This blog was originally published on February 22, 2021. It has been updated to include additional cases.
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.
The Biden administration is defending 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 has 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.
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. 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.
Biden fails 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, the Biden administration concurred and indicated that it would not “make a further substantive submission.”
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.
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.
Biden has yet to act in Boston Marathon bomber case. Biden has stated that eliminating capital punishment is one of his top priorities (he would be the first president to do so) but his administration has not announced any changes to DOJ’s policy nor have they taken any action to end the death penalty. The Boston Marathon bombing will test Biden’s commitment to this cause. It’s worth noting that although the case will be considered in October, the Biden administration has the authority to notify courts that the government will not appeal the lower court’s decision. Additionally, the White House has refused to respond to reporters who have asked about Biden’s plans for eliminating the death penalty.
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.
14 states and the District of Columbia challenged a Trump Administration action expanding the religious exemption for federal contractors under Executive Order 11246. According to the lawsuit, the action will “weaken anti-discrimination protections for workers, and prompt an increase in employment discrimination and its attendant effects.” The Attorneys General claim that the rule is unlawful under the Administrative Procedure Act and that the Department failed to adequately consider or quantify the Final Rule’s widespread harm. Although the Biden administration notified the US District Court in NY that it intended to rescind this Trump-era rule, the case is still pending (i.e. the Biden administration has taken no further action other than to declare their intention).
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.