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Latest Episodes:

Trump Versus ALJs? Aug 02, 2018

Show notes

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 versustrumppodcast@gmail.com. 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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SALT In The Wounds Jul 26, 2018

Show notes

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 versustrumppodcast@gmail.com. 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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Versus The Trump Foundation Jul 19, 2018

Show notes

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 versustrumppodcast@gmail.com. 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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Kavanaugh's Coming, Plus Updates Jul 12, 2018

Show notes

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 versustrumppodcast@gmail.com 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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Texas and Trump Versus the ACA Jul 05, 2018

Show notes

This week, Jason, Charlie, and Easha are back with a regular episode to discuss a stunning recent development in Texas v. United States, a case by Texas seeking to invalidate the Affordable Care Act (Obamacare). Last month, the Trump Administration not only agreed with Texas that the individual mandate is unconstitutional, but it also told the district court that the requirement to cover everyone with a pre-existing condition on the same terms as healthy folks should be struck down as well.

Easha starts the discussion by giving us a background on the Affordable Care Act, including previous major cases about it and the recent change in the law that zeroes out the tax penalty for not having health insurance. She then explains the Trump Administration's new legal position, which is 1) that the individual mandate is unconstitutional beause it's no longer a tax and 2) the guarantee of coverage for those with pre-existing conditions should also be struck down because Congress would not have wanted that provision without the accompanying individual mandate. They then discuss three aspects of the Administration's position. First, are they right about the mandate? Second, do they have any plausible argument on the pre-existing conditions point? And third, just how unusual and potentially destructive is the Administration's surprising refusal to defend most of a validly-enacated law?

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

Notes

The government's legal brief in Texas v. U.S. is here.
DOJ's list of 530d letters telling Congress when it would not defend certain laws is here.
Nick Bagley and others at Take Care have some great coverage of this case. See the most recent posts here.

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Versus Mueller Jun 28, 2018

Show notes

After two special interview episodes of Versus Trump, Jason and Charlie get back to the usual format and talk about the leaked Dowd memo arguing that President should not be required to sit for an interview with the Special Counsel.

Jason and Charlie start the discussion with a summary of the Dowd memo, which was written in January by the President's lawyer and explains why the President need not sit for an interview with the Special Counsel. Jason and Charlie discuss a legal error in the definition of obstruction of justice and the merits of the various theories for why the President cannot obstruct justice anyway. Then they discuss the intended audience for this letter, and why that matters. They end with a few Trump nuggets updating various cases.

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

Notes

The annotated Dowd memo is here, at the New York Times.

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To End a Presidency? (Interview with Joshua Matz) Jun 21, 2018

Show notes

On this week's episode of Versus Trump, Jason talks about the past, present, and future of impeachment with Joshua Matz. Joshua is the publisher of Take Care and the co-author, with Laurence Tribe, of the acclaimed new book To End a Presidency: The Power of Impeachment.

Jason and Joshua start the discussion with the history of impeachment, and Joshua explains why the Framers permitted impeaching the President in the first place. They then discuss what impeachable offenses are, and Joshua explains why he thinks that impeachable offenses have three characteristics: they subvert the tenets of government; they were intentional, evil deeds; and they are plainly wrong by any reasonable standard. He then applies the standards to the present moment, and Joshua explains what Congress might consider as more evidence comes out about Trump's potential violation of the Emoluments Clauses, his potential involvement in a scheme of foreign influence in our election, and his potential obstruction of justice. Finally, Joshua closes with some big picture thoughts about the proper role of Congress and the people in any impeachment discussion.

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

Notes

Take Care's impeachment database is here.
You can buy the book here. It's quite good, and appropriate for lawyers and non-lawyers alike.
Take Care's symposium on the book is here.

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Versus Trump Live: Fairweather Federalism Jun 14, 2018

Show notes

On this week's special live episode of Versus Trump, Easha, Charlie, and Jason share the stage at the ACS National Convention in Washington, DC with Maryland Attorney General Brian Frosh and Stanford Law's Pamela Karlan. They discussed several important cases brought by states against the Trump Administration as well as the broader federalism issues presented by Democratic Attorneys General being involved in so many lawsuits against the federal government. As usual, you can listen online below, and subscribe via this page with any podcast player or here in iTunes.

