2019-03-19 20:20:591 Oct 2018 01:53 AM EST
By Laura Tucker, Staff writer; Image: Mike Pence, Donald Trump, Jim Mattis (Image source: Public domain)
While it's true that we live in a dispute-happy society with lawsuits being filed for so many different reasons, we don't expect that at a presidential level. Yet Donald Trump's administration continues to be sued and go to court repeatedly, sometimes even repeatedly over the same case, such as in the case of the Muslim ban.
But they so often lose. The president even knows that himself. He predicted as much when he declared the national emergency in his money grab for the border wall. He predicted people would sue, he'd lose, they'd appeal, he'd lose, etc., until he wound up at the Supreme Court where he figures he'll win, since he has done his best to pack the high court with judges sympathetic to his causes.
The Washington Post took a look at just why it is that the administration keeps losing all these lawsuits. They noted that repeatedly judges complain that administration officials fail to follow the rules of governance for shift policy. This includes providing explanations that can actually be supported by facts and getting public input where it's required.
Trump's so-called Muslim ban spent much time in court. It was blocked by lower-court judges. Two new executive orders were signed to supersede the original, and eventually the Supreme Court upheld the third version of the executive order. It would have saved much time and court costs if it wouldn't have been redrafted so many times.
"What they have consistently been doing is short-circuiting the process," explained Georgetown Law School's expert on administration law, William W. Buzbee. He has studied Trump's record.
He allows that in the regulatory cases, "they don't even come close" to explaining their actions, "making it very easy for the courts to reject them because they're not doing their homework."
Two-thirds of the cases against the administration accuse them of violating the Administrative Procedure Act (APA), a law that has been in place for 73 years that forms the primary defensive principle against arbitrary rule. These cases should have been won about 70 percent of the time, but as of two months ago, Trump is only winning about six percent of them.
"I've spent 3 years in the private sector complaining about the excesses of environmental regulation," said Seth Jaffe, a Boston-based environmental lawyer representing corporations that had been waiting on deregulation that was never delivered. "But this administration has given regulatory reform a bad name."
He's even wondered if the officials are more interested in announcing policy shifts than actually implementing the policy, as some of the errors in the legislation are so basic.
"It's not just that they're losing, but they're being so nuts about it," he said. He added that the court losses have a "set regulatory reform back for a period of time."
Trump certainly needs to take part of the blame himself. After he made comments about "shithole countries," U.S. District Judge Edward M. Chen in San Francisco was convinced that the administration's decision to end "temporary protected status" for immigrants from Central America, Haiti, and Sudan was put forth because of racial and ethnic bias.
Before he left his post in October, Matthew Collete was the deputy director of the Justice Department's Civil Division appellate staff. In his 30 years with that department, he'd never seen so many losses for an administration in that short of a time. "I don't think there's any doubt about that," he affirmed.
While Trump blames the losses on Obama-era judges in the 9th Circuit in West Coast states, only 29 have come from 9th Circuit judges. 34 have originated elsewhere, including the District of Columbia Circuit.
Democratic judges have been responsible for 45 decisions, with the rest being attributed to Republican-appointed judges. Three are the decisions of magistrate judges who are not appointed by presidents.
Four different judges have heard and rejected the administration's decision to end DACA. All rejected it for basically the same reason.
George W. Bush appointee U.S. District Judge John D. Bates said the government's basis for this decision was "virtually unexplained," making it unlawful. Bill Clinton appointee U.S. District Judge William Alsup in California rejected the idea that DACA creates a "litigation risk." He found it to be just "spin."
Three judges have knocked down the attempt to add a citizenship question to the 2020 Census. All have found Commerce Secretary Wilbur Ross's explanation to be unbelievable that having the question added was with the intention of improving enforcement of the Voting Rights Act.
The Department of Homeland Security claimed their termination of temporary protected status was not actually changing policy, so it wasn't subject to review under the APA. Internal documents contradicted that, and it was blocked by Chen.
The Department of Health and Human Services was challenged after they decided to end $200 million in grants to 81 programs to prevent teen pregnancy. This was an abrupt decision after Valerie Huber was appointed as senior adviser to former HHS Secretary Tom Price. She believed in abstinence-only sex education and lobbied for the funding for the programs to be eliminated, as she said they "normalized teen sex."
Once they were hit with many lawsuits, HHS argued that when they ended the grants, it didn't represent a policy change, and that meant they didn't need to provide an explanation under the APA.
U.S. District Judge Ketanji Brown Jackson asked a government attorney if an agency can "suddenly say 'too bad, so sad,' " and then cut off money without cause. When the attorney answered yes, she proclaimed it "weird" and ordered that the grants be restored.
"This much is clear: A federal agency that changes course abruptly without a well-reasoned explanation for its decision or that acts contrary to its own regulations is subject to having a federal court vacate its action as 'arbitrary [and] capricious," she ruled.
Much of this, it seems, comes from officials' failure to follow the APA. The EPA and Army Corps of Engineers suspended a clean-water rule without asking for public comment or considering the implications, which they are required to do under the APA. They argued that they were only delaying the rule and not eliminating it after conservationists sued.
George H.W. Bush appointee U.S. District Judge David C. Norton of South Carolina took the Trump administration to task by calling their approach "evasive" as well as "arbitrary and capricious."
"If your goal is to change policy, the little extra time" to explain it "is worth it," said Case Western Reserve University law professor, Jonathan H. Adler. "Various administrations don't always like that lesson, this administration more than most."
"If the Trump administration wants to win future cases," said John D. Graham, School of Public and Environmental Affairs at Indiana University dean, "they must do a much better job of persuading judges appointed by Democratic presidents."
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