May 25, 2017).

He said the majority ruling tossed aside Supreme Court guidance on when to look behind a government action for evidence that the action was taken in bad faith.

Josh Blackman, an associate professor at the South Texas College of Law, said the dissenters’ complaints about handling of precedent are the kinds of things that could compel the Supreme Court to take the case.

“The court of appeals leapt over a lot of precedent to get where they did,” Mr. Blackman said. “There are holes in the opinion. The court will want to patch those holes.”

• Cited in Making Their Case, Lake Oswego Review (May 23, 2017).
• Guest on Bloomberg Law Radio, White House Delays Obamacare Subsidy Suit (May 23, 2017) (Post, Audio).

• Quoted in Supreme Court sets aside case of Christian baker, same-sex wedding cake, The Washington Times (May 22, 2017).

The case has been on the Supreme Court’s potential calendar since last September, and been listed for 14 conferences, but each time the justices have emerged to say it was re-listed for the future.

Josh Blackman, a law professor at South Texas College of Law, said usually a case is re-listed once so the justices can look at it more closely, but a second relist could mean one of the justices is writing a dissent to deny review.

“At this point, it seems unlikely the court will grant it,” said Mr. Blackman.

The past two weeks have been dominated by all things Comey, Rosenstein, Trump, and Mueller.

Commentary

• The Simple Answer to Judge Paez’s Question about Korematsu, Lawfare (May 19, 2017).
• Hawaii v. Trump: What Would an “Objective Observer” Think of President Trump’s Travel Ban?, Lawfare (May 16, 2017).

 

Media

• Quoted in Could Trump turmoil affect Justice Kennedy’s retirement plans?, Washington Examiner (May 21, 2017).

South Texas College of Law professor Josh Blackman said he does not think Comey’s firing and news of Trump’s conversations with Comey will affect Kennedy’s thinking about whether to retire, which liberals hope he does not do.

“I think [Kennedy] has an idiosyncratic understanding of reality,” Blackman said. “Because of his insularity as a judge, he may not have the same concerns as someone embedded in politics.”

Blackman noted that if Kennedy retired at this point in the year, it would happen later than several recent justices have. But, Blackman added, it’s “plausible” Kennedy would wait until the end of the term to make a retirement announcement because of how he appears to enjoy keeping people guessing.

• Cited in The Bizarre, Endless, and Oh-So-Disturbing Week that Was: All of Lawfare in One Endless Post, Lawfare (May 20, 2017).
• Cited in GHS students win first in national SCOTUS competition, Greenwich Times (May 19, 2017).
• Quoted in High School Students, in Moot Competition, Argue a Supreme Court Case, Education Week School Law (May 19, 2017).

The students faced an impressive, and demanding, panel of nine “justices” that included Julie Silverbrook, the executive director of ConSource; Josh Blackman, the president of the Harlan Institute; Judge Andre M. Davis of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.; Judge Meg Ryan of the U.S. Court of Appeals for the Armed Forces, in Washington; and U.S. District Judge Royce Lamberth of Washington.

The two teams confidently made their arguments in the Trinity Lutheran case, which involves whether the state infringed the church’s federal constitutional rights by denying a playground improvement grant based on a state constitutional provision that bars direct state aid to churches. . . .

Blackman lauded the teams’ teachers and said, “It gives me faith in our republic that we have young people who can do this.”

• Quoted in States seek to intervene in House Republicans’ cost-sharing payments lawsuit, Modern Healthcare (May 18, 2017).

But an attorney who wrote an amicus brief challenging the ACA doubted the D.C. Circuit panel would grant the motion to intervene. Josh Blackman, an associate professor of law at the South Texas College of Law, said the appeals court is likely to keep the case on hold while congressional Republicans move to repeal and replace the ACA.

“Once a new bill is passed, the case is moot,” he said. “If no new bill is passed, then the House may decide to drop the suit altogether.”

• Guest on Houston Matters to Discuss Texas’s new sanctuary city law, Houston Public Media (May 18, 2017) (Post, Audio).

On Thursday, I was a guest on Houston Matters, on Houston Public Media, to discuss SB4, Texas’s new sanctuary city law. I reiterated my tentative conclusion that Section 1373 (on which the law is based) is likely unconstitutional, but the Court will have to push its federalism jurisprudence forward to invalidate the Texas bill. You can listen here (at 21:48) or here:

• Quoted in GOP Lawmakers Warn Special Counsel Could Harm Trump Admin, The Daily Caller (May 18, 2017).

