Media Mentions

With stimulus talks with Congress at an impasse, President Donald Trump signed a series of executive orders on Saturday to provide temporary relief to Americans who are suffering from the economic impact of the coronavirus pandemic. At a news conference from his golf resort in Bedminster, N.J., Trump signed four orders that will provide an additional $400 per week in unemployment benefits, suspend payments on some student loans through the end of the year, protect renters from being evicted from their homes, and instruct employers to defer certain payroll taxes through the end of the year for Americans who earn less than $100,000 annually. Trump said he decided to act on his own and order the benefits after two weeks of negotiations with congressional Democrats collapsed without an agreement on a new coronavirus relief package...But questions remain as to whether Trump has the legal authority to take these actions – or the money to pay for them...Trump had been threatening for days to provide relief through an executive order if negotiations failed to produce a deal. Lawmakers had interpreted Trump's threat as a way to pressure negotiators into making a deal. Even some Republicans said they believed Trump was bluffing. “I doubt if he’s serious,” Sen. Chuck Grassley, R-Iowa, told reporters on Thursday. He was...Laurence H. Tribe, professor emeritus at Harvard Law School, called Trump's actions "cynical" as well as unconstitutional. "Trump might as well have directed the distribution of $100,000 to every family earning under $1 million a year," he said. "He obviously has no legal power to do that. But daring anyone to take him to court might be good politics."

In the wake of Vince McMahon’s Alpha Entertainment reaching an agreement to sell the XFL for $15 million, creditors are left wondering if they’ll see any of the money. As first reported by Sportico’s Scott Soshnick, a group that includes former WWE star Dwayne “The Rock’’ Johnson and RedBird Capital CEO Gerry Cardinale will buy the team, pending approval by U.S. Bankruptcy Judge Laurie Selber Silverstein. “I’ll be lucky to get pennies on the dollar,” a sports business professional who operates a small company tells Sportico...As an unsecured creditor in Alpha’s chapter 11 bankruptcy, the source lacks any collateral in Alpha’s properties or assets. It also means they’ll be among the last in line to collect any proceeds from the sale. The XFL, the professional maintains, owes them tens of thousands of dollars for services already rendered...One factor advantaging Alpha—and as acknowledged by creditors in their objection—is that, as the debtor, Alpha is entitled to deference in seeking approval of the proposed sale. A related factor is that the relevant legal standard for review is not especially difficult to meet. That standard is the business purpose test, which requires there be a sensible reason for the sale and a fair price for it. Harvard Law School Professor Mark Roe, an expert in bankruptcy law, highlighted these factors in an interview. The business purpose test, Roe said, is “usually an easy standard to satisfy as the sales’ proponents just have to give a plausible justification.” He surmises that for this sale, “it could have been XFL has been languishing and a new owner like Dwayne Johnson can give it a boost of publicity.” Where Roe sees Alpha potentially running into more trouble is “the structure of the auction and the relationships.” “Even if there’s a business purpose,” Roe notes, “the court should be structuring an auction that’s fair and likely to bring forward the best price.” Roe believes the court will attempt to determine if insiders downplayed asset value. In that instance, “the bidding documents would be defective.” Roe also draws attention to the creditors’ concern about the sale potentially releasing the insiders of causes of action—“that,” Roe said, “would be another issue separate from whether there was a sound business purpose.”

An article by John Ketcham '21: We are living through perhaps the unhappiest period in half a century, one that offers good reasons to be gloomy. The ongoing Covid-19 pandemic and America’s political and social disharmony are obvious factors, but for many, unhappiness also stems from not having a “third place” to socialize. The term, coined by sociologist Ray Oldenburg, author of the seminal book The Great Good Place, refers to social venues other than home and work—local coffeehouses, bars, hair salons, libraries, diners, churches, and the like, the public-private hybrids where communities are built through conversation and conviviality. These genial places are at risk of becoming another casualty of the coronavirus. New dangers associated with being indoors raise the prospect that third places will remain inaccessible, at least until scientists better understand the transmission of Covid-19 and develop a vaccine. But the social benefits of third places make them too valuable to be forgotten or relegated to irrelevancy. Third places fulfill the human need for socialization. In exchange for a modest purchase, patrons can stay and talk with one another for as long as they wish, fostering a convivial spirit of relative equality. Economic and social differences fade to the background. Civic engagement grows as citizens discuss the latest news, yet unanimity is not required to create a sense of shared identity. All are bound together by a common activity, grounded in a local setting. Psychologically, happy times in third places can help instill Burkean attachments to one’s own home and community. At the societal level, third places build social capital in two ways. Regular patrons often develop strong bonds of familiarity, trust, and friendship, forming the foundation for mutual aid. Third places are also forums for introducing people of different occupations and backgrounds, thus expanding personal networks, disseminating new knowledge, and inspiring a sense of neighborhood unity.

