Many of the cases are in early stages and subject to reversal. For example, the Supreme Court permitted a version of President Trump’s ban on travelers from certain predominantly Muslim nations to take effect after lower-court judges blocked the travel ban as discriminatory.
But regardless of whether the administration ultimately prevails, the rulings so far paint a remarkable portrait of a government rushing to implement far-reaching changes in policy without regard for long-standing rules against arbitrary and capricious behavior.
“What they have consistently been doing is short-circuiting the process,” said Georgetown Law School’s William W. Buzbee, an expert on administrative law who has studied Trump’s record. In the regulatory cases, Buzbee said, “they 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.”
Two-thirds of the cases accuse the Trump administration of violating the Administrative Procedure Act (APA), a nearly 73-year-old law that forms the primary bulwark against arbitrary rule. 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.
Seth Jaffe, a Boston-based environmental lawyer who represents corporations and had been looking forward to deregulation, said the administration has failed to deliver.
“I’ve spent 30 years in the private sector complaining about the excesses of environmental regulation,” Jaffe said, but “this administration has given regulatory reform a bad name.”
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.”
Contributing to the losing record has been Trump himself. His reported comments about “shithole countries,” for example, helped convince U.S. District Judge Edward M. Chen in San Francisco that the administration’s decision to end “temporary protected status” for hundreds of thousands of immigrants from Central America, Haiti and Sudan was motivated by racial and ethnic bias.
At least a dozen decisions have involved Trump’s tweets or comments.
The Justice Department, which defends federal agencies in court, declined to comment. The White House also declined to comment.
Matthew Collette, who served as the deputy director of the Justice Department’s Civil Division appellate staff until his departure in October, said that in his 30 years at the department, he had not seen so many losses for a presidential administration in such a short time. “I don’t think there’s any doubt about that,” he said.
Trump has blamed his losses on “Obama judges” in the West Coast states that make up the 9th Circuit. While 29 setbacks have come from 9th Circuit judges, the trend is national, with 34 originating elsewhere, particularly in the District of Columbia Circuit, according to a count by The Washington Post.
Democratic appointees, many of them tapped by presidents Barack Obama and Bill Clinton, are responsible for 45 decisions. Republican appointees dating back to President Ronald Reagan issued the other rulings. Magistrate judges, who are not appointed by presidents, made three of the decisions.
On major issues on which multiple judges have ruled, there has been little disagreement among them, no matter where the judges are located or who appointed them.
Four judges, for instance, have rejected the decision to rescind the Deferred Action for Childhood Arrivals program, which has protected from deportation nearly 700,000 people brought to the United States as children. All four judges said essentially the same thing: that the government’s stated reason for ending DACA — that it was unlawful — was “virtually unexplained,” as U.S. District Judge John D. Bates, an appointee of President George W. Bush in Washington, said in an April opinion. A second explanation — that DACA creates a “litigation risk” — was derided by U.S. District Judge William Alsup in California as mere “spin.”
Three judges have invalidated the attempt to add a question about citizenship to the 2020 Census, the latest being U.S. District Judge Richard Seeborg in San Francisco on March 6. All rejected as unbelievable Commerce Secretary Wilbur Ross’s explanation that the move was intended to improve enforcement of the Voting Rights Act.
The matter is pending before the Supreme Court. The Commerce Department declined to comment.
In the cases challenging termination of temporary protected status, the Department of Homeland Security claimed it was not actually changing policy and was therefore immune from review under the APA. But internal documents contradicted that claim, and Chen, an Obama appointee, blocked the shift in an Oct. 3 decision.
Michael Bars, a spokesman for U.S. Citizenship and Immigration Services, which handles determinations for temporary protected status, declined to comment on ongoing litigation. He added that the agency is committed to “faithfully executing the law.”
Every administration loses cases because of APA violations. Obama’s most notable defeat came in 2015, when a Texas judge blocked his plan to protect from deportation illegal immigrants whose children are Americans or lawful permanent residents.
Still, administrations of both parties have historically won most of these cases, in part because judges tend to defer to the federal government, legal experts said — making Trump’s record of failure virtually unprecedented.
The Trump administration’s style of policymaking has led to some awkward moments in court. Take the many cases challenging the Department of Health and Human Services over its decision to end some $200 million in grants to 81 programs on preventing teen pregnancy.
