Fred Barbash on the Rule of Law

I’ve written any number of times of the importance of the Rule of Law, along with the importance of the Enlightenment, or what is now referred to as Classical Liberalism:

“Classical liberalism” is the term used to designate the ideology advocating private property, an unhampered market economy, the rule of law guaranteeing the rights of the individual, constitutional guarantees of freedom of religion and of the press, and international peace based on free trade.

Well here are good examples of the Rule of Law in the America of Donald Trump, when the Judges are ruling, following the Law against the President, and thank goodness for that. —

The Trump administration’s crazy losing streak in the courts: No, Jeff Sessions, it’s not about the judges.

U.S. Attorney General Jeff Sessions attends a Trump Administration cabinet meeting in the Cabinet Room at the White House on Wednesday. (Photo by Chip Somodevilla/Getty Images)
October 19
Litigation is like everything else in life, including sports and perhaps dating. You win some and you lose some. You can blame the refs, or the date, or the judge if things go bad a few times. If losing lawsuits becomes a pattern, especially when you’re the government, which is supposed to win, you have to start wondering: Is it you?

The Trump administration is on a staggering litigation losing streak, with restraining orders littering the legal battlefield from coast to coast. To be sure, some of these fights are not over. Most of the rulings have found plausible cases of constitutional or statutory violations, with trials and possible appeals yet to come. But getting that far against the government used to be a big hurdle. Now, not so much.

And in many instances, it’s not just one judge ruling on one issue. It’s a pile-on, in which multiple judges arrive at the same conclusion about the same issue.

Among those issues, for example, are the administration’s “sanctuary cities” crackdown, blocked by at least four courts; its attempt to rescind DACA, also held up by at least four courts; the proposed ban on transgender people in the military, blocked by no fewer than four judges, with two of the rulings upheld by appeals courts.

And not to be forgotten, the Trump administration’s travel ban, enjoined repeatedly by multiple rulings until the Supreme Court finally allowed its third iteration to go forward.

Meanwhile, Attorney General Jeff Sessions is blaming the judges.

In a speech to the conservative Heritage Foundation on Monday he bemoaned the losses, but attributed them to rampant “judicial activism,” and  judges who have forgotten about “the rule of law” and the “guardrails” that limit them.

Their activism, he said, “is a threat to our freedom and the democratic process.”

Some legal experts do believe that the judiciary is feeling bolder than it once did, perhaps because of what they see as presidential overreach, perhaps because of Trump’s open hostility to the federal courts, reflected in his comment in 2017 about the “so called” judge who first ruled against his travel ban and his reference to U.S. District Judge Gonzalo Curiel’s “Mexican heritage” when he was presiding over a case against Trump University. “Context matters,” as former federal judge and now Harvard Law School’s Nancy Gertner wrote in an article called “Judging in a Time of Trump.” And some of the language in the rulings does indeed show a fired-up sense of mission. “It falls to us, the judiciary…to act as a check on such usurpation of power,” wrote Ronald Reagan appointee Judge Ilana Rovner in April as the Court of Appeals for the 7th Circuit upheld an injunction against Sessions’s sanctuary cities policy on the grounds that it assumed authority delegated to Congress alone.

But there wasn’t a hint in Sessions’s speech of any fault with the administration, the way it does business and the impulsiveness of the president. No “mistakes were made” crossed his lips.

But reading the many rulings, from Republican and Democratic appointees alike, the decoupling of the Trump administration from the requirements of the law is clear.

When the government makes a decision, that law demands, at the very least, a legitimate explanation and some facts, studies and statutes to support it. Judges call it “considered reason” and “deliberation.”

It’s not complicated. If an agency gets its act together before making decisions, bringing in lawyers and experts to bulletproof it from lawsuits, it may still get sued. But it will stand a much better chance of prevailing. In most cases, the courts defer to solid judgments by the government.

But “considered reason,” “deliberation” and facts have not been hallmarks of the Trump administration, in the view of the judges in these cases.

Perhaps the most glaring example was the abrupt decision by President Trump to announce a ban on transgender people from serving in the military, reversing a carefully studied decision to the contrary by the Obama administration.

The news of the reversal came in a series of tweets by Trump on July 26, 2017, saying he was acting after consultation with top brass and “military experts,” followed by a presidential memorandum a full month later directing the Secretaries of Defense and Homeland Security t “return” to the military’s policy to discharge openly transgender service members and prohibit the admission of new ones.

Top military officials, who had indeed not been consulted, were taken by surprise.

What followed were lawsuits and courtroom scenes that have become all too familiar to the government lawyers into whose laps the cases fall after these decisions are made.

Wearing his good suit, and earnest, deferential courtroom demeanor, one such lawyer stood before U.S. District Judge Marsha Pechman in Seattle four months after the Trump tweets attempting to defend the action.

“Good afternoon, your honor, may it please the court. Brinton Lucas for the United States,” he began in the case of Karnoski v. Trump.

A good afternoon it would not be.

His opening gambit was to try to convince Pechman that there was no ban, just a memorandum and a study of a ban. Nobody had been thrown out of the military yet, so there was no case to consider. The lawyer’s argument was routine and perfectly normal in regular circumstances.

But the Trump administration is not normal.

Roughly four minutes into his argument, Pechman interrupted.

