President Biden is pushing an expansive agenda — but Trump-appointed judges are pushing back, using a powerful combination of legal tools to stymy the administration.
The most recent instance came earlier this month when Judge Robert Summerhays ruled the president’s team had cut too many procedural corners in arriving at its decision to end the Title 42 pandemic border shutdown, putting the president in violation of the Administrative Procedure Act.
Judge Summerhays, in issuing a preliminary injunction against ending Title 42, ruled that his injunction would apply nationwide, effectively halting the Biden team in its tracks.
That same one-two legal punch has also been used by judges to ding the president’s deportation pause, his attempt to erase the “Remain in Mexico” border policy, and his effort to expand consideration of greenhouse gas emissions in federal policymaking.
All were victims of the APA and nationwide injunctions, wielded by Trump-appointed judges.
The judges’ fans say they’re standing up to presidential overreach, ensuring a White House can’t send the nation careening on major policy changes without giving the public a chance to be heard.
Opponents say abuse is rampant, with plaintiffs calculating where to bring lawsuits in order to find judges most amenable to their goals.
“There is no question that a number of Republican states have turned the nationwide injunction into a political weapon against the Biden administration, by bringing cases seeking such injunctions before Trump judges who appear sympathetic to such efforts,” said Elliot Mincberg, a senior legal fellow at People for the American Way.
Just a few years ago PFAW cheered a ruling that imposed a nationwide halt to Mr. Trump’s attempt to end the DACA program for illegal immigrant “Dreamers.”
Meanwhile, it was conservatives who decried the injunctions as judicial overreach. Now, with Mr. Biden in office, many of those who criticized nationwide injunctions before have embraced them, saying it would be unfair to change the rules now, after having to live under them for the last four years.
Conservatives argue the president has invited the flurry of court challenges.
“The Biden administration has shown little respect for federal laws and absolutely no patience for administrative procedures,” said Mark Brnovich, Arizona’s attorney general, who has launched a number of challenges to Biden policies on everything from erasing the Title 42 pandemic border shutdown and stopping wall construction to coronavirus policies.
Mr. Brnovich said the federal courts deserve applause for helping “hold the Washington elites accountable.”
Under normal circumstances, judges confine their rulings to the parties in a case in front of them. If one state sued over a federal administration policy and a judge sided with the state, only that party would be carved out of enforcement. The other 49 states would still be bound.
But judges who’ve issued nationwide injunctions say that doesn’t really work in areas like immigration, where having a uniform national policy isn’t just a good idea, it’s literally written into the Constitution. And forcing Homeland Security to abide by one set of rules, say over deportation, in Texas while following another set in California is a recipe for chaos.
“A piecemeal preliminary injunction would only further complicate DHS’s operations,” Judge Summerhays wrote in his Title 42 case injunction earlier this month.
Besides, the judge wrote, immigrants who cross at one part of the border can quickly move elsewhere, so any solution must be national.
The sentiment isn’t universal.
After a judge in Ohio issued a nationwide injunction against new deportation limits imposed last year by Homeland Security Secretary Alejandro Mayorkas, a federal appeals court stepped in and stayed his ruling.
Circuit Judge Jeffrey Sutton, an appointee of George W. Bush, said he worried about the lack of limits to judicial power.
“All in all, nationwide injunctions have not been good for the rule of law,” Judge Sutton opined. “The sooner they are confined to discrete settings or eliminated root and branch the better.”
Legal analysts say nationwide injunctions by district judges were rare until this century.
In a speech in 2020, then-Deputy Attorney General Jeffrey Rosen said the Justice Department found just 12 injunctions issued during Mr. Bush’s eight years and 19 against President Obama over his eight years. But President Trump, just three years into his term at that point, had faced 55.
Mr. Rosen said that was an “unprecedented” level of judicial intervention, and he shot down suggestions from Mr. Trump’s critics that it was a symptom of a Trump administration unfamiliar with the law.
In many of those anti-Trump rulings, and indeed many of the decisions that have gone against Mr. Biden, the judges have wielded the APA, a 1946 law that requires federal decision-making to follow some basic good-governance rules.
Judge Drew B. Tipton delivered the first strike just six days into Mr. Biden’s tenure, ruling that the president’s Day 1 deportation pause was implemented in violation of the APA.
In the months that followed, more immigration policies would fall victim to the APA, including the president’s attempt to end Title 42. But the APA also snared environmental moves, such as Mr. Biden’s “pause” on new oil and gas leases, and some of the president’s vaccine mandate policies.
Mr. Biden’s defenders say his trouble isn’t with the law, but with judges appointed by Mr. Trump.
That was particularly true in a high-profile case earlier this year where U.S. District Judge Kathryn Kimball Mizelle, ruled the Biden team had exceeded its administrative powers in issuing a pandemic masking policy for public transportation systems such as Amtrak and airplanes.
Judge Mizelle issued a “vacatur” of the Biden policy, which while technically not a nationwide injunction still reset the national policy.
The tsk-tsking from the White House and other mask proponents after Judge Mizelle’s ruling was withering.
“Public health decisions shouldn’t be made by the courts. They should be made by public health experts,” Jen Psaki, the White House press secretary at the time.
Other responses were more personal.
“Trump’s worst judge just made travel a MAGA nightmare,” thundered Lawrence O. Gostin, a Georgetown University professor, in a piece for the Daily Beast.
Judge Mizelle’s legal reasoning has gotten less attention than her own personal history.
Mr. Trump nominated her to the court at 33, the youngest of his picks. She was rated “not qualified” by the American Bar Association, which said she didn’t have enough experience under her wing to be a judge.
The Biden administration is appealing her decision to the 11th U.S. Circuit Court of Appeals but has not moved to expedite the case, leading some legal analysts to conclude the administration is privately more amenable to the judge’s decision than it has publicly said.
But Kimberly Humphrey, senior legislative counsel at Alliance for Justice, said the ruling sets a bad precedent for future pandemics and must be erased from the books.
“We can only hope higher courts will show just how wrong she got it,” Ms. Humphrey said.
“Sadly, her decision will likely only elevate her in the eyes of Republican Senators, who could very well decide to give her a promotion if they are empowered to do so,” she added.
Mike Davis, founder of the Article III Project and a former clerk to Justice Neil M. Gorsuch, said Judge Mizelle is “brilliant” and clerked at the district and appellate court levels — as well as the Supreme Court for Justice Clarence Thomas.
“She is young and she is brilliant. Her age doesn’t make a difference as she just proved with her brilliant opinion,” he said. “You can be young and qualified…age is not a substitute for brilliance.”