In less than six months, President Trump’s efforts to fulfill campaign promises have resulted in some blockbuster judicial opinions, and Columbia Law School faculty and visiting scholars are tracking and debating those legal decisions as part of a summer workshop series on public law.
In past years, the series, sponsored by the Center for Constitutional Governance, has tended to focus on the U.S. Supreme Court term, which ends in June. But this year the weekly discussions are also featuring up-to-the-minute rulings from lower courts, where many of the challenges to Trump administration actions are in the early stages.
“Our goal is to highlight whatever emerging legal issues there are,” said Professor Jeremy K. Kessler, who helps run the series. “Historically, that’s been the big cases of the Supreme Court term, but, as we’ve seen with Trump, things that happen at the district court level can have an immediate effect, as well.”
The series’ first discussion on June 7 featured an analysis by Professor Jessica Bulman-Pozen of a federal district judge’s nationwide injunction blocking an executive order that sought to deny funds to so-called “sanctuary cities.” Santa Clara County and San Francisco both filed suit over the Jan. 25 executive order.
Bulman-Pozen is an expert on federalism who worked on executive orders as an attorney-adviser in the Department of Justice’s Office of Legal Counsel under President Obama.
In addition to the sanctuary case, Kessler pointed to the example of district—and later appellate—judges blocking what Trump has called his “travel ban,” which would have temporarily halted immigration from several Muslim-majority countries. A revised version of the ban has also been struck down by a three-judge panel of the 9th Circuit Court of Appeals, a decision the Department of Justice has asked the U.S. Supreme Court to review.
The public law series was created more than two decades ago by Columbia Law School Professor Henry Paul Monaghan, a leading scholar of constitutional law and federal jurisdiction. The idea was to provide an opportunity for faculty to interact and engage with complex legal issues between academic semesters. Monaghan has tapped Kessler and Professor David Pozen to help him run the program, but he still handpicks most of the topics and speakers.
“I look for two things: good performers and interesting cases,” Monaghan said. “You’re talking about something real where people are engaged. All the people who come are really quite intellectually curious. Even if the topic is not up their alley, they’d still be interested in walking into the alley to see what’s there.”
Because the series is held over the summer, when many visiting scholars, research associates, and fellows arrive on campus, it creates an immediate community of intellectual life for the newcomers among Columbia Law School faculty.
Dozens of faculty members attend the hour-long sessions. At the first event, attendees included Dean Gillian Lester; Professors Jagdish Bhagwati, John C. Coffee Jr., Lori Fisler Damrosch, Suzanne Goldberg, Lance Liebman, Alex Raskolnikov, and Peter L. Strauss; Scholar in Residence Cristina Rodríguez; and Visiting Associate Professor of Law Catherine Powell.
In her presentation, Bulman-Pozen said she disagreed with Trump’s executive order on sanctuary cities, but she suggested the judge could have ruled on it more narrowly using the doctrine of “constitutional avoidance,” which maintains that judges shouldn’t decide constitutional questions if a case could be resolved without doing so.
She also questioned the judge’s decision to issue a nationwide injunction blocking the executive order based on the way it was written and statements by Trump and his team outside of court (during the proceedings and in a filing after the ruling, Department of Justice attorneys disavowed the more sweeping language of the executive order).
Bulman-Pozen said outside statements should only be considered when trying to determine intent (as courts have done in the cases involving the travel ban) and not to determine how an order would be applied.
In addition, Bulman-Pozen answered several questions from her colleagues on the sanctuary city opinion, including questions on whether local governments should be able to sue the federal government at all.
“It was generally frowned upon when states or localities sued the federal government,” she said, noting that such suits against the executive branch have become more common in the last two decades—a “prelude to political and extrajudicial wrangling.”
The full slate of summer speakers has not yet been finalized, but will include such professors as:
- Kristen Underhill, a health law expert
- Vincent Blasi, an expert on torts and the First Amendment,
- Richard Briffault, who studies state and local governments;
- Harold Edgar, an expert on law and technology; and
- Rose Cuison Villazor (visiting professor), who focuses on immigration law.
“The workshops expose my colleagues to what other people on the faculty are doing,” Monaghan said. “They’re a point at which faculty can coalesce and have some fun.”
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Posted on June 23, 2017