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

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. .

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.

“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.

“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.

“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.

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.”