August 2017

  • August 3, 2017

    by Deborah N. Archer, Professor of Law, New York Law School

    “What do you have to lose?” That was the question Donald Trump posed to Black voters on the campaign trail. Well, the answer is clear: educational opportunity. Reports have circulated that the Civil Rights Division of the United States Department of Justice is preparing to investigate and file suit against colleges and universities that use race-conscious admissions programs, on the theory that affirmative action discriminates against White applicants. Such a move would certainly be an effective dog whistle to rally Trump supporters, but it would be a disaster as public policy. The Administration’s threat of protracted litigation will likely intimidate many colleges and universities into abandoning their race-conscious admissions programs. This would be a loss for all Americans.

  • August 3, 2017
    Guest Post

    by Nicholas Bagley, Professor of Law, University of Michigan Law School

    *This blog post was originally posted in The Incidental Economist

    This afternoon, the D.C. Circuit granted a motion from a group of fifteen states, led by California, to intervene in the pending appeal in House v. Price. As I explained when the motion was filed, allowing the states to intervene will prevent the Trump administration from unilaterally dismissing its appeal in the case.

    That’s a big deal. If the Trump administration wanted to stop making cost-sharing payments, the easiest way to do so would be to dismiss the appeal. The lower court entered an injunction to stop those payments, but put its injunction on hold to allow for an appeal. If Trump were to order the appeal’s dismissal, the injunction would spring into force, and the payments would end.

  • August 1, 2017

    by Rebecca Roiphe, Professor of Law, New York Law School

    In an interview with the New York Times on July 19, President Trump criticized Jeff Sessions for recusing himself in the Russia investigation and hinted that he might fire special prosecutor Robert Mueller. The following morning, former acting Attorney General, Sally Yates tweeted: “POTUS attack on Russia recusal reveals yet again his violation of the essential independence of DOJ, a bedrock principle of our democracy.” Many pundits have echoed Yates’ outrage about the assault on prosecutorial independence, but others, like Newt Gingrich, have insisted that the President, as chief executive, controls the entire apparatus of criminal prosecution and can do as he pleases.

  • August 1, 2017

    by Dan Froomkin

    Congress needs to be prepared to take immediate action if President Trump fires special counsel Robert Mueller, former White House ethics chief Norm Eisen said Monday.

    Citing Capitol Hill response to Richard Nixon's 1973 "Saturday Night Massacre" firing of the Watergate special counsel as a model, Eisen said members of the House and Senate would need to quickly launch hearings into potential obstruction of justice, take steps to assure that Mueller's records and staff are preserved --  and demand that Trump appoint a new special counsel right away to continue his work.

    "We're talking about a whole other level of firestorm here," Eisen said, "and I do believe the president's hand would be forced by the abandonment of support from his own Congress and the risk of a full-blown investigation being powered forward in Congress."

    Call that Plan A.