A new report claims that Facebook fired one of its employees after the individual compiled evidence of the social media platform giving preferential treatment to right-wing accounts and news sources. A senior engineer at Facebook was reportedly fired after he collected internal evidence that the company was biased toward major right-wing accounts in helping them remove fact-checks from the material they posted on the platform, according to BuzzFeed News. The former employee had posted his findings in Workplace, an internal communications platform used by the company akin to Slack. Facebook reportedly responded by taking down his post, limiting internal access to the materials that he cited, and firing him...There have been concerns that Facebook has been appeasing Trump and pro-Trump media outlets in a haphazard attempt to maintain objectivity. Facebook employees protested the company in May because of these concerns and some advertisers have withdrawn support...Trump's attempts to control social media outlets so that they act in ways that are favorable to his political interests pose a direct threat to the First Amendment. "The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email in May after the president announced he would retaliate against Twitter for fact-checking two of his tweets. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

One of the first challenges brought against the Trump administration’s Clean Water Act rule redefining federal jurisdiction over the nation’s waters was dismissed by a federal judge in Oregon late Thursday. The Oregon Cattlemen’s Association had sued the EPA and the U.S. Army Corps of Engineers in May for bringing non-navigable, small streams and wetlands under Clean Water Act protection in the Navigable Waters Protection Rule. Judge Michael W. Mosman of the U.S. District Court for District of Oregon, ruling from the bench on a preliminary injunction sought against the water rule, dismissed the claims “due to lack of standing” without prejudice. That means the cattlemen group can file an amended claim at a later date, said Earthjustice attorney Anna Sewell, who attended the virtual court proceeding on behalf of Columbia Riverkeeper, an intervenor in the case. Mosman also formally denied the cattlemen’s preliminary injunction on lack of standing. The EPA said the decision means the Navigable Waters Protection Rule will continue to be implemented in Oregon...During the hearing, Mosman grilled the Pacific Legal Foundation attorney about Oregon cattlemen’s standing to file the lawsuit, Sewell said. “It’s pretty tricky because the Oregon cattlemen will have to prove the new water rule creates some kind of compliance burden for them,” Caitlin McCoy, a staff attorney with the Harvard Law School environment and energy law program, said Friday. McCoy said the Oregon cattlemen will have to show that the land they ranch on currently has streams or wetlands will require permits under the current water rule for any kind of dredge and fill activity. “That’s the harm they will suffer and that is the harm they have to show to get standing,” McCoy said. More importantly, the other cattlemen and ranchers groups. which have filed nearly identical challenges in federal courts in Washington and New Mexico to that of the Oregon cattlemen, also will have to make sure “their complaints don’t fall into the same pitfalls that the judge in Oregon identified.”

When then-Attorney General Jeff Sessions shut down the U.S. Department of Justice's Office for Access to Justice in 2018, there was no press release, no tweet from the Oval Office. All it took to unravel the small, nonprosecutorial unit that the Obama administration had created in 2010 was a notice to Congress and some tweaks to department websites...Now, as the ongoing COVID-19 pandemic coincides with a nationwide racial justice movement, lawmakers are trying to reopen the office that provided national leadership on issues like indigent defense, excessive fines and fees, juvenile justice, legal aid funding and more. On July 31, the U.S. House of Representatives passed an appropriations bill that, among other things, included a $4 million rules amendment requiring the Justice Department to reestablish ATJ. In proposing the amendment, U.S. Rep. Mary Gay Scanlon, D-Pa., noted the bipartisan appeal of ATJ's mission: "To help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status." But at the time of its demise, some Republican lawmakers alleged the office's role in crafting DOJ litigation settlements allowed staff to funnel money toward political allies, "a terrible abuse of power." Laurence Tribe, a professor emeritus at Harvard Law School and ATJ's first senior counselor, told Law360 that if the office were still functioning, it could have lobbied for more legal services in COVID-19 relief measures. "Matching [available] resources with the people and places that need them requires a network that an ATJ office would be invaluable in organizing," he added. The office actually did develop such a network, known as the White House Legal Aid Interagency Roundtable, or LAIR. It brings together representatives from 22 different executive branch agencies to plan and develop policy focused on criminal indigent defense and civil legal aid.

