Global Courant
WASHINGTON — Former President Donald Trump’s top lawyer put it bluntly when he spoke at a conservative conference five years ago: The goal was to appoint judges who would help advance the administration’s deregulation agenda.
“There is a coherent plan here, where judicial selection and deregulation efforts are essentially the other side of the same coin,” White House counsel Don McGahn said from the White House dais. cconservative Ppolitical action conference in 2018.
That plan is paying off. The Supreme Court’s new nine-month term begins Monday, with three major cases formed by Trump-appointed justices that could hobble federal agencies already on the docket.
The process began in part when potential Trump nominees were questioned about their views on the federal agency’s authority while their records were examined for expertise on the issue, something previous administrations had not done, McGahn said. He cited Judge Neil Gorsuch, recently appointed to the Supreme Court at the time, as an example of what the White House was looking for.
Long after Trump leaves office, his judges and justices are making their mark, just as McGahn predicted, serving as participants, liberal critics say, in what Trump adviser Steve Bannon called the “deconstruction of the administrative state.“
All three cases now before the Supreme Court involved Trump-appointed judges in lower court rulings that sharpened the legal issues for review by the Supreme Court. The Court’s conservative majority has repeatedly demonstrated its willingness to limit bureaucratic authority.
Brianne Gorod of the left-leaning Constitutional Accountability Center said there is a “long-standing, multi-pronged conservative attack on the administrative state” that includes two elements.
The first is finding suitable claimants to take on the challenges.
The second is to ensure there are “judges on the court who are receptive to these arguments,” she said.
McGahn did not respond to messages seeking comment on how Trump’s approach has gone.
Trump made judicial appointments a priority, with the approval of the Republican-led Senate. He appointed 54 judges of the court of appeal and 174 district judges, as well as three judges of the Supreme Court. President Joe Biden, aided by a now Democratic-controlled Senate, has followed Trump’s lead in his efforts to fill judicial vacancies as quickly as possible. considerable success.
The Supreme Court will hear oral arguments on Tuesday in the first of three regulatory cases currently on the docket. Consumer Financial Protection Bureau vs. Community Financial Services Association of America threatens the federal agency created to protect consumers from unlawful financial services practices. The question is whether the mechanism that allows the agency to be funded directly by the Federal Reserve rather than through specific appropriation by Congress is unconstitutional.
The challengers are represented by Noel Francisco, who served as attorney general under Trump and, like McGahn, works for the law firm Jones Day. Francisco did not respond to a request for comment.
In another case yet to be scheduled, Securities and Exchange Commission v. Jarkseythe justices will consider whether to limit the SEC’s power to bring enforcement actions for securities law violations.
Finally the court enters Runner Bright Enterprises against Raimondo will weigh whether a landmark 1984 ruling that gave federal agencies leeway to interpret the law should be overturned if the law is not clear. It was Gorsuch’s criticism of that ruling when he served as an appellate judge helped put him on Trump’s radar as a possible candidate for the Supreme Court.
In both the CFPB and SEC cases, the Biden administration is appealing decisions against the government issued by conservative judges on the 5th U.S. Circuit Court of Appeals. In the Loper Bright case, which involves a challenge to a fishing regulation, the U.S. Court of Appeals for the District of Columbia Circuit, which has a majority of Democratic appointees, ruled in favor of the government.
In the CFPB case all three judges – Don Willett, Kurt Engelhardt and Cory Wilson – were appointed by Trump. The decision against the agency was unanimous. Earlier, Judge Lee Yeakel, appointed by President George W. Bush, had ruled on behalf of the agency.
The Jarksey decision, also by the 5th Circuit, included an all-Republican-appointed panel with one judge, Andrew Oldham, appointed by Trump. The other judges, Jennifer Elrod and Eugene Davis, were appointed by President George W. Bush and President Ronald Reagan, respectively. Davis disagreed with the ruling, which went against the agency. That case went straight to the appeals court, so there was no ruling from the court.
in Loper Bright, the appeals court was split 2-1 in the ruling in favor of the agency. The majority consisted of Democratic party nominees: Judge Sri Srinivasan, appointed by President Barack Obama, and Judge Judith Rogers, appointed by President Bill Clinton. The dissent was Trump-appointed Judge Justin Walker. The court had ruled in favor of the agency in a decision by Democratic-appointed Judge Emmet Sullivan.
The 5th Circuit in particular, which has six Trump appointees among its 16 active judges, has a reputation as a favorite place for conservative activists and Republicans to file legal claims.
The court is made up of judges who are “both extreme and aggressive enough to make truly astonishing decisions,” said Greg Lipper, an attorney who filed a brief supporting the CFPB.
Jenn Mascott, a professor at George Mason University Law School who filed a letter supporting the challenge to the CFPB, pushed back on that assessment, saying cases are shaped more by the people who bring them and their lawyers than by the judges themselves.
“I really think it’s the litigants who shape the claims. They decide which claims to bring. They face the regulatory action,” she said.
There wouldn’t be as many cases focusing on regulatory decisions if federal agencies were more reluctant to exercise their power, she added.
“Much of what we’re seeing now is a response to the very broad actions that presidents and agencies under both parties have taken,” Mascott said. “No, I don’t think the process is particularly political.”
This article was originally published on NBCNews.com
