President Trump promised his supporters an unprecedented amount of winning — so much that they would get tired of it. But to deliver on that, he’s often had to go it alone. His most impactful actions have generally been undertaken solo: deregulation, the travel ban, getting rid of DACA, voiding foreign policy pacts and a national emergency to build the border wall.
But it turns out he’s not even winning on some of those.
The Washington Post’s Fred Barbash and Deanna Paul are out with a must-read analysis of the Trump administration’s losses in federal courts, which now number 63 in about two years — a number that notably includes multiple losses on some individual actions. One former longtime aide in the Justice Department’s civil division said that in his 30 years of service, it was an unprecedented amount of losing. And even advocates of the kind of regulatory reform Trump has undertaken are dumbfounded by how the administration could lose so much, and actually deserve to.
While Trump would certainly blame activist judges, it’s hardly that simple.
According to Barbash and Paul, 45 decisions have come from judges appointed by Democratic presidents, and 29 have come in Trump’s much-hated 9th Circuit on the West Coast. But another 15 — 24 percent of the total — have come via GOP appointees, while three came via magistrate judges, who aren’t appointed by presidents.
Perhaps more tellingly, a lot of the losses seem to result from a simple lack of due diligence. About two-thirds of them involve the Administrative Procedure Act. The APA requires the government to defend policy changes using facts and evidence, and sometimes requires allowing the public to express its views via a comment period. Here’s the most eye-popping paragraph:
The normal “win rate” for the government in such cases is about 70 percent, according to analysts and studies. But as of mid-January, a database maintained by the Institute for Policy Integrity at the New York University School of Law shows Trump’s win rate at about 6 percent.
One expert on administrative law, William W. Buzbee, said people in the administration “don’t even come close” to explaining their actions, “making it very easy for the courts to reject them because they’re not doing their homework.”
One advocate for regulatory reform, Seth Jaffe, said flatly, “This administration has given regulatory reform a bad name.” Jaffe even suggests that the administration is so haphazard about this that it’s almost like it just wants splashy initial headlines:
Some errors are so basic that Jaffe said he has to wonder whether agency officials are more interested in announcing policy shifts than in actually implementing them. “It’s not just that they’re losing. But they’re being so nuts about it,” he said, adding that the losses in court have “set regulatory reform back for a period of time.”
Another regulatory skeptic, Jonathan H. Adler of Case Western Reserve University, added, “If your goal is to change policy, the little extra time” to explain “is worth it.”
“Various administrations don’t always like that lesson,” he said, “this administration more than most.”
Sloppiness or overeagerness are one explanation. Another would be the sheer volume and boldness of the changes. Trump is by all accounts an impatient man who doesn’t have much regard for the “obstacles” that stand in his way. We’ve seen repeatedly how that’s meant hasty and sometimes aborted solo policy decisions, such as the complete withdrawal from Syria. Administration officials struggling to implement his often-unwieldy ideas may find it hard to justify them or to reason that even if they’re ultimately struck down in court, Trump will have gotten the coverage he wants.
This may also be symptomatic of the kind of people Trump has installed to run various agencies. A number of them have proved to be wild cards with sketchy on-the-job conduct (see former EPA administrator Scott Pruitt, former Health and Human Services secretary Tom Price, etc.), and that perhaps filters down to the policy level. The Environmental Protection Agency, for instance, has seen a real rift between experienced career professionals and political appointees who have apparently decided to go it alone.
But that’s also kind of the point. Trump is regularly expanding the bounds of executive authority and changing how U.S. government has worked — but succeeding at doing that isn’t as simple as just announcing a policy and claiming victory. You can try to do a million executive actions, and 1,000 of them might work, but does that mean you have been successful? Or does it just mean that you threw a bunch of stuff against the wall and waited to see what stuck?
This is the kind of thing that probably won’t register with the public until Trump suffers a major setback or two in the Supreme Court, of course. And that court notably sided with him on his travel ban and now features two justices he appointed and a clear 5-4 conservative majority.
But his record in the lower courts suggests that he’s not really doing an extraordinary amount of winning so much as an extraordinary amount of trying.