Below is my column in the Hill on the growing number of losses by the Biden Administration in courts around the country, including a particularly embarrassing loss before the United States Supreme Court. What is notable is that such losses in the early days of the Trump Administration led to coverage declaring a war on the “rule of law” and even indications of authoritarianism. The Biden losses have received little coverage despite what could be a worst record in the early days of his Administration. The fact is that such adverse decisions are not uncommon as Administrations try to fast track changes. However, the Biden Administration has actually had some very serious losses, including some which are being appealed. Yet, many previously outspoken legal experts have either blamed conservative judges or simply ignored the losses all together. It is a continuation of an interesting pattern where Democrats are adopting the very rationales that they once denounced.
Here is the column:
President Biden repeatedly framed his campaign and his administration as defending “the rule of law” after what he and others portrayed as the lawless reign of President Trump. The image of Biden as restoring the Justice Department back into the good graces of the law and the courts is reinforced regularly in the media.
What is not being as fully reported is that Biden actually has racked up a litany of notable court losses that may now exceed those of his predecessor in his first six months. Indeed, the Biden administration has been found to have violated the Constitution in a surprising array of cases in a surprisingly short period of time.
Across the country, trial courts have been finding constitutional violations by the Biden administration in areas ranging from immigration to the environment to pandemic relief. The administration actually began with the same court record as the Trump administration, which lost an early challenge to its travel ban. (The Supreme Court later upheld the core elements of the travel ban and rejected the general claims raised against it.) Biden also lost a critical immigration fight when a federal court enjoined his 100-day moratorium on deportations. In a 105-page opinion, the court found that the administration omitted “any rational explanation grounded in the facts reviewed and the factors considered” and left only “an arbitrary and capricious choice” of the president in this early immigration order. Sound familiar? It should: That was the same argument used against Trump.
In Wisconsin, a federal court stopped Biden’s controversial $4 billion race-based federal relief program for farmers after finding that he was engaging in systemic racial discrimination. The court found that “the only consideration in determining whether a farmer or rancher’s loans should be completely forgiven is the person’s race or national origin.” As such, farmers were found to be “experiencing discrimination at the hands of their government.”
A court in Texas found that the Biden administration engaged in systemic discrimination to implement COVID-19 relief for American restaurants by giving preference to women, minorities and “socially and economically disadvantaged” people.
In Louisiana, a federal court enjoined the administration from carrying out its halting of gas and oil leases, finding that Biden’s unilateral action violated the separation of powers under the Constitution.
In Washington, D.C., a federal judge found that the Biden administration and the Centers for Disease Control and Prevention exceeded its authority by imposing a federal eviction moratorium to help stop the spread of the coronavirus. The court rejected the administration’s sweeping claims of pandemic authority, a view taken by other (but not all) courts in a dispute that could go to the Supreme Court.
This week, a federal judge in Florida ruled against the administration and held that the CDC cannot dictate rules for cruise ships. The court found the administration is again exceeding its constitutional authority.
These rulings against the Biden administration came in the same areas covered extensively by the media during the Trump administration, including findings of constitutional violations and discriminatory practices. When early rulings were issued against Trump, legal and media experts declared that a war on the rule of law existed, if not the onset of tyranny. However, the media has given light coverage to Biden’s legal losses.
One of the most remarkable court losses was delivered at the hands of the Supreme Court in the case of Terry v. United States. It involved a criminal defendant in a crack case who argued for a sentence reduction under the First Step Act. The Trump administration argued against the defendant’s claim — but this was one of many positions that the Biden administration changed before the court. The Biden administration informed the court that it not only would refuse to defend the judgment below — and defend the federal statute — but was “confessing error” in the case.
The move by the Biden Administration was astonishing on a number of levels. Acting Solicitor General Elizabeth Prelogar informed the Supreme Court in March, on the actual due date for the government’s brief. Oral argument was scheduled for April; the court was forced to reschedule the oral argument for a special sitting in May, a completely avoidable conflict the administration created by waiting a ridiculous two months to inform the court. The Biden Justice Department simply suggested in a letter that the Supreme Court find someone else to defend a federal law. Moreover, the Biden administration was confessing error in a case where the government was likely to win. In other words, it was refusing to make an argument with which many if not most of the justices would agree.
Instead, the Biden administration advanced an argument that was so weak that the justices referred to its arguments as a meritless “sleight of hand” to evade the clear, obvious meaning of the statute. They ruled unanimously against the administration and the defendant. Eight justices signed on to the opinion of Justice Clarence Thomas entirely, and Justice Sonia Sotomayor concurred with his interpretation of the First Step Act. So, the Biden Justice Department confessed error and abandoned an argument that, ultimately, garnered a unanimous vote of the Supreme Court.
While continually claiming to be a champion of “the rule of law” in public, the Biden administration has been found to be a transgressor in these cases. These losses constitute an inauspicious start for any administration.
In the early months of the Trump administration, I noted that “the White House gave the courts a target-rich environment in the first travel order, which was poorly drafted, poorly executed and poorly defended.” The same is true with the Biden administration; it has racked up losses for engaging in systemic racial and gender discrimination, exceeding its constitutional authority, and acting arbitrarily and capriciously in carrying out federal policy.
Of course, it still could prevail on appeal in some of these cases, as did Trump in his win on the travel ban before the Supreme Court. However, like the prior administration, the Biden administration has shown serious deficiencies in arguing these early cases in court.
President Biden has declared that “every country faces challenges to the rule of law, including my own.” His administration has, thus far, proven just how difficult that challenge can be.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.