By Lydia Wheeler
May 10, 2017
Lawsuits are piling up against President Trump and his administration.
The government was in court this week to fight for Trump’s revised executive order banning nationals from six majority-Muslim countries from entering the U.S., but that’s just the beginning of the administration’s legal headaches.
Legal challenges have also been filed against Trump’s plan to withhold federal funding from so-called sanctuary cities and his order directing all federal agencies to eliminate two rules for every new rule issued. Another lawsuit alleges that Trump violated the emoluments clause of the Constitution, which bars the president from receiving payments from foreign governments.
The Center for Biological Diversity claims on its website that it has filed 15 lawsuits against either Trump or his administration so far, challenging his approval of the Keystone XL pipeline, his plan to build a border wall and his order reversing the permanent ban on new offshore oil and gas drilling in the Arctic and Atlantic oceans.
More litigation came last week after Trump signed an order allowing religious groups to participate in politics and still keep their tax-exempt status.
“This is not normal, and the way the courts are responding is the way I think we want the courts to respond, which is adhering to the rule of law,” said Deepak Gupta, counsel for the plaintiffs in the emoluments suit.
“What’s unusual is the amount of legal problems being generated by the administration.”
The Boston Globe reported last week that Trump has been sued 134 times in federal court since taking office, nearly three times as many as his three predecessors.
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston, noted that the use of litigation to pursue political ends has become so common it’s been given the name “lawfare.”
“Frankly we’re seeing a continuation of what we saw during the Obama administration,” Blackman said.
“People turn to the courts when they lose the ballot box, and that’s what we have here.”
While conservatives did challenge many of former President Barack Obama’s policies on immigration and healthcare, experts say the sheer number of lawsuits Trump is facing — and the success they are having so far — is what’s unprecedented.
When it comes to the litigation over the travel ban, Gupta said there’s unanimity among the lower courts in rejecting the policy.
The 9th Circuit Court of Appeals refused to reinstate Trump’s first travel ban after a Washington district court judge blocked it, and federal judges in Maryland and Hawaii were quick to stay the revised ban he issued in March.
If the order were to take effect, it would suspend most travel to the U.S. from six Muslim-majority countries for 90 days and halt U.S. refugee resettlement for 120 days.
“There’s almost a uniform set of decisions coming out quickly and striking it down,” Gupta said.
“It’s hard to think of a precedent in American history for that.”
One court did uphold the ban. A federal district judge in Virginia said he believes the order falls well within Trump’s authority.
Some experts say the pace of litigation against the administration is the result of Trump’s heavy use of executive orders.
“It’s unusual to see this pace of executive orders from an administration already,” said Dan Mahaffee, senior vice president and director of policy at the Center for the Study of the Presidency and Congress.
Mahaffee said Trump issued 24 executive orders in his first 100 days and is on pace to issue 96 this year alone, more than the 36 orders George W. Bush issued in his first year in office and the 35 executive orders that Obama issued in his first year.
“I think the way they’ve moved boldly in their minds and controversially in the minds of those opposed is inviting these challenges in a certain way,” he said.
John Malcolm, director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, said Democrats are bound and determined to resist Trump at every turn regardless of the action.
“I think it’s unusual for the party out of power to declare that their motto is going to be ‘resist,’ ” he said.
“The Democratic base is furious and they are demanding that Democratic senators and people in their different states do everything they can to resist the Trump agenda … and you are seeing this play out on Capitol Hill, you are seeing this play out in the bluest of blue states and you are seeing this play out in the courts through strategic litigation filed before activist judges.”
Malcolm called it shocking that a district court judge in Hawaii thought he could enter a nationwide injunction against a president’s immigration order.
“The Democratic Party and their constituents have decided their byword is going to be ‘resist,’ ” he said. “No matter what the president proposes, they will do everything they can to thwart him, including resorting to the courts.”
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