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Blog Post | January 20, 2023

The Trump Administration Made a Mockery of the Law. Why Hasn't Biden Tossed its Cases?

2020 Election/TransitionAdministrative LawDepartment of Justice
The Trump Administration Made a Mockery of the Law. Why Hasn't Biden Tossed its Cases?

This blog was originally published on February 22, 2021. It has been updated as recently as January 20, 2023 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. Two years into Biden’s presidency, 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 [email protected].

IMMIGRATION

Updated January 20, 2023. Biden’s Department of Justice bowed to Republican pressure and pulled out of settlement talks with migrants whose families were separated at the border. Under Trump’s “Zero Tolerance” border policy, 5,500 migrant children were separated from their parents. Over 900 injury claims were filed against the government for the trauma and abuse migrant families endured as a result of official government policy, and the DOJ was negotiating a mass settlement with the families. After a leak in late October 2021 indicated that families might receive up to $450,000 in compensation, conservatives threw a widely publicized fit. In December 2021, the Department of Justice pulled out of settlement talks, and is taking each individual case to court rather than settling them all at once: a process which promises to drain time, energy, and resources. As of December 2022, officials are still searching for the parents of 151 children. And the Biden administration is still separating children from their parents: the administration reported at least 372 cases of family separation in the first 18 months of Biden’s presidency.

Updated on January 20, 2023. The Biden administration continues to misuse Title 42 public health authority, first misused by Trump, to turn away asylum seekers at the border. Against widespread condemnation within and outside of the government, the Biden administration invoked “public health” concerns to expel over 2 million refugees in less than two years without giving them an opportunity to show a fear of persecution in their country, and thus obtain asylum. The Department of State’s top legal adviser, Harold Koh, resigned in October 2021 in protest of the Biden administration’s continued “illegal and inhumane” use of Title 42. Dr. Fauci and top CDC officials have also condemned the policy, claiming it was not based on actual public health assessments. After the court blocked Biden’s use of Title 42, the administration appealed, and was allowed to resume expulsions in October 2021 while the case was being litigated. Meanwhile, another class action lawsuit has been filed against several government agencies by Haitian migrants violently expelled after seeking asylum in December 2021. While in spring 2022 the CDC sought to rescind Title 42, a Louisiana judge’s preliminary injunction prevented this from taking effect. As of January 2023, the Biden administration has taken the head-spinning position that while Title 42 is not justifiable on public health ends, they will still make use of its tools. The Supreme Court will hear arguments on whether it should allow Republican-led states to intervene in February 2023. The administration is currently expanding the use of Title 42 to expel tens of thousands of asylum-seekers a month. 

Updated on January 20, 2023. The Biden administration appealed the decision of a DC district court in Gomez et al. v Trump et al., which sided with immigrants and ordered 9,095 diversity visas to be issued. After the Trump administration banned diversity visas being issued in 2020, immigrant legal advocacy groups brought suit on behalf of immigrant visa petitioners and diversity visa lottery winners. In September 2020, the court issued a preliminary injunction against Trump’s immigrant visa ban and ordered the State Department to reserve 9,095 diversity visas for lottery winners. The Biden administration could have allowed the clock to run out on appealing this case, but instead they filed an appeal on December 10, 2021 to contest the court’s decision. In March 2022, the Gomez case judge conditionally granted for 30 days the government’s motion for a stay of his order to process the 9,095 visas pending the government’s appeal to the D.C. Circuit, and the government consolidated their appeal in the Gomez case with a number of other diversity visa cases. In April, the judge agreed to extend the pause until the court issues its opinion in the case, after oral argument in September 2022. As of January 2023, the appeals court has yet to issue its opinion.

Updated on January 20, 2023. The Biden administration defended 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 restricted 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 plaintiffs 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. In April 2021, a federal court blocked the Justice Department from enforcing the Trump rule. As of January 2023, the rule remains stayed, with the court agreeing there would be “irreparable harm absent a stay.”

