In a ruling late Monday, Jon S. Tigar of the U.S. District Court in San Francisco issued a temporary nationwide restraining order barring enforcement of the policy. President Trump’s action was announced on Nov. 9, 2018. The judge’s order remains in effect until Dec. 19, at which point the court will consider arguments for a permanent order. Here’s a copy of the court’s order granting temporary restraining order against Trump administration asylum policy.

Sens. Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.) and Mazie Hirono (D-Hawaii) filed a complaint in the U.S. District Court for the District of Columbia on Monday, claiming that Trump violated the Appointments Clause of the Constitution by choosing Whitaker for a Cabinet-level position even though Whitaker has never been Senate confirmed for a position. The complaint seeks to block Whitaker from serving in the role, which includes overseeing special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Here’s the abstract for Michael A. Livingston, The Other F-Word: Fascism, The ‘Rule of Law,’ and the Trump Era (Oct. 24, 2018):  “This essay considers books that have suggested parallels between 1930s-style fascism and present day politics, especially that of the Trump Administration. The essay concludes that these parallels are generally unconvincing and that, however well-intentioned, they distract attention from needed political reforms.”

The Justice Department’s Office of Legal Counsel (OLC) has advised President Trump that it was within his authority to nominate an official such as former DOJ chief of staff Matthew Whitaker as acting attorney general following Jeff Session’s resignation. In its written opinion, the OLC argued that the the Vacancies Reform Act (VRA) and AG Succession Act present two possible legal avenues for choosing a temporary AG successor, and that neither supersedes the other. The VRA allows the president to choose a high-level agency official who has served for 90 days, regardless of whether they have received Senate confirmation. Here’s the text of the opinion.

President Donald Trump on Friday invoked extraordinary national security powers to deny asylum to migrants who enter the country illegally, tightening the border as caravans of Central Americans slowly approach the United States. Trump is using the same powers he used to push through a version of the travel ban that was upheld by the Supreme Court. The proclamation puts into place regulations adopted Thursday that circumvent laws stating that anyone is eligible for asylum no matter how he or she enters the country. Here’s the text of Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States (Nov. 9, 2018).

From Corey Brettschneider, The Oath and the Office: A Guide to the Constitution for Future Presidents (W. W. Norton, Sept. 18, 2018):

The Oath and the Office is the book we need, right now and into the future, whether we are voting for or running to become president of the United States. Constitutional law scholar and political science professor Corey Brettschneider guides us through the Constitution and explains the powers—and limits—that it places on the presidency. From the document itself and from American history’s most famous court cases, we learn why certain powers were granted to the presidency, how the Bill of Rights limits those powers, and what “we the people” can do to influence the nation’s highest public office—including, if need be, removing the person in it. In these brief yet deeply researched chapters, we meet founding fathers such as James Madison and Alexander Hamilton, as well as key figures from historic cases such as Brown v. Board of Education and Korematsu v. United States.

Brettschneider breathes new life into the articles and amendments that we once read about in high school civics class, but that have real impact on our lives today. The Oath and the Office offers a compact, comprehensive tour of the Constitution, and empowers all readers, voters, and future presidents with the knowledge and confidence to read and understand one of our nation’s most important founding documents.

From the Washington Post:

U.S. archivists on Wednesday revealed one of the last great secrets of the Watergate investigation — the backbone of a long-sealed report used by special prosecutor Leon Jaworski to send Congress evidence in the legal case against President Richard M. Nixon.

The release of the referral — delivered in 1974 as impeachment proceedings were being weighed — came after a former member of Nixon’s defense team and three prominent legal analysts filed separate lawsuits seeking its unsealing after more than four decades under grand jury secrecy rules.

Here’s the text of the grand jury report and recommendation to the House of Representatives. H/T to beSpacific.

From the abstract to Presidential Norms and Article II, 131 Harv. L. Rev. 218 (2018), by Daphna Renan:

The nature of the presidency cannot be understood without reference to norms. The written provisions of our constitutional structure do not, by themselves, offer a sufficiently thick network of understandings to create a workable government. Rather, those understandings are supplied by norm-governed practices. Presidential power is both augmented and constrained by these unwritten rules. This Article offers a sustained account of the norm-based presidency. It maps out the types of norms that structure the presidency and excavates the constitutional functions that these norms serve, the substantive commitments that they supply, the decisional arenas where they apply, and the conditions that make some norms (relative to others) more or less fragile. Understanding these characteristics of an unwritten Article II helps to mark abnormal presidential behavior when it arises. It also brings into view core features of structural constitutionalism itself. Norms simultaneously settle constitutional duty for a time and orient contestation over what legitimate practice should be. Norms, however, cannot be understood in contrast to a fixed constitutional structure. Rather, norms bring into view the provisional nature of our constitutional order itself.

