Trump and the courts: Why so much losing?


April 16, 2019

Baltimore Oriole slugger Chris Davis and President Trump have never met each other, at least as far as I know. But they actually have something in common.

Davis, the first baseman for a team that has seen better days, recently set a Major League Baseball record when he managed to go hitless in 62 plate appearances.

Trump, who talked a lot about “winning” when he was out on the campaign trail, has found himself on the losing side in federal court more than 63 times so far in his administration. (We apologize for the fact that this statistic, from March 18, already is out of date because Trump has been on the losing end of several court rulings this month alone. Davis, meanwhile, got a hit against the Boston Red Sox this past weekend. And that’s where the comparison ends. Davis’ streak was a combination of haplessness and bad luck, and most baseball fans are glad that it’s over. Trump’s streak is continuing because of his administration’s flagrant illegal actions, and we can only hope that federal judges continue to hand him defeats.)

Legal scholar Norman Siegal writes that during President Trump’s first year in office alone, approximately 30 major federal lawsuits were filed against the President and his administration. These lawsuits covered the gamut of issues: travel bans, financial penalties against sanctuary cities, a transgender military ban, DACA, election integrity, the violation of the Emoluments Clauses and the Affordable Care Act. Siegal adds that during that first year, these lawsuits resulted in 38 major court decisions/orders from every part of the country. “Of those 38 federal court decisions/orders, the Trump Administration has substantially prevailed in only one, a [then] recent New York federal district court decision/order dismissing the Emoluments Clause challenge to President Trump and his business activities associated with the Trump Organization,” Siegal notes.

Since then many other topics have been included, ranging from the environment to the U.S. Census and the citizenship question to punitive work requirements for Medicaid recipients.

But a plurality of Trump’s losing decisions and court orders deal with the topic of immigration where courts, time and again, have ruled that the administration has overstepped its constitutional bounds.

The Washington Post reports that Trump has lost immigration cases at least 25 times (this is as of last Thursday. This statistic may already be out of date.)

He lost earlier this month when a U.S. District Judge in San Francisco blocked his plan to require asylum seekers to wait in Mexico while U.S. authorities determine their fate. He has, according to the Post, been on the losing end of at least four other challenges to stem the flow of asylum seekers.

He has lost four times in his effort to terminate the DACA program. He has lost at least three times when it comes to ending the legal status of immigrants in the U.S. under temporary protected status due to catastrophes in their home countries. And at least seven courts across the country have declared illegal his effort to cut off federal funds to jurisdictions, known as “sanctuary cities,” that do not cooperate with Immigration and Customs Enforcement (ICE) when it comes to detaining undocumented immigrants.

Why so much losing? There is not one answer. But, more often than not, the legal reasoning comes down to executive branch overreach. Under the U.S. Constitution, Congress is the legislative branch, not the President. For example, last November, when a U.S. District Judge in San Francisco blocked the Trump Administration from denying asylum to migrants who cross the border, he writes that the president violated a “clear command” from Congress to allow them to apply.

Further, it is Congress that has the power to appropriate dollars (the so-called “power of the purse”), not the President.

Judge Ilana Rovner is hardly a judicial activist. She was first appointed to the U.S. District Court by President Reagan, and then was elevated to the Chicago-based 7th U.S. Circuit Court of Appeals by President George H.W. Bush.

And yet, when declaring unconstitutional one of Trump’s many immigration gambits (this one also having to do with cracking down on “sanctuary cities”), she not once but twice invoked the word “tyranny:”

“Our role in this case is not to assess the optimal immigration policies for our country,” she wrote. “The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, the check against tyranny is forsaken.”

Meanwhile, the losing continues. Just last Friday, immigrant advocates announced a settlement with the federal government that may allow approximately 2,700 children living in dangerous conditions in Central America to safely reunite with their parents in the U.S. The settlement was the product of an earlier loss in court when a magistrate found that the government’s mass revocation of conditional parole approvals from Central American minors was unlawful.


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