Updated on January 20, 2023. Biden administration continued to defend the practice of violating the legal rights of unaccompanied migrant children under the Migrant Protection Protocols (MPP) program. A group of immigrant rights organizations sued the Department of Homeland Security in January 2021 for deporting young unaccompanied children under Trump’s disastrous and inhumane MPP program, despite those children having specific legal rights under the Trafficking Victims Protection Reauthorization Act (TVPRA). Though the Biden administration suspended new enrollments to the MPP program in early 2021, they continued to deport children with prior MPP status, in violation of their TVPRA-guaranteed rights. This ongoing harm was deepened when a district court order in December 2021 mandated the Biden administration to resume the MPP program, putting even more children at dire risk of deportation and violence. In June 2022, in Biden v Texas, the Supreme Court decided that the district court did not have the jurisdiction to issue such an injunction, and the Biden administration finally put an end to Trump’s “Remain in Mexico” policy. 

ENVIRONMENT

Updated on May 16, 2022. The Biden administration defended a New Jersey pipeline over environmental groups’ concerns. The PennEast Pipeline Company sought 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. Fortunately for the environment, the PennEast Pipeline Company decided to cancel the project after running up against difficulties in securing the necessary permits. But the Supreme Court decision remains a precedent-setting victory for pipeline developers.

Updated on January 20, 2023. Though Biden canceled the Keystone XL Pipeline on his first day as president, his Department of Justice defended the Trump-approved Line 3 Pipeline in court. Line 3 transports tar sands, the world’s dirtiest fossil fuel, from Canada through fragile ecosystems and across indigenous land in Minnesota and Wisconsin. The Department of Justice defended a decision made at the tail end of Trump’s presidency by the United States Army Corps of Engineers to issue the necessary permits to the Canadian pipeline company Enbridge Energy. Line 3 is now operational. The dirty oil it transports puts up to 193 million tons of greenhouse gasses into the atmosphere a year—the equivalent of 38 million cars. The fight against Line 3 continues today in state court, led by indigenous plaintiffs suing the state of Minnesota, while some Line 3 protestors still face trumped-up legal charges for standing up to Enbridge.

Updated on January 20, 2023. The Biden administration inherited a 2020 lawsuit from environmental groups challenging a biological opinion that did not fully account for the impact of oil and gas activities in the Gulf of Mexico on marine life. Center for Biological Diversity, Friends of the Earth, Sierra Club and Turtle Island Restoration Network filed this lawsuit against the National Marine Fisheries Service in October 2020 to challenge an inadequate assessment of the present and future harm of the offshore oil industry. In the wake of the BP Deepwater Horizon oil spill, which “killed or seriously harmed more than 100,000 protected species,” this biological opinion downplayed the ecological devastation of the Gulf of Mexico and the risk of another such disaster in order to allow offshore drilling. When the Biden administration inherited this case, they continued to oppose the plaintiffs’ claims. In October 2022, the National Marine Fisheries Service asked the Maryland federal court to send the case back to the agency for a planned rewrite of the rule the groups challenged.

Updated on January 20, 2023. Environmental groups challenged a Trump-era revision undermining a well-control rule designed to prevent another Deepwater Horizon disaster. In 2016, the Bureau of Safety and Environmental Enforcement and Interior Department finalized a “Blowout Preventer and Well Control rule” designed to prevent another massive oil spill from happening offshore. Under Trump, the Bureau and Interior issued a revised and substantially weakened version of the rule in violation of the Administrative Procedure Act, Outer Continental Shelf Lands Act, and National Environmental Policy Act, making it easier and more dangerous to drill offshore for oil and gas. A coalition of environmental groups sued to challenge the rollback. The Biden administration inherited this lawsuit, and the defense of this revised rule. The case has been temporarily stayed for over a year and a half while the Interior Department considers new rulemaking.

