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Eric W. Profile picture
@EWess92
Dec 17 • 4 tweets • 2 min read • Read on X
Can President Trump deploy the National Guard in DC? Unanimous opinion by Judge Miller (Obama) joined by Judges Katsas and Rao (Trump) says "Yes." Huge win for the President. Judge Rao writes separately to question whether DC can sue at all. She thinks probably not. Image
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Read the full opinion and concurrence here: storage.courtlistener.com/recap/gov.usco…
If interested, I raised some of the issues put forth by Judge Rao (joined by Katsas) in a thread. It is not clear that DC AG can sue the federal government at all.
*Judge Millett, autocorrect strikes again

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More from @EWess92

Eric W. Profile picture
Dec 6
Everyone agrees that a child born to US citizens in the United States is an American citizen. A child born to Canadian parents in Canada is not. But determining what the Constitution mandates regarding Birthright Citizenship is a tough question. 24 States weighed in on the limits Image
(Everything on this thread is pulled from the excellent brief filed by @AGTennessee and @AGIowa , and which I had the privilege of working on. So if there's some kind of implicit bias in explaining one's own brief, consider it disclosed!) ((Quotes adjusted for character limit))
Some table setting: "Contra plaintiffs’ thin historical arguments, contemporaneous sources instead support what common sense suggests: Conferring United States citizenship requires a more meaningful connection than mere presence by happenstance or illegality." Image
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Read 18 tweets
Eric W. Profile picture
Nov 29
Did then-President Obama and Secretary of State John Kerry adopt a legal theory justifying President Trump taxing remittances? Yes! Look at the denial of the Keystone XL pipeline. Obama/Kerry argued that needing "leverage" in international negotiations justified executive action. Image
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What does that mean? That means that when President Trump wants "leverage" with our neighbors, he can take Presidential action to negotiate a better deal. The Art of the Deal but based on President Obama's and Secretary Kerry's denial of the Keystone XL project!
I'm not kidding. "Leverage" and "climate change [] leadership" were the two reasons Kerry and Obama put forward to deny Keystone XL. In short, important national security goals (like controlling our border) justify Presidential action. Taxing remittances follows that logic. Image
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Read 8 tweets
Eric W. Profile picture
Nov 1
Hoo boy. Judge McConnell (once one of Senator Whitehouse's largest donors) issues an impossible to comply with decision. Cheekily voting the President's post asking for guidance on how to spend money he doesn't have, he responds "find the additional funds necessary." Image
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Another poison pill in the order: the money must flow by November 3. But any money found must be allocated under the Administrative Procedure Act. How's that timeline work? Read the full order here: storage.courtlistener.com/recap/gov.usco…Image
Judiciary expert and law professor Rob Luther weighs in:
Read 7 tweets
Eric W. Profile picture
Sep 3
*HUGE* "For President Trump, however, the rules are different." Judge Oldham powerfully dissents in tonight's Alien Enemies Act case. 185 pages of opinion to say that President Trump cannot use the Act to deport Tren de Aragua members. Back to the Supreme Court this goes! Image
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Read the full opinion and dissent in the case formerly known as A.A.R.P. here: ca5.uscourts.gov/opinions/pub/2…
Interesting paragraph at the top of the Majority's page 38. If TdA was found to be invading or a predatory incursion, and that was "at least in part" directed by Venezuela, then the President's order would be lawful. That's a low bar to assert the authority. Image
Read 5 tweets
Eric W. Profile picture
Sep 2
Ho boy. Judge Breyer--having already been denied once by a bipartisan-appointed panel of appellate judges--purports to enjoin President Trump from using the National Guard for law enforcement purposes. I'll cover some serious questions I have below 🧵
The opening shows where the judge's concern lies: that the successful law enforcement in LA could be replicated elsewhere. Including in the Judge's own Northern District of California. (Yet the judge raises no questions about why the lawsuit is not in LA...) Image
The first analytical give away is explicitly relying on non-binding dicta from a different era of the Court's jurisprudence. Very dissimilar situations and to reach his result, the Judge had to reach into the annals of law. (In the case he cites the plaintiffs were dismissed) Image
Read 7 tweets
Eric W. Profile picture
Aug 20
Ninth Circuit issues opinion *denying* Birthright Citizenship to the son of a Nigerian diplomat. Opinion properly applies Wong Kim Ark to find both presence *and* jurisdiction necessary for citizenship. Judge Johnstone (Biden appointee) writes for a unanimous panel.Image
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Here, Judge Johnstone reflects many of the arguments raised by the United States in its case. The only difference is that he is applying the same logic to one of the three categories named in Wong Kim Ark. But for that, this could have been an amicus for the Government.Image
Read the full opinion here: cdn.ca9.uscourts.gov/datastore/opin…
Read 4 tweets

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