The latest loss, no less embarrassing for its predictability, came Thursday, in the administration’s effort to change the way the population is counted for the purpose of apportioning congressional districts. In July, Trump ordered that undocumented individuals be excluded from the tally.
Even though the undocumented have always been counted before. Even though that’s what the relevant statute — not to mention the Constitution — instructs.
States and advocacy groups sued, and a three-judge panel — two George W. Bush appointees and one Barack Obama appointee — didn’t have much hesitation in telling the administration that its action clearly violated the law governing congressional apportionment.
“The merits of the parties’ dispute,” the opinion said, “are not particularly close or complicated.”
Which is a pretty good summation of the Trump administration’s record defending its actions in court. Trump, in league with Senate Majority Leader Mitch McConnell (R-Ky.), has done an impressive job of getting judges confirmed, the younger and more conservative the better. Trump has managed to name 53 of the 179 federal appeals court judges — nearly 30 percent.
These are not your previous Republican presidents’ very conservative judges. Elliot Mincberg of the liberal group People for the American Way has identified more than 100 cases in which the position of Trump judges was so extreme that judges nominated by previous Republican presidents broke with them. These include, unsurprisingly, Trump appointees on his Supreme Court shortlist, expanded by another 20 names on Wednesday.
But notwithstanding these eager foot soldiers in the conservative legal battle, the administration’s record in the federal courts remains gratifyingly dismal. At the conclusion of this year’s Supreme Court term, political scientist Lee Epstein and law professor Eric Posner observed that Trump “has prevailed only 47 percent of the time” before the high court, “a worse record than that of his predecessors going back at least as far as Franklin D. Roosevelt.”
The situation is even uglier in the lower courts. The New York University School of Law’s Institute for Policy Integrity has calculated that just 14 percent of the Trump administration’s regulatory actions were upheld against challenges in the lower courts — the rest were blocked or withdrawn. Trump’s recent predecessors have tended to win on regulatory matters at least 60 percent of the time.
Courts have intervened to frustrate an astonishing array of Trump administration initiatives across the landscape of the federal bureaucracy. In the past several weeks alone, district and appeals court judges have:
● reversed the administration’s effort to reduce the fines paid by automakers for violating fuel economy standards.
● blocked the Defense Department’s effort to make it more difficult for noncitizens who serve in the military to become naturalized, concluding that the department had failed to provide an adequate explanation for the change.
● enjoined an Education Department rule that gave special preference to private schools when distributing coronavirus relief funds, ignoring the law’s requirement that funding be focused on low-income children and communities. The judge described the department’s position as “remarkably callous, and blind to the realities of this extraordinary pandemic.”
● prevented the Department of Health and Human Services from removing anti-discrimination protections for gay and transgender patients. The judge, terming the HHS action “disingenuous,” found that the department rushed the change into place without waiting to consider the Supreme Court’s eventual decision that discrimination on the basis of sex, under the similarly worded federal employment discrimination law, covers gay and transgender workers.
● vacated the Interior Department’s move to abandon legal protections for migratory birds, in place for 50 years, and allow “incidental takes or kills” as long as the activities aren’t specifically aimed at birds. The judge said the Interior move was “a recent and sudden departure from long-held agency positions,” and “runs counter to the purpose” of the Migratory Bird Treaty Act.
And now, the census case, which may be the most flagrantly unlawful action of all. The law requires the Commerce Department to provide the president with “the tabulation of total population by States.” The president is required to then submit to Congress “a statement showing the whole number of persons in each state,” as determined by the census, to calculate how congressional seats should be apportioned.
Trump’s proclamation that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status” cannot change that.
It is a losing argument, from a chronic loser.