Updated on January 20, 2023. In the last days of the Trump administration, environmental groups sued over the EPA’s first-ever airplane greenhouse gas emissions rule, which fails to reduce greenhouse gas pollution. This January 2021 lawsuit follows a 2010 lawsuit from the Center for Biological Diversity, Friends of the Earth and others suing the EPA under the Clean Air Act to force them to determine whether greenhouse gasses from aircraft endanger public health and welfare. The EPA’s subsequent determination that greenhouse gasses from aircraft do endanger public health and welfare triggered the obligation to set greenhouse gas pollution standards for planes. Over a decade later, the Trump administration finalized a toothless and ineffective rule, rubber-stamping an international standard that all aircraft subject to the rule already meet. The EPA itself doesn’t expect any emissions reductions to result from the new standard. When Biden took office, he issued an Executive Order directing the EPA to review this rule. In November 2021, the EPA announced that it would not rewrite the rule. In November 2022, the EPA published the final rule, which it acknowledges “will have no immediate effect in curbing releases of harmful particulate matter.” 

Added on January 20, 2023.The Biden administration continued to prosecute Indigenous women who had been arrested while praying on sacred grounds disrupted by Trump border wall construction. In September 2020, Nellie Jo David and Amber Ortega went to the Organ Pipe Cactus National Monument to pray at Quitobaquito Springs, a “sacred and ancient site of deep spiritual significance for the Tohono O’odham and Hia Ced O’odham people” whose water was being drained by the Trump administration to mix concrete for border wall construction. They were arrested by federal agents, and held incommunicado for over 24 hours before being released. Ortega argued that the government had violated her religious freedom under the Religious Freedom Restoration Act. The Biden administration maintained the Trump administration’s position that the federal agents’ arrest and removal of the women was lawful. In January 2022, a federal judge found that the federal government had imposed a “substantial burden” on Ortega’s exercise of her faith. 

Added on January 20, 2023. The Biden administration urged an appeals court to overturn an offshore fracking ban once backed by Kamala Harris. Back in 2016, the state of California (with Kamala Harris as Attorney General) and several environmental groups successfully sued the federal government to block fracking in federal waters off the California coast. In June 2022, a Ninth Circuit three-judge panel upheld a lower court’s decision maintaining that ban. But in September 2022, the Biden administration asked the Ninth Circuit for an en banc review of the panel’s ruling, seeking to overturn that ban. The court refused to grant the administration’s request to reconsider its ruling. 

Added on January 20, 2023. The EPA under Trump and Biden defended its decision to exempt Montana from clean water standards for nutrient pollution in court. In 2017, the EPA under Trump granted the Montana Department of Environmental Quality a 17-year variance from complying with water quality standards for nitrogen and phosphorous concentrations, on the basis that meeting the standard was costly. The Upper Missouri Waterkeeper sued the EPA, alleging that the variance violated the Clean Water Act because the CWA doesn’t allow the EPA to consider compliance cost when approving variances, and because the variance did not require that at the end of the 17-year term, Montana would then have to be in compliance with established water quality standards. A district court denied in part and granted in part the Waterkeeper’s claims, and both the Waterkeeper and EPA appealed to the Ninth Circuit. In late 2021 under Biden, the Ninth Circuit sided entirely with the EPA. This is a harmful precedent that may incentivize states to use the cost of compliance as a justification for failing to comply with water quality standards, at complex environmental and health costs to people and ecosystems. In March 2022, the Waterkeeper again sued the EPA for its delay in approving or disapproving Montana’s dangerously lax new water rules. In May 2022, they dropped the suit after the EPA rejected several provisions of Montana’s new water rules for failing to meet Clean Water Act standards. 

EDUCATION

Updated on May 16, 2022. Biden’s Justice Department defended Betsy DeVos and her corrupt Education Department’s actions in court. Lawyers representing defrauded student borrowers in a class-action lawsuit requested that they be allowed to take a sworn deposition from DeVos. In February 2021, Biden’s acting head of the DOJ Civil Division, Brian Boynton, filed a motion to block it. And in June, 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. The DOJ Civil Division has also 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. On October 6, the DOJ continued to defend Betsy DeVos in oral arguments before the court. In February 2022, the judge ruled that DeVos did not have to testify in the class-action lawsuit.

