On this week's episode of Versus Trump, Jason gives a quick update on a case we're watching and then signs off, because, well, in the middle of recording this week's episode, Charlie's power went out. But we'll be back next week with a full show.

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• The Sixth Circuit's decison in the case determining whether Trump could be held liable for incitement of violence at a 2016 rally is here.

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On this week's episode of Versus Trump, Jason and Charlie ask the question that so many of us ask frequently: how bad is the Trump Administration? Is it better or worse than we should have expected back on election night in 2016? 

Jason starts the episode by laying out the questions for discussion: from the perspective of one who tends to lean Democratic, how bad is the Trump Administration? Is Trump better or worse than a generic Republican president would have been? And what role have the Versus Trump cases played here?

Jason and Charlie seem to agree that lawsuits against the Trump Administration have managed to block a remarkable amount of policy, in part because members of this Administration make unusually provactive public statements and are relatively inattentive to policy and administrative law. Jason thinks progressives should take comfort in the relative stability of American domestic policy and the strength of American institutions, and realize that Trump's outrageous statements and personality are mostly bluster without a meaningful effect on people's lives. Charlie finds the harm done by Trump's racist attitudes, personal conflicts, and rampant lying to be potentially very grave, though admittedly hard to weigh against the more objective measures Jason prefers to focus on.

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

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On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all. 

The two start the discussion by going back over 50 years to the unsolved disappearance of Columbia University Professor Jesus Galindez. No one was ever charged or convicted of any crime, but a grand jury was convened to hear evidence, and researcher and plaintiff Stuard McKeever wants those secret records unsealed. The Trump Administration, in a case to be heard soon by the D.C. Circuit, opposes the unsealing request on the ground that federal courts do not have any power to unseal grand jury records outside of very narrow exceptions. If the court adopts the Trump Administration's view, it will not only go against the understanding of most other courts to have looked at the question, but some commentators think it could also affect whether the press could ever see the grand jury evidence that Mueller is creating in his investigation. Jason and Charlie discuss whether they think the Trump Administration will prevail and whether it really could affect what we find out about the Mueller investigation.

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• The Politico article by Josh Gerstein that linked this case to the Mueller investigation is here.
• The briefing is not online at a public location, so we've uploaded the briefs for those interested:
• McKeever's opening brief.
• Opening brief of amicus supporting McKeever.
• DOJ brief.
• McKeever's reply brief.
• Amicus reply.

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On this week's episode of Versus Trump, Jason and Charlie talk about an unusual and surprising case where the Trump Administration has filed a brief in support of fair housing advocates who have sued Facebook for its part in enabling discriminatory advertising.

The two start the discussion by briefly explaining Facebook's data collection and advertising practices and the way that they allegedly fun afoul of strict provisions preventing discriminatory housing advertisements. They then discuss the Trump Administration's surprising recent filing that offers full-throated support to the housing advocates' claims of discrimination. That leads to two questions: is the Trump Administration right, and why are they doing this? Ultimately, the two both give credit where it's due. 

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• The Administration's Statement of Interest in National Fair Housing Alliance v. Facebook is here.
• The Complaint in the case is here. Facebook's Motion to Dismiss is here.
• Charlie mentioned an article of his about the use of race in admissions. It's this one.

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On this week's episode of Versus Trump, Jason and Charlie begin their run of shows with Easha on leave and discuss a fascinating new lawsuit contending that the Trump Administration is unconstitutionally "sabotaging" the Affordable Care Act as a whole. 

Jason starts the discussion by explaining the case of City of Columbus v. Trump, which was brought by several cities and individuals who contend that the Aministration's actions over the last several years amount to an unconstitutional sabotage of a law the President is required to execute faithfully. As Jason explains, the suit has two claims: one a traditional claim that the Administration is acting arbitrarily, and the second a unique claim that the President is violating the "Take Care" Clause of the Constitution (blog synergy alert!). They then get into a lengthy discussion about the meaning of the Clause, whether such a suit could be viable, and whether the allegations here make out a potential violation. 

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• A non-profit organization called Democracy Forward is behind this case. Their case page is here. The Complaint is here.
• Jason mentioned an article called The Protean Take Care Clause, by Harvard Law Professors John Manning and Jack Goldsmith. That article is here.
• Law Professors Abbe Gluck and Nick Bagley had an op-ed in the New York Times contending that Trump's "sabotage" of the Act is illegal. It's here.
• Charlie insisted that we link to the video for the Beastie Boys song "Sabotage." It's here.

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On this week's episode of Versus Trump, Jason, Charlie, and Easha—in her last episode for several months—discuss the fast-moving lawsuit by states against the Trump Administration and Cody Wilson seeking to block distribution of plans for 3D-printed guns. 

