Donald Trump

  • April 26, 2017
    Guest Post

    by Joe Mendelson, Former Legal Director at the International Center for Technology Assessment, Former Democratic Chief Climate Counsel for the Senate Environment and Public Works Committee and Author of 1999 Petition Seeking EPA Regulation of Carbon Pollution that Led to the Litigation in Massachusetts v. EPA; David Bookbinder, Former Chief Climate Counsel at the Sierra Club and Current Chief Counsel at the Niskanen Center; and Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown Law and  Lead Author of the Petitioners’ Briefs in Massachusetts v. EPA

    Ten years ago this month, the Supreme Court issued its landmark ruling in Massachusetts v. EPA, holding that the Clean Air Act gives the Environmental Protection Agency the power to control the pollutants that cause climate change and that the George W. Bush administration had illegally refused to exercise this authority based on political considerations that had no basis in the Clean Air Act.

    The Trump administration has marked this anniversary with dubious ceremony. Last week, President Trump issued an executive order directing the rollback of Obama-era regulations that addressed climate change. Earlier, Trump's EPA chief, Scott Pruitt, publicly questioned the established scientific evidence of the link between human activities and rising temperatures. Pruitt, a lawyer, not only stepped into an area beyond his expertise but also managed to get the law wrong at the same time. Congress, Pruitt claimed, had never acted, and thus EPA's efforts to use the Clean Air Act to bring carbon pollution under control were illegitimate. The claim reflects an astonishing ignorance about the law that he is charged with implementing.

    Far from occurring in a legislative vacuum, EPA's carbon pollution controls are the culmination of a 50-year historical path to limiting these pollutants. It started in 1965 when during a speech to Congress President Lyndon B. Johnson spoke of modernizing the Clean Air Act to address air pollution threats before they occurred. He noted that “this generation has altered the composition of the atmosphere on a global scale through…a steady increase in carbon dioxide from the burning of fossil fuels.” During the following legislative debate on the Clean Air Act where Congressman Helstoski urged action because, “It has been predicted that by the year 2000, the amount of atmospheric carbon dioxide may have increased by about 50 percent; and many believe that this will have a considerable effect on the world’s climate.”

  • April 18, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    by Joshua Matz, Associate,  Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    There has just been a major development in the emolument clause litigation: CREW, which famously filed the first emoluments case on Trump’s first full day in office, has amended its complaint. In addition to bringing two new plaintiffs into the litigation—each with distinct and compelling theories of injury—CREW has produced a formidable and detailed list of Trump’s constitutional violations. 

    There is a lot to say about this development. For now, I will focus on a recent article with leaked information about how Trump’s lawyers might seek to defend him.

    Last week, the New York Times reported the DOJ will argue that “the court has no authority under the separation of powers doctrine to intervene; that power lies with Congress.” This suggests that Trump’s lawyers will rely on the so-called “political question doctrine,” which, in very limited circumstances, deprives federal courts of the power to decide constitutional questions.

    Such reliance would be grossly misplaced. Applying the political question doctrine here would require the court to rewrite and invert the plain text of the Foreign Emoluments Clause. It would be nothing short of absurd to deem the Foreign Emoluments Clause a “political question.” Indeed, as I will show in this post, that conclusion would require some heavy editing of the Clause:

    [N]o Any Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress is informed and thereafter denies consent.

    (I will not address the Domestic Emoluments Clause, for reasons that will soon become apparent.)

  • April 11, 2017
    Guest Post

    by Chris Edelson, Assistant Professor of Government, American University’s School of Public Affairs and Author of Power Without Constraint: The Post 9/11 Presidency and National Security

    Last week, without congressional approval, Donald Trump ordered missile strikes against Syria. The argument for the strikes is, at first blush, compelling. We all saw the nightmarish pictures of murdered Syrian children. Syrian dictator Bashar al-Assad cannot be allowed to launch chemical weapons attacks against Syrian civilians with impunity. But additional questions present themselves. Is there legal authority for Trump’s decision? If Congress fails to act, what message will it send to the Trump administration, and what could this mean for future military action both in Syria and elsewhere?

    It is clear there is no authority under U.S. law for the strike (nor under international law), and that if Congress continues to passively defer to Trump’s unilateral decision it will be sending Trump a dangerous message: that decisions about when, where and against whom to use military force are for the president alone to make. That is the view John Yoo notoriously endorsed when describing the scope of presidential authority after the 9/11 attacks, and it is a description of presidential power that is incompatible with constitutional democracy.

    The simplest and also the most persuasive reading of the Constitution is that it assigns Congress authority over the decision to go to war, unless the United States faces an emergency situation requiring the president to repel a sudden attack without time to seek congressional authorization.  As Charlie Savage noted last week, most scholars agree that this is what the framers had in mind when they created a new document for a national government that would for the first time contain an executive branch. As Louis Fisher and others have explained, the framers decisively broke with the then-existing British model by granting the national legislature this power. The president is not a king, and the Constitution assigned powers previously belonging to the British king either to Congress or to the president and Congress jointly.

  • March 20, 2017
    Guest Post

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.

    This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.”  Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.

    The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.

  • March 16, 2017
    Guest Post

    by Joshua Matz, Publisher of Take Care

    Since Donald J. Trump took office, we have all been drinking from a fire hose trying to keep up with the latest legal news. He has besieged the rule of law in so many ways at once that the American public can barely grasp the latest havoc before Trump causes yet another disaster. We have even had to learn new words—like “emoluments”—to capture all this illegality.

    As a result, the legal left has struggled to keep pace with the president, and there is a pressing need for new resources and institutions to protect our legal order.

    Rising to the occasion, over fifty of the nation’s foremost legal scholars have now joined together to ensure that the president “shall take Care that the Laws be faithfully executed.”  At Take Care (@ShallTakeCare), they will cover the major legal issues of our time, from immigration and healthcare to conflicts of interest, civil rights, free speech and more. Contributors include Larry Tribe, Walter Dellinger, Marty Lederman, Dawn Johnsen, Daniel Tokaji, Douglas NeJaime, Leah Litman and Jamal Greene, among many others. 

    In addition, Take Care has created—and will continue to create—resources useful to lawyers, journalists, policymakers and citizens. To start, it offers a daily update, which pulls together legal analyses of Trump Administration policies from around the web. Take Care also hosts dozens of topic pages, which will evolve into curated archives of first-rate legal commentary. The end result will be a veritable arsenal of progressive ideas and insights.