Updated on January 20, 2023. Biden’s DOJ and Ed Department continue defending DeVos’ repeal of a rule that helped prevent for-profit colleges exploiting 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 student advocates. As of spring 2022, Biden’s Education Department and their DOJ lawyers continue to argue in district court that DeVos’ repeal should remain in place while ED pursues new rulemaking, potentially leaving the repeal in place for the first three and a half years of Biden’s presidency. Student advocates argue that the Obama-era rule should be restored in the meantime so that students have the information they need to avoid being scammed by valueless for-profit institutions while waiting for an updated rule. 

Added on May 16, 2022. The Education Department continues to seek dismissal of a lawsuit brought by former California Attorney General Xavier Becerra challenging Betsy DeVos’ “Distance Education and Innovation” regulations. DeVos’ 2020 distance education regulations removed key protections for students enrolling in online education programs by allowing institutions’ recertification applications to be automatically approved without review if it has been pending with the Education Department for 12 months, and allowing for-profit schools to outsource 100 percent of a program’s instruction to a different school, meaning that students could be forced to attend a different school than the one they enrolled in. California’s former AG Becerra brought a lawsuit in Trump’s final days in office against the Education Department to contest these new rules. The Justice Department argued under Biden on ED’s behalf that the suit should be dropped on procedural grounds, rather than settling and sending the rule back to ED for revision.

AGRICULTURE

Added on January 20, 2023. The Biden administration continues Trump-era position and sides with pork industry in case before Supreme Court. In October 2022, the Supreme Court heard arguments in National Pork Producers Council v. Ross, a case in which the pork industry raised a challenge to a California law banning the sale of pork in California from pregnant and nursing pigs confined in a “cruel manner.” Sows are typically confined in gestation crates—metal cages so tight that pigs spend most of their lives completely immobilized, in acute suffering. The pork industry contends that California’s law violates what’s known as the “dormant commerce clause,” which is the theory that the Commerce Clause implicitly prohibits states from passing laws that discriminates against or excessively burdens interstate commerce, because this California law would have a significant impact on pork industry practices in other states. California and the Humane Society argue that the purpose of the dormant commerce clause is to guard against protectionism and discrimination, which was not the impetus of California’s law, which applies to all pork products regardless of origin and seeks to allow California consumers to assert ethical consumer preferences within their state. The Biden administration has sided with the pork industry in their amicus filing before the court, adopting the same position as under the Trump administration, even as dozens of Democratic lawmakers urged a change of course. The Supreme Court is expected to rule in the case by summer 2023.

Added on January 20, 2023. Biden administration successfully preserves a Trump-era USDA decision to deny petitions seeking enforcement of humane handling of poultry. In 2020, the Animal Welfare Institute sued the Department of Agriculture for denying their petition requesting that the USDA develop regulations for the humane handling of poultry before and at the point of slaughter. Under the Trump and Biden administrations, the USDA continued to argue in court that the USDA’s Food Safety and Inspection Service did not have jurisdiction to enforce the humane handling of the over 9 billion chicken and turkeys annually killed in the United States. In late 2022, a district court granted the federal government’s motion for summary judgment, accepting the government’s determination that “livestock” protected under the Humane Methods of Slaughter Act does not include poultry, and that under the Poultry Products Inspection Act, “live poultry must be handled in a manner that is consistent with good commercial practices, which means they should be treated humanely.” This, despite the fact that adhering to good commercial practices is merely voluntary, and that typical commercial practice, as plaintiffs report using USDA data, is routinely inhumane

Added on January 20, 2023. Biden’s USDA continues to fight two lawsuits from animal and environmental protection groups pertaining to conditions in pig slaughterhouses. In 2019 and 2020, a coalition of animal and environmental protection organizations sued the USDA. The 2019 case challenges the USDA’s decision to reduce its oversight of pig slaughterhouses and remove limits on the speed of slaughter. The 2020 case alleges that the USDA fails to protect and continues to allow the slaughter of pigs who are too sick or injured to walk at slaughterhouses for pork, treatment which is both immensely cruel and increases the risk of transmitting pathogens to humans. In both cases, the USDA continues to argue that plaintiffs lack standing to bring the suit. In summer 2021, a New York district court found that the coalition adequately pleaded that they have standing to sue in both lawsuits, and allowed the cases to proceed.

