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Marty Lederman
@marty_lederman
, 5 tweets, 4 min read Read on Twitter
1.Perhaps the most important legal question today: Should courts afford their usual deference to a POTUS "who operates in such obvious, relentless, and bottomless bad faith, all the time, on just about everything," as the Court did in the Travel Ban case?
washingtonpost.com/opinions/2019/…
2. It's actually not an easy question--the SCOTUS is understandably reluctant to create a Trump-specific jurisprudence, especially when the serious lawyers at DOJ and the agencies shape the policies so that they're facially plausible/less dubious. The huge problem, of course ...
3. ... is that the President and the lawyers, anticipating that the courts will defer, then feel emboldened to write justifications that they (and everyone else) know are pretextual. And even if some or many lawyers/officials refuse to be party (see, e.g., Sally Yates ...
4. ... on the travel ban and FedPrograms w/r/t HHS prohibiting minors' abortions and the frivolous ACA challenge), there'll always be other professionals, some very thoughtful, who'll craft the defenses. The Mattis transgender policy is a current example.
justsecurity.org/62128/untangli…
5. Has anyone who agrees this isn't an easy question yet written thoughtfully about it (longform, not tweets)?

…

@walterdellinger @Richard_Primus @jamalgreene @steve_vladeck @LeahLitman @dorfonlaw @sbagen @jacklgoldsmith @FirstMondaysFM @heinzerlaw
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More from @marty_lederman see all

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Marty Lederman
@marty_lederman
What now for the Mattis "transgender in the military" policy? As I predicted, the Court denied the petitions before cert., but by a 5-4 vote it stayed the injunctions. The Mattis policy now goes into effect. What's the practical effect? I explain here:

justsecurity.org/62128/untangli…
2/[UPDATE: As I have written to a couple of people who asked, current service-members who have already received a medical diagnosis of gender dysphoria before the date the final injunction is stayed in the Stone case (which could be any day now) are "grandfathered"--...
3/ --they can transition (at DOD's expense), and at some point act in accordance with the grooming, uniform and facilities rules for persons of their experienced (and thus transitioned) gender. Virtually all other transgender persons who are currently serving ...
Read 5 tweets
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Marty Lederman
@marty_lederman
Did you know? That Rod Rosenstein automatically *was* the "acting AG" in the first 12-24 hours after Sessions' resignation (on 11/7) and that Trump therefore *displaced* him with Whitaker (on 11/8)?
@just_security @walterdellinger @AJosephOConnell
Judge Moss stressed the displacement point at a hearing last week (and prompted the DOJ lawyer to say that no POTUS had ever done so before 2007) and the "next day" nature of the displacement was confirmed by the Trump directive to Whitaker, which DOJ just disclosed yesterday.
Here's Trump's memo to "Chief of Staff" Whitaker from 11/08/18.

justsecurity.org/wp-content/upl…
Read 4 tweets
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Marty Lederman
@marty_lederman
1/ Wow, is this comprehensive--and, best I can tell on first read, completely dispositive on actual legislative intent (or at least the intent of all the legislators who considered how the VRA would work).

@AJosephOConnell @steve_vladeck @walterdellinger
2/ To be sure, the final language of the VRA surely could've been clearer on the question, and it left an opening for OLC's reading, but seems to me Migala has shown that the "508-controls" view is much more plausible, even before one applies the avoidance canon.
3/ He confirms--w/far greater detail than we did--much of what @walterdellinger and I wrote, including our account of the way Congress resolved the same tension in 1873 and our reasons for thinking the OLC view leads to surely unintended anomalies.

justsecurity.org/61483/initial-…
Read 4 tweets

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