In its first year, the Trump Administration has seen an unprecedented number of legal challenges to the constitutionality of its actions. That includes battles over travel bans, sanctuary city policies, orders regarding transgender servicemen, the President’s use of Twitter, and presidential compliance with the Emoluments Clauses. These cases raise important questions about the strategy, mechanics, and complexities of litigating and defending constitutional claims against the President. They also afford an opportunity to reflect on the extent to which constitutional litigation under this Administration is unique.
In this seminar, we will study major challenges to the Trump Administration as a vehicle for exploring the fundamentals of constitutional litigation. The seminar will place special emphasis on analyzing the way that constitutional claims and defenses evolve over the course of a single case—occasionally in dialogue with the court or in response to changed executive orders. In addition, we will seek to identify common themes in the cases that we study, and will aim to appreciate ways in which constitutional litigation against the Trump Administration has been similar to (and differs from) cases against prior administrations. Students will acquire an understanding of key players in constitutional cases—including State Attorneys’ General and Members of Congress—as we study their goals and tactics.
The seminar will begin with a brief and thematic overview of constitutional litigation against the Trump Administration. We will then explore, in depth, three major litigations:
- Challenges to the President’s series of travel bans;
- Challenges to the President’s executive actions concerning sanctuary cities; and
- Litigation concerning the President’s compliance with the Emoluments Clauses.
In the final four weeks, we will cover other discrete constitutional issues or litigations related to this Administration—depending, in part, on what cases have been filed as of March and April 2018. It is likely, though not certain, that we will cover the lawsuit against President Trump for excluding followers from his private Twitter account, as well as legal challenges to the President’s “transgender ban” for the armed forces.
Each week, students will study relevant court pleadings and opinions (from district courts all the way to the Supreme Court), complemented by contemporaneous legal commentary that offers varied perspectives on the issues and themes that we will cover in class.
Learning Goals/Course Objectives
- Introduce students to the fundamentals of constitutional litigation, from its inception through appeal.
- Understand the ways in which claims and defenses may evolve throughout the course of litigation and proceed as a conversation between lower courts, courts of appeals, the Executive Branch, and Congress.
- Learn to analyze and critique actual pleadings, with an eye towards the parties’ litigation strategy, goals, and hurdles.
- Learn to analyze and critique judicial opinions on constitutional claims over the course of an entire litigation (rather than just reading the Supreme Court ruling), linking this skill to a refined appreciation of the judicial role and the rule of law.
- Understand the aspects of modern constitutional challenges that have been common to earlier constitutional litigation against the federal government, as well as the features of the present landscape that are remarkable or unique.
- Analyze how trends in constitutional litigation under the Trump Administration—e.g., an enhanced role for State Attorneys General and a focus on how to ascertain presidential intent—relates to cutting-edge legal commentary and scholarship.