2/ The court indirectly addressed the argument advanced by @SethBTillman and me. Rather than accepting Plaintiffs' position that Foreign Emoluments Clause applies to *all* federal officials, Judge Daniels said it applies to "certain" officials.
3/ Though I am perplexed by Footnote 2. Judge Daniels wrote "Defendant has conceded that he is subject to the Foreign Emoluments Clause." The government said the *exact* opposite "the government has not conceded that the President is subject to the FEC." DOJ should correct this.
5/ Crux of competitor standing analysis: "It is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's 'incentives' or instead results from government officials' independent desire to patronize Defendant's businesses"
6/ Further, court finds "it is entirely 'speculative,' what effect, if any, an injunction would have on the competition Plaintiffs claim they face" and Emoluments Clauses "do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs."
7/ The court also finds that protection from competition not within Zone of Interest of Emoluments Clauses (Judge Daniels alluded to this point during oral arguments)
8/ Court finds"@CREWcrew fails to allege either that D's actions have impeded its ability to perform a particular mission-related activity or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct"
9/ "If @CREWcrew could satisfy the standing requirement on this basis alone, it is difficult to see how any organization that claims it has directed resources to one project rather than another would not automatically have standing to sue" See also: joshblackman.com/blog/2017/01/2…
10/ "@CREWcrew alleges that it was injured by having to divert resources to investigate and counteract Defendant's constitutional violations. But nearly all of the resources it expended were either in anticipation or direct furtherance of this litigation."
11/ Regarding @CREWcrew "self-inflicted injury," CREW "sought out and voluntarily undertook efforts to investigate...and ultimately bring suit over Defendant's allegedly unlawful conduct, raising the prospect of manufactured standing, about which courts are justifiably concerned"
12/ Court finds that FEC is "a textually demonstrable constitutional
commitment of the issue to a coordinate political department" and thus "Congress is the appropriate body to determine whether, and to what extent, Defendant's conduct unlawfully infringes on that power"
13/ Judge Daniels makes important prudential point. There is nothing even close to a "constitutional impasse" (Goldwater v. Carter) between POTUS and Congress concerning Foreign Emoluments. This case "has yet to mature," and is not ripe. "Congress is not a potted plant."
14/ Next stop in the Emoluments litigation will be 5.5 hours of oral argument in the District of Maryland on January 25. More developments on that case coming soon...
15/ One additional note on CREW v. Trump. The primary purpose of this lawsuit was always to seek discovery, and in particular get POTUS tax returns. Plaintiffs even dedicated time at oral args to offering a discovery plan. (A bit premature in hindsight).
16/ Even if the case is reversed on appeal (doubtful) CREW's ability to seek discovery will be significantly delayed.
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1/ Judge Hanen declined to issue a preliminary injunction in the DACA case, but strongly hinted he would issue a declaration that DACA was unlawful. This decision is perhaps the least chaotic approach to tee this issue up for prompt #SCOTUS review. scribd.com/document/38749…
2/ J. Hanen found he was not bound by the District Courts that previously issued nationwide injunctions. He's right. I made this point on @lawfareblog in May. The prior cases concerned legality of recission. Texas's case concerned legality of DACA itself lawfareblog.com/dueling-cosmic…
3/ Here is the crux of Judge Hanen's ruling. Texas failed today but will succeed on the merits
Breaking: Washington and eight other states have sought a TRO and prior restraint on information posted on the internet. Regardless of your opinions on gun control, this case would set a dangerous 1st Amendment precedent. I will argue the TRO today. scribd.com/document/38510…
We have filed a response to Washington's temporary restraining order. Their prior restraint violates the First Amendment, but it also cannot succeed on the merits: licensure decisions are not subject to APA scribd.com/document/38511…
At 1:30 ET, I will also be arguing a TRO in New Jersey State Court. The NJ AG has argued that posting information on the internet is a common law nuisance. Therefore, a state court of chancery can issue a global injunction against free speech. Our brief: scribd.com/document/38511…
1/ Divided 9th Circuit panel finds that 2nd Amendment "Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home" documentcloud.org/documents/4616… - J O'Scannlain & Ikuta in majority. J Clifton in dissent.
2/ Panel distinguishes Hawaii case from Peruta (San Diego): "Young’s claim therefore picks up where Peruta’s left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense."
3/ Judge Reinhardt has already issued a call for rehearing en banc from the great beyond.