Several policies that affect the west and the energy landscape here are back in the news, including proposed changes to the National Environmental Policy Act, the Bureau of Land Management Waste Prevention Rule, and the Great American Outdoors Act. On August 4, President Trump signed the Great American Outdoors Act into law. On July 29, three coalitions of environmental groups filed lawsuits challenging the final NEPA regulations. On July 29, the EPA made changes to how coal ash will be treated, including extending a deadline for discarding the waste in unlined ponds. On July 23, EPA the Nuclear Regulatory Commission signed a Memorandum of Understanding hoping to boost production of uranium. Hana Vizcarra, staff attorney at Harvard Law School's Environmental and Energy Law Program, spoke with Wyoming Public Radio's Cooper Mckim about why so much action is happening right now.

An article by Vivek Wadhwa: The summer has been eventful for ByteDance, the owner of the rapidly growing social network TikTok. First, GoI banned the application from distribution in the country due to concerns that the Chinese government is accessing user data. Then, a number of US companies warned employees to remove TikTok from their work phones. Most recently, US President Donald J. Trump threatened to ban TikTok in the US. Into this maelstrom has stepped Microsoft CEO Satya Nadella with an offer to purchase the US business of TikTok. Nadella has earned a reputation as a savvy operator. He has restored Microsoft’s growth with smart bets on various types of business software, and a strong push to move the users of various applications, including the company’s lucrative Office products on to the online Office 365 version. Nadella has also remade the image of the swaggering giant as a kinder, gentler, more thoughtful company. Microsoft’s purchase of TikTok would be Nadella’s riskiest bet to date. If Beijing, in fact, views TikTok as a crucial asset for influencing US political and social discourse, it could attempt to put backdoors into the software and service. Microsoft would need to work hard to extricate them, and they could result in TikTok’s being shut down anyway. Also, with TikTok, Microsoft would enter the politically fraught world of social-content moderation. Microsoft has assiduously avoided political controversy, but TikTok would inevitably force Nadella to enter that arena in one way or another. For example, critics have loudly complained that TikTok censored videos of recent Hong Kong protests, citing that as evidence of Chinese government control. One can imagine similar discontent, due to slights — real or perceived — arising among any number of causes, particularly at either extreme of the US political spectrum. TikTok’s present valuation $5 billion has critics warning that Microsoft is about to overpay. That is one of many things that could halt the deal altogether — valuation, government intervention, and fresh revelations of spying on users being just a few.

The full U.S. Court of Appeals for the District of Columbia Circuit held 7 to 2 on Friday that former White House counsel Donald McGahn, who refused to appear before the House Judiciary Committee, must in fact respond to its subpoena. This ruling may come too late to make a difference when it comes to investigating Trump, but it is important and welcome nonetheless...The court reaffirmed what should have been obvious all along: “The power of each House of Congress to compel witnesses to appear before it to testify and to produce documentary evidence has a pedigree predating the Founding and has long been employed in Congress’s discharge of its primary constitutional responsibilities: legislating, conducting oversight of the federal government, and, when necessary, checking the President through the power of impeachment.” The circuit court had the benefit of the Supreme Court’s decisions in Trump v. Mazars and Trump v. Vance, rejecting any “absolute immunity” to protect Trump’s financial documents from a subpoena. The same, the appeals court held, applies to live witnesses. The case was sent back to the district court to resolve other challenges. Constitutional scholar Laurence Tribe tells me that “although the 7-to-2 win for the House is a limited and potentially short-lived victory vis-a-vis Trump and McGahn, who will keep litigating immunity and privilege claims till the cows come home, the en banc D.C. Circuit decision vindicated a vital set of congressional oversight powers and separation of powers principles that will matter as long as our constitutional republic stands.” There are several important takeaways from the decision: First, the House impeachment managers were correct to move forward before legal challenges about McGahn and others were resolved, as Republicans disingenuously suggested. We are now in August and, as Tribe reminds us, McGahn’s case will travel up and down the courts a few times before a “final” decision is reached.

