This blog was originally published on February 22, 2021. It has been updated as recently as August 11, 2021 to include additional cases and developments.
Donald Trump and his Department of Justice consistently made a mockery of the law throughout his four years in power. And while their laughable reasoning and indefensible positions were struck down at a historic rate, many cases were still waiting for Biden. The new administration tossed out a handful immediately but an alarming number remain, either in some form of pause or advancing forward with the Biden administration adopting Trump’s position.
In normal circumstances this would be relatively routine. Even if the White House is shifting from one party to another, it is not generally assumed that all of the federal government’s litigation positions will change. Instead of a blanket reversal, each case tends to receive a thorough review before the new administration decides to stay the course or reverse.
But these are not normal circumstances. At every turn and in every corner of the federal government, the Trump administration gleefully trampled the law. In fact, loyalty to the President’s person — which plainly required a willingness to ignore legal constraints — was a non-negotiable condition of employment. In the wake of such an attack, normal deference is not warranted. The Biden administration must move quickly to drop, reverse, or settle the cases that Trump left behind. And — we would have thought this wouldn’t need to be said — the administration should adopt Trump’s positions about as often as a stopped clock is accurate.
Below we have collected a non-comprehensive list of examples of each course of action. You can find other important cases, with regular updates from resources like Just Security’s Litigation Tracker and the Natural Resources Defense Council’s Court Battles page. If you know of other cases you would like to see highlighted, please reach out at firstname.lastname@example.org.
The Biden administration is barring thousands of legal residents from obtaining green cards. In a case before the Supreme Court, the Biden administration adopted its predecessors’ exclusionary reading of the law governing green card applications. The Trump administration held that a requirement that green card applicants have been “inspected and admitted” into the country bars recipients of Temporary Protected Status who entered the country illegally from receiving permanent status. This position keeps thousands in a state of permanent limbo. Nonetheless the Biden administration is maintaining Trump’s stance. In so doing, it is arguing against the petitioners and many groups that have filed briefs supportive of their position including members of Congress, Human Rights Watch, the American Immigration Lawyers Association, OxFam, and others.
The Biden administration is effectively defending a Trump rule that further politicizes immigration enforcement and limits claimants’ ability to seek relief. In its final days, Trump’s Justice Department codified a set of changes from 2018 that concentrated decision-making powers in the hands of a person selected by a political appointee and restricting the ability of people seeking immigration relief to present evidence that might keep them from being deported. A coalition of immigration advocacy groups sued over the rule along with other legal services organizations. In both lawsuits, the plaintiff’s had asked the court for a preliminary injunction on the rule’s implementation as well as a stay of the rule in its current form and that it eventually be found unlawful. Biden’s administration argued that plaintiffs don’t have standing in the D.C. case and that the courts don’t have jurisdiction on the matter—essentially upholding the Trump-era rule.
Updated on July 1. The Biden administration defended a New Jersey pipeline over environmental groups’ concerns. The PennEast Pipeline Company is seeking to overturn a 2019 federal appeals court decision that ruled the company couldn’t use eminent domain powers to seize land owned by New Jersey for pipeline construction. In February, the Supreme Court decided to hear the company’s appeal. The Biden administration adopted the Trump administration’s stance with regards to the case and expressed its support for PennEast’s position. This project directly clashes with the climate goals that Biden ran on. In June 2021, the Supreme Court sided with the pipeline company, agreeing that the Federal Energy Regulatory Commission’s 2018 approval of the project allowed the company to use eminent domain to acquire state-controlled land.
Added on June 9. The Biden administration is continuing to support Trump-era plans to increase Arctic oil drilling. Despite Biden’s declarations that addressing climate change is a top priority, his goal to halve greenhouse gas emissions by 2030, and his intentions to decarbonize the nation’s electric grid by 2035, the administration is defending a ConocoPhillips drilling plan approved by the Trump administration in late 2020 which is expected to produce 100,000 barrels of oil every day for the next 30 years. Environmental and indigenous rights groups sued the Department of the Interior for approving the plan without properly considering the project’s effects on climate change and the local indigenous population. Yet, Biden’s Interior Department, backed by the DOJ, recently defended the plan as meeting the environmental rules at the time and objecting that the suit was not filed in a timely manner. The Ninth Circuit Court had ruled in February that the Trump Interior Department had used faulty models to assess the project’s climate impact.
