Thursday round-up

At Reuters, Alison Frankel reports on the possible effects of recent tweets by President Donald Trump on his administrations request that the Supreme Court reinstate a ban on entry into the U.S. by nationals of six Muslim-majority countries; ethics experts, she recounts, say that at best, the solicitor generals office can no longer argue that the president himself wanted the executive order only to pause immigration temporarily so the U.S. can study its vetting procedures, while [a]t worst, the Justice Department could be subject to an ethics inquiry about whether its lawyers knowingly misrepresented facts in their Supreme Court filings. At Lawfare, Alex Loomis suggests that [l]ike it or not, the court may well consider the possibility that if it holds that ‘we wont look beyond the text of the order’ , President Trump will later admit on Twitter that the order was mere pretext. In an op-ed in The New York Times, Linda Greenhouse remarks on the acting solicitor generals assertion that courts should ignore campaign-trail comments because taking the oath of office marks a ‘profound transition from private life to the nations highest office; Greenhouse argues that it is the very absence of such a profound transition in President Trumps behavior that increasingly concerns his critics and even some close allies.

Briefly:

• At the Washington Legal Foundations Legal Pulse, Stephen Bainbridge discusses Kokesh v. Securities and Exchange Commission, in which the court held that a five-year statute of limitations applies to a claim for disgorgement in an SEC enforcement action, pointing to a footnote in the opinion that looks a lot like an open invitation for some future disgorgement defendant to challenge SECs authority to seek disgorgement.
• The editorial board of The New York Times weighs in on the courts decision this week to rule onwhether the government must obtain a warrant for historical records showing where a cell phone connects with towers, observing that the justices decision could redefine not only the limits on law enforcement access to cellphone-location records, but the future of surveillance more broadly.
• At Prawfsblawg, Stephen Sachs joins a discussion about opinion assignment at the court, asking a more general question: why do we even need an opinion of the Court? Or, to put it another way, how much effort should the Justices invest merely in order to get to five?

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