Josh Blackman, an Associate Professor at the South Texas College of Law in Houston, told TheDC that a special counsel can do his work for as long as he wants.

“The letter sent out yesterday basically gave Mueller unlimited discretion as to what he can and can’t do,” Blackman said. “If he’s specifically…investigating obstruction of justice violations, that means that anyone on the Trump campaign is now being subpoenaed and being asked, perhaps, to give testimony to the special counsel.”

Blackman also stated, “Once appointed the special counsel has extremely broad autonomy to investigate as he sees fits. Under the relevant regulations he can only be fired for doing something improper. Once appointed he will keep investigating till he decides to stop.”

• Guest on KURV 710AM McAllen to discuss obstruction of Justice (May 17 2017).
• Guest on France 24 to discuss standards of impeachment, France 24 Cable News (May 17, 2017) (Post, Video).

• Quoted in What is obstruction of justice?, CNN (May 17, 2017).

After the latest news broke, Josh Blackman, an associate professor of law at the South Texas College of Law in Houston who specializes in constitutional law, called the latest news “problematic.”
“If, in fact, the President asked Comey to drop the investigation, it may have been inadvertent, but that was an attempt to obstruct justice,” he said.
“Congress can define high crimes and misdemeanors however it wishes, (but) it is entirely appropriate to reference definitions of crimes from the US Code such as obstruction of justice.”

• Guest on NPR’s All Things Considered, Trump’s Flexing Of Executive Power Raises Legal Questions (May 16, 2017) (Audio).

• Quoted in Travel ban: Is a nationwide injunction on behalf of one person overkill?, The Christian Science Monitor (May 15, 2017).

“Often the government has argued that while the case may not be limited to those individuals, the injunction should be restricted to those individuals, and courts have consistently said no,” says Josh Blackman, an associate professor at the South Texas College of Law in Houston. “If courts find that something is being done illegally, they say that if it’s illegal here, it’s illegal everywhere.”

Nationwide injunctions became more common during the Obama administration, as some conservative states regularly banded together to challenge his executive actions, persuading a federal judge – often a federal judge in Texas – to issue a nationwide injunction.

• Quoted in Trump’s Long-Shot, Machiavellian Option for FBI, Polizette (May 15, 2017).

South Texas College of Law Houston professor Josh Blackman floated the idea on his blog last week. Persuading one of the sitting justices to take the job — for the good of the country — would do more than restore confidence in the FBI: It would give Trump a second opportunity in his first four months to put his stamp on the high court.

It’s a farfetched notion. There are no indications Trump is considering any of the justices. And it seems improbable that a sitting justice would give up the power and prestige of lifetime tenure on the highest court in the land. Blackman told LifeZette it was a tongue-in-cheek proposition.

But it isn’t completely absurd.

“It was written in jest, but it’s not beyond the realm of possibility,” he said.

Blackman noted that there is historical precedent for luring a Supreme Court justice to the executive branch.

Blackman pointed out that then-President Lyndon Johnson wanted to appoint his friend Abe Fortas to the court in the 1960s. But there was no vacancy. So Johnson created one. Blackman said that Johnson told Justice Arthur Goldberg in 1965 that he needed his special mediation skills to negotiate an end to the Vietnam War.

Goldberg answered the call of the president and his country and accepted appointment as the U.S. ambassador to the U.N.

“He put his crony Abe Fortas on the court, and Johnson never returned Goldberg’s call again,” Blackman said. “It was a total setup.”

• Quoted in The Garland Gambit, The Atlantic (May 12, 2017).

This argument represents what I call the “minimal Constitution”—if the document doesn’t say “pinky swear no kidding” then it doesn’t forbid something. Minimalism has surfaced again in the wake of the firing of James Comey as FBI director.  The ever-provocative libertarian professor and blogger Josh Blackman, a leading advocate of the “no duty” position, this week left no room for doubt about Trump: “Under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”

• Cited in Top Ten from Texas Bar Today: DiMaggio, Sinatra, and Justice Scalia, Texas Bar Today (May 12, 2017).

 

The final week in April was fairly quiet, but the media heated red hot after oral arguments in IRAP v. Trump and the Comey firing. Here are all of my media hits, commentary, and events over the past three weeks.