Added on January 20, 2023. The USDA continues to oppose push from animal rights groups to pass a rule promoting lab primate wellbeing standards under the Animal Welfare Act, while implementing a secretly weakened lab inspections protocol. In 2020, animal rights organizations Rise for Animals and the Animal Legal Defense Fund sued the USDA for refusing to promulgate a rule under the Animal Welfare Act promoting the psychological wellbeing of primates kept in labs. In the course of that lawsuit, they filed a FOIA request for related documents. The results of that FOIA uncovered how under Trump, the USDA secretly changed their lab inspection policy from fully inspecting the over 1,000 biomedical research facilities that house primates and other species to only conducting partial inspections of labs accredited by the Association for Assessment and Accreditation of Laboratory Animal Care International (AAALAC International), a private organization of researchers and veterinarians. The groups again sued the USDA in 2022 over that secret policy, alleging it violates the department’s obligations under the Animal Welfare Act.

MILITARY

Updated on January 5, 2022. The Biden administration upheld 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 before the Supreme Court, the Biden administration adopted Trump’s position and defended that precedent. The Supreme Court sided 8 to 1 in May 2021 with the Biden administration’s argument, while Clarence Thomas wrote the dissenting opinion on the side of the plaintiff—a student assaulted at West Point—and the ACLU.

VOTING RIGHTS

Updated on January 20, 2023. 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 2021, Biden’s DOJ concurred and indicated that it would not “make a further substantive submission.” In July 2021, 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 Voting Rights Act when it had the opportunity. As of January 2023, Congress has yet to pass any voting rights legislation, and a slew of states have further restricted voting.

CRIMINAL JUSTICE REFORM

Updated on January 5, 2022. Biden endorsed an expansion of police power. In March 2021, 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. In May 2021, the Supreme Court decided unanimously in favor of the plaintiffs, against the police and the Biden administration, that such warrantless searches and seizures were unjustified.

Updated on May 16, 2022. The Biden administration delayed the decision about whether to end a Trump-era policy that disproportionately punishes Black D.C. residents for gun crimes and defended 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.” Former acting U.S. Attorney Channing D. Phillips retained the policy but pledged to “review and monitor” and consider modifications. Throughout 2021, the Justice Department defended the policy in court. In May 2022, a federal judge sided with the Justice Department and upheld the legality of charging these gun crimes in federal court. 

Updated on January 20, 2023. 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 orders 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.

Updated on January 20, 2023. Even after a court order and threat of sanctions from the judge, the Bureau of Prisons delayed gender-affirming surgery for a trans woman prisoner. Cristina Iglesias fought a years-long court battle for her gender to be recognized by the federal prison system, assisted by the ACLU. Iglesias spent two decades in men’s facilities before finally being transferred to a women’s prison in May 2021. Still, the Biden administration maintained the Trump-era policy of making facility placement decisions based on gender assigned at birth for the first year of Biden’s term, and even though Biden restored protections for trans prisoners in January 2022, the Bureau of Prisons and their Justice Department lawyers continue to delay Iglesias’ court-ordered medical care. On May 27, 2022, Iglesias reached a landmark settlement with the Bureau of Prisons providing for her gender-affirming medical care.

