Federal judges have ruled against the Trump administration at least 63 times over the past two years, an extraordinary record of legal defeat that has stymied large parts of the president’s agenda on the environment, immigration and other matters.
In case after case, judges have rebuked Trump officials for failing to follow the most basic rules of governance, including providing legitimate explanations for shifts in policy, supported by facts and, where required, public input.
Many of the cases are in early stages and subject to reversal. For example, the U.S. 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 whether or not the administration ultimately prevails, the rulings so far paint a remarkable portrait of a government rushing to implement sweeping changes in policy without regard for longstanding rules against arbitrary and capricious behavior.
“What they have consistently been doing is short-circuiting the process,” said Georgetown Law School’s William 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 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 under Trump, said he has been frustrated by the administration’s failure 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 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, D.C., 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 now 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 teen-pregnancy-prevention programs.
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.”