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Judge William E. Smith (D.R.I.) issued an order on Tuesday rebuking the Department of Homeland Security for re-imposing immigration-enforcement conditions on state disaster grants and permanently enjoining the agency from enforcing any such terms. (Order.) (Roll Call.)
Former FBI Director James Comey notified the Eastern District of Virginia that he intends to file a motion on Oct. 20 to dismiss his indictment on the ground that the U.S. attorney for the district was unlawfully appointed. (Notice of intent.)
An unnamed Pentagon official confirmed on Tuesday that Immigration and Customs Enforcement agents have transferred about 20 migrants to the U.S. naval base at Guantanamo Bay, Cuba. (NYT.)
According to the New York Times, a U.S. attorney for the Western District of Virginia “was forced to resign in August because he refused to sideline a high-ranking career prosecutor” who had questioned the evidentiary basis of an investigation into the FBI’s handling of classified Russia-related documents. (NYT.)
President Trump has used the ongoing government shutdown to fire thousands of government employees, transfer billions in funds, and threaten to cut “Democrat programs.” (Bloomberg.) So far, he has canceled nearly $28 billion in federal funding for more than 200 projects, mostly in Democratic-led districts and states. (NYT.)
President Trump announced on Truth Social on Tuesday that the military conducted another strike on a boat suspected of drug-trafficking off the coast of Venezuela, killing six people. (NYT.)
Bob Bauer and Jack Goldsmith discussed recent reports of decision-making disarray at the Department of Justice, the loyalty pressures shaping the Trump administration, and the prospect of constitutional reform. (Executive Functions.)
William A. Galston called on Congress to reform the Insurrection Act and National Emergencies Act to curb the expansion of executive power. (WSJ.)
Mary McCord argued that deference to the president in matters of foreign policy and national security should be qualified when intelligence experts are dismissed for political reasons, presidential claims contradict intelligence assessments, or the administration skirts or resists compliance with court orders while invoking deference. (Just Security.)
Joshua Braver and John Dehn argued that Martin v. Mott does not require the courts to defer to the president on factual determinations justifying the invocation of emergency power to deploy the National Guard domestically. (Volokh Conspiracy.) See Jack Goldsmith’s June 16 take on Mott and his Oct. 8 post discussing its application to the Oregon National Guard decision—and Bob Bauer’s Oct. 9 article arguing that the power of the precedent set by Mott has to be evaluated in context.
Brian O’Neill and David Schulz argued that the Trump administration is leveraging the broad scope and severe penalties of the Espionage Act, along with new administrative rules, to increase the legal risks for leakers and potentially journalists who publish national defense information, chilling reporting on national security. (Just Security.)
Bill Shipley argued that the factual preconditions for invoking the Insurrection Act are met by the official conduct and policies of state and local governments that interfere with the enforcement of federal immigration law. (Shipwreckedcrew.)
Pending Interim Order Applications Involving the U.S. Government in the Supreme Court
Trump v. Orr: The government filed an emergency application on September 19 requesting the Supreme Court to stay an injunction issued by a district court that requires the State Department to allow transgender and nonbinary people to choose the sex designation on their passports. Justice Jackson formally set a deadline of October 4 for a response to the application. Orr submitted a response on October 6, and President Trump filed a reply on October 7.