 

Commentary

• Is This A Constitutional Crisis, Politico (May 9, 2017).
• The wrong way to assess the travel ban: Trump’s words in interviews and on the stump should not decide an appeals court’s ruling, New York Daily News (May 9, 2017).
• IRAP v. Trump: Applying The “Presumption of Regularity” in “Uncharted Territories,” Lawfare (May 9, 2017).

 

Media

• Guest on NPR’s 1A to discuss Comey and Constitutional Crises (May 11, 2017) (Post, Audio).

• Guest on Late Afternoons with Mike Schikman, 550 WSVA-AM Harrisonburg, VA (May 11, 2017) (Audio).

 

• Quoted in Trump-Comey Conversations Spark Democratic Hysteria, Polizette (May 11, 2017).

Josh Blackman, a professor at South Texas College of Law, Houston, noted that there is some uncertainty about whether Trump’s account is accurate. Assuming it is, Blackman said, it is not a clear-cut case. One the one hand, he said, the FBI typically does not tell potential targets whether they are under investigation. On the other hand, the president is the director’s boss, he added.

“It’s a really tricky question about whether this is appropriate,” he said.

Blackman pointed to a much-scrutinized statement by then-President Barack Obama in April last year that he knew Clinton “would never intentionally put America in any kind of jeopardy.” Critics saw it as evidence that Obama was trying to influence the investigation.

“There’s not really a clear line on that,” Blcakman said.

Blackman said that if Trump did, indeed, ask Comey on three separate occasions about the investigation, the director could have refused to answer. And he could have gone public if he felt that Trump was acting in an improper way, Blackman said.

“He’s shown no hesitation to hold press conferences to make a fuss,” he said.

 

• Quoted in Removal of Trump’s Muslim Comments Raise Travel Ban Questions, The National Law Journal (May 11, 2017).

Opponents of Trump’s revised travel ban have cited that 2015 press release, still visible in the president’s tweet from the day it was issued, as evidence of his discriminatory intentions. For the campaign to take it down just before a court hearing appeared conspicuous to some attorneys following the cases, but keeping it up undercut the government’s arguments that the travel ban is not based on religion.
“Damned if you do, damned if you don’t,” said South Texas College of Law professor Josh Blackman of the statement’s removal.  . .  .

Blackman said he hopes the question of what happened to the statement does come up in the Ninth Circuit arguments, if only to point out what he believes is unfounded outrage over its removal.

“This entire line of cases is insane,” Blackman said. “The entire nature of the question answers itself: this is not something courts should be doing.”

 

 

• Quoted in How to probe the Trump campaign’s Russian links?, The Economist (May 11, 2017).

Even before the dismissal of James Comey, who oversaw the FBI’s probe into links between Donald Trump’s campaign and Russia, many Democrats were dissatisfied with the various inquiries already in train. Since Mr Comey went, two solutions have been energetically pressed. One is a special or independent prosecutor. Under a law passed after the Watergate scandal, to boost the credibility of those scrutinising the executive, appointments such as Mr Starr’s were made by a panel of judges; the prosecutors had the authority to bring charges. Quite often they did not. Nevertheless, both political parties came to believe that the arrangement invested too much power in one person, who could use it to wage a remorseless campaign. “People have short memories,” observes Josh Blackman, of South Texas College of Law, of the yen for a similar fix today.

 

• Quoted in Comey Firing Could Wake a Constitutional Wolf, Bloomberg BNA Law (May 11, 2017).

The act, which has since expired, also has the added benefit of being blessed in 1988 by the Supreme Court, in Morrison v. Olson.

But constitutional law professor Josh Blackman, of South Texas College of Law Houston said it’s unlikely that the current Supreme Court would uphold a similar statute today.

Justice Antonin Scalia’s lone dissent in Morrison argued that the independent counsel provisions violated separation of powers principles. Separation of powers concerns frequently “come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis,” Scalia said.

“But this wolf comes as a wolf,” he memorably concluded.

Scalia’s dissent has “stood the test of time,” Blackman told Bloomberg BNA in an email.  . . .

But the majority opinion in Morrison is thought of much differently today than it was when it was first handed down, Rappaport said.

Indeed, in 2015, Justice Elena Kagan called Scalia’s dissent “one of the greatest dissents ever written,” Blackman noted.

