Federal Friction and Federalism: President Trump’s Tax Returns Cases

Over the past few months, the U.S. House of Representatives and the Manhattan District Attorney have issued subpoenas for President Trump’s personal and corporate tax returns. Trump has fought the subpoenas vigourously, filing lawsuits to block the release of his tax returns and arguing that the subpoenas are unconstitutional. Those lawsuits have percolated through the federal courts; the D.C. Circuit Court of Appeals upheld the congressional subpoena, and the Second Circuit Court of Appeals upheld the District Attorney’s subpoena. Now Trump has appealed both decisions. Both lawsuits now sit before the Supreme Court and await action from the nine Justices. This article gives a comprehensive overview of both of Trump’s tax returns cases. I analyze the D.C. Circuit and Second Circuit’s opinions, issued before Trump’s appeal to the Supreme Court. I assess each parties’ arguments as they are now laid out in briefs filed with the Supreme Court. I lay out timelines for both cases and explain what the Supreme Court might do and when. Finally, I give my own thoughts on some of the critical legal questions the cases present.

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The 2020 Census: Department of Commerce v. New York

In March of 2018, Secretary of Commerce Wilbur Ross announced his intention to add a citizenship question to the 2020 census. A collective group of eighteen states, the District of Columbia, cities and local governments, and several non-governmental organizations filed suit, claiming that the Secretary’s decision violated the Enumeration Clause and the Equal Protection Clause of the Constitution, and certain provisions of the Census Act and the Administrative Procedure Act. On Thursday, June 27, on the final day of its October Term of 2018, the Supreme Court issued its long-awaited decision in the case. Here is my discussion of Chief Justice John Roberts’ opinion for the Court in Department of Commerce v. New York.

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Crosses on Public Land: American Legion v. American Humanist Association

Only a few blocks from downtown Bladensburg, Maryland, towers a 32-foot-tall Latin cross. The “Peace Cross,” as it is called, has stood there since 1918, when residents of Prince George’s County sought to build a memorial commemorating the soldiers from that area who died in World War I. From 1925–1961, the local American Legion owned the cross, emblazoning its emblem on the cross’ center and placing a plaque at its base with the words “Valor,” “Endurance,” “Courage,” and “Devotion,” as well as the names of 49 fallen soldiers and a quote from President Woodrow Wilson. Since 1961, the Peace Cross has been under the ownership of the State of Maryland, who has used public funds for maintenance and upkeep when necessary. But in 2014, the American Humanist Association (among others) challenged the constitutionality of the Peace Cross, arguing it violates the Establishment Clause of the First Amendment. The question must then be asked: Are they right?

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Double Jeopardy: Gamble v. United States

The Fifth Amendment’s Double Jeopardy Clause protects us against being charged and convicted of the same crime twice. But the Clause’s dual-sovereignty doctrine allows for successive prosecutions if conduct violates the laws of two separate sovereigns (i.e., state law and federal law). This term, in Gamble v. United States, the Supreme Court considered whether to jettison the dual-sovereignty doctrine as contrary to the Double Jeopardy Clause. On Monday, June 17, it declined to do so, a now-familiar decision in the Court’s 170-year-old Double Jeopardy Clause jurisprudence. Here is my review of Gamble v. United States.

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State Sovereign Immunity: Franchise Tax Board of California v. Hyatt

There is a principle in the legal field called “stare decisis.” From Latin, it translates literally to “stand by what is decided.” In layman’s terms—and in law—it means that a court ought to apply the same reasoning as it did in a prior case, and ought to rule analogously to its earlier decisions in similar cases. It is not a set-in-stone policy that entertains no deviation; the Supreme Court has, throughout its history, overruled a few dozen of its decisions. Think of Plessy v. Ferguson in 1896, in which the Court held that racial segregation was constitutional, versus Brown v. Board of Education of Topeka, Kansas in 1954, in which it held that racial segregation was unconstitutional. On Monday, the Court added one to that list, overruling one of its cases from 1979. While the subject matter of the case (state sovereign immunity) may sound anemic and technical, this Court’s demonstration—that it is not averse to overruling an earlier case—is anything but. For the ardent Court-watcher, you may remember that the question of whether the Court will overrule Roe v. Wade (the case in which the Court recognized a woman’s right to privacy in her desire to obtain an abortion) was omnipresent during the confirmation hearing of Justice Brett M. Kavanaugh. And while state sovereign immunity has virtually nothing to do with abortion, the five-member conservative bloc of the Court has now hinted that it is open to deviating from stare decisis. Here is my analysis of the Court’s decision on Monday in Franchise Tax Board of California v. Hyatt.

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