From the abstract for Presidential Attacks on the Press, Missouri Law Review, Forthcoming, by Sonja West:

President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants.

Yet there are also times when Trump’s lashing out at the press go beyond mere name-calling, and he instead attempts to use the power of his presidency to punish or silence press organizations that displease him. In these instances, Trump is unsheathing an entirely different kind of weapon. When a president crosses the line from insulting the press to turning the wheels of government as a means to retaliate against news organizations for their reporting, the potential First Amendment violations become very real.

The goals of this short Article are modest. It seeks simply to differentiate the various ways Trump has attacked the press, to emphasize that we should not view them all through the same constitutional lens, and to bring attention to the most serious type of offense. Unsurprisingly, it is Trump’s attempts to employ the power of the federal government to retaliate against the press that raise the most troubling constitutional concerns.

From the abstract for Rebecca Roiphe & Bruce A. Green, May Prosecutors Take Direction From the President?, 87 Fordham Law Review ___ (2018):

What would happen if the President could control federal prosecutors and directed them to make discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the Department of Justice? We have argued, in a companion article, that the President has no such power. In this Article, we play out the consequences if we are wrong. If they follow the President’s direction, prosecutors would likely violate ethical rules and norms. Because these professional obligations are created by courts and endorsed by federal statute, presidential control over prosecutorial decision making would lead to serious separation of powers concerns. Particularly, the integrity of the judicial system depends on the ethical rules at issue. By exploring these separation of powers concerns, this Article contributes to a growing debate about the power of the executive over prosecution and further supports the independence of DOJ and federal prosecutors.

From the abstract for Sonja West, Suing the President for First Amendment Violations, 71 Oklahoma Law Review ___ (2018):

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely clear if or how citizens can hold the President responsible for violating their expressive rights.

This Essay explores some of the potential obstacles facing a person or organization bringing a First Amendment lawsuit against the President such as whether the President can violate the First Amendment at all and how a plaintiff might recover for that violation. It concludes by suggesting a few possible approaches to this problem that could help clarify and secure the rights of all Americans to seek justice—even against the President—if their freedoms of speech and press are violated.

— Joe

Today President Trump signed an executive order that threatens sanctions on foreign companies, individuals or governments that meddle in the 2018 mid-term elections and beyond. Interference is defined as hacks against “election infrastructure,” attempts to influence public opinion online, and leaks of political information. The CIA, the National Security Agency, the Department of Homeland Security and the Office of the Director of National Intelligence are charged with determining whether meddling has taken place. The order requires the State Department and the Treasury Department to formulate sanctions that would be imposed against foreigners or foreign nations, with possible calibration based on the severity of offenses.

— Joe

From the abstract for Frank O. Bowman III, British Impeachments (1376 – 1787) & the Present American Constitutional Crisis (Aug. 14, 2018):

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order.

This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

— Joe

Unresolved recusal issues require a pause in the Kavanaugh hearings by Laurence H. Tribe, Hon. Timothy K. Lewis, and Norman Eisen (Brookings Institution, Sept. 4, 2018) “explains why the Constitution as originally designed by the framers requires the Supreme Court nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to be put on hold. It takes no view on his ultimate confirmation. But as one of the authors has elsewhere explained, it offends the structure the framers created for a president who is facing mounting personal liability under our Constitution and laws to choose one of the judges in his own case.” For a summary, see this Brookings article. — Joe

From Keith A. Petty, Duty and Disobedience: The Conflict of Conscience and Compliance in the Trump Era, 45 Pepperdine Law Review ___ (2018):

In the first weeks of President Trump’s administration, the Acting Attorney General was fired for ordering the Justice Department not to enforce a controversial Executive Order on immigration. Police departments and corporate boardrooms prepare for less oversight and deregulation, opening the door to more aggressive police tactics and profit seeking, respectively. Military leaders wonder whether they will be ordered to torture suspected terrorists. In each of these situations, individuals must decide whether they will follow their conscience and disobey superiors or comply with organizational and state policies.

This article examines the conflict between conscience and compliance and draws upon lessons from military conscientious objectors to describe the behavioral pulls that influence decisions to disobey. The law of military conscientious objection is an impactful microcosm of legal and ethical noncompliance. As such, it is an effective illustration of the relationship between individual behavior and organizations/states. Applying compliance theory, the branch of social- psychological studies seeking to answer why individuals, organizations, or states obey the law, this article offers prescriptive recommendations aimed to enhance organizational efficiency, individual commitment, and balance the legal and moral conflicts of potential objectors.

— Joe