I hate to say I told you so, but I told you so. Recent reports about the extraordinary number of lawsuits against the Trump Administration verify exactly what some of us predicted.
After the 2016 election, it seemed clear that opponents of major policy changes would take their battle to court. That’s because one Party had gained control of the White House and both Houses of Congress, leaving the other Party with little influence in the legislative branch. After the mid-term elections, the opposition gained control of the House, but not the Senate, leaving a divided government that makes Congress mostly dysfunctional. Congress is the main “check and balance” to the executive branch, so when it cannot act, presidents are empowered and emboldened. That leaves the judiciary branch as the only other means for stopping executive action. It is opponents’ only chance for victory on some issues, and at a minimum, delays implementation of new policies.
A couple weeks after the 2016 election, in this space, I wrote about the certainty of the coming spate of lawsuits against almost everything the new President tried to do. I didn’t have a crystal ball, just listened to what opponents said. Conservation Law Foundation President Bradley Campbell said at the time that environmental advocates expected President Trump to “loosen or eliminate a wide range of federal environmental protections,” and promised that environmental groups would use the courts to try and stop him. They have.
Environmental lawsuits were already on the rise before 2016. A Cornell study of litigation in America a few years ago tracked 260,000 civil lawsuits by type and disposition, showing an alarming expansion of Americans suing each other. The total number of such lawsuits had increased about nine percent over a 15-year period, but lawsuits related to environmental matters had increased by a whopping 65 percent. Today, an average of three environmental lawsuits are filed in the United States every day.
By now we know rulings by federal courts have significantly slowed the Administration’s agenda to roll back regulations, jump-start the production of America’s domestic resources, and return significant regulatory authority to the states. A single judge can make an enormous difference, such as the Obama-appointed federal District Court Judge in Montana, who issued rulings to stop the Keystone Pipeline twice – including a new ruling last month after his earlier decree was overturned on appeal. He also arbitrarily ordered the BLM to stop leasing coal in the nation’s largest coal-producing region, Wyoming’s Powder River Basin, and to make a new plan acceptable to the same environmental groups who brought the lawsuit (hint: they don’t support any mining).
President Trump has made a significant dent in Democratic control of the judicial branch, having appointed two Supreme Court Justices, 53 appellate judges, and 148 district court judges. In 2016, 9 of the 13 appeals courts were controlled by Democratic appointees, but today 7 of the 13 have Republican-appointed majorities. President Trump’s success in appointing more judges during his first term than most presidents is partly because he inherited 108 vacancies from Obama and there have been many retirements. But it is also due to rule changes orchestrated by then Senate Majority Leader Harry Reid. In 2103, Reid eliminated the minority’s right to filibuster federal judges, allowing a simple majority vote. Turns out that change works for whichever side holds the Senate majority.
For now, opponents of virtually every Administration action run to their favorite judge, slowing the rate of change and enriching the lawyers. In 2016, I wrote, “Don’t be surprised when opponents immediately file lawsuits, and don’t be surprised when some judges block the changes…” Within six months, Trump had been sued 135 times, 60 of them in his first three weeks. One environmental group, the Center for Biological Diversity, boasts that it has sued the Administration 220 times: over mining permits, road permits, endangered species, pipelines, fishing permits, approval of Colorado’s state pollution plan, grazing permits, slaughterhouse rules, Glen Canyon operations, and more. The ACLU has filed another 237 lawsuits against the Administration, and California’s Attorney General recently claimed on “Fox News Sunday” that President Trump has been involved in thousands of lawsuits. He would know; he filed many of them himself. Forbes reported a year ago that 88 lawsuits had been filed against the Administration by states.
I still think people with different views ought to talk to each other over a dinner table, or at least a conference table, rather than face off across a courtroom table.
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