Easha begins by setting up the topic, and then the special guests take the stage. Charlie kicks things off with several questions about the cases related to the Emoluments Clause, which Maryland has a major role in. Easha next asks about immigration cases, including DACA. Finally, they turn to the big questions, like whether this is a permanent state of affairs or whether blue states are just "fairweather federalists."

Thanks to everyone at ACS for hosting us, and thanks to those in attendance for being a great audience. We hope to do it again soon!

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

Notes

The Maryland Attorney General released a Maryland Defense Act report detailing the cases the office was involved in against the Administration in 2017. That's here.
You can read Take Care's coverage of Emoluments here and immigration litigation here.

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ACS Live Show Preview + Twitter Update Jun 07, 2018

Show notes

This week, Easha and Jason preview their live show at the ACS National Convention and then discuss the recent decision concluding that President Trump violated the First Amendment when he blocked seven Twitter users from responding to his tweets.

They start the episode by previewing their live episode, which will take place on Saturday, June 9, at the ACS Convention in Washington, DC. With special guests Maryland Attorney General Brian Frosh and Stanford Law Professor and former Obama Administration Deputy Assistant Attorney General Pam Karlan, Jason, Easha, and Charlie will discuss the topic of "fairweather federalism." In today's episode, Jason and Easha each share some possible questions for the guests, but you can also email us your questions for them to versustrumppodcast@gmail.com. You can find out more information and register for the Convention here.

Next, Easha and Jason turn to the merits of the recent decision in Knight First Amendment Institute v. Trump, in which a federal judge held that President Trump could not block Twitter users from responding to comment threads about his tweets. They discuss the two main hurdles the plaintiffs had to clear: 1) was the comment thread a public forum? and 2) is blocking someone from @realdonaldtrump an "official action"? They each agree with the district court's conclusion that the hurdles were successfully cleared.

They end the episode by updating several more cases and issuing a correction in response to listener feedback.

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

Notes

You can find out more information and register here for the ACS National Convention. Join us on Saturday, June 9!
The decision in the Twitter case is here.
At the Volokh Conspiracy, Eugene Volokh had a very helpful recap and analysis here.
At National Review's Bench Memos, Greg Dolin criticized the decision. The third-part of his series is here, and that post links to his first two parts.

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An Immigration Omnibus May 31, 2018

Show notes

This week, Easha, Charlie, and Jason discuss recent important cases in the world of immigration, including a new lawsuit contending that the Trump Administration may not pursue its apparent policy of legally separating immigrant children from adults that they enter the country with.

They start the discussion by detailing a new case filed by the ACLU called Mrs. L. v. ICE. The case, filed in San Diego, contends that the Trump Administration's apparent policy of separating families who present themselves together at border checkpoints is illegal beacuse it violates parents' due process rights and is arbitary and capricious. They discuss both theories, including the tricky question of who may assert so-called "substantive due process" rights and, if anyone can asset them here, what those rights are. They then move on to another under-the-radar development in the world of immigration law, which is Jeff Sessions' frequent referral of cases to himself. In one recent referral, he virtually ended the practice of administrative closures, which may restart hundreds of thousands of removal proceedings that most thought were basically closed.

And we also reveal our guests for our live episode on Saturday, June 9: Maryland Attorney General Brian Frosh and Stanford Law Professor and former Obama Administration Deputy Assistant Attorney General Pam Karlan. Email us your questions for them to versustrumppodcast@gmail.com. You can find out more information and register for the Convention here.

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

Notes

You can find out more information and register here for the ACS National Convention. Join us on Saturday, June 9!
The ACLU's case page for Mrs. L is here.
Easha mentioned coverage by Tucson's Arizona Daily Star and the New York Times.See here and here.
Leah Litman's Take Care post on the subject is here.
An extremely helpful Vox article about administrative closures is here. The opinion itself is here.

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