Trump Is Losing His War Against the Courts
Jurisprudence
Trump Is Losing His War Against the Courts
The judiciary has continued to quietly deliver subtle, devastating blows to the president’s agenda.
By Dahlia Lithwick
Nov 20, 2018
5:25 PM
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Between the impending conclusion of the Mueller probe and the promise of oversight from various Democratic-controlled House committees come January, it’s clear that the president is starting to panic. And it’s easy to see why—given his tax returns, financial dealings, Russian investments, and other wrongdoing being surfaced in litigation, he has a good deal to worry about.
But that brings us once more to the greatest and least appreciated place at which President Donald Trump is proving to be the losing-est loser of all: the courts. Because they happen so frequently, it’s almost impossible to keep track of all the massive and consequential rulings against this president and his administration that are logged every week and rarely viewed in the aggregate. But let’s try: Late Monday night, a federal judge issued a temporary restraining order blocking the president’s Nov. 9 rule that barred migrants from applying for asylum unless they made the request at a legal checkpoint. The judge’s order applies nationally. Last Friday’s decision—by a Trump-appointed judge—to side with CNN against the White House in a dispute about revoked press credentials is only the most recent iteration of a near-constant drip-drip of legal losses. Even with a bench now containing almost 1 in 6 Trump appointed judges (and these are not your President Bush–edition conservative judges), Trump mainly loses, and then loses some more.
Here’s another set: On Nov. 9, a federal judge in Montana temporarily blocked construction of the Keystone XL pipeline, ruling that the Trump administration had failed to comply with the Administrative Procedure Act, which requires “reasoned” explanations for government decisions and reversals. (The president immediately decried the ruling as “political” and “a disgrace.”) Indeed, this is just the most recent in a line of environmental cases Trump keeps losing in the federal courts. One recent tally shows the Trump administration has actually lost in all but one of the legal challenges its brought in its efforts to undo Obama-era regulations. The government has either lost or ditched its position in 18 others. As a recent Brookings roundup notes, this 5 percent “win rate is far below the normal agency win rate, which averages 69 percent across eleven studies.”
But there’s so much more. Also in November, a federal judge allowed the massive emoluments lawsuit filed against Trump in Maryland and D.C. to proceed over the Justice Department’s objections. In August, a federal judge struck down the bulk of three separate executive orders seeking to hobble unions that Trump had signed in an attempt to make it easier to fire federal employees. While we were all looking for solace to the great media blackout that is the Mueller investigation, federal courts halted the Trump effort to ban transgender members of the military, stopped the effort to kill DACA, assisted in terminating the president’s circus-level vote fraud commission, and stymied efforts to defund sanctuary cities. In August, a Trump-appointed judge batted away a challenge to Robert Mueller’s appointment. Courts have acted swiftly and decisively to end Trump’s irresponsible and cruel immigration policies. In many of these cases there are three and four separate losses logged in different courts. As Fred Barbash noted a few weeks ago in the Washington Post, “by a very rough count, 40 to 50 federal judges have weighed in against the Trump administration in cases.”
This is not, as Barbash observes, because these are all a bunch of demented “judicial activists,” as former Attorney General Jeff Sessions once attempted to argue. Nor are they the “judges of the Resistance”—a phrase that obscures more than it illuminates. A good many of these jurists were appointed by Republican presidents and in some cases Trump himself. No, the Trump administration is still managing to lose a tremendous amount of its lawsuits despite the fact that the judicial branch has changed dramatically in the past two years and the Supreme Court itself now tilts to the political right.
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https://slate.com/news-and-politics/2018/11/donald-trump-losing-courts-jurisprudence.html
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