- The Washington Times - Thursday, May 26, 2022

President Biden is pushing an expansive agenda, but Trump-appointed judges are pushing back with a powerful combination of legal tools to stymie the administration.

The most recent instance was on May 20, when Judge Robert Summerhays ruled that the president’s team had cut too many procedural corners to end the Title 42 pandemic border shutdown, putting Mr. Biden in violation of the Administrative Procedure Act.

In issuing a preliminary injunction against ending Title 42, Judge Summerhays ruled that his injunction would apply nationwide.

Judges also have used that one-two legal punch 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 of the legal wounds were inflicted by Trump-appointed judges.

The judges’ supporters said they are 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 file lawsuits 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, People for the American Way cheered a ruling that halted Mr. Trump‘s attempt to end the Deferred Action for Childhood Arrivals program for illegal immigrant “Dreamers.”

Conservatives decried the injunctions as judicial overreach. Now, with Mr. Biden in office, many of those who criticized nationwide injunctions are embracing them. They say it would be unfair to change the rules after living under them for the past four years.

Mr. Biden has invited the flurry of court challenges, conservatives say.

“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 actions such as erasing the Title 42 pandemic border shutdown, stopping wall construction and issuing coronavirus policies.

Mr. Brnovich said the federal courts deserve applause for helping “hold the Washington elites accountable.”

National scope

Under normal circumstances, judges confine their rulings to the parties in cases in front of them. If one state sues over a federal administration policy and a judge sides with the state, only that party would be carved out of enforcement. The other 49 states would still be bound.

Judges who have issued nationwide injunctions say that practice doesn’t work in areas like immigration. Having a uniform national policy is a good idea, they say, and is written into the Constitution. Forcing the Department of 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.

Besides, the judge wrote, immigrants who cross 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 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 2020 speech, Deputy Attorney General Jeffrey Rosen said the Justice Department found just 12 injunctions issued during Mr. Bush’s eight years at the White House and 19 against President Obama over his eight years. Just three years into his term at that point, President Trump faced 55.

Mr. Rosen said the level of judicial intervention was unprecedented and shot down suggestions from Mr. Trump’s critics that it was a symptom that the administration was unfamiliar with the law.

In many of those anti-Trump rulings, and indeed many of the decisions against Mr. Biden, the judges have wielded the Administrative Procedure Act, 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 by ruling that the president’s Day One deportation pause violated the law.

In the months that followed, more immigration policies would fall victim to the Administrative Procedure Act. The act 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.

Personal attacks

Mr. Biden’s defenders say his trouble isn’t with the law, but rather with judges appointed by Mr. Trump.

In a high-profile case earlier this year, U.S. District Judge Kathryn Kimball Mizelle ruled that the Biden team had exceeded its administrative powers by issuing a pandemic masking policy for public transportation systems such as Amtrak and airliners.

Judge Mizelle issued a “vacatur” of the Biden policy. Although it was technically not a nationwide injunction, it 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,” said 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,” Lawrence O. Gostin, a Georgetown University professor, said in a piece for the Daily Beast.

Judge Mizelle’s legal reasoning has received less attention than her personal history.

The youngest of Mr. Trump‘s judicial picks, she was nominated to the court at 33. The American Bar Association rated her as “not qualified” because she didn’t have enough experience to be a judge.

The Biden administration is appealing Judge Mizelle’s decision to the 11th U.S. Circuit Court of Appeals but has not moved to expedite the case. Some legal analysts have concluded that the administration is privately more amenable to the judge’s decision than it has publicly expressed.

Kimberly Humphrey, senior legislative counsel at Alliance for Justice, said the ruling sets a bad precedent for 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 said.

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.”

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• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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

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