Liberals used the courts to block Trump’s agenda. Republicans are using the same playbook against Biden.

By Tierney Sneed, CNN

For four years, President Donald Trump saw his policies hindered by progressive lawsuits. Now conservative lawyers and judges get to have their revenge on the Biden administration.

Legal arguments and procedural tools, such as nationwide injunctions by friendly judges, that were categorically criticized by many conservatives when they were employed against Trump policies are being embraced and utilized by the right in lawsuits that seek to block President Joe Biden’s executive branch actions.

The most striking example is the move by the Supreme Court on Tuesday night that will require the Biden administration to revive the Trump-era policy known as “remain in Mexico,” which forces migrants to stay in Mexico until their US immigration court dates.

In how it handled the legal dispute, the Supreme Court blessed the Biden foes’ arguments that his administration had violated a decades-old law that was routinely used by liberal lawyers to stymie Trump’s agenda. The justices also left in place a federal judge’s nationwide injunction forcing Biden to reinstate the Trump policy, after some conservatives on the court had previously complained that the use of the mechanism by district courts was becoming “a real problem.”

So far, immigration has been the primary hot spot for where theses tactics have been successful in hindering Biden. But legal experts tell CNN that as the administration rolls out more policy changes across other segments of the executive branch, these maneuvers — welcomed by a judiciary stacked with Trump-appointed judges — will become even more prevalent.

Just as Democratic attorneys general touted their legal fights against Trump, their Republican counterparts are bragging about being “on the conservative front line suing to stop the Biden administration’s worst abuses,” as Missouri Attorney General Eric Schmitt, who joined Texas in the “remain in Mexico'” lawsuit, put it in an ad for his US Senate campaign.

They have assisting them the very architects of the Trump policies Biden is seeking to undo, with former Trump aide and anti-immigration activist Stephen Miller and other top officials from the last White House launching the organization American First Legal to fight the current administration in court.

The law that was used to force a Biden revival of Trump’s “remain in Mexico” program is the Administrative Procedure Act, which lays out the procedural steps agencies must go through in implementing certain polices. The same law was used by the Supreme Court in 2020 to block Trump’s termination of the Deferred Action for Childhood Arrivals program, the deportation protections for young immigrants instituted under President Barack Obama. The Administrative Procedure Act is also what led the court to halt the Trump administration’s plans to add a citizenship question to the 2020 census.

In both cases, Chief Justice John Roberts joined the court’s liberals to rule that the Trump administration had not gone through the proper procedural steps, as required by the Administrative Procedure Act, in changing executive branch policy. Trump’s critics cheered the rulings, while the court’s conservatives claimed that the 1946 administrative law was being unfairly weaponized to hamstring the President’s initiatives.

Both those rulings were cited by the lower courts that halted Biden’s termination of the “remain in Mexico” policy. The Trump-era rulings were also cited as in another immigration case where a judge blocked Biden’s reworking of the government’s enforcement priority. The DACA case, and its interpretation of the Administrative Procedure Act, was referenced by the Supreme Court in its order Tuesday night as well.

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

Use of nationwide injunctions by district courts

The cases challenging Biden’s immigration policies were brought by Texas and other red states. They were also first heard by district Trump-appointed judges who employed legal maneuvers that conservatives hated just months ago.

During the Trump administration, there was a backlash on the right to the frequent use, often but not exclusively by Democratic-appointed judges on district courts, of nationwide injunctions, i.e. court orders that blocked a policy from being implemented nationwide, rather than limiting those orders to how the policy affects specific parties or regions.

Attorney General William Barr devoted an entire speech in 2019 to grousing about them and how they allowed plaintiffs to strategically pick places to bring their lawsuits where lower courts appeared to be most inclined to halt a Trump policy nationwide.

Meanwhile, Republicans in both chambers of Congress hosted hearings examining the trend. The Supreme Court’s most conservative members weighed in too, with a 2020 concurring opinion from Justice Neil Gorsuch explaining why he had voted to lift a lower court’s hold on a Trump administration immigration policy.

“Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide,” Gorsuch, joined by Justice Clarence Thomas, wrote.

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

Yet neither Gorsuch nor Thomas expressed any discomfort with the nationwide injunction imposed by the Trump-appointed district judge in the “remain in Mexico” case. The court’s three liberals publicly dissented in that case, but didn’t explain their reasoning.

The eagerness of the Supreme Court majority to allow major disruptions to Biden administration policy did get the callout of the court’s liberals in the moratorium eviction case. The conservative justices on Thursday threw out the Biden administration’s moratorium in an interim order.

The liberals protested that the Supreme Court was blocking Covid-19 public health policy without going through the full briefing process that ruling on the merits would bring.

“We should not set aside the CDC’s eviction moratorium in this summary proceeding,” Justice Stephen Breyer wrote.

The frustration of the liberal justices aside, the use of these legal tools against Biden will only become more prominent as other agencies under his administration become more active in implementing policy.

“We’re going to see over the next several years a lot of rule makings and a lot of legal challenges, which will make settling this question about scope of remedy critically important,” said Andrew Pincus, a partner at Mayer Brown LLP who has represented groups that filed friend-of-the-court briefs opposing Trump immigration policies.

A new normal

The citation of the DACA case in the Tuesday order gives the appearance that the Supreme Court was taking an opinion that had hindered a Republican administration and now applying it to a Democratic one. But some legal experts say there is an asymmetry in how these maneuvers are being employed.

While Trump’s court opponents had some success in getting the Supreme Court to sanction their approach, their record was mixed. The Supreme Court blocked Trump’s DACA and census moves, but the court ultimately OK’d Trump’s travel ban targeting majority Muslim countries, after refusing to fully revive early versions of the ban that had been blocked by lower courts.

On 11 occasions, the Supreme Court granted emergency Trump requests to reverse lower court rulings halting his immigration policies, according to an analysis by Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

Before the Trump administration, the judicial branch did not typically act so aggressively to block executive branch actions, particularly in cases touching upon immigration or foreign policy. For instance, it took years before the Supreme Court responded in a “muscular way” to the controversial actions taken by the George W. Bush administration after 9/11, according to Supreme Court expert Joshua Matz. But from the start of his presidency, Trump saw the legal losses pile up.

“There’s a reason why, as compared to Obama, Bush, Clinton, and Bush, Reagan, etc., administrations, the Trump administration suffered defeat in court unlike anything we have seen ever in the history of the republic,” said Matz, a partner at the firm Kaplan Hecker & Fink LLP who clerked for former Justice Anthony Kennedy.

The trend against Trump was not because judges didn’t have those tools available to them before he took office, Matz said. “It’s because the Trump administration abandoned long-settled norms and rules of executive branch decision making and the courts held them accountable for it.”

With its order on the Biden policy Tuesday, the Supreme Court signaled that it would not be snapping back to the pre-Trump norm of a judicial branch that’s reluctant to make drastic interventions in executive branch policy. And Biden’s foes will have a much easier time convincing lower courts to block the administration’s moves.

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

The order was handed down on the court’s so-called “shadow docket,” the nickname for the interim Supreme Court actions that do not go through the full briefing and hearing process of a final ruling on the merits of the case.

“They even said here are the page numbers that we’re relying on, which is rare,” Blackman told CNN. “Now, the way I read it, lower court judges have a green light to cite those nine pages … to do whatever they want.”

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