In its first two years, the Trump Administration faced an unprecedented number of legal challenges to the constitutionality of its actions. These cases raised important questions about the strategy, mechanics, and complexities of litigating and defending constitutional lawsuits against the executive branch. They also sparked a debate over the extent to which constitutional litigation under the current administration is somehow unique.
In this seminar, we will study major challenges to Trump Administration policies with an eye to exploring the fundamentals of constitutional litigation. We will place special emphasis on the key strategic judgments made by parties, amici, and judges, over the course of each case. We will seek to identify common themes and notable contrasts across these lawsuits. And will address ways in which constitutional litigation against the Trump Administration has been similar to (and different from) cases against prior administrations. Students will acquire an understanding of key players in constitutional cases as we study their goals and tactics. Students will also develop an informed and critical perspective on major cases against the current administration, drawing on insights from diverse viewpoints.
The seminar will begin with a brief, thematic overview of constitutional litigation against the Trump Administration. We will then address particular cases. Although this list is subject to change, we likely will cover the following topics:
- All three iterations of the travel ban
- Threats to revoke federal funds from sanctuary cities
- The exclusion of transgender persons from military service
- The appointment of Mick Mulvaney as Acting Director of the CFPB
- The appointment of Matthew Whitaker as Acting Attorney General
- The rescission of DACA
- Challenges brought by juvenile undocumented migrants seeking abortions
- CNN’s lawsuit challenging the revocation of Jim Acosta’s White House press pass
- The challenge to President Trump’s policy of blocking critics on Twitter
- Suits alleging that President Trump is violating the Emoluments Clauses
- Challenges to the addition of a citizenship question on the 2020 Census
Each week, students will study relevant court filings and opinions (from district courts all the way to the Supreme Court), complemented by contemporaneous legal commentary.
- 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.
- Draw upon cutting-edge legal scholarship to analyze trends in constitutional litigation under the Trump Administration.