Politics

Did Missouri’s governor just moot Trinity Luteran v. Pauley?

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Days before the Supreme Court is set to hear Trinity Lutheran v. Pauley, Missouri Governor Eric Greitens instructed the Department of Natural Resources (“DNR”) to allow religious organizations to apply, and receive grants. Because of this new order, Trinity Lutheran may be mooted. Indeed, the Supreme Court just today called for the parties’ views on how Governor Greitens’ order affects their case.

I’ve recently written on this case here. But a short backgrounder is appropriate. Trinity Lutheran Church applied for a generally available grant from DNR to obtain materials to build a playground. Although Trinity Lutheran Church had one of the highest ranking applications, DNR denied the church a grant solely because it is a religious institution. DNR cited Missouri’s Blaine Amendment, a provision in its state constitution that prohibits Missouri from supporting religious groups. Thus, Trinity Lutheran Church sued DNR, alleging that it violated the Free Exercise Clause and the Equal Protection Clause by denying it a grant.

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The Order

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President Trump’s executive order temporarily banning citizens from seven Muslim-majority countries and temporarily suspending refugee resettlement has led to an absolute debacle. The past four days seem like a law school exam hypo that could only be created by a deranged professor. In a dystopian situation, Customs and Border Patrol (CBP) were barring numerous valid green card holders from returning home. And a few hours after the order was signed, we learned that the President didn’t even consult with the Office of Legal Counsel (OLC) before signing the order. Instead, the executive order appears to be the brainchild of Steven Bannon—the father of the modern alt-right (i.e. White Supremacy) movement. To top it all off, President Trump fired Sally Yates Acting Attorney General on Monday because she refused to enforce his questionable executive order. Although the President was within his legal authority to remove the Acting AG, the move is undoubtedly an optical nightmare.

This situation has obviously been a huge mess. And even four days after Trump signed the executive order, I am still struggling to form a coherent response to everything. Here is my best effort.   Continue reading →

‘Member when Republicans cared about federalism?

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This week, President Trump signed an executive order that purports to deny federal funds to “sanctuary cities”—i.e., cities that will not cooperate with federal government in deporting illegal immigrants. For years, Republicans have made defunding sanctuary cities a legislative goal. And with a new Republican administration, it seems like the GOP will (maybe have) accomplish(ed) this goal. 

But President Trump’s executive order raises some major constitutional issues, regardless of whether defunding sanctuary cities is good policy. Namely, President Trump’s executive order may violate the Tenth Amendment’s anti-commandeering principle. Simply, the Tenth Amendment prohibits the federal government from forcing states officials to act on behalf of the federal government.

This is normally the point when Republicans are supposed to raise hell about federal overreach.

*crickets*

‘Member when Republicans rallied behind the Tenth Amendment and federalism during the Obama Presidency?  Continue reading →