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.
Dropping Trump’s Anti-Union Lawsuit: In its final days, the Trump administration challenged a California regulation allowing union organizers to enter an employers’ “property to speak with the workers employed there.” On February 12, Biden’s acting Solicitor General “notif[ied] the Court that the previously filed brief no longer represents the position of the United States,” effectively dropping the case.
Dropping Lawsuit Against Yale: This fall, Trump’s Department of Justice sued Yale University, alleging that its use of race as a factor in its admissions process went beyond what was allowable and was discriminatory. Within two weeks of taking office, the Biden administration had dropped the case.
Upholding Advocates Right to Defend Free Speech: PEN America and Protect Democracy sued the Trump administration in 2018 “for retaliating against and threatening journalists whose coverage he viewed as ‘hostile,’ arguing that it impeded the First Amendment by hanging ‘a sword of Damocles over the heads of countless writers, journalists, and media entities.’” The Biden administration agreed to settle the case and uphold a lower court’s ruling that the plaintiffs had “standing to sue over threats and retaliation against journalists,” which leaves room for other cases should similar threats emerge again in the future.
Adopting the Trump Administration’s Position
Insisting on Enforcing the Public Charge Rule: As a condition of accepting the Biden administration’s requested postponement of arguments in a case over the Public Charge Rule, the plaintiffs asked that the Biden administration not enforce the rule in the interim. The administration refused.
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. Earlier this month, 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.
Failing to Defend Voting Rights: In March, the Supreme Court is set to hear 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. Earlier this month, the Biden administration concurred and indicated that it will not “make a further substantive submission.”
The Biden administration has not yet taken substantive action in the vast majority of cases it inherited from the Trump administration. These include such high-profile and seemingly straightforward issues as the Dakota Access Pipeline, the border wall, and Trump’s “remain in Mexico” policy.