- The Washington Times
Thursday, June 17, 2021

President Biden came out of the starting blocks with the most sweeping agenda of any recent administration — and he is drawing ferocious resistance in federal courts, where his opponents are filing lawsuits at what appears to be a record pace.

Most of the cases are in their infancy, but Mr. Biden already has encountered some serious setbacks.

A federal judge in Texas quickly rejected his attempt on Day One to pause deportations of illegal immigrants, and a federal appeals court late last month shot down an attempt to create a racial preference for distributing coronavirus relief to bail out struggling restaurants. The court ruled that giving racial and ethnic minorities an early window to apply for aid from the $29 billion fund was unconstitutional.

Last week, a judge halted another pandemic program to send money to Black farmers. This week, a judge slapped an injunction on the Biden administration’s attempt to pause new oil and gas lease sales on federal lands.

Leading the courtroom assault are attorneys general in red states.

The Republican Attorneys General Association said its members brought 22 lawsuits against the Biden administration during its first four months. At the same point in the Trump era, Democratic attorneys general notched just five lawsuits.

Arizona Attorney General Mark Brnovich is responsible for several of those lawsuits. He said Mr. Biden is drawing serious legal pushback because he is moving faster and further left than any president before him.

“This is like the Obama administration on steroids. These are radical changes that are occurring very quickly,” he told The Washington Times. “I think the irony is Biden ran as kind of a middle-of-the-road candidate, but frankly, he is putting this country on the highway to hell.”

Conservatives were playing catch-up in the legal arena after Mr. Biden entered office, with far less of a plaintiff pipeline than liberals had against President Trump. The conservatives had to adjust quickly.

One factor is the number of Trump team members ready to take on the fights.

America First Legal, which counts former Trump confidant Stephen Miller, former White House Chief of Staff Mark Meadows, former acting Attorney General Matthew Whitaker and former budget chief Russ Vought among its directors, has quickly occupied the field with a series of lawsuits and assistance to state attorneys general.

“There was a shared understanding that we needed to, as conservatives, significantly step up our litigation efforts and it would require a collaboration and a partnership between the government entities at the state level and the private entities,” Mr. Miller said.

The Justice Department didn’t respond to a request for comment for this story, but it did score a proxy win Thursday when the Supreme Court tossed a challenge to Obamacare, ruling the Republican-led states that wanted to overturn the 2010 health law didn’t have standing to sue. The lawsuit had been filed while President Trump was in office, and the justices heard oral argument last year, but Mr. Biden cheered the ruling as a victory nonetheless.
That lawsuit had been brought by Texas Attorney General Ken Paxton, who is now the most active attorney general litigant against Mr. Biden. His office didn’t respond to a request for comment for this story.

Mr. Paxton, like Mr. Brnovich, has been particularly active in the immigration sphere, where the sheer breadth of moves by the new administration has pushed the envelope.

Mr. Brnovich has filed an innovative lawsuit arguing that the Biden team’s decision to stop border wall construction violates U.S. environmental law. He also is pursuing one of several challenges to the administration’s attempts to limit deportations.

That deportations case is bearing fruit in terms of legal discovery. Officials are undercutting the administration’s claims that it has had to curtail arrests because of resource constraints. A senior official in Immigration and Customs Enforcement’s Phoenix office, during a deposition with Mr. Brnovich’s office, acknowledged that the agency had resources to continue a strong pace of arrests, but the administration‘s guidance limited the scope of targets.

Mr. Brnovich said he also obtained documents that made clear that the administration never evaluated resources to back up its claim.

“This was all about politics for the Biden administration,” the attorney general said.

At least 10 GOP attorneys general have led lawsuits against the federal government this year.
“Republican attorneys general have been the tip of the spear in pushing back against the Biden administration’s lawless actions,” said Peter Bisbee, executive director of the Republican Attorneys General Association.