SOCIAL SECURITY 

Updated on January 20, 2023. Biden’s DOJ defended a Social Security provision that deprives Puerto Rico residents of benefits before the Supreme Court. In the Supreme Court case US v. Vaello-Madero, the DOJ defended the exclusion of Puerto Rico residents from the Social Security Act’s Supplemental Security Income (SSI) provision. In oral arguments on November 9, Deputy Solicitor General Curtis Gannon—who previously wrote the legal memo approving Trump’s refugee ban—defended Puerto Rico’s exclusion, supporting the early 20th-century rulings of the Insular Cases that deny citizens of Puerto Rico full constitutional rights. The White House’s opinion apparently 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. On April 21, 2022, the Supreme Court decided that the Fifth Amendment did not require Congress to extend Supplemental Security Income benefits to residents of Puerto Rico.

EXECUTIVE POWER AND IMMUNITY

Updated on January 20, 2023. 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”. The DOJ continues to appeal to the court for the right to intervene on Trump’s behalf in the defamation case. In March 2022, the judge denied Trump’s move to counter-sue Carroll. In November 2022, Carroll filed a second lawsuit accusing Trump of rape, with a request from Carroll’s lawyer that this second lawsuit be tried along with the original defamation case.

Updated on January 20, 2023. 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 civil suits. However, in April 2022, the Justice Department reached a settlement in 4 lawsuits filed by civil rights groups and demonstrators, and implemented several changes regarding the response of federal law enforcement and the Park Police to protests.

TRANSPARENCY

Updated on January 20, 2023. 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 in May 2021, the DOJ made public a redacted version but appealed the demand that it release the complete copy. The battle continues, with DOJ lawyers maintaining in December 2021 that the bulk of the memo should be concealed. As of May 2022, the three-judge panel has not yet issued a ruling. In August 2022, the federal appeals court ruled that the Justice Department must release the memo advising Barr, which (the public then learned) pertained to the public statement that Barr should make regarding Mueller’s findings.

Updated on January 20, 2023. Biden’s DOJ assumed a Trump administration position to keep documents on the Trump International Hotel under wraps. In June 2021, the Washington Post reported that the Justice Department appealed a lower court judgment 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.” In October 2021, the documents were released to the House Oversight and Reform Committee, revealing that Trump filed financial disclosures while accruing over $70 million in losses over 3 years. In October 2022, the Committee released several documents regarding spending at the Trump International Hotel, which highlighted spending by foreign leaders at the hotel in DC.

Updated on January 20, 2023. Biden’s DOJ argued before the Supreme Court that “the public had no right of access under the First Amendment to secret decisions issued by” the Foreign Intelligence Surveillance Court. The Supreme Court is currently considering whether to hear a case from the ACLU asking that the Foreign Intelligence Surveillance Court, a panel that rules on the federal government’s surveillance requests in secret without input from any party but the federal government, disclose its major decisions. Those decisions often have wide-reaching implications. In early October, then Acting Solicitor General Brian Fletcher argued that the public does not have the right to see those decisions and that the Supreme Court should decline to hear the case. In December 2021, the Supreme Court declined to take up the ACLU’s case, with Gorush and Sotomayor dissenting from that decision. 

DEATH PENALTY 

Updated on May 16, 2022. 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. In March 2022, the Supreme Court upheld Tsarnaev’s death sentence.

DIGITAL PRIVACY

Updated on January 20, 2023. 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. In September 2022, The Washington Post reported that the government has created a massive database of “contacts, call logs, messages and photos” from phones, iPads and computers seized from around 10,000 travelers a year, a database which customs officers can access without a warrant. 

INTERNATIONAL LAW/HUMAN RIGHTS

Updated on January 20, 2023. Biden’s DOJ declined to take a position on whether prisoners at Guantanamo have due process rights. In the case in question, Abdulsalam Al-Hela, who has been held at Guantanamo Bay since 2004 without charge or trial, challenged his detention and argued for release due to due process violations. The Trump administration had taken the position that Guantanamo Bay detainees are not entitled to due process rights. The Biden administration did not adopt that position, but it failed to vigorously counter it as many lawmakers and human rights advocates had pushed it to do. Instead, it neglected to take a position on the due process question while maintaining that, regardless, Al-Hela is still “lawfully detainable.” As of January 2023, though Al-Hela has been cleared for release, he is still awaiting a decision by the DC Court of Appeals more than a year after oral arguments in his case.

