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Articles by Peter Margulies
Kavanaugh and the Military Commissions: Reading the Law “As Written” for an Unpopular Defendant
Published by The Lawfare Institute in Cooperation With Judge Brett Kavanaugh’s judicial record on the Guantanamo military commissions is richer and less one-sided than some analysts, including Steve Vladeck in the Washington Post, have suggested. But in a case those analysts failed to mention—Hamdan v. United States (2012), commonly called Hamdan II— Kavanaugh displayed a willingness to hold the government’s feet to the fire in a case involving an unpopular defendant.
The Khalil Case and the Difference Lawful Permanent Resident Status Makes
The government’s attempt to remove Mahmoud Khalil, a lawful permanent resident (LPR) of the United States and student at Columbia University, is a marked departure from long-standing law and practice. Immigration officials have not claimed that Khalil, whose U.S. citizen wife is awaiting the birth of their first child, has engaged in unlawful conduct.
Judge Vacates Biden Border Rule as Conflicting with Asylum Law
On July 25, Judge Jon Tigar of the Northern District of California vacated the Biden administration’s border rule, based on a challenge mounted by lawyers at the American Civil Liberties Union and the University of California San Francisco School of Law’s Center for Gender and Refugee Studies. The Biden administration had implemented the rule in mid-May of this year, replacing coronavirus-era Title 42 restrictions.
The Fifth Circuit Holds That DACA Exceeds Executive Authority
On Oct. 5, the Fifth Circuit held in Texas v. United States that the Deferred Action for Childhood Arrivals (DACA) program conflicted with the limits on executive authority in the Immigration and Nationality Act (INA). The decision was written by Fifth Circuit Chief Judge Priscilla Richman and joined by Judges Kurt Engelhardt and James Ho. It upheld a 2021 ruling by U.S. District Court judge Andrew Hanen (see my analysis of Hanen’s ruling here).
The Fifth Circuit Holds That DACA Exceeds Executive Authority
On Oct. 5, the U.S. Court of Appeals for the Fifth Circuit held in Texas v. United States that the Deferred Action for Childhood Arrivals (DACA) program conflicted with the limits on executive authority in the Immigration and Nationality Act (INA). The decision was written by Fifth Circuit Chief Judge Priscilla Richman and joined by Judges Kurt Engelhardt and James Ho. It upheld a 2021 ruling by U.S. District Court Judge Andrew Hanen (see my analysis of Hanen’s ruling here).
The New Defense Department Plan to Curb Civilian Harm: A Bold Blueprint for Change
The new U.S. Department of Defense Civilian Harm Mitigation and Response Action Plan (CHMR-AP) is an audacious and comprehensive effort to enhance compliance with the law of armed conflict (LOAC) and address concerns that the department has not done enough to safeguard civilians.
The New Defense Department Plan to Curb Civilian Harm: A Bold Blueprint for Change
Published by The Lawfare Institute in Cooperation With The new U.S. Department of Defense Civilian Harm Mitigation and Response Action Plan (CHMR-AP) is an audacious and comprehensive effort to enhance compliance with the law of armed conflict (LOAC) and address concerns that the department has not done enough to safeguard civilians.
Supreme Court Eases Biden’s Way to Ending “Remain in Mexico” Program, but Termination Is Not a Done Deal
In a 5-4 decision on June 30, the Supreme Court cleared away a major obstacle to the Biden administration ending the Trump administration’s “Remain in Mexico” program (officially called Migrant Protection Protocols or MPP). Chief Justice John Roberts wrote for the court, in an opinion that Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor joined.
Supreme Court Eases Biden’s Way to Ending “Remain in Mexico” Program, but Termination Is Not a Done Deal
In a 5-4 decision on June 30, the Supreme Court cleared away a major obstacle to the Biden administration ending the Trump administration’s “Remain in Mexico” program (officially called Migrant Protection Protocols or MPP). Chief Justice John Roberts wrote for the court, in an opinion that Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor joined.
Ending the Remain in Mexico Program: Judging the Boundaries of Executive Discretion
In an important decision on Dec. 13, 2021, in Texas v. Biden (Biden II), the U.S. Court of Appeals for the Fifth Circuit rejected the Biden administration’s latest bid to end the “” program (otherwise known as the Migrant Protection Protocols, or MPP). On Dec. 30, the U.S. Department of Justice responded with a petition for certiorari to the U.S. Supreme Court. As professors Cristina Rodriguez and Adam Cox noted on Dec.