An article by Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer: As President Donald Trump reflects on his sinking approval ratings and grows more desperate by the day, he’s been floating a dictator’s dream: postponing the November election. Even Senate Majority Leader Mitch McConnell and other Trump loyalists, including the Federalist Society co-founder Steven Calabresi, swiftly rejected this authoritarian fantasy. So Trump has retreated to a fallback position: casting doubt on the legitimacy of any election he doesn’t win. That starts by inventing fables about how voting by mail invites massive fraud and interminable delay—except, Trump now tells us, in Florida, where Trump’s elderly supporters will surely rely on it. Trump’s attack on voting by mail has several fronts, but one is by far the most serious: his attempt to slow down mail service, perhaps in a targeted way, while also insisting that only ballots counted on November 3 are valid. In addition to casting doubt on the entire election, another purpose of this scheme is to engineer a scenario in which Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state (think Michigan, Pennsylvania, and Wisconsin) and instead select an Electoral College slate that supports him. Trump’s attempt to cut short the counting of valid votes is flatly contrary to constitutional law and federal statutes. Even so, states can and should do more to protect American’s mailed-in votes. States should immediately enact new legislation or take other legal steps clarifying that they intend for Congress to honor electors they choose, and that they may need a bit of time to finalize choosing them—ideally doing so by December 23 and no later than January 6, 2021, when Congress meets in special session to certify the election results. Through state-level action, Trump’s efforts can be neutralized.

The nation's largest gas utility is suing a California energy agency for considering how to phase out natural gas in buildings and other energy sectors, accusing it of violating a state law that promotes the fossil fuel. The lawsuit led by Southern California Gas Co. (SoCalGas) against the California Energy Commission (CEC), filed in state court, alleges that officials violated the law earlier this year when they issued a forecast of California's energy needs for the next decade. That forecast found the state's climate laws would require a long-term decline in the use of natural gas for power generation, paired with a push to electrify cars and buildings' heating systems. By releasing the forecast — but forgoing a separate report on how to "maximize the benefits" of natural gas for the climate and consumers — the state neglected its duties under a 2013 law known as the Natural Gas Act, according to the lawsuit. Caitlin McCoy, a staff attorney at Harvard Law School who has researched opposition to gas phaseouts, said the utility would likely be the first of many in tangling with regulators over gas phaseouts. "This case is one to watch because California is on the forefront of climate action and decarbonization," wrote McCoy in an email. "So we will likely see California's efforts to phase out natural gas replicated in other states and SoCalGas's efforts to challenge phase out replicated by other companies." ...McCoy said that she believed the language of the state's Natural Gas Act could be flexible enough to allow the state commission to move forward with gas phaseout policies. "There is a good argument to be made that the language doesn't bind the CEC to the continued use of natural gas," wrote McCoy.

To fight the ongoing coronavirus disease 2019 (COVID‐19) pandemic, public health officials have implemented a range of social distancing measures aimed at reducing the risk of person‐to‐person transmission of severe acute respiratory syndrome coronavirus 2 (SARS‐CoV‐2). However, physical separation can be nearly impossible in confined spaces such as jails, prisons, and detention centers throughout the United States. Indeed, experts believe that overcrowding, together with a lack of testing, inadequate infection control measures, and shortages of basic supplies for both staff and inmates, has fueled massive outbreaks in US correctional facilities. The revelations have spurred uncomfortable questions about how the facilities perpetuate and exacerbate racial disparities and how inadequate testing can blind public health officials to emerging hotspots...In March, Dr. Alsan and Crystal S. Yang, PhD, JD, AM, a law professor at Harvard Law School in Cambridge, Massachusetts, launched a project with the National Commission on Correctional Health Care to survey jails, prisons, and juvenile detention facilities across the United States. Over a 2‐month period, the collaborators received responses about COVID‐19 case counts, testing, and screening procedures and about ongoing challenges from hundreds of sites in all but a handful of states. So far, the data have revealed at least 2 startling findings. Toward the end of the weekly surveys, the researchers began asking facilities about the race and ethnicity of COVID‐19–positive inmates. “The incidence rate of cases and suspected cases for African Americans was, from week to week, anywhere from 2 to 4 times higher than for white inmates,” Dr. Yang says.