DELAYS

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, its legal positions are not due normal deference. Biden must move more quickly to drop or settle pending cases. 

ENVIRONMENT

Updated on January 20, 2023. 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 reverse Trump admin’s downlisting of the American burying beetle from endangered to threatened, 2) contest Trump admin’s refusal to designate critical habitat for the rusty patch bumblebee, 3) contest Trump’s approval for a pipeline through the Mojave desert. (In the case of the pipeline approved by Trump’s Bureau of Land Management, a federal judge vacated its approval in September 2022.) The Biden administration has yet to respond to all of 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 the Trump-era rollbacks are here to stay.

Updated on January 20, 2023. Biden’s EPA delayed the release of its risk assessment of formaldehyde. The EPA began assessing the risks of formaldehyde to manufacturing workers and consumers in 1997, but delayed releasing the report for the next twenty-five years. 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 (PEER) 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. The DOJ has yet to determine under what circumstances the DOJ will refrain from defending an agency if they are not in compliance with the law. In January 2022, PEER sued the EPA for its failure to disclose Section 8(e) reports on toxic chemicals since 2019 as required by the Toxic Substances Control Act, causing the EPA to announce in February 2022 that it had resumed publishing Section 8(e) notices in its ChemView database. On April 14, 2022, the EPA finally released its draft formaldehyde assessment, which, if finalized, will allow the EPA to regulate this known carcinogen. As of December 2022, the EPA’s assessment is under review by scientists, while politicians and the chemical industry continue to pressure the agency to slow down its regulation.

Added on January 20, 2023. The Biden administration’s Fish and Wildlife Service and National Marine Fisheries Service fought to keep harmful Trump-era endangered species rules on the books while working on amending them. In 2019, environmental groups sued the Trump administration over new rules that weakened the Endangered Species Act. When the Biden administration inherited this lawsuit, they sought to keep the Trump-era rules in place for an indeterminate amount of time while working on how to amend them. In November 2022, a judge sided with the agencies and allowed this. The agencies now expect this process to take at least two more years to complete. Trump’s weakening of the Endangered Species Act may well last the entirety of Biden’s term. 

INTERNATIONAL LAW/HUMAN RIGHTS

Updated on January 20, 2023. The Biden administration is moving slowly on matters related to Guantanamo, despite indicating that it will reject Trump’s approach. The Biden administration confirmed in February 2021 that they would begin a review process in an effort to close down Guantanamo. Almost two years later, efforts to close Guantanamo have proceeded at a snail’s pace, and the Biden administration has taken the official position of having no position on the matter of whether Guantanamo detainees have due process rights. No one from the Biden administration attended the first Senate Judiciary Committee hearing in eight years on Guantanamo in December 2021. There are numerous open Guantanamo cases in which Biden’s DOJ should retract Trump’s motions and take definitive positions on the side of human rights and restorative justice.

DIGITAL PRIVACY

Updated on January 20, 2023. Biden administration’s review of contested Trump-era State Department policy requiring social media identifiers from U.S. visa applicants drags on. In 2019, the Trump Administration’s State Department added a requirement that all US visa applicants include their social media information across 20 platforms for the past 5 years. The Brennan Center and other parties sued on behalf of two documentary filmmaker groups, arguing that the requirement has a chilling effect on free speech. Since the Biden Administration inherited this lawsuit in March, it requested multiple stays of the case while reviewing the challenged policy. The stay was lifted in October 2021. In February 2022, the Biden administration advised the court that it does not plan to rescind the rule. As of January 2023, the matter remains unresolved.

Header Image from the United States Senate — Office of Senator Dan Sullivan.

2020 Election/TransitionAdministrative LawDepartment of Justice

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