Biden is defending Betsy DeVos and her corrupt Education Department’s actions. Lawyers representing defrauded student loan borrowers have requested that they be allowed to take a sworn deposition from DeVos. In February, Biden’s acting head of the DOJ Civil Division, Brian Boynton, filed a motion to block it. And just this month, the DOJ appealed a lower court’s ruling that DeVos can be made to testify. Worse still, this defense of DeVos, her department, and, by extension, for-profit colleges, is rapidly becoming a pattern: Biden’s DOJ has adopted the Trump administration’s position of denying student loan records to Public Citizen and Bay Area Legal Services, who requested them via FOIA over a year ago and has been fighting for their release in court. Most recently, the DOJ Civil Division filed a motion to dismiss California’s lawsuit challenging the Education Department’s distance learning rules, effectively adopting the Trump administration’s position and making way for for-profit colleges to further exploit students.
The Biden administration continues to uphold a doctrine, defended by Trump, that shields the U.S. military from liability for sexual assault. A decades old doctrine prevents individuals from suing the government for harm that was “incident to service.” That has been read, many would argue mistakenly, to protect the government from liability relating to its failure to protect service members from sexual assault. In a case that is currently before the Supreme Court, the Biden administration has adopted Trump’s position and continues to defend that precedent.
Updated on July 8. Biden failed to defend voting rights amid historic assault. In March, the Supreme Court heard a challenge to two Arizona voting laws that plaintiffs allege violate the Voting Rights Act and the 15th amendment. The Trump administration had previously taken the position that the laws violated neither the Act nor the amendment. In February, Biden’s DOJ concurred and indicated that it would not “make a further substantive submission.” In July, the Supreme Court upheld the Arizona voting restriction laws. President Biden issued a statement expressing he was “deeply disappointed” by the decision, although his administration failed to defend the the Voting Rights Act when it had the opportunity.
CRIMINAL JUSTICE REFORM
Biden endorses an expansion of police power. In March, the Supreme Court heard a case which brought into question the scope of police officers’ authority for search and seizure procedures within a home under the ‘community caretaking’ exception of the Fourth Amendment. The police had entered the plaintiff’s home while escorting his wife back to the house and determined him to be imminently dangerous to himself and others. In the process, the police confiscated the plaintiff’s firearms and ammunition. Requests to retrieve them from the police department on behalf of the plaintiff were denied. The plaintiff sued, claiming this was a violation of the US Constitution and state law. The officers who broke into the plaintiff’s home are urging for an expansion of police power to enter the home ‘to protect’ as ‘community caretakers’ so long as police act ‘reasonably.’ Biden’s Solicitor General not only endorsed the officers’ position but also reinforced the doctrine of qualified immunity.
Added on June 9. The Biden administration is still deciding whether to end a policy that disproportionately punishes Black D.C. residents for gun crimes and is defending it in court in the meantime. In 2019, the Trump administration and the US Attorney for the District of Columbia began prosecuting D.C. residents for federal gun crimes instead of local charges, forcing defendants to face stiffer penalties. In March 2021, a group of former federal prosecutors urged President Biden to abandon that initiative, saying it disproportionately affects Black residents and is “at odds with the Biden administration’s concerns about mass incarceration and interest in overhauling the criminal justice system.” Thus far, acting U.S. Attorney Channing D. Phillips is retaining the policy but will “review and monitor” and consider modifications. Earlier this month, the Justice Department defended the policy in court.
Added on July 20. The Biden administration will require federal convicts who were released to home confinement during COVID-19 to return to prison. The Biden administration condoned a Trump Department of Justice memo stating that nonviolent inmates released to home confinement whose sentences lasted beyond the pandemic emergency period must return to prison one month after the period ends. The Biden administration found the memo correctly interpreted the law, meaning an estimated 4,000 inmates currently in home confinement may return to prison once the state of emergency ends unless Congress passes legislation or President Biden uses clemency power to commute their sentences. The New York Times reported that groups such as the ACLU requested the President use his clemency powers, but the Biden administration is “wary of a blanket, mass commutation”. NYU criminal law professor Rachel Barkow suggested that the president may make the inmates’ commutations conditional on them not violating the terms of the release.
