In the way it handled the legal dispute, the Supreme Court blessed Biden’s enemies ’arguments that his administration had violated a decades-old law that liberal lawyers routinely used to obstruct Trump’s agenda. Judges also left in place a national court order forcing Biden to reinstate Trump’s policy, after some court conservatives had previously complained that the use of the mechanism by district courts was becoming in “a real problem.”
So far, immigration has been the main hot spot where these tactics have been successful in hindering Biden. But legal experts tell CNN that as the administration develops more policy changes in other segments of the executive branch, these maneuvers, welcomed by a judiciary with Trump-appointed judges, will become even more prevalent.
They have been helped by the very architects of Trump’s policies that Biden is trying to undo, with former Trump aide and anti-immigration activist Stephen Miller and other senior White House officials who launched the American First Legal organization for fight against the current judicial administration.
In both cases, Chief Justice John Roberts joined the court’s liberals in ruling that the Trump administration had failed to take the appropriate procedural steps, as required by the Administrative Procedure Act, to change the policy of the executive branch. . Critics of Trump welcomed the rulings, while conservatives in court claimed the 1946 administrative law was being unfairly armed to thwart the president’s initiatives.
“When we say John Roberts had a long game, he had this unique opinion against Trump, but it can be used to handcuff Democratic presidents for generations,” said Joshua Blackman, a professor at South Texas College of Law who specializes in constitutional law.
Use of judicial measures at the national level by district courts
Texas and other red states filed cases challenging Biden’s immigration policies. They were also first heard by Trump-appointed judges who employed legal maneuvers that conservatives hated a few months ago.
During the Trump administration, there was a backlash against the right to frequent, often but not exclusively, use by Democrats-appointed judges in district courts of national judicial measures, that is, court orders that prevented the implementation of a policy at the national level, rather than limiting them. orders on how the policy affects specific parts or regions.
“Because plaintiffs are generally not required to make adverse decisions in cases where they were not a party, there is an almost limitless opportunity to buy a friendly forum to achieve a nationwide victory,” Gorsuch wrote, along with Judge Clarence Thomas.
Gorsuch said the “increasingly common practice” of court orders across the country was a “real problem.”
However, neither Gorsuch nor Thomas expressed any discomfort with the nationwide ban imposed by the Trump judge appointed by Trump in the “stay in Mexico” case. The three court liberals publicly disagreed in this case, but did not explain their reasoning.
The eagerness of the majority of the Supreme Court to allow major upheavals in the policy of the Biden administration got the liberals of the court to be called in the case of eviction of the moratorium. Conservative judges on Thursday lifted the Biden administration’s moratorium by interim order.
The Liberals protested because the Supreme Court was blocking Covid-19’s public health policy without going through the full information process that would lead to the resolution of the fund.
“We should not set aside the CDC’s eviction moratorium in this summary process,” Judge Stephen Breyer wrote.
Aside from the frustration of liberal judges, the use of these legal tools against Biden will only become more important as other agencies under his administration become more active in implementing the policy.
“We will see over the next few years a lot of rules and a lot of legal challenges, which will make resolving this issue about the scope of the appeal very important,” said Andrew Pincus, a partner at Mayer Brown LLP who has represented groups filing briefs. of friendship against Trump’s immigration policy.
A new normal
The citation of the DACA case on Tuesday’s order gives the appearance that the Supreme Court was adopting an opinion that had hindered a Republican administration and was now applying it to a Democratic one. But some legal experts say there is an asymmetry in the way these maneuvers are used.
While opponents of Trump’s courts had some success in getting the Supreme Court to sanction his approach, his track record was mixed. The Supreme Court blocked DACA and Trump’s censuses, but eventually accepted 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. .
“There’s a reason why, compared to the Obama, Bush, Clinton and Bush, Reagan, etc. administrations, the Trump administration suffered a defeat in the courts unlike anything we’ve ever seen in the history of the republic, “said Matz, a partner at Kaplan Hecker & Fink LLP led by former Judge Anthony Kennedy.
The trend against Trump was not for judges not to have those tools available before taking office, Matz said. “It’s because the Trump administration abandoned executive rule and decision-making rules and the courts held them accountable.”
With its ruling on Biden’s policy on Tuesday, the Supreme Court noted that it would not re-conform to Trump’s pre-rule of a judiciary that is reluctant to make drastic interventions in executive policy. And Biden’s enemies will find it easier to convince lower courts to block the administration’s moves.
The Supreme Court’s reference to the DACA case on Tuesday was remarkable, according to Blackman, because judges were not required in that circumstance to explain the grounds behind his order, let alone cite a case.
The order was issued in the so-called “shadow file” of the court, the nickname of the provisional actions of the Supreme Court that do not go through the full process of information and hearing of a final judgment on the merits of the case.
“They even said that here are the page numbers we trust, which is weird,” Blackman told CNN. “Now, as I’ve read it, lower court judges have the green light to cite these nine pages … to do whatever they want.”