Ending the Remain in Mexico Program: Judging the Boundaries of Executive Discretion
In an important decision on Dec. 13, 2021, in Texas v. Biden (Biden II), the U.S. Court of Appeals for the Fifth Circuit rejected the Biden administration’s latest bid to end the “” program (otherwise known as the Migrant Protection Protocols, or MPP). On Dec. 30, the U.S. Department of Justice responded with a petition for certiorari to the U.S. Supreme Court. As professors Cristina Rodriguez and Adam Cox noted on Dec.
The Courts Restore the 'Remain in Mexico' Program: An End to Judicial Deference?
The Supreme Court on Aug. 24 declined to stay an injunction by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas against the Biden administration’s termination of the “Remain in Mexico” program, formally known as the Migrant Protection Protocols (MPP). The U.S. Court of Appeals for the Fifth Circuit had earlier also declined to stay the injunction.
The Courts Restore the 'Remain in Mexico' Program: An End to Judicial Deference?
The Supreme Court on Aug. 24 declined to stay an injunction by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas against the Biden administration’s termination of the “Remain in Mexico” program, formally known as the Migrant Protection Protocols (MPP). The U.S. Court of Appeals for the Fifth Circuit had earlier also declined to stay the injunction.
DACA Update: A Federal Judge Rules that DACA is Illegal, But Keeps Options Open
On July 16, U.S. District Judge Andrew S. Hanen of the Southern District of Texas ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful because it exceeds the power that Congress had delegated to the executive branch.
DACA Update: A Federal Judge Rules that DACA is Illegal, But Keeps Options Open
On July 16, U.S. District Judge Andrew S. Hanen of the Southern District of Texas ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful because it exceeds the power that Congress had delegated to the executive branch.
Biden’s Border Problem, and How to Fix It
President Biden has a border problem. The U.S. is seeing a deeply troubling increase both in total unaccompanied children (UACs) and in very young UACs—children as young as six or seven years old. The current problems at the border have both short- and long-term causes. In the short term, the Biden administration contributed to the problem with two related steps. First, it chose to continue the Title 42 coronavirus border restrictions that severely limit family entry.
Biden’s Border Problem, and How to Fix It
President Biden has a border problem. The U.S. is seeing a deeply troubling increase both in total unaccompanied children (UACs) and in very young UACs—children as young as six or seven years old. The current problems at the border have both short- and long-term causes. In the short term, the Biden administration contributed to the problem with two related steps. First, it chose to continue the Title 42 coronavirus border restrictions that severely limit family entry.
EU Privacy Law and U.S. Surveillance: Solving the Problem of Transatlantic Data Transfers
The July 2020 decision of the Court of Justice of the European Union (CJEU) in Data Protection Commissioner v. Facebook Ireland, Ltd. and Maximilian Schrems (Schrems II) was both a landmark in privacy law and a major obstacle for international trade. The Schrems II court cited the breadth of U.S. surveillance in holding that the EU-U.S. Privacy Shield agreement on transatlantic data transfers failed to provide adequate safeguards for the privacy of EU persons’ data.
EU Privacy Law and U.S. Surveillance: Solving the Problem of Transatlantic Data Transfers
The July 2020 decision of the Court of Justice of the European Union (CJEU) in Data Protection Commissioner v. Facebook Ireland, Ltd. and Maximilian Schrems (Schrems II) was both a landmark in privacy law and a major obstacle for international trade. The Schrems II court cited the breadth of U.S. surveillance in holding that the EU-U.S. Privacy Shield agreement on transatlantic data transfers failed to provide adequate safeguards for the privacy of EU persons’ data.
Ninth Circuit Says President Trump Can Ban Immigrants Without "Approved" Health Insurance
In a decision on Dec. 31 in Doe #1 v. Trump, the U.S. Court of Appeals for the Ninth Circuit upheld President Trump's Oct. 2019 proclamation barring entry of immigrants without "approved" health insurance (a policy often referred to as the "uninsured ban"). Judge Daniel Collins, a Trump appointee, wrote the panel's opinion, holding that the uninsured ban was within the president's authority under the Immigration and Nationality Act (INA). a George W.