Charlie starts the discussion by explaning the background of the dispute, which actually dates back several years to a lawsuit brought by Wilson, the would-be distributor of these plans, against the Obama Administration. The Obama Administration successfully blocked the plans' distribution, and the Trump Administration defended that position until a recent settlement that would have permitted the distribution as of August 1. Jason then turns to the current lawsuit brought by many blue states that seeks to stop the settlement from going into effect and has resulted in a temporary block on Wilson's website. The trio discuss the administrative and constitutional law aspects of the dispute. They then say goodbye to Easha by thinking about the big topics she'll miss while she's gone.

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• The States' first amended complaint in the new case is here.
• The court's order granting the TRO is here.
• Really nice articles covering the entire dispute at CNET are here and here.
• Jason mentioned a letter to the court from Wilson's lawyer. That's here. The Reason blog post by Brian Doherty discussing that letter is here.
• Charlie mentioned this Doug Herzog law review article.

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This week, Jason and Easha discuss a new executive order and accompanying guidance by the Trump Administration that dramatically change the rules for hiring Administrative Law Judges (ALJs) across the entire federal government. 

Easha starts the discussion by explaning the background of the federal bureaucracy, what role ALJs play, and why that role has changed after the Supreme Court's recent decision in Lucia v. SEC. They then discuss the Trump Administration's response to Lucia, which, taken as a whole, substantially changes the way ALJs are hired and could potentially alter the reasons they can be fired. Easha and Jason consider whether the changes—which will permit the President to have more control over administrative judges—are good or bad, and they also wonder whether these issues will ever be aired in court. They end with a few Trump nuggets updating other important cases, including the Manafort case and the census case.

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• The President's executive order is here.
• The DOJ guidance memo is here. Reuters first posted the memo in a story that can be found here.
• Jason discussed updates to the census and national monuments cases. Those updates were based on this article (census) and this one (monuments).

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On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss a new lawsuit by four blue states contending that the new cap on deducting state and local taxes—passed as part of the 2017 tax bill—is unconstitutional.

Charlie starts the discussion by explaning the background of the federal treatment of state and local taxes, and what the new tax law changed. They then discuss the legal claims by the states, which fall into a few different buckets. First, does the law violate the original understanding of the constitutional amendment (Number 16) authorizing the federal government to impose an income tax? Second, does the new law unfairly target certain states, or unfairly coerce them to change their policy on taxes and spending? The gang doesn't think any of the claims are great bets to succeed, but they each discuss their level of intrigue with these novel theories.

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• The Complaint in New York v. Mnuchin is here.
• A very useful post at TaxProf Blog, with links to even more commentary, is here.

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On this week's episode of Versus Trump, Jason and Charlie discuss the New York Attorney General's petition to dissolve the Trump Foundation and ban President Trump and his children from serving as directors of charities in the future. They then do some a hit on the new Mueller indictment.

Jason starts the discussion by explaning Trump's non-profit Foundation, the role of states in regulating non-profits, and the rock-solid evidence produced by the New York Attorney General that, for many years up to and including the presidential campaign in 2016, President Trump misused charitable funds and violated a litany of other laws that are supposed to ensure that non-profits actually benefit the public interest in some way. Jason and Charlie discuss their favorite allegations, including that the President let campaign staffers direct charitable funds to benefit the campaign and that he fraudulently used Trump Foundation money to pay off a debt owed by one of his golf courses. They then discuss the bigger issues presented by this case, like whether the lawsuit can go forward against a sitting president and whether this kind of pre-Presidential conduct should matter politically. Charlie then discusses the latest Mueller indictment.

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected]. You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• The petition in this case is here.
• A Bloomberg report describing the first court hearing in this case is here.
• At Just Security, Katherine Cheasty Kornman discusses the federalism considerations in the case.
• A Slate article on the case is here.

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On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases.

Charlie starts the discussion by mentioning an unconfirmed report that Justice Kennedy had been in contact with the Trump Administration before his retirement and perhaps had even been assured that Judge Kavanaugh would be nominated to replace him. Jason then breaks down Judge Kavanaugh's record in key Versus Trump areas, like executive power and administrative law, and concludes that Judge Kavanaugh is unlikely to be very sympathetic to many of the arguments plaintiffs are making in cases against the Administration. The trio then update several immigration cases, the case challenging the citizenship question on the census, and the case brought by DNC staffers against the Trump campaign. 

You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected] You can buy t-shirts and other goods with our super-cool logo here. 

Notes

• This Washington Post story discusses the since-deleted NBC report implying that Kennedy received an assurance that Trump would nominate Kavanaugh.
• An article here at Vox discusses Kavanaugh's record in several executive power cases. SCOTUSblog's profile of Kavanaugh is here.
• This Reuters article discusses the recent developments in the census case.
• Protect Democracy's case page on the Cockrum DNC case is here.

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