People thought an independent counsel was good government following the Watergate scandal, Rappaport said. But attitudes began to change after politically motivated high-profile investigations, he said.

“Ken Starr’s witch hunt, which began with Whitewater and wound up with (Monica) Lewinsky, proved Justice Scalia correct,” Blackman said, referring to investigations of President Bill Clinton.

 

• Quoted in Does Comey’s Dismissal Fit the Definition of a Constitutional Crisis?, The Atlantic (May 11, 2017).

Has the firing of James Comey precipitated a constitutional crisis? The day after the firing, law professors began a vigorous debate. At Politico, the ACLU’s legal director, David Cole, said that a constitutional crisis is at hand because “Anytime a sitting president fires the person responsible for investigating his campaigns potential criminal activities, it is a matter of grave public concern. When that criminal investigation involves collaboration with Russia to undermine the U.S. democratic process, it’s a constitutional crisis.” In the same symposium, Josh Blackman of the South Texas College of Law disagreed, arguing that “under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.” In a follow-up podcast debate, Cole argued that a constitutional crisis occurs any time the presidents attempts to subvert a basic constitutional norm, such as the rule of law; Blackman countered that to qualify as a constitutional crisis, the president’s actions have to violate the Constitution itself.

 

• Quoted in Lawsuits piling up against Trump, The Hill (May 11, 2017).

The Boston Globe reported last week that Trump has been sued 134 times in federal court since taking office, nearly three times as many as his three predecessors.

Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston, noted that the use of litigation to pursue political ends has become so common it’s been given the name “lawfare.”

“Frankly we’re seeing a continuation of what we saw during the Obama administration,” Blackman said.

“People turn to the courts when they lose the ballot box, and that’s what we have here.”

 

• Guest on We the People Podcast, National Constitution Center, to discuss “Is the firing of James Comey a constitutional crisis?” (May 11, 2017) (Audio, Post).

 

• Quoted in Here’s What Libertarian Legal Scholars Think About Comey’s Firing, Reason (May 10, 2017).

Josh Blackman, associate professor of law at the South Texas College of Law in Houston, with a specialty in constitutional law and the U.S. Supreme Court:

“The actions are perfectly constitutional. What happens next is up to the political process. Congress can investigate as it sees fit, and use whatever remedies, up to impeachment, it deems necessary.”

On his personal blog, Blackman detailed the crucial difference between Trump’s firing of Comey and the so-called “Saturday Night Massacre” in 1973, when President Richard Nixon pushed for the firing of a special prosecutor investigating the Watergate break-in:

“Further, for those drawing analogies to the Saturday Evening Massacre, recall that Nixon never actually fired anyone himself. Instead, he had to ask a subordinate to fire the special prosecutor for cause. Comey was fired by the President, directly, at will (though plenty of causes were given).”

 

• Quoted in James Comey Admits Trump Had The Right To Fire Him, Western Journalism (May 11, 2017).

“‘Under the Constitution,” noted South Texas College of Law professor Josh Blackman, “the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”

 

• Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s firing of Comey (May 10, 2017).

 

• Quoted in Was It Legal? What Scholars Are Saying About the James Comey Firing, Fortune (May 10, 2017).

Josh Blackman, a conservative and noted constitutional law professor at the South Texas College of Law, explains on his blog that there is no question Trump had the authority to fire Comey. He notes that, under the Constitution, the President has absolute power to fire “principal officers” like the FBI Director, and notes the firing was accompanied by “fairly elaborate reasons” from the Deputy Attorney General.

 

• Guest on AM740 KTRH Houston to discuss “Fake Law” (May 10, 2017).

 

• Quoted in Firing the FBI Director Is Not a ‘Constitutional Crisis’, Reason (May 10, 2017).

Since Trump has the legal authority to dismiss the head of the FBI for a good reason, a bad reason, a transparently insincere reason, or no reason at all, talk of a constitutional crisis is more than a little premature. “Under the Constitution,” notes South Texas College of Law professor Josh Blackman, “the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”

 

• Guest on NewsRadio 790 WAEB Allentown, PA with Bobby Gunther to discuss Obamacare (May 10, 2017) (Audio).

 

• Cited in Politico symposium on the firing of James Comey, Washington Post (May 10, 2017).