After several failed efforts to use the ADA, HIPAA and the Fourth and Fifth Amendments to fight mask mandates, those opposed to masks are adding a new tool to their arsenal: the Civil Rights Act of 1964...A website called The Healthy American is using the same argument to sell religious mask exemption cards. “Religious Exemption: The bearer of this card is LEGALLY EXEMPT from wearing any face coverings or being subjected to temperature taking, viral testing or vaccination, as protected by U.S. Federal Law, Title II of the Civil Rights Act, U.S. Code 42 ss 2000 (a),” reads the card, which @missioninactionpodcast shared on Instagram July 25. Through a quick visit to the site, individuals can purchase an identical card for a $12 donation. The exemption notice claims to be valid through Dec. 31, 2021, and is signed by pastoral representative David Hall...Harvard Law School professor Noah Feldman, who specializes in constitutional studies, with an emphasis on law and religion, said the Civil Rights Act of 1964 does not grant individuals religious mask exemptions. “The government can’t discriminate against you on the basis of your religion, but it doesn’t appear to be discriminating against you here by telling you to wear a mask,” Feldman told USA TODAY. “Contrary to what this card is saying, federal law cannot get you an exemption from a neutral, generally applicable state law."

A new report reveals that Instagram hid hashtags that criticized President Donald Trump while failing to protect those that criticized the presumptive Democratic nominee, former Vice President Joe Biden — an odd double-standard that the company insists was due to a "bug." The so-called bug resulted in a bias towards the content users would see about each presidential candidate. According to a report by the Tech Transparency Project (TTP), researchers analyzed the "related hashtags" that came up when they clicked on 10 different popular hashtags about Trump and 10 different popular hashtags about Biden...Harvard Law professor Laurence Tribe told Salon by email that TTP's discovery "raises no free speech issue under First Amendment law because Instagram is a private platform not subject to First Amendment constraints." He contrasted this with how Trump was barred by an appeals court from discriminating among Twitter users on the basis of their viewpoint, because "although Twitter is private, Trump is obviously a government actor." Tribe also noted that it was more "troubling" that Instagram as a private business decided "to confer on the incumbent president a massively valuable benefit – one worth more than mere dollar contributions in the tens of millions – while correspondingly harming his opponent in the forthcoming general election." He argued that this "unquestionably raises serious issues of impermissible in-kind corporate contributions to a presidential candidate, contributions that could well be found to violate federal campaign finance laws especially given their unreported and deliberately opaque character."

Days after entering office, President Donald Trump made a promise: He would eliminate two rules for every one signed into existence. Since then, he has sought to make good on that pledge and more – touting his reversal of a “regulatory assault” on the economy at a White House event on July 16, saying, “The American people know best how to run their own lives.” Although many Americans have praised the president’s deregulation efforts, many disagree with a loosening of rules that has been particularly sweeping in the arena of environmental policy. As the graphics with this story illustrate, more than 100 rollbacks have been launched, over issues as diverse as toxic substances, energy extraction, and Environmental Protection Agency (EPA) efforts to combat climate change. Some legal experts say that the changes, despite often resting on shaky scientific ground, could in some cases leave a lasting legacy – undermining the leeway of future environmental policymakers to set a different course. “They’re advancing these regulatory changes that create more flexibility, but in the process they’re trying to...reduce EPA’s authority well into the future to ever try to come back under a new administration,” says Caitlin McCoy, a staff attorney at the Harvard Law School’s Environmental and Energy Law Program. When the EPA replaced the Obama-era Clean Power Plan with the Affordable Clean Energy rule last June, it not only marked a momentous win for Mr. Trump’s deregulatory project. It also finalized a narrower meaning for the phrase “best system of emissions reductions” for the country’s power plants. The administration’s new legal interpretation could be tricky to undo, says Ms. McCoy. If elected president, Joe Biden would “have to confront the fact that, a year earlier, the same agency said they didn’t have that authority” to mandate cleaner electricity, she says. Administrations may change, “but through the lens of administrative law, it’s the EPA, and it’s supposed to have a certain amount of consistency all the way through.”

