No president has been doing so much so fast to transform the law in America.
Just as no president has shown such little regard for its norms and traditions.
The chaos in President Donald Trump’s White House and his unconventional public statements have sometimes obscured his administration’s agenda for the law. But it is concerted, consistent and could have an impact for decades.
Over the past year, the Trump administration has reversed the US government’s legal position on voting rights and election law, on the arbitration of workplace disputes, labor union power, and protections for gay and transgender people.
“How many times this term already have you flipped positions from prior administrations?” Justice Sonia Sotomayor asked Trump’s solicitor general, Noel Francisco, during oral arguments this week at the Supreme Court.
It is not unusual for a new administration to shift legal positions as part of an overall political agenda. But stability in the law is valued, and top government lawyers are apt to move incrementally, rather than with the speed and audacity defining the Trump administration.
As it has staked out new ground, the administration has engaged in systematic screening to find judicial nominees who would carry out its legal views. So far, Trump has appointed one new Supreme Court justice, 14 appeals court judges and 11 trial judges.
Perhaps more visibly, if not as consequential, has been Trump’s holding himself out to be an arbiter of what’s fair and just in America.
He tweets about what’s legal or “SO ILLEGAL,” making judgments about individuals who “SHOULD GET DEATH PENALTY” or were wrongly denied “due process.” Depending on whether a court ruling suits him, he can deem a jurist a “very bad judge” or worthy of praise.
Trump’s missives suggest he believes the law is what he says it is.
“We’re seeing an unprecedented attack on some of our core democratic norms,” said Vanita Gupta, president of the Leadership Conference on Civil Rights and a Justice Department official during the Obama administration. She contends that Trump is reversing the civil rights gains of recent decades with his legal stances and incendiary racial remarks, such as after the deadly Charlottesville rally of white nationalists last August.
Lawyers on the conservative side say the administration’s moves in court cases simply reflect how democracy works. A new administration is entitled to fresh legal choices.
“This is one way that a new administration can place its stamp on the future of the country,” said Theodore Olson, US solicitor general in the George W. Bush administration. “The important thing is that [positions] are credible, justifiable. I haven’t seen anything that has been irresponsible in connection with [legal] briefs.”
Olson cautioned that it was too early to determine whether the Trump administration would make the legal strides it seeks.
“The courts are obviously not falling all over themselves to adhere to the administration’s position on immigration,” Olson said. Lower court judges, for example, have repeatedly rejected his travel ban targeting majority-Muslim countries.
President Ronald Reagan came to office in January 1981 with a bold agenda matched by an effort to stock the federal courts with young conservative thinkers who would end abortion rights, curtail racial remedies such as affirmative action, and allow more mingling of church and state.
He made some progress on all fronts, but did not achieve larger goals such as the overturning of Roe v. Wade, the 1973 landmark that made abortion legal nationwide.
Trump arrived with a similar conservative agenda in January 2017 and a Justice Department team ready to move with greater speed and more opportunity.
Attorney General Jeff Sessions may be known these days for his conflict with Trump over recusing himself from the Russia investigation. But Sessions, a former Alabama senator who has long sought limits on immigration, racial remedies and reproductive rights, has been delivering for a conservative base that wants federal laws and regulations cut back.
Trump’s Justice Department reversed the Obama administration’s opposition to a Texas voter identification law. (The judge in that case subsequently ruled that the Texas law discriminated against Latinos and African-Americans.) And it reversed the US government’s previous opposition to Ohio’s methods of purging registered but inactive voters from the rolls.
Justice Sotomayor’s question about how often the Trump administration “flipped” arose in a dispute over whether public employees who do not want to join a union can be forced to pay “fair share” fees for collective bargaining. The Obama Justice Department had supported state laws that make such requirements. Trump’s opposes it.
Some of the most high-profile retrenchments have involved gay legal rights, an area where the Obama administration made a big change, too.
Then Attorney General Eric Holder announced in February 2011 that the administration would no longer back the Defense of Marriage Act, which prohibited recognition of same-sex marriages for purposes of federal benefits. (The Supreme Court struck down the law in 2013.)
Trump’s lawyers have argued for narrower legal protections based on sexual orientation and sexual identity. In a recent US appeals court dispute over discrimination in the workplace, Justice Department lawyers reversed a prior government stance and argued that Title VII of the 1964 Civil Rights Act does not prohibit discrimination based on sexual orientation. The New York-based 2nd US Circuit Court of Appeals on Monday spurned that interpretation and declared that Title VII covers gay and lesbian workers.
The 10-3 decision, by a special en banc court rather than usual three-judge panel, was led by a wide majority of Democratic appointees.
The Trump administration may see fewer defeats in the future, as it has been able to appoint a far higher number of appeals court judges than past administrations at this point in the first term. The headway on judicial appointments traces in part to Republican Senate Majority Leader Mitch McConnell’s action blocking on a series of Obama nominees. Leading that list was Merrick Garland, chief judge of the US Court of Appeals for the District of Columbia Circuit, whom Obama selected after Supreme Court Justice Antonin Scalia died in February 2016.
McConnell, with Senate Republicans unified, prevented action for nearly a year. Once Trump took the White House, he appointed Neil Gorsuch to the Scalia seat, in April 2017. Democrats are also unable to put up hurdles to nominees through a filibuster, thanks to a rule change they instituted when they held the majority, in 2013, and Obama was president. That means conservative choices can win approval with a simple majority vote. Republicans currently hold a 51-49 majority.
White House Counsel McGahn, in a February interview at a Conservative Political Action Conference meeting, noted that the administration was looking for judicial nominees whose visions correspond to its drive to trim government regulations. McGahn has been advised by conservative advocates from the Federalist Society and elsewhere. They have focused on young candidates with proven right-wing records.
Trump wants conservatives who, once seated on the bench, “will not turn into someone else,” McGahn said, and “who he can relate to.”
“The President really looks for folks who, not surprisingly, have demonstrated the ability to stand strong,” McGahn said, “as he has his whole life.”