Ninth Circuit Says President Trump Can Ban Immigrants Without "Approved" Health Insurance
In a decision on Dec. 31 in Doe #1 v. Trump, the U.S. Court of Appeals for the Ninth Circuit upheld President Trump's Oct. 2019 proclamation barring entry of immigrants without "approved" health insurance (a policy often referred to as the "uninsured ban"). Judge Daniel Collins, a Trump appointee, wrote the panel's opinion, holding that the uninsured ban was within the president's authority under the Immigration and Nationality Act (INA). a George W.
Asylum Ruling Halts Restrictions in New Rule
On Nov. 19, Judge Susan Illston of the U.S. District Court for the Northern District of California held that a new asylum rule exceeded the power of both the attorney general and the Department of Homeland Security and issued a nationwide temporary restraining order against the rule’s implementation.
Asylum Ruling Halts Restrictions in New Rule
On Nov. 19, Judge Susan Illston of the U.S. District Court for the Northern District of California held that a new asylum rule exceeded the power of both the attorney general and the Department of Homeland Security and issued a nationwide temporary restraining order against the rule’s implementation.
Federal Court Halts Trump’s Ban on Nonimmigrant Visas
In an important ruling on Oct. 1, Judge Jeffrey White of the U.S. District Court for the Northern District of California granted a preliminary injunction against President Trump’s nonimmigrant visa ban (NIV ban). The ban would have suspended visas for many temporary skilled workers and their families, regardless of their country of origin. White’s ruling in National Association of Manufacturers v.
Federal Court Halts Trump’s Ban on Nonimmigrant Visas
Published by The Lawfare Institute in Cooperation With In an important ruling on Oct. 1, Judge Jeffrey White of the U.S. District Court for the Northern District of California granted a preliminary injunction against President Trump’s nonimmigrant visa ban (NIV ban). The ban would have suspended visas for many temporary skilled workers and their families, regardless of their country of origin. White’s ruling in National Association of Manufacturers v.
The Libertarian Case for Immigration (and Against Trump)
PDF Version. A Review of “Free to Move: Foot Voting, Migration, and Political Freedom” by Ilya Somin (Cato Institute Book, Oxford University Press, 2020) *** To hear President Trump tell it, “open borders” is a mantra of the radical Left.
The Libertarian Case for Immigration (and Against Trump)
PDF Version. A Review of “Free to Move: Foot Voting, Migration, and Political Freedom” by Ilya Somin (Cato Institute Book, Oxford University Press, 2020) *** To hear President Trump tell it, “open borders” is a mantra of the radical Left.
Asylum Update: Ninth Circuit Upholds Injunction Against Third Country Rule
On July 6, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction in East Bay Sanctuary Covenant v. Barr against the third country asylum rule announced in July 2019 by the Department of Homeland Security (DHS). The third country rule would deny asylum to foreign nationals who cross the U.S.-Mexico border if they failed to ask for asylum in a third country they had transited through while en route to the United States.
Asylum Update: Ninth Circuit Upholds Injunction Against Third Country Rule
On July 6, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction in East Bay Sanctuary Covenant v. Barr against the third country asylum rule announced in July 2019 by the Department of Homeland Security (DHS). The third country rule would deny asylum to foreign nationals who cross the U.S.-Mexico border if they failed to ask for asylum in a third country they had transited through while en route to the United States.
How the DC Circuit Mangled Mandamus in the Flynn Case
Peter Margulies, a professor of National Security Law at Roger Williams University School of Law in Rhode Island, discusses the DC Circuit's recent drastic shift of the mandamus standard in the Michael Flynn Case... Wednesday’s decision by the D.C. Circuit granting General Mike Flynn’s petition for mandamus is a dangerous precedent.
The Supreme Court Rules that Trump’s DACA Rescission Doesn’t Pass Muster
On June 18, the Supreme Court by a 5-4 vote ruled against the Trump administration's attempt to rescind the DACA program. In a narrow opinion by Chief Justice John Roberts based on administrative law doctrine, the court stressed the reliance interests of DACA recipients. Roberts found that the administration in its initial 2017 rescission decision had not adequately considered alternatives that would ease the "hardship" posed by rescission to the roughly 700,000 people in the DACA program.