Politico has posted a symposium on the ramifications of the firing of FBI Director James Comey, and whether it counts as a “constitutional crisis.” It includes contributions by a variety of legal scholars. Participants include, Josh Blackman, Sanford Levinson, Sai Prakash, Geoffrey Stone, Cass Sunstein, and others.

 

• Quoted in Those Ever-Moving Goalposts, Library of Law & Liberty (May 10, 2017).

Libertarian law professor Josh Blackman harshly criticized Posner’s opinion, accusing him of “taking advantage” of life tenure.

 

• Guest on Making Money with Charles Payne, Fox Business Network (May 9, 2017) (Video, Post):

• Guest on Bloomberg Law Radio, Travel Ban Faces Tough Review in Virginia Court (May 9, 2017) (Audio, Post).

 

• Quoted in Stop saying Yates owned Cruz, your legal ignorance is showing, Conservative Review (May 9, 2017).

Blackman goes on to argue that nothing in the provision Yates cited prohibits the government from revoking visas based on nationality. Further, he points out that according to the language of the statute, “The general policy is that visas should be issued without concern for nationality. But when the secretary deems it necessary (perhaps for national security concerns), he can adopt procedures for issuing visas based on nationality.”

Importantly, the statute Yates cited doesn’t even cover the whole breadth of Trump’s executive order. Blackman notes that 1152 only applies to “immigrant visas.” Refugees and anyone applying for a non-immigrant visa cannot lay claim to this statute whatsoever.

 

• Cited in Containing the Weapon of Mass Disruption, Library of Law & Liberty (May 9, 2017).

In short, as Josh Blackman has noted, passage in the House of the AHCA can be impugned on precisely the same grounds for which Republicans pilloried Democrats in passing the Affordable Care Act in 2010.

 

• Cited in The Fourth Circuit Argument on the Refugee EO: Second-Guessing the President or Safeguarding Individual Rights?, Lawfare (May 9, 2017).

As Josh Blackman noted here, the myriad variables at work in those cases customarily require greater flexibility for the political branches. In a case on religious displays demonstrating the judicial deference that characterizes Establishment Clause challenges to federal action, the Supreme Court in Salazar v. Buono (2010) found that a blatantly religious symbol—a cross—was almost certainly intended by Congress not as a promotion of religion but as a commemoration of Americans killed in World War I. In reaching this conclusion, the Court saw no need to refer to each of Lemon’s three prongs. Focusing on the first prong, secular purpose, was sufficient.

 

• Guest on The Michael Berry to discuss testimony of Sally Yates and IRAP v. Trump, AM740 KTRH Houston (May 8, 2017) (Audio, Post).

 

• Quoted in Trump’s Rhetoric Causes Trouble in Court, Roll Call (May 2, 2017).

Four days before the injunction, the Justice Department sent letters to nine jurisdictions requesting validation of compliance with federal immigration laws or risk grant money. There would be no nationwide injunction had the administration simply sent out the letters instead of Trump issuing an executive order, said Josh Blackman, a professor at the South Texas College of Law in Houston.

And there’s a parallel to the Trump administration’s ban on U.S. entry for refugees and certain immigrants and travelers from Muslim-majority nations, Blackman wrote on his blog. Federal judges have stopped implementation of the travel ban as well, and cited the comments of Trump and administration officials in their orders.

“Had President Trump quietly instructed his State Department officials to quietly put on hold any visa application from these countries, and to suspend specific visas of individuals from these nations, without the dramatic flare of an executive order, there would not have been a nationwide injunction,” Blackman wrote.

 

 

• Cited in Justice by algorithm: AI predicts the results of Supreme Court trials better than a human, U.K. Daily Mail (May 5, 2017).

The algorithm was developed by researchers at the Illinois Institute of Technology in Chicago, and South Texas College of Law. They used the US Supreme Court Database, which holds information on court cases dating back to 1791. Based on this data, the algorithm could correctly predict 70.2 per cent of the court’s 28,000 decisions, and 71.9 per cent of the justices’ 240,000 votes from 1816 to 2015.

 

• Quoted in Alaska Senator: Breaking Up 9th Circuit Court ‘Long Overdue’, Newsmax (May 3, 2017).

“The perennial proposal of breaking up the 9th Circuit would have zero impact on the current litigation,” Josh Blackman, a South Texas College of Law professor, told the Examiner.

 

• Cited in Artificial intelligence prevails at predicting Supreme Court decisions, Science (May 2, 2017).

