Executive Power

Recent Case: U.S. WeChat Users Alliance v. Trump

October 14, 2020

On August 6, 2020, the Trump Administration issued Executive Order 13943, banning the use of WeChat, a Chinese social media app, in the United States starting on September 20, 2020.  Under the order, consumers in the United States will not be able to download or update WeChat, or engage in transactions such as sending or…

Habeas Corpus in Wartime and Larger Lessons for Constitutional Law

April 15, 2019

This past year, I published the product of years of historical research in Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017).  In the months since, I have been asked two questions more than any others: first, why I wrote the book, and second, what, if anything, modern…

Statements and Standards in Trump v. Hawaii

June 28, 2018

On Tuesday, the Supreme Court sided with the Trump Administration in Trump v. Hawaii, the challenge to the third iteration of the President’s travel ban. President Trump quickly characterized the decision as “a tremendous victory,” and in the Manichaean world the President seems to inhabit, it’s definitely a win. But the opinion itself—which leaves the…

Don’t Forget Congress When Assigning Blame: Thoughts on Trump v. Hawaii

June 27, 2018

In the aftermath of the Supreme Court’s decision in Trump v. Hawaii, the travel ban or Muslim ban case, it is unfortunately necessary to engage—or continue to engage—in the process of assigning blame. Starting during the presidential campaign and continuing into his presidency, Donald Trump gave much reason to fear that he had “animus,” to…

Immigration Enforcement Under Trump: A Loose Cannon

February 21, 2018

The Trump administration’s immigration enforcement policy is a loose cannon, targeting noncitizens who have long been protected under prosecutorial discretion. The President has unleashed a policy that routinely targets anyone who is undocumented, not just “bad hombres.” This post examines the discretion used after a person has received a deportation (“removal”) order and how the…

Will the Federal Judiciary Remain a Check and Balance After Trump?

February 16, 2018

Donald J. Trump is no stranger to the power of judges. As a businessman, he bragged about how he used lawsuits to protect his brand and to dodge bad investments through the bankruptcy process. Then, as a candidate for President, he showed his clear disdain for the independent role that judges play in our democracy….

The Looming Battle over the Antiquities Act

January 6, 2018

On December 4, 2017, President Trump announced his long-anticipated decisions to shrink two major national monuments in southern Utah. Trump shrunk the Bears Ears National Monument designated by President Obama at the end of 2016 from 1.35 million acres to 201,786 acres, a reduction of about 85%. The Grand Staircase Escalante National Monument was reduced…

Making Sense of the National Monuments Conflict

December 7, 2017

The environmental community has been waiting for a shoe to drop ever since April 26th, when President Trump issued Executive Order 13792. The Order directed the Secretary of the Interior to recommend the reduction or abolition of national monuments that had been established or extended since the end of President Clinton’s first term. This past…