The Supreme Court Rules That Trump’s DACA Rescission Doesn’t Pass Muster
On June 18, the Supreme Court by a 5-4 vote ruled against the Trump administration's attempt to rescind the DACA (Deferred Action for Childhood Arrivals) program. In a narrow opinion by Chief Justice John Roberts based on administrative law doctrine, the court stressed the reliance interests of DACA recipients.
Flynn Argument in D.C. Circuit: Is the Ball Back in Judge Sullivan's Court?
JURIST Guest Columnist Peter Margulies of Roger Williams University School of Law in Bristol, Rhode Island discusses the oral argument for General Michael Flynn's case before the D.C. Circuit... The D.C. Circuit held oral argument on Friday on General Mike Flynn’s mandamus to Judge Emmet Sullivan to grant the Department of Justice (DOJ) Motion to Dismiss false statement charges against Flynn (see my preview, discussed here).
Mandamus and the Proper Role of Amicus Curiae in the Michael Flynn Case
JURIST Guest Columnist Peter Margulies of Roger Williams University School of Law in Bristol, Rhode Island discusses the current petition for mandamus in General Michael Flynn's case before the D.C. Circuit... On Monday, Judge Emmet G.
Immigration Update: Ninth Circuit Rules Against Trump Ban on Uninsured
In a ruling on May 4 in Doe v. Trump, the U.S. Court of Appeals for the Ninth Circuit denied the government's request for a stay of a nationwide preliminary injunction against an October 2019 presidential proclamation barring admission of immigrants without "approved" health insurance. In the majority were Ninth Circuit Judges Sidney Thomas and Marsha Berzon; Judge Daniel Bress dissented.
Immigration Update: Ninth Circuit Rules Against Trump Ban on Uninsured
In a ruling on May 4 in Doe v. Trump, the U.S. Court of Appeals for the Ninth Circuit denied the government's request for a stay of a nationwide preliminary injunction against an October 2019 presidential proclamation barring admission of immigrants without "approved" health insurance. In the majority were Ninth Circuit Judges Sidney Thomas and Marsha Berzon; Judge Daniel Bress dissented.
Trump’s Coronavirus Immigration Order Is a Restriction in Search of a Rationale
On April 22, President Trump signed a proclamation suspending issuance of certain immigrant visas. The suspension, which will last for 60 days and may be renewed thereafter, includes many exceptions that will limit its impact.
Trump’s Coronavirus Immigration Order Is a Restriction in Search of a Rationale
On April 22, President Trump signed a proclamation suspending issuance of certain immigrant visas. The suspension, which will last for 60 days and may be renewed thereafter, includes many exceptions that will limit its impact.
Asylum Update: Ninth Circuit Deals Two Defeats to the Trump Administration
On Feb. 28, the U.S. Court of Appeals for the Ninth Circuit issued decisions that cast substantial doubt on the legality of two Trump administration rules on asylum. In a surprising decision in Innovation Law Lab v. Wolf, a panel consisting of Judges William A. Fletcher, Richard A. Paez and Ferdinand F. Fernandez held that the so-called “Remain in Mexico” policy was inconsistent with the Immigration and Nationality Act (INA); Judge Ferdinand dissented. In East Bay Sanctuary Covenant v.
Asylum Update: Ninth Circuit Deals Two Defeats to the Trump Administration
On Feb. 28, the U.S. Court of Appeals for the Ninth Circuit issued decisions that cast substantial doubt on the legality of two Trump administration rules on asylum. In a surprising decision in Innovation Law Lab v. Wolf, a panel consisting of Judges William A. Fletcher, Richard A. Paez and Ferdinand F. Fernandez held that the so-called “Remain in Mexico” policy was inconsistent with the Immigration and Nationality Act (INA); Judge Ferdinand dissented. In East Bay Sanctuary Covenant v.
Justice Department Inspector General’s Report Raises Troubling Questions About FBI’s Role in FISA Cases
Despite the conclusion of Justice Department Inspector General Michael Horowitz that the FBI’s initiation of the Russia probe met legal standards, the report issued Monday by the Office of the Inspector General (OIG) strongly criticized the FBI’s handling of one aspect of the probe: the request for a Foreign Intelligence Surveillance Act (FISA) wiretap of ex-Trump campaign foreign policy adviser Carter Page and subsequent renewals of the FISA.
