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Op-Ed | August 30, 2021

Merrick Garland Is Failing His Biggest Test

Department of Justice
Merrick Garland Is Failing His Biggest Test

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In the past week, the Supreme Court decided to embrace its most evil tendencies, first by stating that Biden could not end Trump’s horrendous “Remain in Mexico” policy, then by clearing the way for millions to be evicted. It issued both these consequential rulings on the “shadow docket,” without even granting a fair hearing. The cruelty is breathtaking but hardly surprising. Ultimately, it underscores what we’ve always known: Biden’s agenda will face an uphill battle in the courts.

Less appreciated, however, is the fact that these circumstances put one particular corner of the Biden administration—the Justice Department—squarely at the center of the fight over practically every new measure. Add to that the department’s policymaking power and its critical role in holding the last administration to account, and it quickly starts to look like perhaps the most consequential agency in the federal government. In other words, the Justice Department just might hold the keys to this administration’s success. Unlocking it will take urgency, energy, and courage.

Sadly, thus far, Attorney General Merrick Garland’s leadership has been devoid of all three.

Looking at the Justice Department’s litigation record, it has at times been easy to forget that it’s a part of the Biden administration at all. Throughout the first half of the year, in cases left over from the prior administration, the DOJ repeatedly defended Trump policies that ran directly counter to the platform on which President Biden was elected.

The department’s decision to continue to defend Trump in the defamation lawsuit brought by E. Jean Carroll—despite Biden’s vociferous condemnation of former Attorney General William Barr’s intervention into that suit on Trump’s behalf last year—has garnered the most attention. But it’s far from the only example. Acting and permanent leaders at DOJ have, since the start of the year, contradicted the administration’s positions on police accountability, immigration, the environment, education, transparency, and much more. They even failed to reverse the Trump administration’s position on the legitimacy of Arizona’s voter suppression efforts in a key voting rights case at the Supreme Court, Brnovich v. Democratic National Committee.

In short, at a moment when the administration’s agenda already faces long odds, this Justice Department has devoted scarce resources to building up obstacles to it, rather than dismantling them.

While this particular problem may be fading—seven months after Biden took office, the number of Trump-era cases for the DOJ to defend is naturally dwindling—other deficiencies in Garland’s approach pose a serious and ongoing threat to the administration’s agenda. As agencies across the federal government kick new policymaking into gear, legal challenges will inevitably proliferate. The Justice Department will be central to defending those policies, meaning its decisions with regard to strategy and approach will reverberate out into hundreds of distinct policy areas and touch millions of lives. Judging from a number of recent cases, however, it would seem that DOJ leadership can’t be bothered to care about those consequences.

Consider the administration’s initial decision not to renew the eviction moratorium. We can infer with a high degree of confidence that the DOJ was not only consulted but weighed in against extending the moratorium, leading the Biden administration to haphazardly call on Congress to extend the moratorium two days before the deadline. Why oppose it? In short, DOJ leadership feared a telling off from Brett Kavanaugh for having ignored his non–legally binding statements more than it cared about delaying evictions for as long as possible (in this case, over three weeks). That is indefensible.

Unfortunately, there’s no indication that that preference is set to shift. One of the figures who undoubtedly advised the White House—then–acting Solicitor General and former clerk to then-Judge Merrick Garland Elizabeth Prelogar—was nominated to the permanent role soon after the moratorium fight.

The handling of the eviction moratorium casts doubt on DOJ leaders’ judgment in countless other cases. This week, for example, the department made the unusual decision to not appeal a judge’s injunction against a program to deliver debt relief to minority farmers. Unsurprisingly, this passivity dismayed advocates such as John Boyd, president of the National Black Farmers Association. Some have speculated that the DOJ may have elected not to challenge this provision so as not to put similar policies under threat from overzealous judges. But for those who have watched the department’s other moves closely, it’s hard not to wonder if it was just cowardice or even disinterest.

Indeed, this mix of trepidation and apathy has not just affected the department’s dispensation of legal advice or its litigation positions. It is also evident in the lack of urgency that many senior leaders have brought to the task of changing the department’s own policies. On issues from sentencing and detention to immigration and transparency, the Justice Department could quickly advance portions of Biden’s agenda. Instead, in most cases, it has moved slowly or not at all.

Meanwhile, Garland is, by his own admission, refusing to examine the damage that his predecessors in the Trump administration left behind. While he claims that this is necessary to avoid politicizing the department, it seems much more likely that it will simply allow the Trump administration’s project to endure, and Biden’s to falter.

It was only earlier this month, for example, that we learned about the lengths acting Assistant Attorney General Jeffrey Bossert Clark went to to overturn the election. If moves like those escaped public attention for months, what subtler transgressions might we still not know about? Did Clark (or others, for that matter) exert lasting influence over the career staff, through hiring or promotions? (There’s not-too-distant precedent for such violations at the Department of Justice.) If so, how is that impacting departmental decisions, particularly those that don’t come before political appointees, but could nonetheless be important? What priorities are getting lost? Which are benefiting from less-than-zealous advocacy? Under Garland, these questions will not be getting an answer, let alone any serious solutions.

This approach will undoubtedly suit some. The senior leadership team executing it will, as usual, find a comfortable landing spot at the country’s BigLaw firms. There they can rub elbows and count cash with many of the former Trump administration officials they declined to investigate. The public, on the other hand, is sure to lose out. Policies that could make a real difference in people’s lives will go unimplemented or fall victim to lackluster defense. And the institution itself, with its cracks merely papered over, will founder in an instant when next it comes under threat.

When confronted with these matters—Biden’s agenda, accountability for Trump, etc.—Garland likes to pretend that these are not his concerns. He floats above them, merely tasked with impartially carrying out the law. But the law is not an immutable beast. It is inherently political, and he is a political figure now. He is accountable to the public and to the president that the public elected. It’s time he started acting like it.

Header image courtesy of the Senate Democrats (licensed under CC BY 2.0)

Department of Justice

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