Why Trump’s “sloppy” policies keep getting held up in court

“There’s a reason why we have never lost a case against the Trump administration," said Attorney General Ferguson

Published August 15, 2018 8:28AM (EDT)


This article originally appeared on Truthout.

Washington State Attorney General Bob Ferguson’s latest shots across President Trump’s bow were heard around the country. Backed by other Democratic attorneys general, Ferguson sued the administration on Tuesday for abruptly ditching a legal effort to prevent a Libertarian developer from posting blueprints for 3-D printing lethal guns on his website, allowing a federal judge in Seattle to issue an injunction blocking their release just hours before the gun schematics were scheduled to go online. Alarming headlines about homemade guns thrust Ferguson into the national spotlight.

That same day, Ferguson and attorneys general from three other states warned the Trump administration that a proposal to defund Planned Parenthood would undermine reproductive health care guaranteed by federal law and therefore never hold up in court. Their lengthy letter to Trump’s health czar foreshadows a high-profile legal battle as the debate over abortion rights heats up once again.

Ferguson has good reason to be optimistic about mounting a legal challenge to Trump’s anti-choice agenda. Like other Democratic attorneys general from major blue states, Ferguson has filed a litany of litigation against the Trump administration, and he boasts a 7-0 record of winning in cases that have been resolved with no chance of appeal. That figure does not include three additional cases that have blocked major policy moves by the Trump administration but could still be appealed, including the cases that blocked the order preventing transgender people from openly serving in the military and the order ending the Deferred Action for Childhood Arrivals program that protects immigrants who arrived in the United States as undocumented children from deportation.

“There’s a reason why we have never lost a case against the Trump administration, at least on [the merits of the case],” Ferguson said during a press conference this week.

Ferguson told reporters he was confident that his lawsuit against the Trump administration’s decision to essentially allow the online distribution of plans for 3-D-printing untraceable guns — like other lawsuits against Trump — would be successful because the administration is “sloppy in how they do their work.” He said the administration routinely runs afoul of federal laws such as the Administrative Procedures Act, which governs how federal agencies make and establish regulations and requires administrators to justify their actions. This makes the president’s policies vulnerable to legal challenges on procedural grounds, and Trump’s opponents are filing lawsuits against his administration at a record pace.

Democratic state attorneys general have worked together to file about 56 multistate lawsuits against the Trump administration, a number that is already approaching the 60 or so multistate lawsuits filed against the Obama administration over the course of eight years, according to Paul Nolette, a political science professor at Marquette University and the author of the book "Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America."

Nolette has tracked multistate lawsuits filed by state attorneys general for years. He said such litigation is often effective at slowing administrative policymaking — and furthering an attorney general’s political career. Consider Ferguson, who filed or joined 37 lawsuits against Trump. His office has promoted the lawsuits in fundraising campaigns, and his campaign committee’s latest filings show that Ferguson had raised $500,000 in contributions by January, even though he’s not up for re-election for another two years.

“Essentially, suing the Trump administration gives Democratic [attorneys general] a story to tell about how they are taking strong action against the Trump administration,” Nolette said in an interview with Truthout.

City governments and advocacy groups have also filed dozens of additional lawsuits against the Trump administration, but the surge in coordinated litigation by state attorneys general follows a broader trendin partisan politics. Nolette said state attorneys general have worked together since the Reagan years, but they burst onto the national scene in the late 1990s after several attorneys general reached a historic settlement against big tobacco companies. During the Bush administration, Democratic attorneys general were focused on preserving environmental protections, but under President Obama, Republicans coordinated legal attacks on everything from immigration policy to the Affordable Care Act (ACA).

“The roots go back further during the Obama administration, but something did change in terms of the tenor during the Obama administration that Democratic attorneys general are now picking up and running with,” Nolette said.

Republicans claim their lawsuits against the Obama administration challenged overreach of executive power, while the current flurry of litigation against Trump seeks to shape policy to Democrats’ liberal liking. However, Nolette said there are plenty of similarities between the cases filed by Republicans against Obama and those filed by Democrats today, at least in terms of legal strategy. Both Republicans and Democrats challenge presidential policies with broad strokes by mixing big constitutional questions with nitty-gritty challenges on procedural grounds and hoping something sticks in court.

“The sort of ‘kitchen sink’ strategy of challenging just about everything coming out of Washington was something that the Republicans in the last couple years of the Obama administration really did harness,” Nolette said.

The “kitchen sink” strategy often works. Signature Obama-era polices such as the Clean Power Plan were tied up in court long enough for Trump to take office and reverse or revise them, putting a serious dent in Obama’s legacy. Trump was forced to revise his ban on travelers from Muslim countries three times due to lawsuits filed by Ferguson and other Democrats, and controversial pushes to place work requirements on Medicaid, curb access to contraceptives and roll back clean air standards have been stalled or blocked by federal litigation.

As Ferguson pointed out with his comment about “sloppy” policymaking, the Trump administration’s rush to repeal Obama-era regulations has worked in the favor of Democratic attorneys general and other legal challengers. Some of the best examples come from the Environmental Protection Agency (EPA) and its disgraced former administrator, Scott Pruitt. As the attorney general of Oklahoma, Pruitt worked alongside polluters to challenge a long list of Obama-era environmental regulations, so Trump tapped him to run the EPA and peel all of them. Pruitt rushed to undo Obama’s legacy as part of Trump’s deregulatory blitz, only to be embroiled by scandal as courts repeatedly ruled that his efforts violated federal law. He recently resigned due to alleged ethics violations.

“A lot of the supplemental material that the EPA put forward to justify the reversal of Obama-era rules was not very good in my qualitative opinion here,” Nolette said. “A lot of the scientific addendums were not very fleshed out in the comparison to Obama’s EPA.”

Trump’s own bombast also creates legal trouble for his administration. In a lawsuit filed in federal court this week, leaders from major cities that rely on Medicaid payments to fund their public health departments argue that Trump’s own public comments about dismantling the ACA are proof that he is illegally circumventing the will of Congress and sabotaging Obama’s signature health care law now that Republican lawmakers have failed to repeal and replace it.

Nolette said the Obama administration was generally better than the Trump administration at crafting policy that could hold up to legal challenges from Republican attorneys general eager to make a mark on the national political stage. However, Trump may still feel like he is accomplishing something, even if his policies get stuck in court. His narrative promotes the idea that Washington is broken and other politicians are not as strong as he is, so he must dictate federal policy with executive orders and sweeping administrative changes. If they get stuck in court, activist attorneys general and liberal judges are surely to blame.

“His supporters think he’s getting a lot done, but in reality [his policies] get caught up in court, and if they are poorly written, they may get shot down, but that’s long after the headlines have already been written,” Nolette said.


By Mike Ludwig

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