For each year from 1816 to 2015, the team created a machine-learning statistical model called a random forest. It looked at all prior years and found associations between case features and decision outcomes. Decision outcomes included whether the court reversed a lower court’s decision and how each justice voted. The model then looked at the features of each case for that year and predicted decision outcomes. Finally, the algorithm was fed information about the outcomes, which allowed it to update its strategy and move on to the next year.

From 1816 until 2015, the algorithm correctly predicted 70.2% of the court’s 28,000 decisions and 71.9% of the justices’ 240,000 votes, the authors report in PLOS ONE. That bests the popular betting strategy of “always guess reverse,” which has been the case in 63% of Supreme Court cases over the last 35 terms. It’s also better than another strategy that uses rulings from the previous 10 years to automatically go with a “reverse” or an “affirm” prediction. Even knowledgeable legal experts are only about 66% accurate at predicting cases, the 2004 study found. “Every time we’ve kept score, it hasn’t been a terribly pretty picture for humans,” says the study’s lead author, Daniel Katz, a law professor at Illinois Institute of Technology in Chicago.

Roger Guimerà, a physicist at Rovira i Virgili University in Tarragona, Spain, and lead author of the 2011 study, says the new algorithm “is rigorous and well done.” Andrew Martin, a political scientist at the University of Michigan in Ann Arbor and an author of the 2004 study, commends the new team for producing an algorithm that works well over 2 centuries. “They’re curating really large data sets and using state-of-the-art methods,” he says. “That’s scientifically really important.”

 

• Quoted in Breaking up the 9th Circuit would not necessarily benefit Trump, experts say, Washington Examiner (Apr. 30, 2017).

Josh Blackman, a South Texas College of Law professor and conservative, does not think breaking up the circuit is likely to happen and does not think it would make much of a difference if it did.

“This perennial proposal of breaking up the 9th Circuit would have zero impact on the current litigation,” Blackman said in an email. “Even if the 9th Circuit was split up (which it won’t be), the judges on these two new courts would be the same. It wouldn’t make much of a difference. The only way an impact could be made is if the president was able to create new judgeships in these states, but due to the blue slip policy, it is unlikely Trump could get anyone confirmed.”

 

• Quoted in Trump Can’t Win His Battle Against the Judges, Slate (Apr. 27, 2017).

In Josh Blackman’s excellent meditation on this subject in Politico, he warns judges not to treat Trump differently than they would treat other presidents. I agree. And that means when Trump says things about his policy goals, presumably to bolster or refine or undermine his sloppy legal orders, they have some legal force. The alternative is a jurisprudential Escher staircase of meaningless words on paper, in an unending shifting dialogue of meaningless presidential words that shift from bird to fish and back again.

 

• Quoted in Trump’s Losing Streak in Courts Is Traceable to Conservative Judges, New York Times (Apr. 27, 2017).

Both sides have shown remarkable dexterity in their understanding of the law, abruptly switching positions on issues like whether states have standing to sue, whether individual federal judges may issue nationwide injunctions and whether a federal threat to withhold funds can amount to a constitutional violation.

Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. “Whatever California can do to resist immigration law,” Professor Blackman said, “Texas can do to resist environmental laws.” . . .

As a senator, Mr. Sessions cheered that ruling, saying it was “an injunction that stopped the Obama administration from proceeding with its lawless immigration system.”

Both sides have been flexible in their understanding of the applicable legal principles, Professor Blackman said.

“With respect to nationwide injunctions,” he said, “blue state attorney generals are relying on arguments they expressly opposed during the Obama administration.”

 

• Quoted in The Sanctuary Cities Ruling Is Much Ado About Nothing, The Federalist (Apr. 26, 2017).

Now, there’s an open question as to whether Section 1373 is itself unconstitutional “commandeering” of state officials (as Josh Blackman details). That is, while the federal government cannot force state officials to enforce federal law, is it constitutionally proper for it to tell states and cities that they can’t direct their officials not to exchange information with federal authorities? (Sorry for the double negative, but that’s what the issue actually is.)

 

Events

• Unraveled: Obamacare, Religious Liberty, and Executive Power, Waller County GOP Dinner (Apr. 28, 2017).

• Free Speech on College Campuses, University of Massachusetts School of Law Federalist Society Chapter (Apr. 24, 2017) (Post, Audio).