Justice Department Inspector General’s Report Raises Troubling Questions About FBI’s Role in FISA Cases
Published by The Lawfare Institute in Cooperation With Despite the conclusion of Justice Department Inspector General Michael Horowitz that the FBI’s initiation of the Russia probe met legal standards, the report issued Monday by the Office of the Inspector General (OIG) strongly criticized the FBI’s handling of one aspect of the probe: the request for a Foreign Intelligence Surveillance Act (FISA) wiretap of ex-Trump campaign foreign policy adviser Carter Page and subsequent renewals of the...
Court Issues Preliminary Injunction Against President Trump’s Ban on Uninsured Immigrants
On Nov. 26, Judge Michael H. Simon of the U.S. District Court for the District of Oregon issued a preliminary injunction against the operation of President Trump’s October immigration proclamation. The proclamation denies entry into the United States for otherwise qualified visa applicants unless they are likely to receive “approved health insurance” within 30 days of entry or can pay for their health care.
Court Issues Preliminary Injunction Against President Trump’s Ban on Uninsured Immigrants
On Nov. 26, Judge Michael H. Simon of the U.S. District Court for the District of Oregon issued a preliminary injunction against the operation of President Trump’s October immigration proclamation. The proclamation denies entry into the United States for otherwise qualified visa applicants unless they are likely to receive “approved health insurance” within 30 days of entry or can pay for their health care.
New Homeland Security Asylum Rule Allows Removal to Central American Countries That Have Signed Agreements With the U.S.
In a new rule, the Department of Homeland Security has taken key steps to implement what it calls asylum cooperation agreements (ACAs) signed earlier with Guatemala, Honduras and El Salvador. The rule authorizes removal of asylum seekers at the southern border of the United States to any of the above-named countries, as long as the removed individuals are not nationals of the particular country that will receive them.
New Homeland Security Asylum Rule Allows Removal to Central American Countries That Have Signed Agreements With the U.S.
In a new rule, the Department of Homeland Security has taken key steps to implement what it calls asylum cooperation agreements (ACAs) signed earlier with Guatemala, Honduras and El Salvador. The rule authorizes removal of asylum seekers at the southern border of the United States to any of the above-named countries, as long as the removed individuals are not nationals of the particular country that will receive them.
Judge Issues Temporary Restraining Order Against Proclamation Barring Uninsured Immigrants
On Nov. 2, Judge Michael H. Simon of the U.S. District Court for the District of Oregon issued a temporary restraining order (TRO) in Doe v. Trump against implementation of President Trump’s October proclamation barring otherwise qualified visa applicants from entry into the United States unless they are likely to obtain “approved health insurance” within 30 days of entry or can pay for their health care.
Judge Issues Temporary Restraining Order Against Proclamation Barring Uninsured Immigrants
Published by The Lawfare Institute in Cooperation With On Nov. 2, Judge Michael H. Simon of the U.S. District Court for the District of Oregon issued a temporary restraining order (TRO) in Doe v. Trump against implementation of President Trump’s October proclamation barring otherwise qualified visa applicants from entry into the United States unless they are likely to obtain “approved health insurance” within 30 days of entry or can pay for their health care.
President Trump Bars Uninsured Immigrants From the U.S.
On Oct. 4, President Trump issued a proclamation that bars otherwise qualified visa applicants from entry into the United States unless they are likely to obtain “approved health insurance” within 30 days of entry. The insurance test relies on 8 U.S.C. § 1182(f), authorizing the president to bar entry of foreign nationals “detrimental to the interests of the United States”—the same provision that Trump used for his travel ban, which the Supreme Court upheld in Trump v. Hawaii.
President Trump Bars Uninsured Immigrants From the U.S.
On Oct. 4, President Trump issued a proclamation that bars otherwise qualified visa applicants from entry into the United States unless they are likely to obtain “approved health insurance” within 30 days of entry. The insurance test relies on 8 U.S.C. § 1182(f), authorizing the president to bar entry of foreign nationals “detrimental to the interests of the United States”—the same provision that Trump used for his travel ban, which the Supreme Court upheld in Trump v. Hawaii.
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