Trump detests ‘losers,’ but he’s the courtroom loser
in chief
Opinion by
Deputy editorial page editor
September 12, 2020 at 11:08 a.m. CDT
For
President Trump, “loser” is a special term of derision. He called his generals
“losers,” according to Philip Rucker and Carol Leonnig’s “A Very Stable Genius.” He
called soldiers killed in battle “losers,” according to the
Atlantic’s Jeffrey Goldberg.
Here’s
a real loser, though: Trump himself, in court. The administration’s remarkable
string of litigation losses is clear and measurable. Its legal positions tend
to the extreme; its efforts to implement them are regularly shoddy. Judges
aren’t having it — even Republican-appointed judges.
The latest loss,
no less embarrassing for its predictability, came Thursday, in the
administration’s effort to change the way the population is counted for the
purpose of apportioning congressional districts. In July, Trump ordered that
undocumented individuals be excluded from the tally.
Even
though the undocumented have always been counted before. Even though that’s
what the relevant statute — not to mention the Constitution — instructs.
States
and advocacy groups sued, and a three-judge panel — two George W. Bush
appointees and one Barack Obama appointee — didn’t have much hesitation in
telling the administration that its action clearly violated the law governing
congressional apportionment.
“The
merits of the parties’ dispute,” the opinion said,
“are not particularly close or complicated.”
Which
is a pretty good summation of the Trump administration’s record defending its
actions in court. Trump, in league with Senate Majority Leader Mitch McConnell
(R-Ky.), has done an impressive job of getting judges confirmed, the younger
and more conservative the better. Trump has managed to name 53 of the 179
federal appeals court judges — nearly 30 percent.
These
are not your previous Republican presidents’ very conservative judges. Elliot
Mincberg of the liberal group People for the American Way has identified more
than 100 cases in which the position of Trump judges was so extreme that
judges nominated by previous Republican presidents broke with them. These
include, unsurprisingly, Trump appointees on his Supreme Court shortlist,
expanded by another 20 names on
Wednesday.
But
notwithstanding these eager foot soldiers in the conservative legal battle, the
administration’s record in the federal courts remains gratifyingly dismal. At
the conclusion of this year’s Supreme Court term, political scientist Lee
Epstein and law professor Eric Posner observed that
Trump “has prevailed only 47 percent of the time” before the high court,
“a worse record than that of his predecessors going back at least as far as
Franklin D. Roosevelt.”
The
situation is even uglier in the lower courts. The New York University School of
Law’s Institute for Policy Integrity has calculated that
just 14 percent of the Trump administration’s regulatory actions were upheld
against challenges in the lower courts — the rest were blocked or withdrawn.
Trump’s recent predecessors have tended to win on regulatory matters at least
60 percent of the time.
Courts
have intervened to frustrate an astonishing array of Trump administration
initiatives across the landscape of the federal bureaucracy. In the past
several weeks alone, district and appeals court judges have:
● required the
State Department to resume processing “diversity” visas for immigrants from
underrepresented countries, suspended after a Trump proclamation barring
entry during the coronavirus pandemic because
of supposed risks to the U.S. labor market.
● reversed the
administration’s effort to reduce the fines paid by automakers for violating
fuel economy standards.
● blocked the
Defense Department’s effort to make it more difficult for noncitizens who serve
in the military to become naturalized, concluding that the department had
failed to provide an adequate explanation for the change.
● enjoined an
Education Department rule that gave special preference to private schools when
distributing coronavirus relief
funds, ignoring the law’s requirement that funding be focused on low-income
children and communities. The judge described the department’s position as
“remarkably callous, and blind to the realities of this extraordinary
pandemic.”
● prevented the
Department of Health and Human Services from removing anti-discrimination
protections for gay and transgender patients. The judge, terming the HHS action
“disingenuous,” found that the department rushed the change into place without
waiting to consider the Supreme Court’s eventual
decision that discrimination on the basis of sex, under the
similarly worded federal employment discrimination law, covers gay and transgender
workers.
● vacated the
Interior Department’s move to abandon legal protections for migratory birds, in
place for 50 years, and allow “incidental takes or kills” as long as the
activities aren’t specifically aimed at birds. The judge said the Interior move
was “a recent and sudden departure from long-held agency positions,” and “runs
counter to the purpose” of the Migratory Bird Treaty Act.
And
now, the census case, which may be the most flagrantly unlawful action of all.
The law requires the Commerce Department to provide the president with “the
tabulation of total population by States.” The president is required to then
submit to Congress “a statement showing the whole number of persons in each
state,” as determined by the census, to calculate how congressional seats
should be apportioned.
Trump’s
proclamation that “it is the policy of the United States to exclude from the
apportionment base aliens who are not in a lawful immigration status” cannot
change that.
It is a
losing argument, from a chronic loser.
