- The Washington Times - Thursday, June 28, 2018

It seems the Trump administration knows the law better than the Obama administration.

The Justice Department under Attorney General Jeff Sessions reversed positions of the Obama administration in four cases decided by the Supreme Court this year — and won all four of them.

They included constitutional technicalities, such as whether a certain set of appointments needed Senate confirmation, and politically charged cases over cutting names from voter lists and labor unions charging dues to unwilling workers.

“In four cases, after careful review, we changed the department’s position in order to follow the law,” Mr. Sessions said Wednesday as the court closed out its term. “The favorable Supreme Court decisions in all four cases reflect that we took the proper course of action. The decisions speak for themselves.”

Reversals of position at the department are a big deal and set tongues wagging in legal circles.

That was the case last year when the Trump administration said it was backing an Illinois state employee who objected to being forced to pay dues to a labor union he didn’t belong to, and which took stances he disagreed with.

The Obama administration sided with the unions — and a 1977 Supreme Court precedent — in saying the state could make the dues mandatory.

The court overturned that precedent this week, sided with the administration and ruled 5-4 in favor of the employee.

Yet another reversal came in the voter registration case out of Ohio, where the state has a policy of removing names of people who don’t vote in several consecutive elections and don’t respond to notices.

During oral argument in the court this year, Justice Sonia Sotomayor chided Solicitor General Noel Francisco on the department’s new position, saying it contradicted decades of Justice Department stances under both Republican and Democratic administrations.

“After that many presidents, that many solicitor generals, this many years … how did the solicitor general change its mind?” She demanded.

Mr. Francisco said the law changed in 2002 and that his office was recognizing the new standard.

The court agreed with him, ruling 5-4 in favor of Ohio.

The justices also sided with the administration in a case over forced arbitration clauses in labor contracts, another 5-4 ruling, and in a case over appointments to the Securities and Exchange Commission, in which the Trump administration position prevailed 7-2.

Lawyers said the Justice Department reversals amounted to a housecleaning.

“It seems like wiping everything Obama did from the books,” Lucas A. Powe Jr., a law professor at the University of Texas, told The Washington Times earlier this year.

During Mr. Obama’s time in office, his Justice Department reversed course in five high court cases over eight years.

Most of those flips came around the time of his re-election. In contrast, Mr. Trump’s flips have occurred within his 15 months in office.

The Obama case reversals included the legality of the Defense of Marriage Act, retroactive sentencing, medical malpractice and international corporate liabilities, standards for employee health care, and pension plans.

His attorneys prevailed on three of those cases but lost two, the cases dealing with medical malpractice and international corporate liabilities.

Jonathan Turley, a law professor at George Washington University, said the administration’s stance-switching doesn’t affect the outcomes of the cases because the judges’ views “are largely baked in by the time oral argument occurs.”

“The switching of solicitor general doesn’t have as much of an impact as people might think,” he said.

He pointed to the union dues case as an example, saying the high court was prepared to toss the 1977 precedent when another case arose in 2016, but the death of Justice Antonin Scalia left a 4-4 divided court.

Now, with Justice Neil M. Gorsuch in place, the court finished the job with this week’s 5-4 ruling.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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