- The Washington Times - Tuesday, November 22, 2016

The Justice Department has begun to suspend court cases over immigration policy, moving to give the Trump administration a chance to weigh in on the legal strategy, but it refused Tuesday to halt the challenge to Obamacare, suggesting it will try to go to the mat to protect the president’s signature achievement.

Legal analysts said it’s traditional for the outgoing administration to accommodate the new president, particularly in areas where major policy changes are likely. That makes the administration’s refusal to halt the Obamacare lawsuit all the more striking, the analysts said.

House Republicans, who have won a district court ruling against Obamacare, asked for the halt in an appeals court filing Monday, saying it made sense to give Donald Trump a chance to weigh in.

“In light of public statements by the president-elect and his campaign, there is at least a significant possibility of a meaningful change in policy in the new administration that could either obviate the need for resolution of this appeal or affect the nature and scope of the issues,” the House said in its brief.

But the attorneys said Mr. Obama and his team “do not consent.”

That stands in stark contrast to immigration, where the administration has agreed to stay several cases.

One of those is the challenge to Mr. Obama’s 2014 deportation amnesty, which remains on hold after a 4-4 tie in the Supreme Court last year. In that case, Texas, which sued to stop the amnesty, and the Justice Department, which is defending Mr. Obama’s executive action, agreed to a delay “given the change in administration.”

In yet another case, where an illegal immigrant is asking to be allowed to apply for the amnesty, both sides also agreed on a stay. U.S. District Judge Nicholas G. Garaufis on Tuesday agreed with the parties and put the case on hold until Feb. 20, a month after Mr. Trump’s inauguration.

Analysts say the change from Mr. Obama to Mr. Trump might be the most severe transition in American political history because of the differing ideologies of the two men and because of how much Mr. Obama has tried to accomplish through his own executive powers.

Court challenges have left much of Mr. Obama’s agenda in limbo, making it easy for Mr. Trump to alter policy by dropping those cases.

Yet another opportunity presented itself Tuesday when a federal judge in Texas halted Labor Department rules that would increase the number of employees who are eligible for automatic overtime pay, based on their wages.

The judge said the rule contradicted labor laws enacted by Congress.

Among other decisions awaiting a Trump Justice Department are: whether to drop a criminal contempt prosecution against Maricopa County Sheriff Joe Arpaio in Arizona, how to handle a number of pending voting rights cases, and what approach to take toward transgender students at public schools.

The Obama administration has issued guidance saying students should be allowed to select the bathroom of their choice, while some school districts and parents say the students should be restricted to the facility that matches their biological sex.

The Trump transition team didn’t respond to a request for comment about its communications with the Obama administration on legal strategy.

A Justice spokeswoman declined to comment on decision-making.

Josh Blackman, an associate professor at South Texas College of Law, said the Justice Department has more incentive to keep the Obamacare case going because that law is already up and running and the health care system’s operations are depending on those payments.

“Insurance companies are receiving millions of dollars in the form of cost-sharing subsidies. If the government signals that those payments may be halted, the insurance companies could react by pulling out of the Obamacare exchanges,” he said, “although they may already know what is coming.”

He wrote in a blog this week that the appeals court might be all too happy to be rid of the thorny Obamacare case.

That case tests the limits of separation of powers fights, with a lower-court judge ruling that one chamber of Congress has standing to sue when a president spends money not specifically authorized by Capitol Hill.

The House’s attorneys seemed miffed that the administration agreed to a stay of the immigration case but refused to consent in the Obamacare lawsuit.

Hans von Spakovsky, senior legal fellow at The Heritage Foundation, said some administrations are more accommodating than others. He said the two Bush administrations have been cordial but the Clinton administration gained a reputation for devious behavior.

In one example, he said, the Clinton Justice Department realized it had a number of vacancies in career jobs when it became clear that George W. Bush had won the election. While it can often take six months to fill such a post, the Clinton administration scoured liberal interest groups looking for candidates.

“They proceeded to get every one of those career slots filled with new employees before Inauguration Day,” said Mr. von Spakovsky, who was a Justice Department official before he was appointed to the Federal Election Commission.

“That’s the same kind of thing I expect this administration to do,” he said.

He has called on the Obama administration to review all federal employees in their probationary periods and determine whether any should be let go.

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