The Liberals have used the courts to block Trump’s agenda. Republicans use the same playbook against Biden.


Legal arguments and procedural tools, such as nationwide injunctions by friendly judges, which have been emphatically criticized by many conservatives when used against Trump’s policies are adopted and used by law in lawsuits that seek to block the actions of the executive branch of President Joe Biden.

In the way it handled the legal dispute, the Supreme Court endorsed arguments by Biden’s enemies that his administration had violated decades-old law that was routinely used by liberal lawyers to thwart Trump’s agenda. Judges also left in place a nationwide injunction from a federal judge forcing Biden to restore Trump’s policies, after some court conservatives previously complained that the use of the mechanism by district courts was becoming “a real problem. “.

Immigration has so far been the main hot spot where these tactics have successfully hampered Biden. But legal experts told CNN that as the administration rolls out more policy changes in other segments of the executive, these maneuvers – hailed by a judicial system stacked up of judges appointed by Trump – will become even more so. widespread.

Just as Democratic attorneys general have bragged about their legal battles against Trump, their Republican counterparts brag about being “on the front lines of the Conservatives to stop the Biden administration’s worst abuses,” like Missouri Attorney General Eric Schmitt, who joined Texas in the ‘rest in Mexico’, put it in an advertisement for its United States campaign in the Senate.

They have helped them the very architects of the Trump policies that Biden seeks to undo, with former Trump aide and anti-immigration activist Stephen Miller and other senior White House officials launching the American First Legal organization for fight the current administration in court. .

The law that was used to force a Biden takeover of Trump’s “stay in Mexico” program is the Administrative Procedure Law, which sets out the procedural steps agencies must take to implement certain policies. The same law was used by the Supreme Court in 2020 to block Trump’s termination of the Child Arrivals Deferred Action Program, the deportation protections for immigrant youth instituted under President Barack Obama. The Administrative Procedure Act is also what led the court to suspend the Trump administration’s plans to add a citizenship question to the 2020 census.

In both cases, Chief Justice John Roberts joined with the court’s liberals in stating that the Trump administration failed to take the appropriate procedural steps, as required by the Administrative Procedure Act, to amend the executive policy. Trump’s critics have applauded the rulings, while court conservatives have argued that the 1946 administrative law was unfairly instrumentalized to cripple the president’s initiatives.

Both of these decisions were cited by lower courts that ended Biden’s “stay in Mexico” policy. The Trump-era rulings were also cited as in another immigration case where a judge blocked Biden’s reshuffle of the government’s enforcement priority. The DACA case and its interpretation of the Administrative Procedure Act were also cited by the Supreme Court in its order on Tuesday evening.

“When we say John Roberts had a long game, he had that one decision against Trump, but it can be used to handcuff Democratic presidents for generations,” said Joshua Blackman, professor at South Texas College of Law in constitutional law.

Recourse to national injunctions by district courts

Cases challenging Biden’s immigration policies have been brought by Texas and other Red states. They were also heard for the first time by Trump-appointed district judges who used legal maneuvers Tories hated just a few months ago.

During the Trump administration, there was a backlash on the right to the frequent use, often but not exclusively by Democrat-appointed judges in district courts, of injunctions nationwide, that is that is, court orders that have prevented the implementation of a policy at the national level, rather than limiting it. orders on how the policy affects specific parts or regions.

Attorney General William Barr devoted quite a speech in 2019 complaining about them and how they allowed plaintiffs to strategically choose places to sue where lower courts seemed most inclined to end the case. a nationwide Trump policy.
Barr denounces court orders blocking Trump agenda
Meanwhile, Republicans in both houses of Congress held hearings examining the trend. The more conservative members of the Supreme Court also weighed in, with a concurring 2020 opinion from Justice Neil Gorsuch explaining why he voted to lift a lower court’s grip on Trump administration immigration policy.

“Because plaintiffs are generally not bound by adverse rulings in cases to which they were not a party, there is an almost unlimited opportunity to seek a friendly forum to secure a nationwide victory,” Gorsuch wrote. , joined by Judge Clarence Thomas, wrote.

The “growing practice” of injunctions nationwide was a “real problem,” Gorsuch said.

Yet neither Gorsuch nor Thomas have expressed the slightest unease at the nationwide injunction imposed by the district judge appointed by Trump in the “stay in Mexico” case. The three liberals in court have publicly dissented in this case, but have not explained their reasoning.

The eagerness of the Supreme Court majority to allow major disruptions to the policy of the Biden administration has prompted the court liberals’ appeal in the moratorium eviction case. Conservative judges on Thursday overturned the Biden administration’s moratorium in an interim order.

The Liberals protested that the Supreme Court was blocking the public health policy of Covid-19 without going through the full briefing process that the decision on the merits would entail.

“We should not put aside the moratorium on CDC deportations in this summary procedure,” Judge Stephen Breyer wrote.

Liberal judges’ frustration aside, the use of these legal tools against Biden will only become more important as other agencies under his administration become more active in implementing policy.

“Over the next few years we are going to see many regulations and many legal challenges which will make resolving this issue on the scope of the remedy extremely important,” said Andrew Pincus, partner at Mayer Brown LLP who has represented groups that filed friend of the court briefs opposing Trump’s immigration policies.

A new normal

The quote from the DACA case in Tuesday’s order gives the impression that the Supreme Court was taking an opinion that had hampered a Republican administration and is now applying it to a Democratic administration. But some legal experts say there is an asymmetry in the way these maneuvers are used.

While Trump’s judicial opponents have been successful in getting the Supreme Court to sanction their approach, their record is mixed. The Supreme Court blocked Trump’s DACA and census measures, but the court ultimately approved Trump’s travel ban on Muslim-majority countries, after refusing to fully reactivate early versions of the ban that had been blocked by lower courts.

On 11 occasions, the Supreme Court has granted emergency requests to Trump to overturn lower court rulings ending his immigration policy, according to an analysis by Steve Vladeck, CNN Supreme Court analyst and University of Texas Law School professor.
Prior to the Trump administration, the judiciary generally did not act as aggressively to block executive actions, especially in matters relating to immigration or foreign policy. For example, it took years for the Supreme Court to react “forcefully” to the controversial actions taken by the administration of George W. Bush after September 11, according to Supreme Court expert Joshua Matz. But from the start of his presidency, Trump saw legal losses mount.

“There is a reason why, compared to the Obama, Bush, Clinton and Bush administrations, Reagan, etc., the Trump administration suffered a defeat in court like we have never seen in the history of the United States. republic, “said Matz, a partner at Kaplan Hecker & Fink LLP who served as a clerk for former judge Anthony Kennedy.

Stephen Breyer just became Democrats on Friday

The trend against Trump was not due to judges lacking these tools before he took office, Matz said. “This is because the Trump administration has abandoned long-established norms and rules of executive decision-making and the courts have held them accountable.”

With its order on Biden’s policy on Tuesday, the Supreme Court signaled that it would not revert to the pre-Trump standard of a judiciary unwilling to intervene drastically in executive branch politics. And Biden’s enemies will have a much easier time convincing lower courts to block the administration’s actions.

The Supreme Court’s reference to the DACA case on Tuesday was notable, according to Blackman, because judges were not required in this circumstance to explain the rationale for their order, let alone cite a case.

The order was issued on the court’s so-called “shadow case”, the nickname for Supreme Court interim actions that fail to go through the full process of information and hearing of a final decision on the merits. of the case.

“They even said here are the page numbers that we rely on, which is rare,” Blackman told CNN. “Now, from what I’m reading, the lower court judges have the green light to quote these nine pages… to do whatever they want.”


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