“You’re gonna need to back up,” she said. You’re going to need to “address the president’s words,” in this case a tweet, “when he said that ‘after consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military.”

She added: “There’s nothing ambiguous about that statement….I mean, what am I supposed to do with the president’s tweet if that’s not something you can rely upon?” At one point she made reference to “bone spurs,” the ailment which reportedly kept Trump from being drafted.

Nor was the decision entitled to any deference, she wrote. “The prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation,” she added. She then issued a preliminary injunction against the ban, concluding that the plaintiffs were likely to prevail on the merits and show that the policy was an unconstitutional act of discrimination.

She was not the first judge to act. A court in the District had done the same three weeks before the hearing. Another in Maryland had done the same even as the hearing was underway. By September of this year, at least four district court judges agreed in separate cases. Pechman’s order had been upheld by a unanimous decision of a three-judge panel of the Court of Appeals for the 9th Circuit and the Court of Appeals for the District of Columbia had upheld the District ruling.

By a very rough count, a grand total of some 40 to 50 federal judges have weighted in against the Trump administration in cases. Could they all be off-the-rails judicial activists?

The problem is not the judges, said Anthony S. Winer, a professor at the Mitchell Hamline School of Law who wrote recently about some of these cases in the Hamline Law Review.

“It’s a commentary on the legal methods” of the Trump administration, he told The Washington Post. The administration “advances policy goals on the basis of ‘things to be frightened of, and things to be wary of’….It relies on the emotional reaction of its audience and the emotional identification of its audience.

But when you’re in a courtroom, what matters is facts on the record,” he said, and those facts “don’t support the government’s justifications for what it has done.”

As for the lawyers for the U.S. government, Winer said they “probably did the best they could in defending these executive orders.”

Consider the litigation over the sanctuary cities crackdown, a favorite of Sessions.

Acting under a Trump executive order, Sessions has determined that the government will withhold funds from jurisdictions that are in his view insufficiently cooperative in handing over information about illegal immigrants they encounter in law enforcement. Sessions was backed up by Thomas Homan, then the acting director of Immigration and Customs Enforcement, who went on Fox News in January and threatened to start “charging some of these politicians with crimes” for failing to cooperate with his agency. He was also supported by the president, who that same month accused California of protecting “horrible criminals” with it sanctuary policies, and said he was contemplating pulling ICE agents out of the state, saying California would then become a “crime nest.”

They then sent government lawyers into court when the state of California, the city of San Francisco and other jurisdictions sued. Like the lawyers in the transgender case, they argued that nothing was happening.

“Good afternoon, Your Honor. Chad Readler, on Behalf of the United States,” said one of the Justice Department’s top lawyers when he appeared in court in February to defend the administration.  

“Welcome back to San Francisco,” responded Judge William H. Orrick of the U.S. District Court.

Three minutes into Readler’s argument, however, Orrick interrupted.

What did Readler mean when he said there was no threat to these jurisdictions, he said. What about “the statements of the President last week threatening to take ICE enforcement out of the State, or the Acting ICE director’s threat to prosecute criminally public officials….?”

To which Readler replied that the comments weren’t relevant.

Orrick issued an order temporarily blocking the sanctuary cities policy and ultimately, on Oct. 5, an opinion declaring unconstitutional the law being used by the administration to block funds.

Nine judges have either issued or upheld opinions and/or temporary restraining orders against the administration’s sanctuary cities crackdown.

At least two, in California and the District of Columbia, have rejected its asylum and family separation policies.

Earlier this month, Judge Edward Chen in the Northern District of California blocked the decision to end temporary protected status for immigrants from selected countries. and six have ruled against the government in the census cases.

Some judges are openly astonished at what they’re seeing.

Again a refresher: when a typical federal agency makes a decision, particularly one abruptly reversing course, it owes an explanation. That’s the law. So when newly-installed Trump administration officials at a Department of Health and Human Services agency, suddenly under the sway of officials who championed abstinence as the best way to prevent teen pregnancy, suddenly cut off funding to 81 pregnancy prevention programs in July 2017, it was asking for lawsuits. The Office of Adolescent Health had provided no notice to the programs and no explanation.

Suits erupted across the country, aided by advocacy groups and local governments. Four government lawyers then found themselves in the courtroom of Judge Ketanji B. Jackson in the U.S. District Court for the District of Columbia on April 18 for a hearing.

“Good morning, Your Honor, Michael Gerardi on behalf of Health and Human Services,” said the lead trial attorney. But it would not be a good morning for Gerardi either.

Jackson pressed him.

“So is it your position,” the judge asked incredulously, that “the agency can suddenly decide, ‘We’re not giving you this money anymore ….Too bad. So sad. Regardless of whether there’s cause or anything else….?”

To which Gerardi, replied at some length, yes, that was the position.

That’s “kind of weird,” replied Jackson. “Right?”

She joined at least four judges in separate courts around the country in rulings against the agency under the Administrative Procedure Act.

The case, she wrote, was “quite easy. Under the most elementary precepts of administrative law, an agency has no choice but to provide a reasoned explanation for its actions….”

With the Trump administration now filling scores of federal judicial vacancies, it’s luck may improve. But if history is any guide, Sessions shouldn’t count on it.


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