According to a report at the Washington Post, the administration of Donald Trump has a stunning fail rate when it comes to getting his policies implemented without federal judges smacking them down because they don’t meet minimums of legal reasoning.
Reporting on a database compiled by the Institute for Policy Integrity at the New York University School of Law, the Post reports that “the normal ‘win rate’ for administration officials to get new policies implemented with court approval is 70 percent. Under Trump, it has fallen to an almost non-existent 6 percent.
The report notes that administration lawyers are being hamstrung by having to present cases handed to them by policymakers that are woefully short on both facts and reasoning.
“In case after case, judges have rebuked Trump officials for failing to follow the most basic rules of governance, including providing legitimate explanations for shifts in policy, supported by facts and, where required, public input,” the Post reports, adding, “The rulings so far paint a remarkable portrait of a government rushing to implement sweeping changes in policy without regard for longstanding rules against arbitrary and capricious behavior.
While pointing out that many of the losses are under appeal, the report notes that there seems to be little interest at times in actually succeeding on policies that appear to have been done for show.
According to Seth Jaffe, a Boston-based lawyer who represents large corporations looking to undercut environmental laws, “This administration has given regulatory reform a bad name.”
The attorney accused some policymakers in the administration of putting ideology way before governance — which is why they are going down to defeat at a record pace.
“It’s not just that they’re losing. But they’re being so nuts about it,” Jaffe lamented.
Matthew Collette, the former deputy director of the Justice Department’s Civil Division appellate staff who served for over 30 years, admitted the rate of losses is unprecedented, remarking. “I don’t think there’s any doubt about that.”
In a case over the Trump’ administrations plan to end some $200 million in Health and Human Services grants to 81 teen-pregnancy-prevention programs, one judges was incredulous at the government argument for pulling the plug.
“During a hearing in Washington last April, U.S. District Judge Ketanji Brown Jackson expressed incredulity about the manner in which the agency had acted,” the Post reports. “Can an agency suddenly say ‘too bad, so sad,’ Jackson asked a lawyer for the government, and cut off money without cause? When the lawyer answered yes, the judge called the situation ‘weird’ and ordered the grants restored.”
In another case asking for the government to be let off the hook for environmental cleanups, another judge was equally harsh because the administration never asked for public input as dictated by the law.
“U.S. District Judge David Norton of South Carolina, an appointee of President George H.W. Bush, gave the Trump administration a tongue-lashing, calling its approach ‘evasive,’ in addition to being ‘arbitrary and capricious’,” the report states.
According to Jonathan Adler, a Case Western Reserve University law professor who feels there are too many regulations, “If your goal is to change policy, the little extra time” to explain “is worth it. Various administrations don’t always like that lesson — this administration more than most.”
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