Legal observers are keen to see how judges will approach nationwide injunctions — when a single plaintiff in a district court could halt the entire federal government machinery.

During the Trump administration, Democratic-appointed judges eagerly adopted nationwide injunctions. They were scolded by some Republican-appointed justices but were not rebuked by the full Supreme Court.

Mr. Miller said those judges established a precedent, and plaintiffs now are counting on the judges to be consistent and slap Mr. Biden with nationwide injunctions.

“John Roberts and the Roberts Court very specifically didn’t do anything to curtail the use of nationwide injunctions at the district court level,” he said. “The way a lot of us look at it is it’s a settled issue: This is now procedurally sanctioned by the Supreme Court.

“This notion that now all of a sudden we’re going to voluntarily, as a country, stop issuing nationwide injunctions would be just inconceivable,” he said.

District Judge Drew Tipton, a Trump appointee who slapped the injunction on the Biden deportation pause, applied his ruling nationally.

So did Judge Terry A. Doughty, another Trump appointee, who issued the preliminary injunction this week against the pause on oil and gas leases. He ruled that the Biden administration didn’t offer “any rational explanation” for its policy change.

Judge Doughty said he was reluctant to issue nationwide injunctions, but “it is necessary here because of the need for uniformity.”

Frank Thompson, a political scientist at Rutgers University-Newark, wrote a piece for the Brookings Institution this year detailing the hurdle that nationwide injunctions could raise for Mr. Biden. Opponents need to win an injunction in only one court to succeed; the administration must win every case.

In several instances, Mr. Trump was hit with multiple lawsuits. He prevailed in some courts but not in others, and his policies were blocked because of the losses. Mr. Biden now faces the same dynamic.

“Rather than expend resources filing suits in multiple courts whose rulings apply in limited geographic areas, opponents can hit the jackpot with one suit in one district court willing to unleash a national injunction,” Mr. Thompson wrote.

But Mr. Thompson disputed Mr. Brnovich’s reasoning for the flurry of lawsuits against Mr. Biden’s actions.

“A lot of Trump executive initiatives that the Democratic AGs eventually challenged were sharp departures from the past practices of Republican presidents. So I am very skeptical that the litigation count has much to do with Biden being ‘more radical’ than Trump,” Mr. Thompson said in an email to The Times.

There is little question, though, that Mr. Biden has moved exceptionally quickly on several fronts.

In some cases, he reignited courtroom battles by restoring Obama-era policies that came under legal assault.

Religious liberty advocates who battled the Obama administration over transgender bathroom access and then cheered the Trump administration for relaxing those rules are now back before judges to challenge Mr. Biden.

Other lawsuits involve climate change and tax policies.

Several red states have moved to challenge a provision in the coronavirus relief bill that Mr. Biden pushed through Congress that prohibits states receiving bailout money from cutting taxes.

Mr. Brnovich said it was hypocritical for the Biden administration to push for disbursement of $1,400 relief checks — essentially a federal tax cut — while banning state tax cuts.

“This is a fundamental question,” he told The Times. “It’s not about returning money to the hardworking people; it’s about making people dependent on Washington, D.C., and having all that power in Washington, D.C., to tax and spend.”

In some areas, the Biden team is fighting on the same side as the Trump team.

That’s the case with the coronavirus eviction moratorium. Mr. Biden continued the policy that Mr. Trump put into place, and the Justice Department in both administrations has defended it.

A federal district judge issued a halt to the moratorium, but an appeals court stayed the ruling while the case proceeds.

The Biden team is eager to shut down plenty of Trump policies in other cases.

One involves Mr. Trump’s plans to encourage legal immigrants to be more self-sufficient. The “public charge” rule would penalize green card applicants who use certain welfare programs.

Biden attorneys have told a judge that they agree with the plaintiffs and want to settle the case. Mr. Brnovich and other Republican state attorneys general have moved to defend Mr. Trump’s policy.

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

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