The decision was taken — abruptly and without explanation — soon after the June 2017 appointment of Valerie Huber to serve as senior adviser to then-HHS Secretary Tom Price. Huber, a leader of the abstinence-only sex education movement — which she prefers to call “sexual risk avoidance” — had lobbied to eliminate funding for the programs, which in her view “normalized teen sex.”
The decision threatened to devastate the budgets of scores of teen-pregnancy programs across the nation, many of which quickly filed suit. In its defense, HHS argued that ending the grants did not represent a policy change and therefore required no explanation under the APA.
During a hearing in Washington last April, U.S. District Judge Ketanji Brown Jackson expressed incredulity about the manner in which the agency had acted. Can an agency “suddenly say ‘too bad, so sad,’ ” Jackson asked a lawyer for the government, and cut off money without cause? When the lawyer answered yes, the judge called the situation “weird” and ordered the grants restored.
In her ruling the following month, Jackson said “HHS’s unmistakable and inexplicable silence” in cutting the money made her decision “quite easy.”
“This much is clear: A federal agency that changes course abruptly without a well-reasoned explanation for its decision or that acts contrary to its own regulations is subject to having a federal court vacate its action as ‘arbitrary [and] capricious,’ ” she said in her ruling, quoting the APA’s most recognizable incantation.
In an email, HHS spokeswoman Caitlin Oakley chalked the losses up to “ambiguity” in the grant rules.
A slowed agenda
Failure to follow the APA has dramatically slowed the administration’s agenda on other fronts, particularly the push to roll back environmental regulations.
Last February, for example, the Environmental Protection Agency and the Army Corps of Engineers suspended an important clean-water rule without soliciting public comment or formally considering the implications, both requirements of the APA. When conservationists sued, the government argued that it was only delaying the rule, not eliminating it.
U.S. District Judge David C. Norton of South Carolina, an appointee of President George H.W. Bush, gave the Trump administration a tongue lashing, calling its approach “evasive,” in addition to being “arbitrary and capricious.”
“Certainly, different administrations may implement different regulatory priorities,” Norton wrote in August. But the law “ ‘requires that the pivot from one administration’s priorities to those of the next be accomplished with at least some fidelity to law and legal process.’ . . . The court cannot countenance such a state of affairs,” he wrote.
“If your goal is to change policy, the little extra time” to explain “is worth it,” said Jonathan H. Adler, a Case Western Reserve University law professor who regards himself as a regulatory skeptic. “Various administrations don’t always like that lesson,” he said, “this administration more than most.”
Some observers attributed the EPA’s woes to its former administrator, Scott Pruitt, a skeptic of federal environmental policy who installed inexperienced officials and moved rapidly to roll back Obama-era regulations.
Jeffrey R. Holmstead, a Republican lawyer who headed the EPA’s Office of Air and Radiation from 2001 to 2005, said he sensed a potential problem at the agency soon after Trump’s election, during the transition before he took office.
“This administration was different than any I’ve seen in my lifetime,” Holmstead said, noting that Trump “didn’t have anybody who had any kind of meaningful experience with the EPA.”
Compounding the problem was the Trump team’s “complete distrust of the career staff” at the EPA, Holmstead said — a professional corps that “always gives you good advice, whether or not they agree” with the president’s politics.
Pruitt resigned last summer amid a host of allegations of unethical conduct. He has since been replaced as EPA administrator by Andrew Wheeler, who “has taken steps . . . to ensure the agency engages in well-reasoned, transparent and defensible decision-making,” said EPA spokesman John Konkus.
Konkus added that “only a handful” of cases against the agency have reached the end of the judicial review process.
As with the travel ban, the administration is pinning its hopes on the Supreme Court to overturn lower-court rulings and preserve its policy changes. Trump has appointed two of the nine justices, shifting the high court to the right.
“Hopefully, we will get a fair shake” in the Supreme Court, Trump said in February when he declared a state of emergency to build a wall along the nation’s southern border.
With a few exceptions, however, the high court has shown no inclination to rush to Trump’s aid. Most cases never reach the Supreme Court. And while Trump has filled numerous vacancies in the lower courts, appointees of Democratic presidents still account for more than 55 percent of active federal judges, said John D. Graham, dean of the School of Public and Environmental Affairs at Indiana University.
“If the Trump administration wants to win future cases,” Graham said, “they must do a much better job of persuading judges appointed by Democratic presidents.”