Democracy Dies in Darkness

Courts & Law

Trump officials aggressively bypass appeals process to get issues before conservative Supreme Court

October 23, 2018 at 5:20 PM

Attorney General Jeff Sessions said in a speech that a robust response to activist judges is necessary to deter “encroachment” on the president’s power. (Susan Walsh/AP)

To a far greater degree than its predecessors, the Trump administration has sought to bypass adverse lower-court rulings on some of its signature issues by seeking extraordinary relief from a refortified conservative Supreme Court.

Attorney General Jeff Sessions and Solicitor General Noel J. Francisco have repeatedly gone outside the usual appellate process to get issues such as the travel ban, immigration and greater authority for top officials before the justices.

They were rewarded Monday night when the court, in an unsigned opinion, put a hold on a planned deposition of Commerce Secretary Wilbur Ross. Ross had been ordered to submit to questioning because of shifting versions he has given about why he wanted to add a question to the 2020 Census regarding a respondent’s citizenship.

Related: [Supreme Court shields commerce secretary from lawyers’ questions]

Besides the controversy over Ross, Department of Justice lawyers have petitioned the court to lift a stay on President Trump’s travel ban while considering its merits, asked the justices to limit discovery in trials in lower courts involving immigrants, and succeeded at least temporarily in stopping a trial brought by young people over climate change.

The administration recently told a federal appeals court it would go directly to the Supreme Court if the judges did not rule by the end of the month on a case challenging the administration’s position on Deferred Action for Childhood Arrivals (DACA). The program protects from deportation some immigrants who came to the United States when they were children.

Lawyers who practice before the Supreme Court have noticed the administration’s aggressive legal tactics.

“DOJ has been seeking extraordinary relief in the Supreme Court much more often during the Trump administration than in the past — as the sheer number of cases and filings makes clear,” said Nicole A. Saharsky, a lawyer who frequently appears before the Supreme Court and spent more than a decade in the solicitor general’s office. “This seems to be a result of the administration’s desire to aggressively defend and appeal certain cases — such as those involving DACA recipients, the census and climate change.”

She noted, however, that any Justice Department would probably try to take to the Supreme Court an order requiring a Cabinet official to testify.

Sessions said in a recent speech that a robust response to what he considers activist judges is necessary to protect the separation of powers and to deter “encroachment” on the president’s power.

“If the judiciary can subject the executive branch to new, disruptive and invasive reviews, the power of the judiciary is enhanced, while the power of the executive has been diminished,” Sessions said in a speech prepared for the Heritage Foundation, a conservative think tank.

“That is a tilt we cannot abide. Executive branch officers do not work for the judiciary. We work for the president of the United States.”

But lawyers on the other side, such as in the climate change suit, say the government’s request for premature intervention by the Supreme Court threatens to “undermine the confidence of the American people in our nation’s justice system.”

The lawyers for the coalition of children demanding that the government take action on climate change say it is wrong for the administration to ask the justices to stop their case from going to trial, when both a district judge and an appeals court — twice — have said the case should proceed.

“A stay of trial in the district court will disrupt the integrity of the judiciary’s role as a check on the political branches and will irreparably harm these children,” the lawyers told the Supreme Court in a brief. “The independence of the judiciary, free from pressure by the political branches, is instrumental in preserving our democratic institutions and the people’s respect for them.”

Chief Justice John G. Roberts Jr. on Friday put the trial on hold until the full court could consider the government’s request. The trial, expected to last more than seven weeks, was scheduled to start next week.

Related: [Landmark climate change lawsuit in limbo]

The court’s liberals last year objected when their conservative colleagues blocked the release of a large number of documents authorized by a lower-court judge for those challenging the administration’s decision to end DACA.

Justice Stephen G. Breyer said the Supreme Court in the past said that such a motion, called a writ of mandamus, is a “drastic and extraordinary remedy reserved for really extraordinary causes.”

“In my view, the government’s arguments do not come close to carrying the heavy burden that the government bears in seeking such extraordinary relief,” Breyer wrote, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

There was no reason, he said, to stray from the court’s usual approach of letting a district judge manage the discovery necessary for trial, have the outcome reviewed by an appeals court and then have the Supreme Court weigh in, if the decision merits intervention.

All administrations buck at lower-court decisions they dislike. But Sessions has been far more aggressive about challenging them, not content to let them work through what can be a long and painstakingly time-consuming process.

He advocates quick action when he says judges exceed their powers.

“Federal district judges are not empowered to fashion immigration policy, combat climate change, solve the opioid crisis or run police departments,” he said in the Heritage speech. “The legislative and executive branches . . . are the constitutionally authorized branches to do these things, and if these branches haven’t done so to the satisfaction of an unaccountable judge, it’s not because they need judicial expertise or advice. Usually, it’s because the problems are hard.”

In some instances, the justices have said the administration’s petitions were premature.

But the case of Ross is an example of the strategy paying off and of a conservative administration finding a receptive Supreme Court.

In an unsigned opinion that did not provide reasoning, the court temporarily blocked a district court order requiring Ross to submit to questioning.

The department is being sued by 18 states, the District of Columbia and a number of advocacy groups that say asking residents about their citizenship status will suppress the response rate of immigrants and produce a census undercount.

U.S. District Judge Jesse Furman of New York said the challengers had made a plausible showing that Ross had acted in “bad faith.”

“The question is not a close one,” Furman wrote in an opinion on Sept. 21. “Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases.”

Ross had first said the Justice Department requested the census question because it would be helpful in enforcing part of the Voting Rights Act. But he has altered his explanation in light of emails and other documents, which appear to show he initiated the change in the census form, perhaps after consultation with White House aides.

It is unclear what the rest of the court thought of that. But Justices Neil M. Gorsuch and Clarence Thomas dissented in part from the court’s order because it did not give the Justice Department even fuller relief.

They criticized what they called the lower court’s “highly unusual” finding of bad faith but did not mention or address Furman’s reason — Ross’s shifting account.

Gorsuch and Thomas characterized the dispute as a policy disagreement.

“There’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape,” Gorsuch wrote, describing what he said were the reasons the lower court found for doubting Ross.

“Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”

Fred Barbash contributed to this report


Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006.

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