Trump Foes Head to Court to Block Nearly Every Stroke of His Pen

  • Lawsuits attack new policies on immigration, environment
  • History suggests legal challenges ‘relatively effective’: prof

Battles raging from the halls of Congress to street rallies nationwide are challenging President Donald Trump’s vision of America with partisan sound bites and snarky signs. But the strongest revolt may be less raucous, though no less pointed: lawsuits by pro bono lawyers, advocacy groups and state attorneys general.

Less than two weeks into the administration, lawsuits have been filed across the U.S. challenging the president from every angle, including a case over alleged conflicts of interest that violate the Constitution’s "emoluments clause," multistate challenges to Trump’s immigration policies, and a complaint over the new president’s regulatory plans, including his attempt to quash a proposed regulation over disposal of metal dental fillings.

Many more challenges are expected, and both sides are hunkering down for a protracted war, one that promises to inflame already frayed relations between Republicans and Democrats, both in Washington and across the nation.

Courts are “traditionally where people go when they think an executive branch is exercising more power than people think they’re entitled to,” said Pamela Karlan, a professor at Stanford Law School. “One of the most noteworthy things is the connection between popular outrage and lawsuits.”

Noting demonstrations at San Francisco International Airport, she said, “People were chanting, ‘Let the lawyers in! Let the people out! People are aware of what’s going on in the streets and what’s going on in the courts.”

Swift, Wide-Ranging

The legal challenges to Trump have been unusually swift and wide-ranging, but such ligation isn’t unprecedented. Republican-led states repeatedly sued to block President Barack Obama’s executive orders alleging he was overstepping his authority. Texas sued the Obama administration 48 times over eight years, either alone or with other states, over pollution regulations, protections for gay and transgender citizens, and immigration policy, among other things. One case put on indefinite hold Obama’s plan for cutting the country’s reliance on fossil fuels.

Cary Coglianese, a University of Pennsylvania law professor, said previous administrations that have tried to upend regulations have struggled to succeed. It is far more effective for Congress to pass legislation to repeal regulations, he said.

Read more: Trump’s refugee ban and the legal battle ahead - a Q&A

“If history is any guide, the resistance will be relatively effective,” Coglianese said. “The regulatory process is deliberately fact-based, expert-driven, transparent and participatory. Those features mean that politicians can’t come in and just turn the regulatory state around on a dime.”

Much of the litigation against the Trump administration is being led by nonprofit advocacy groups such as the American Civil Liberties Union, the National Immigration Law Center and Citizens for Responsibility and Ethics in Washington. Individual lawyers raced to airports to offer their services to refugees detained by Trump’s Jan. 27 executive order blocking immigration from some Muslim-majority countries.

David Cole, the ACLU’s national legal director, said the reason there have been so many suits over Trump’s actions is simple: “He’s attempting to deliver on his campaign promises, but many of them violate the Constitution. If he follows through on these things, we will see him in court.”

Banding Together

David Goldston, director of government affairs at the National Resources Defense Council, said environmental groups have historically banded together over common interests. Those efforts have intensified because of the election of Trump and a Republican-majority Congress. The NRDC sued the U.S. Environmental Protection Agency on Feb. 1 over a Trump administration directive to abandon a soon-to-be-published regulation limiting toxic metals discharged into the environment by dentists.

Goldston said the group’s next move will be dictated by Trump’s actions, but he suggested one area was particularly fertile for legal challenges: the president’s decree that agencies drop two old regulations for every new one, which he called “problematic both in theory and in operation.”

Adding to the chorus of litigants are some of the nation’s most active and well-financed state attorneys general, including New York’s Eric Schneiderman and California’s Xavier Becerra, who was just sworn in as the state’s top cop.

Seventeen of them participated in statements condemning the president’s immigration order, with Washington filing its own lawsuit and Massachusetts, New York and Virginia signing on to existing cases.

Connecticut Attorney General George Jepsen is leading a 16-member group defense of the Consumer Financial Protection Bureau and its director, former Ohio Attorney General Richard Cordray, a Democrat whose job and agency is threatened by court rulings and Republican critics.

Tom Fitton, president of Judicial Watch, a Washington-based conservative group that pressed a series of lawsuits to force the release of Hillary Clinton’s e-mails, said liberals have a well-funded infrastructure that uses the courts to impose policies they can’t enact through Congress. Fitton said conservatives have nothing to compare to the left’s "legal machinery.”

“The left pretends that disagreements on policy mean their opponents are doing something illegal,” said Fitton, who said liberal groups also benefit from friendly government workers and a sympathetic media. He said his group is monitoring the suits against Trump and “may take steps to enter the litigations on the side of the rule of law.”

— With assistance by David Voreacos, and Laurel Brubaker Calkins

    Before it's here, it's on the Bloomberg Terminal.