For workers fortunate enough to have been working remotely during the pandemic amid historic layoffs, thoughts about a return to the workplace are not just centered around plexiglass dividers, sanitizer dispensers, and separated workstations. Employees surveyed by NBC News had a whole range of concerns...While most employers say they will follow guidelines set by the Centers for Disease Control and Prevention, compliance is largely left up to businesses. With workers thankful to have jobs during record unemployment, most employees are afraid to flag any safety breaches or issues. However, the Occupational Safety and Health Administration, the federal agency in charge of workplace safety, has said it has received nearly 8,000 complaints about unsafe work situations related to COVID-19, according to the agency’s database. Over 6,500 of them have been closed. “OSHA is supposed to protect workers. All they’ve done is issue suggestions and voluntary guidance,” to employers,” said Sharon Block, former Assistant Secretary of Labor for OSHA and current executive director of the Labor and Worklife Program at Harvard Law School. OSHA has “turned everything over to employers to inspect themselves,” Block said. “If workers can’t rely on the federal government to stand up for them, they have to stand up for themselves.” Some workers have been fired for speaking up about conditions, she said. OSHA didn’t respond to an NBC News request for comment. Block recommended that concerned employees should document conditions at work and, if they feel unsafe, workers can consider leaving and filing for unemployment, using the unsafe conditions as justification. “But the employer can fight it, and then the employee is in a legal fight with their employer while trying to put food on the table,” she said.

An article by Noah Feldman: The attorney general of New York has sued to seek the dissolution of the National Rifle Association, alleging fraud and abuse in the way the NRA’s chief executive and other officials ran the operation. Given that the NRA has played such a powerfully destructive role in U.S. politics, fighting against gun regulations that demonstrably save lives, it’s tempting to react with applause. Yet even liberals who oppose the NRA’s mission should take a deep breath and ask: Do we really want an elected attorney general to try to destroy a prominent nongovernmental organization that is arrayed on the other side of the political spectrum from her? What if this were Alabama and the organization were the NAACP? Or Tennessee and the ACLU? If an organization has really fallen into a condition of fundamental corruption, a state attorney general can demand that it get new leaders, or replace its board of directors and its management in their entirety. Maybe New York Attorney General Letitia James is prepared to settle the case against the NRA with that sort of an organizational overhaul. But asking the court not to order the reform of the organization, but to dismantle and dissolve it altogether, creates the impression that the attorney general is trying to use the legal system to intervene in the very political dispute in which the NRA is such an important player: the fight over Second Amendment rights and gun control. It should go without saying that it would be entirely improper for a state official — or a federal official, for that matter — to use the awesome enforcement power of the government to target advocacy organizations with whose policies the official strongly disagrees. That is the kind of politicization of the legal system that President Donald Trump has tried to promote during his four years in office.

The Dakota Access pipeline could still be shuttered, despite an order late yesterday that thawed a district court freeze on the controversial project. The U.S. Court of Appeals for the District of Columbia Circuit yesterday blocked an earlier order to shut down and drain the pipeline, finding that a lower bench had not "made the findings necessary for injunctive relief" (E+E News PM, Aug. 5). At the same time, the D.C. Circuit is — at least for now — upholding the U.S. District Court for the District of Columbia's decision to vacate an easement for the pipeline's crossing beneath Lake Oahe. The D.C. Circuit found that U.S. District Court for the District of Columbia Judge James Boasberg hadn't abused his discretion by declining to send the pipeline's permit back to the Army Corps of Engineers without vacating it. The Army Corps is still required to conduct a more robust National Environmental Policy Act analysis to support the approval, pending review by the D.C. Circuit...To make those findings, the D.C. District Court would have to apply a four-factor test to the plaintiffs' argument in a separate analysis, according to the D.C. Circuit. Instead, the lower bench had concluded that "vacating the easement would automatically require the pipeline to be shut down," said Caitlin McCoy, a staff attorney at the Environmental and Energy Law Program at Harvard Law School. The D.C. Circuit suggested the district court could still choose to issue an injunction to shut down Dakota Access if the Army Corps plans to continue to allow the pipeline to operate without the easement that the district court had scrapped. If that happened, Dakota Access developer Energy Transfer Partners (ETP) could appeal the decision to the D.C. Circuit again, which could then choose to uphold or dissolve the injunction, said McCoy. "There's still a lot of legal back-and-forth ahead," she wrote in an email.