Added on July 20. Biden’s Justice Department is advocating for a 50-year bar to release of grand jury material. The DOJ is seeking to carry out recommendations made by the Trump administration “that would put a 50-year delay on when courts can consider releasing material from federal grand juries.” The DOJ is also seeking to explicitly allow prosecutors to use gag order to prevent witnesses from sharing information about grand juries. Critics say the rule changes would mean a “significant expansion of secrecy around federal courts and investigations.” Trump’s DOJ fought to keep grand jury material from the Robert Mueller investigation secret; this rule change could push back release of those materials until 2069.
Added on June 9. Biden’s DOJ will defend a potentially unconstitutional Social Security provision that deprives Puerto Rico residents of benefits. In the Supreme Court case US v. Vaello-Madero, the DOJ will defend the exclusion of Puerto Rico residents from the Social Security Act’s Supplemental Security Income (SSI) provision, a policy that potentially violates the equal protection principle. The White House’s opinion diverges from the DOJ’s position, as Biden stated Puerto Rico residents should be able to receive the SSI benefits. In a statement, the administration noted the DOJ’s stance is part of the Department’s “longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences.” Exceptions to this practice have been made in the past, however, including in the case over the constitutionality of the Defense of Marriage Act.
EXECUTIVE POWER AND IMMUNITY
Added on June 9. Biden’s DOJ is defending former President Trump in a defamation lawsuit stemming from a sexual assault accusation. In the Second Circuit court case, the DOJ is arguing Trump, as a federal employee, cannot be sued for defamation in a lawsuit brought by E. Jean Carroll. Carroll accused Trump of sexual assault in 2019 and sued him after he claimed “it never happened.” Then-candidate Biden criticized Trump for bringing in the DOJ to defend himself, stating Trump was using the Department as his “own law firm.” After the DOJ announced its intent to adopt Trump’s position, White House spokesperson Andrew Bates said the Biden administration “was not consulted by DOJ on the decision”.
Updated on June 22. Biden’s DOJ argued to toss out lawsuits against Trump and top officials for violently removing protestors ahead of a photo op. Civil liberties groups including the American Civil Liberties Union of D.C. and Black Lives Matter sued former President Trump and other top officials in 2020 after military, federal and local police violently removed peaceful protestors from Lafayette Square ahead of a photo op at the location. Trump’s DOJ argued that the president and top officials are “immune from civil lawsuits over police actions taken to protect a president and to secure his movements.” Biden’s DOJ adopted the position, arguing to a federal judge that the lawsuits should be dismissed in May 2021. Subsequently, the federal judge overseeing the lawsuit dismissed most of the civil liberties groups’ claims, ruling that federal defendants such as former AG Barr are immune from from civil suits.
Updated on July 30. Biden’s DOJ has yet to announce whether they will defend Trump in lawsuits stemming from the January 6th riot. Former President Trump is facing a lawsuit from U.S. Representative Eric Swalwell over Trump’s alleged incitement of the deadly January 6th riot at the Capitol. The lawyer representing Swalwell, Philip Andonian, stated his concern that the DOJ would adopt the same legal rationale as the Department did in the Trump defamation and Lafayette Square lawsuits. Thus far, neither the DOJ nor the White House have commented on the issue. Relatedly, the DOJ rejected Representative Mo Brooks’ request to represent him as a government employee acting within the scope of his employment in a similar lawsuit accusing Brooks of helping incite the January 6th riot.
Added on August 11. The Biden administration is defending the Trump Administration’s efforts to avoid Congressional oversight of border wall construction funding. In October 2020, the 9th Circuit Court of Appeals ruled that the Defense Department’s use of statute 2808 to avoid Congress and divert funds to the construction of the border wall during Trump’s immigration “national emergency” was unlawful. Trump’s DOJ then petitioned the Supreme Court to hear the case, seeking to reverse the decision in order to proceed with the border wall. Biden’s DOJ has “effectively lined up” with the Trump administration’s arguments in order to protect executive power, and “is asking the justices to vacate wall-related rulings which might impede Biden’s own executive powers going forward,” including the 9th Circuit Court’s ruling. Civil rights groups argued that vacating the 9th Circuit’s decision would “open the door to future presidential abuse of emergency powers.”
