The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.

The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.

Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.

Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”

Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.

The podcast above with Caleb Brown and Ilya Shapiro is at this link. Earlier here and here. Other views: Eugene Volokh, Ilya Somin. More: Roger Pilon.

Supreme Court upholds travel ban is a post from Overlawyered - Chronicling the high cost of our legal system

When Truman seized the steel mills is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutionalism and the law of the playground is a post from Overlawyered - Chronicling the high cost of our legal system

I was a guest on BBC4 radio’s World Tonight with presenter Ritula Shah and guest Andrew Rudalevige of Bowdoin College to discuss the rapid pace of President Trump’s executive orders.

Trump’s executive orders is a post from Overlawyered - Chronicling the high cost of our legal system

I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.

The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.

After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:

Judges rule all the time against the partisan side that appointed them.

And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.

We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.

Fighting the last war, on courts and executive power is a post from Overlawyered - Chronicling the high cost of our legal system

On a more serious note: it is sometimes suggested that Obama’s use of executive power is unexceptionably normal since he has averaged fewer executive order issuances per year than other recent presidents. But that is a thoroughly meaningless statistic, since it lumps together, say, renamings of public buildings with the imposition by fiat of broad legislation Congress has refused to pass. It’s a number that can readily be cooked, should a White House wish to do so, by taking pains to consolidate as single orders measures that otherwise would be signed individually, or by issuing directives under alternative formats such as presidential memoranda or, at the agency level, “Dear Colleague” letters. Much more about the malleability of the category in this USA Today December 2014 piece by Gregory Korte. E.g.: “President George W. Bush established the Bob Hope American Patriot Award by executive order in 2003. Obama created the Richard C. Holbrooke Award for Diplomacy by memorandum in 2012.”

Obama’s own 2014 description of his plans, and his White House’s stage-management of “We Can’t Wait” demonstrations in support of unilateral executive action, speak for themselves. P.S. Washington Post fact checker Glenn Kessler went over some of this ground in 2014.

Great moments in headlines: “Obama warns Trump not to overuse executive orders” is a post from Overlawyered - Chronicling the high cost of our legal system

18:24 well spent: Caleb Brown interviews Sen. Mike Lee (R-Utah) on separation of powers, criminal justice, the electoral college, executive powers and many other topics [Cato Podcast series]

Senator Mike Lee interviewed is a post from Overlawyered - Chronicling the high cost of our legal system

“Ten Ways for the Next President to Promote the Rule of Law” is a post from Overlawyered - Chronicling the high cost of our legal system

More: Neither Donald Trump nor his progressive opponents have shown themselves loyal to the principle of the rule of law [John McGinnis, Liberty and Law] Nature of the Presidency lends itself to authoritarianism and despite retrenchment under Coolidge and Ike, that’s been the trend for a century or more [Arnold Kling] And quoting William & Mary lawprof Neal Devins: “A President Trump could say, ‘I’m going to use the Obama playbook’ and go pretty far.” [Marc Fisher, Washington Post] And: Tyler Cowen on FDR, McCarthy, the politics of the 1930s-50s, and “our authoritarians” versus “their authoritarians.”

Could the White House be “tyrant-proofed”? is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law and a President Trump is a post from Overlawyered - Chronicling the high cost of our legal system