Progressive litigation have hampered President Donald Trump’s plans for the past four years. Now is the time for conservative lawyers and judges to exact vengeance on the Biden administration. Many conservatives slammed legal arguments and procedural techniques used against Trump measures, such as countrywide injunctions by friendly judges, but they are now being accepted and used by the right in lawsuits seeking to stop President Joe Biden’s executive branch operations.
The Republicans are employing the same strategy against Biden
The most notable example is the Supreme Court’s decision on Tuesday night to mandate the Biden administration to reinstate the Trump-era “remain in Mexico” policy, which forces migrants to remain in Mexico until their immigration court dates in the United States. The Supreme Court backed Biden’s critics’ claims that his administration broke a decades-old law that leftist lawyers repeatedly invoked to impede Trump’s objectives. The justices also upheld a federal judge’s nationwide order requiring Biden to reinstall Trump’s policy, despite some conservatives on the court previously complaining that district courts’ use of the mechanism was becoming “a genuine concern.” So far, the primary hotspot for where these approaches have been successful in thwarting Biden has been immigration. However, legal experts tell CNN that if the administration implements more policy changes across the executive branch, these maneuvers — which are being applauded by a judiciary loaded with Trump appointees — will become more common. In an ad for his US Senate candidacy, Missouri Attorney General Eric Schmitt, who joined Texas in the “stay in Mexico” case, boasted of being “on the conservative front line battling to stop the Biden administration’s greatest abuses.”
With former Trump aide and anti-immigration activist Stephen Miller and other top officials from the previous White House launching the organization American First Legal to fight the current administration in court, they have the very architects of the Trump policies Biden is seeking to undo assisting them. The Administrative Procedure Act, which lays out the procedural procedures agencies must take in enacting particular policies, was used to force Biden to revive Trump’s “stay in Mexico” program. The Supreme Court invoked the same rule in 2020 to prevent Trump from terminating President Barack Obama’s Deferred Action for Childhood Arrivals program, which provided deportation relief to young immigrants. The court also used the Administrative Procedure Act to suspend the Trump administration’s intentions to include a citizenship question in the 2020 census. In both decisions, Chief Justice John Roberts joined the court’s liberals in ruling that the Trump administration had not followed the correct procedural processes in modifying executive branch policy, as required by the Administrative Procedure Act. Trump’s detractors applauded the decisions, while conservatives on the court said that the 1946 administrative law was being improperly used to stifle the President’s ambitions. Lower courts cited both of these decisions in blocking Biden’s decision to end the “stay in Mexico” policy. In another immigration case, a judge barred Biden’s revamping of the government’s enforcement priority, citing Trump-era rulings. The Supreme Court also mentioned the DACA case and its interpretation of the Administrative Procedure Act in its order issued Tuesday night. “When we say John Roberts had a long game, we’re talking about this particular ruling against Trump, but it may be used to hobble Democratic presidents for years,” said Joshua Blackman, a constitutional law professor at South Texas College of Law.
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