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    Author: Jared Samilow

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    Jared Samilow


    Last week the Supreme Court heard oral argument in President Trump's bid to quash subpoenas served upon his accountants by House committees and the Manhattan D.A. Convention wisdom says that he will lose. Lucky for him, he is faced with so much litigation that there is a case he is very likely to win, and that case is poised to reach SCOTUS before the 2020 election.

    Appointing conservative judges is the one objective that unites the Republican Party. It is one of the few things the Senate can do without the House. And it is something that immediately impacts public policy because, during times of divided government, many political fights end up being resolved judicially.

    President Trump's administration won a significant victory at the Supreme Court on Wednesday afternoon. The NYT's Adam Liptak reports:
    The Supreme Court on Wednesday allowed the Trump administration to bar many Central American migrants from seeking asylum in the United States. The court said the administration may enforce new rules that generally forbid asylum applications from people who had traveled through another country on their way to the United States without being denied asylum in that country.

    Nationwide injunctions issued by a single federal district judge have thwarted dozens of the Trump administration's priorities. It's a rigged game, since the plaintiffs get to choose a favorable venue and can sue repeatedly. There are 94 judicial districts in the United States; the government could prevail in 93 of them but still lose if that last judge grants a nationwide injunction. The point here isn't whether the Trump administration is legally wrong sometimes. It obviously is. The point is the administration starts out with a near automatic loss at the  beginning regardless of whether or not it is right.

    Two months ago, Harvard Law Professor and fiercely anti-Trump pundit Laurence Tribe bragged that "it's the president’s corrupt financial entanglements with foreign governments that I’ve always believed would bring him down in the end." More recently, Tribe declared that "the Trump strategy of denying, delaying, deflecting, and dissembling while continuing to defy the Constitution has all but run its course and that the chickens are finally coming home to roost.”

    On the morning of June 28, 2012, CNN and Fox News initially told viewers that the Supreme Court had struck down the Affordable Care Act’s individual mandate, not yet realizing that the court had saved it as a tax. Fox’s Shannon Bream declared that the mandate was “gone” and for six minutes a CNN chyron blared, “Individual Mandate Struck Down.”

    The Supreme Court will soon decide whether the Trump administration can include a question about citizenship on the 2020 census. It might seem strange that such a matter is before the Supreme Court at all. But when the Trump administration explored adding the question it was not...especially solicitous, shall we say, about following administrative law. Nevertheless, the government argues that it is entitled to significant deference on how to best design the census and, after the oral argument in April, most observers got the impression that the five conservative justices agreed. 

    In a long-awaited and predictable decision, Judge Jesse M. Furman in the Southern District of New York ruled Tuesday that Commerce Secretary Wilbur Ross violated federal administrative law when he decided to reinstate a citizenship question on the 2020 Census. Judge Furman, who was appointed by President Obama, barred the Census Bureau from inquiring about citizenship on census questionnaires anywhere in the country. There's a pretty good chance that this decision stands. 

    The Supreme Court announced Friday that it would, once again, consider whether partisan gerrymandering can be so extreme that it violates the Constitution. The move comes after a term in which the justices had looked poised to impose some limits on partisan influence in redistricting, but ultimately seemed unable to agree on a workable standard for evaluating when state lawmakers cross a constitutional line.

    Last night, the Fourth Circuit stayed Maryland and Washington, D.C.'s Emoluments Clause lawsuit against President Trump in its entirety, while scheduling oral argument in the case to begin on March 19, 2019. This means that the litigation will be completely paused until the court reaches a decision on the President's petition, which won't be for at least three months.

    On Monday night, the Supreme Court granted the Trump administration’s request to shield Commerce Secretary Wilbur Ross from being deposed in a lawsuit over the addition of a citizenship question to the 2020 census. But the Court declined to block the deposition of acting Assistant Attorney General John Gore, as the administration had also asked. It's tough to say whether the White House should view this compromise — presumably brokered by Chief Justice John Roberts—as a win, loss or draw. Time will tell what impact it has on the census litigation.

    When it comes to judges, the President has a lot in common with North Carolina. While the White House finds itself thwarted on an almost hourly basis by federal district judges, the Tar Heel State languishes under the iron heel of the Fourth Circuit, a federal appellate court based in Richmond, Virginia.  Once deeply conservative, the Fourth Circuit is now almost as liberal as the Ninth, and for a very simple reason: President Obama got to fill vacancies Senate Democrats kept from Bush in 2007 and 2008. (The vacancy jockeying began long before Trump.)  The transformed Fourth Circuit quickly got to work striking down North Carolina's laws on voter IDs, transgender bathroom accommodations, public prayer, and, of course, election districting, from races for lowly school boards to those for Congress.

    Most people assume that when the Supreme Court decides a case, it's over. Final. That's usually how it is, but not always. Sometimes when Court issues an opinion, it also sends the matter back to the lower courts for further consideration in light of the new guidance. For procedural reasons I'll explain soon, this is the path the Court took two weeks ago when it upheld Travel Order No. 3 in a bitterly divided 5-to-4 vote. So that means the case of Trump v. Hawaii will be returning to the lower courts which, altogether, have struck down the order, in its various iterations, a total of not one, not two, not three, not four, but five times. 
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