President Trump has routinely asserted his outsize view of presidential power, but his claim to unprecedented clout in recent weeks springs from an unlikely source: one of his defeats at the Supreme Court. Trump has asserted that with the stroke of a pen he can break through gridlock on immigration, health care, the stalemate on relief for those hurt economically by the coronavirus pandemic, even mail-in balloting. “The Supreme Court gave the president of the United States powers that nobody thought the president had,” Trump told Fox News interviewer Chris Wallace on July 19. On Wednesday, he said he might employ them on the payroll tax...The source of Trump’s recent bravado appears to be provocative articles by a law professor at the University of California at Berkeley whose expansive views of presidential power match Trump’s. John Yoo, the professor, has proclaimed Chief Justice John G. Roberts Jr.’s opinion stopping the Trump administration from dismantling the Obama-era program protecting young undocumented immigrants a blessing in disguise. He contends that it allows presidents to take even unlawful actions that can require years of legal battles to undo. To say that Yoo’s view of the court’s 5-to-4 decision on the Deferred Action for Childhood Arrivals program is an outlier would be an understatement. “I think he must be on some kind of drug,” said Laurence Tribe, a longtime constitutional scholar at Harvard. The court’s decision “did not even remotely provide a blueprint for the kind of lawlessness John Yoo seems to be trying to convince this president” to undertake, Tribe said.

An article by Laurence Tribe: President Trump acts like a petulant child, throwing tantrums, lobbing insults, even refusing to eat his veggies. Now his Department of Homeland Security (DHS) is following suit. When adults on the Supreme Court gave a clear directive, he and his DHS cronies crossed their arms, pouted, and simply said no. Donald Trump crashed into office on a wave of xenophobia. A campaign that began by calling Mexicans “rapists” crystalized around a concrete promise to end Deferred Action for Childhood Arrivals (DACA), an Obama program that delayed deportation and granted work authorization to undocumented individuals brought to this country as innocent children. He tried to fulfil his promise soon after taking office. In September 2017, his DHS secretary issued a memo purporting to rescind DACA. But the attempt failed. This past June, the Supreme Court declared the memo invalid, treating it as an executive order and finding it “arbitrary and capricious.” The court’s decision revived the version of DACA that existed before Trump’s rescission attempt. Two lower courts made this explicit in the weeks after the Supreme Court’s decision, unequivocally declaring that “the policy is restored to its pre–September 5, 2017, status.” The court reached the legally correct outcome. Chief Justice Roberts’s narrow decision rightfully chastised the administration for its sloppiness. While the chief justice rejected the challengers’ constitutional arguments to the effect that the rescission was substantively vulnerable on equal protection grounds because racially motivated (arguments I would have joined Justice Sotomayor in accepting), his decision saved a program that 80 percent of Americans support, including a majority of Republicans. This was a characteristically consensus-seeking determination from a chief justice who has masterfully guided the court through its most contentious cases.

At the beginning of the year, Kristen Seery had a home, a stable income and dreams of returning to school. Her dog-sitting business was bringing in enough money to cover her $1,025-a-month rent for a studio and living expenses for herself in Pawtucket. But when the pandemic brought her steady stream of pet care requests to a halt, she began struggling with rent. After paying in full for the month of February, she paid partial rent in March, applied for unemployment, and eventually informed her landlord about her financial situation. Seery began receiving unemployment in April. She and her landlord traded emails over the next three months, arriving at no resolution for a pandemic payment plan. Then in July, Seery, 37, found herself in court facing eviction a month after the state’s courts began re-opening...Preventing crises like Seery’s is the aim of a $7 million initiative between the state government and the United Way of Rhode Island. The Safe Harbor program started last month and is designed to head off evictions through mediation and rental assistance before court cases render tenants homeless. Funding comes from federal coronavirus relief... “I think the governor should be praised for extending the moratorium,” said Eloise Lawrence, deputy faculty director of the Harvard Legal Aid Bureau. But Lawrence said that move is just giving state leaders time to find a longer-term solution. “Scrambling around when people’s lives are at risk, makes absolutely no public policy sense, so what is really important now is that we don’t squander the time and the breathing room that we’ve created,” she said.