U.S. Supreme Court

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U.S. Supreme Court

Executive Discretion and Judicial Deference After the Census Case: The Chief Justice’s Tightrope

Chief Justice John Roberts is a complex and subtly innovative jurist. The Supreme Court’s census decision revealed his skills, particularly seen against the backdrop of the gerrymandering case decided the same day. His ruling against the executive may actually strengthen deference to executive discretion when wielded by a future normal presidency, but in his decisive opinion (joined in full by no other justice), Roberts also refined a neglected counterdeference tool—pretext analysis.

U.S. Supreme Court

Supreme Court Reinforces Mandatory Detention of Immigrants

The Supreme Court’s March 19 decision on in Nielsen v. Preap rejected challenges to mandatory detention of certain noncitizens—“aliens” under the Immigration and Nationality Act (INA). Generally speaking, mandatory immigration detention is an exception to the rule that confinement requires an individualized showing of flight risk or dangerousness.

U.S. Supreme Court

Document: Supreme Court Stays Injunctions in Transgender Servicemember Ban Cases

On Tuesday, the Supreme Court on 5-4 decisions granted two stays of district court injunctions in Trump v. Karnoski and Trump v. Stockman, two cases challenging the Trump administration's ban on military service by transgender people. The orders are below.

18A625 TRUMP, PRESIDENT OF U.S., ET AL. V. KARNOSKI, RYAN, ET AL.

Federal Law Enforcement

How Dimaya v. Sessions Has Affected Sentencing for Terrorism Convictions

In August, two convicted terrorists were released from prison unexpectedly early. The two originally received enhanced sentences under a statute that established mandatory minimum sentence extensions for the use of a firearm in conjunction with a violent felony, but the judge who released them held that the statute was unconstitutional under Sessions v. Dimaya, a case the Supreme Court decided in April.

immigration

At Oral Argument, Supreme Court Weighs Immigrant Detention

Mandatory immigration detention is an exception to the rule that confinement requires an individualized showing of flight risk or dangerousness. In 2016, the U.S. Court of Appeals for the Ninth Circuit narrowed the scope of mandatory detention, ruling that some noncitizens—“aliens” under the Immigration and Nationality Act (INA)—could show that they were not flight risks or dangerous and therefore should be released pending an immigration court hearing on the merits of their removal.

U.S. Supreme Court

Experts Testify on National Security and Executive Power at Fourth Day of Kavanaugh Hearings

During the fourth day of hearings on Judge Brett Kavanaugh's nomination to the Supreme Court, two experts testified on matters that may be of interest to Lawfare readers. Rebecca Ingber, associate professor at Boston University School of Law and contributing editor for Lawfare, testified about Judge Kavanaugh's approaches to executive deference on national security matters and to international law.

Podcasts

The National Security Law Podcast: A Deep Dive into the Steel Seizure Case

This week, we explore the iconic 1952 decision of the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, better known as the “Steel Seizure Case.” It’s an all-time classic regarding the separation of powers in general and war-related powers in particular (not to mention constitutional interpretive method, theories of emergency power, and more). In this deep dive, we:

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