Added on June 9. Biden’s DOJ sought to shield from public view an Office of Legal Counsel memo on which former Attorney General William Barr relied in deciding not to pursue charges against Trump following the release of the Mueller report. Soon after former Attorney General William Barr “summarized” the Mueller report’s principal conclusions and indicated that his Department would not pursue charges against President Donald Trump, citing an Office of Legal Counsel memo supporting his conclusions, Citizens for Responsibility and Ethics in Washington issued a FOIA request for that memo. Over two years later, that case is still ongoing, but the person standing in the way of transparency is now Merrick Garland, not Bill Barr. Garland’s Justice Department has maintained the former administration’s posture against the memo’s disclosure, including with arguments the presiding judge described as “so inconsistent with evidence in the record, they are not worthy of credence.” After Judge Amy Berman Jackson ordered that the memo be released early last month, the DOJ made public a redacted version but appealed the demand that it release the complete copy.
Added on July 30. Biden’s DOJ is assuming a Trump Administration position to keep documents on the Trump International Hotel under wraps. In June, the Washington Post reported that the Justice Department appealed a lower court judgement in favor of congressional democrats who sought to “bring the inner workings of Trump’s luxury property to light.” The democrats were seeking to make General Services Administration documents including audits, financial statements, and “potential requests for favoritism from Trump’s company or family” public after the Trump administration refused to release them. The GSA holds the lease for the Trump International Hotel and has only provided “a portion of the documents Congress is seeking and asked that none of them be disclosed publicly” due to “concerns for the privacy of the Trump Organization’s proprietary business information.”
Updated on July 8. Biden’s DOJ asked the Supreme Court to reinstate the death sentence in the Boston Marathon bomber case. Biden has stated that eliminating capital punishment is one of his top priorities, and he would be the first president to do so. In June, Biden’s DOJ filed a brief with the Supreme Court asking to reinstate the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev, the same position taken by the Trump administration. A White House spokesperson at the time stated that the DOJ has independence to take that position and the President still believes that the DOJ should not carry out executions. In July, AG Garland announced a moratorium on federal executions and ordered a review of Trump-era protocols, a move similar to the Obama Administration moratorium that ultimately did not prevent the Trump’s DOJ from carrying out 13 executions during the administration. Garland’s moratorium also does not stop federal prosecutors from seeking the death penalty, and as such the DOJ’s brief supporting the reinstatement of the death penalty for Tsarnaev still stands.
Added on June 29. Biden’s DOJ defended the Department of Homeland Security’s authority to conduct warrantless searches on electronic devices. In 2017, the American Civil Liberties Union and the Electronic Frontier Foundation sued the Department of Homeland Security for conducting warrantless and suspicionless searches of 11 travelers’ personal electronic devices at the border. The First Circuit Court held that border agents can search travelers’ devices without a warrant, probable cause, or reasonable suspicion of a crime. The petitioners asked the Supreme Court to review the decision, spurring Biden’s Justice Department to issue a brief arguing that the searches are within DHS authority. In June 2021, the Supreme Court declined to take up the case.
The Biden administration has demonstrated insufficient urgency in determining their position on cases inherited from the Trump era. Given what we know about the last administration’s disregard for the law, it’s legal positions are not due normal deference. Biden must move more quickly to drop or settle pending cases.
The Biden administration is keeping Trump’s tax returns hidden. Congress has a clear right to request and receive the tax returns of any individual, including the President. The Trump administration, however, blocked access to Donald Trump’s tax returns by first ignoring the Ways and Means Committee’s request, then refusing to comply with its subpoena. The Biden administration has inherited the former’s bad faith, legally dubious case defending that refusal. Nothing, however, is stopping the Biden administration from recognizing the Ways and Means committee’s authority and dropping Trump’s case. It is, thus, shocking to note that, rather than dropping the case immediately, Biden’s DOJ has requested additional time to decide how to respond, as if the path forward was not obvious.
