Federal Courts and Nominations

Biden agenda could collide with federal judiciary remade by Trump

Washington — Former President Trump’s reshaping of the federal judiciary is likely to be a legacy felt for years to come, with a total of 242 judges appointed to the courts, as well as three justices to the Supreme Court.

But that impact could be felt even more acutely now that Mr. Trump has left Washington for Florida, as President Biden moves to rapidly implement items from his agenda with executive action in order to bypass the partisan gridlock on Capitol Hill.

“There certainly is the potential for collisions between the Biden administration and Trump’s judges, depending on the issue and depending on the venue,” Kenneth Manning, a professor at University of Massachusetts at Dartmouth who examined the ideological direction of judges appointed by Mr. Trump, told CBS News. “The tendency is to oversimplify the judicial decision-making to some extent, as if it’s all partisan. Of course it isn’t, but some issues tend to lend themselves to more partisan and ideological decision-making than others.”

Mr. Biden has been in office fewer than 100 days, yet already Republican state attorneys general have targeted several of his policies with legal challenges, many filed in more conservative courts stacked with judges appointed by Mr. Trump and who favor limiting the power of the so-called “administrative state.”

Mr. Biden suffered an early loss just days after he took office, when a federal judge in Texas temporarily blocked his administration from enforcing a 100-day moratorium on most deportations of immigrants already in the U.S. The judge, Drew Tipton, was appointed by Mr. Trump and acted on a request by Texas Attorney General Ken Paxton to halt the Department of Homeland Security’s freeze. Tipton then indefinitely barred the Biden administration from enforcing the 100-day pause, this time granting a request from Texas for a nationwide preliminary injunction.

Meanwhile, a group of attorneys general from 21 states sued the president and his administration last week over his executive order rescinding the permit for the Keystone XL pipeline. The case was filed in the federal district court in Galveston, Texas, and assigned to Judge Jeffrey Brown, also tapped by Mr. Trump.

Thirteen states filed suit Wednesday in Louisiana targeting Mr. Biden’s executive order halting new oil and gas leasing and drilling permits for federal lands and offshore waters, arguing it “contravenes congressional commands” and should be blocked.

Mr. Biden is also facing a legal challenge to his first major legislative victory, the sweeping $1.9 trillion coronavirus relief package he signed into law this month. Ohio Attorney General Dave Yost asked a federal district court in the state last week to halt enforcement of a provision in the plan that prohibits states from using a pot of $350 billion in state aid to offset tax cuts. A second legal challenge to the provision was brought by Arizona Attorney General Mark Brnovich there on Thursday.

It’s not unusual for attorneys general to file suits involving multiple states in courts that may be more open to their claims — during the Trump administration, many legal challenges from Democrats were filed in California or New York — and the trend is continuing into the Biden administration. But Elizabeth Wydra, the president of the Constitutional Accountability Center, said this practice highlights the importance of judicial appointments.

“Who is on the bench really matters,” she told CBS News. “Right now you have progressives in control of the White House and you have a Democratic majority in Congress. But even if you get laws passed and signed into law, they can still be thwarted by the judiciary. The fact is, judicial appointments are a legacy of an administration that last far longer than the administration itself in many instances.” 

For Mr. Biden, aspects of his environmental agenda — much of which will be implemented through regulations from federal agencies — as well as legislation on voting rights and civil rights could face resistance from a federal judiciary remade by his predecessor.

“Trump appointed hard-right ideological judges, so if you give them, generally speaking, a defensible legal argument on an issue like climate change or voting rights where we know there are partisan, ideological differences, you would very much tend to expect those judges to support that in their decision-making,” Manning said.

But Jonathan Adler, a law professor at Case Western Reserve University, said Mr. Biden’s potential legal headwinds are less about judges appointed by Mr. Trump, specifically, and rather broader legal trends that pose difficulties for executive and regulatory actions to advance larger policy goals.

“There are legal challenges to the Biden administration being able to do things without legislative support or legislative buy-in, and that’s particularly true in areas where the administration is seeking broad changes in areas through the administrative process, like climate change and perhaps immigration,” he told CBS News. “It’s certainly something this administration should be and will be attentive to.”

Already, Mr. Biden has issued 37 executive orders on a range of topics, including the climate crisis, coronavirus pandemic and immigration. But with the political gridlock in Congress – Democrats control the House but the Senate is evenly divided — the president faces an uphill battle to enact his broader agenda, possibly making regulatory action more appealing.

Those regulations, though, could bump up against the current legal landscape shaped by Mr. Trump. Former White House counsel Don McGahn, who was instrumental in the former president’s judicial selection process, told the Conservative Political Action Conference in 2018 the Trump administration asked prospective judges for their views on administrative law and focused on nominees wary of giving too much deference to unelected agency heads.

“It’s often a more pitched battle when it comes to progressive policies because we do need action to protect workers, to enforce civil rights, to ensure our environment is protected,” Wydra said. “So actions that must be taken to achieve those goals often are met with greater resistance from big business or other well-organized conservative forces.”

Wydra, though, said deference to agencies “cuts both ways” and worked to the benefit of progressives that took aim at Mr. Trump’s policies.

The Supreme Court, for example, blocked the former president’s attempts to rescind the Deferred Action for Childhood Arrivals program (DACA) and add a citizenship question to the 2020 Census. Those setbacks, and others from courts at all levels, stemmed from the Trump administration’s failure to comply with the federal law governing the rulemaking process, the Administrative Procedure Act. Mr. Trump, too, was handed a string of losses by the very judges he named to the bench as he unsuccessfully fought to reverse the outcome of the 2020 election.

Manning said he expects the Biden administration to handle the regulatory process more effectively than his predecessor.

“The administrative rules and regulations that come out of this administration are going to be much tighter, much less subject to litigation or at least struck down than we saw during the Trump administration, which was very sloppy,” he said. “I don’t see Biden being sloppy.”

While some of the challenges target Mr. Biden’s executive actions on a host of areas, Wydra said they could tee up a battle royal on fundamental issues.

Climate change rules, she said, “could go to the heart of whether the executive has the authority to vigorously enforce the environmental protection laws passed by Congress.”

“When we talk about words like Chevron doctrine or agency deference, people’s eyes glaze over,” she said. “But when you think about what the agencies are doing, it’s things Americans care deeply about — what happens in your schools, in your workplaces, whether the water you drink is safe, the food you eat is safe. It’s about your civil rights. Agency action might sound boring, but it is not.”

While Republican attorneys general are pursuing their challenges to Mr. Biden’s policies in more conservative courts, there is no guarantee who a case will be assigned to. Decisions appealed to the federal circuit courts are heard by panels of three judges selected at random, adding a crucial caveat to parties hoping to present their cases to friendly judges.

Still, Mr. Trump prioritized filling vacancies on the federal courts of appeals and appointed 54 appellate judges. The former president also flipped three of those 12 regional courts — the 2nd, 3rd and 11th Circuits — establishing a majority of Republican-appointed judges.

“That’s the way the system is supposed to work,” Manning said. “The idea is that the judges aren’t supposed to be hand-picked representatives of some constituency. They’re supposed to look at the facts and precedent and apply them with a blindfold on, ideally. That’s the way the system works, and it makes it messy and somewhat unpredictable.”

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