Trump administration losing 94 percent of lawsuits over illegal policy changes

Federal agencies under Trump are losing suits at a record rate, largely because of massive incompetence

By Igor Derysh

Managing Editor

Published March 22, 2019 6:00AM (EDT)

 (Getty/Chris Kleponis)
(Getty/Chris Kleponis)

The Trump administration is losing court battles at an unprecedented rate, with many losses coming because officials failed to follow basic rules in changing policy.

Federal judges have ruled against the administration at least 63 times since Trump took office, The Washington Post reported. Two-thirds of those cases involved complaints that the administration violated the Administrative Procedure Act, a 1946 law that set procedural requirements that federal agencies must follow when unilaterally changing policies or regulations.

The normal “win rate” for the government in such cases is about 70 percent, the Post reported, but according to the Institute for Policy Integrity at the New York University School of Law, the Trump administration’s win rate in these cases in just 6 percent.

“What they have consistently been doing is short-circuiting the process,” Georgetown Law professor William Buzbee told the Post, adding that the administration doesn’t “even come close” to providing legitimate explanations for the rule changes, “making it very easy for the courts to reject them because they’re not doing their homework.”

Only some cases involve bumbling officials. Others involve the president’s innate ability to torpedo his own agenda. At least a dozen decisions in which judges have ruled against the administration have involved Trump’s tweets or comments.

Just last year, a federal judge ruled against the administration’s move to end temporary legal status for immigrants from Central America, Haiti and Sudan because Trump’s “shithole countries” remark suggested the policy was motivated by ethnic or racial bias.

Trump has repeatedly complained that he keeps losing in court because of “Obama judges,” but numerous Republican-appointed judges have reached the same conclusions as those appointed by Trump’s predecessor.

Four judges have ruled against the Trump administration’s move to end DACA protections for more than 700,000 immigrants, for example, including two judges appointed by George W. Bush. Three judges in different states ruled against the Commerce Department’s attempt to add a citizenship question to the 2020 census. Four judges in different states all ruled against the Department of Health and Human Services' attempt to eliminate federal funding for some teen pregnancy programs.

In the HHS case, Washington U.S. District Judge Ketanji Brown Jackson wrote that the agency’s inability to provide justification for its abstinence-only stance made her decision “quite easy.”

“This much is clear: A federal agency that changes course abruptly without a well-reasoned explanation for its decision or that acts contrary to its own regulations is subject to having a federal court vacate its action as ‘arbitrary [and] capricious,’ ” she said, referencing a key part of the Administrative Procedure Act.

Even proponents of the administration’s rule changes, particularly those rolling back federal environmental regulations, complained that the administration was doing such a bad job in court that it actually set their entire agenda back.

Seth Jaffe, who has represented numerous corporations in environmental cases, told the Post he was optimistic about Trump’s deregulation push, but said the administration’s moves and losses in court have “given regulatory reform a bad name.”

“I’ve spent 30 years in the private sector complaining about the excesses of environmental regulation,” Jaffe told the outlet. “It’s not just that they’re losing. But they’re being so nuts about it,” he said, adding that the administration’s repeated losses have “set regulatory reform back for a period of time.”

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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