The Biden administration has yet to respond to cases to protect plant and animal species. The Center for Biological Diversity has filed multiple lawsuits including 1) to protect north Oregon Red Tree voles, 2) reverse Trump admin’s downlisting of the American burying beetle from endangered to threatened, 3) contest Trump admin’s refusal to designate critical habitat for the rusty patch bumblebee, 4) contest Trump’s approval for a pipeline through the Mojave desert. The Biden administration has yet to respond to these cases and to the scale of Trump’s environmental rollback program in general and there is a growing impatience as the Biden administration decides which holdover policies to undo. There are growing concerns about whether Biden will stay committed to protecting and conserving the environment as he highlighted during his campaign period or whether the Trump-era rollbacks are here to stay for the next 4 years.The Department of the Interior has yet to comment.
The Biden administration has yet to withdraw Trump administration legal briefs that challenged states’ standing to sue the oil industry for downplaying the risks of climate change. Several state attorneys general have filed lawsuits against oil and gas companies alleging that they “violated state consumer protection and deception laws by downplaying the risks of climate change or ‘greenwashing’ their image by portraying themselves as part of the solution.” The Trump administration filed briefs opposing the states’ actions. The Biden administration has yet to take any action in the case meaning that Trump’s briefs are still on the record. State AGs recently called on Garland to withdraw the Trump administration’s filings because they stand in opposition to the Biden administration’s promises on climate change and they could be prolonging litigation by keeping the cases in federal rather than state courts.
Added on June 9. Biden’s EPA is continuing to withhold the release of its risk assessment of formaldehyde. The EPA began assessing the risks of formaldehyde to manufacturing workers and consumers in 1997 but still has yet to release the report. During the Trump administration, the EPA went back and forth on whether the assessment had concluded or whether no draft report existed at all. Public Employees for Environmental Responsibility eventually sued the agency in 2018 after it refused to comply with its FOIA request for the finished report in a case that is still ongoing. DOJ has yet to provide guidance to agencies on how to apply the FOIA and determine under what circumstances the DOJ will refrain from defending an agency if they are not in compliance with the law.
Biden has failed to reverse its litigation position to stop defending a rule that makes it easier for for-profit colleges to exploit students. The Gainful Employment Rule was a central pillar of the Obama administration’s efforts to curb for-profit colleges abuses. Secretary Betsy DeVos, however, moved quickly to eliminate these protections, prompting several lawsuits from state attorneys general and advocates. Those cases are ongoing. The Biden administration has yet to announce a change in position or seek a settlement.
The Biden administration is still deciding whether to continue defending the stance the Trump administration took with respect to denying a same-sex couple a claim to an approx. 6-figure dollar amount in survivor benefits. The same-sex couple, Patricia Rolfingsmeyer & Tina Sammons, had been partners for 16 years—long before same-sex marriage was legalized. In 2013, the couple traveled from Pennsylvania (PA) to Maryland (MD) to legally wed but less than 3 months later, Sammons (US Air Force veteran & USPS employee) passed away from breast cancer. Her death came just 3 months prior to the legalization of same-sex marriage in PA and 1 year prior to the Supreme Court’s decision to legalize same-sex marriage. Nonetheless, the federal government declared that their union did not meet the 9 month marriage requirement for Rolfingsmeyer to claim survivor benefits. Rolfingsmeyer is challenging the federal government’s denial of employee death benefits because it was not legally or practically possible for her to obtain a marriage certificate in her home state in the 9 months before the death of her partner. The Biden administration has yet to take a position to back or combat the Office of Personnel Management’s refusal to pay Rolfingsmeyer. The DOJ has declined to comment thus far and the US Court of Appeals for the Federal Circuit in Washington postponed oral arguments this past March at the government’s request.
INTERNATIONAL LAW/HUMAN RIGHTS
Biden administration is moving slowly on matters related to Guantanamo, despite indicating that it will reject Trump’s approach. In the case of US v. Majid Khan the Trump administration filed a motion for the Judge to reconsider his ruling granting administrative credit to Majid Khan who had been tortured at CIA black sites & Guantanamo. The Biden administration has not taken an official position on this but has confirmed they will begin a review process in an effort to close down Guantanamo. There are numerous similar cases for others in Guantanamo; Biden should retract Trump’s motions in all of them.
Header Image from the United States Senate — Office of Senator Dan Sullivan.