Six Major Legal Battles of 2017 Will Persist in 2018
Every American president influences the course of our law and legal institutions through Supreme Court appointments or by pushing legislation and executive orders. But few have had as much impact in one year as the current occupant of the White House, Donald J. Trump.
An intemperate, burgeoning autocrat swept into office by a hypermasculine nativist revival and backed by the most rapacious elements of the corporate oligarchy, Trump has had a hand in shaping all of the year’s biggest legal stories.
At the same time, he has engendered a dogged resistance in the courts that has slowed and in some instances blunted his agenda.
The struggles promise to continue into 2018 and beyond.
Although it would be impossible in a single column to catalog all of the legal fault lines Trump has opened, here are six that should make any list:
Neil Gorsuch and the Supreme Court
Seated in April after the Republican-led Senate abolished the filibuster rule for Supreme Court nominees, Gorsuch filled the vacancy left by the February 2016 death of Antonin Scalia. Gorsuch’s confirmation restored the court’s 5-4 conservative majority and ranks among Trump’s foremost achievements.
Since taking the bench, Gorsuch has given every indication of being all that his fans in the Federalist Society and the Heritage Foundation had hoped. In his first three months on the court during its October 2016-June 2017 term, he voted in agreement with Clarence Thomas, long considered the most right-wing outlier on the panel, in every case he reviewed on the merits. He voted in line with Samuel Alito in 94 percent of his cases. On the other hand, he agreed with Sonia Sotomayor, regarded by many as the most liberal associate member, at a 58.8 percent clip. Such disparate percentages are dramatic and rare, because the court has historically tended to issue more unanimous decisions than ones that have divided 5-4 along ideological lines.
Gorsuch’s hard-right outlook was also evident in the court’s controversial per curiam (unsigned) ruling on the Trump administration’s second anti-Muslim travel ban. Issued in late June, the ruling temporarily permitted part of the ban to take effect for visa applicants and refugees from six Muslim-majority countries who lacked a “bona fide relationship with a person or entity in the United States.” Gorsuch, Alito and Thomas voted to reinstate the ban in its entirety.
In oral arguments conducted this term, Gorsuch has been boisterous and aggressive in a fashion reminiscent of Scalia but rarely seen among new justices. He is expected to be a reliable conservative vote in cases involving political gerrymandering (Gill v. Whitford), efforts by religiously motivated business operators to deny services to LGBT customers (Masterpiece Cakeshop v. Colorado Civil Rights Commission, attacks on public employee unions (Janus v. AFSME), and voter registration purges (Husted v. A. Philip Randolph Institute).
With the aging of the court—Ruth Bader Ginsburg (84), Anthony Kennedy (81) and Stephen Breyer (79) are nearing retirement—Trump probably will have an opportunity to appoint at least one more justice in the near future. In the meantime, he is appointing conservative jurists to the lower federal courts at a rapidly accelerating rate in an attempt to engineer a conservative takeover of the third branch of government.
The scapegoating of immigrants as supposed sources of crime and terrorism and as the supposed cause of low wages and unemployment was a hallmark of Trump’s presidential campaign.
Since the election, the scapegoating has picked up at a fevered pace, with the promulgation of the travel ban, the issuance of an executive order ending the Deferred Action for Childhood Arrivals (DACA) program, and efforts to deny federal law enforcement grants to “sanctuary cities.”
The Muslim travel ban is now in its third iteration. Last week, the U.S. 9th Circuit Court of Appeals declared the third ban illegal, paving the way for the issue to return to the Supreme Court, where it probably will be upheld.
Legislation aimed at restoring DACA has stalled in Congress. Attempts to block rescission of the program in the courts are being litigated but show little signs of success.
On the other hand, legal actions resisting the Justice Department’s policy of defunding sanctuary cities have achieved a fair measure of success. Although federal judges in San Francisco, Chicago and Philadelphia have issued injunctions to stop the policy, the cases are far from being over.
Deconstruction of the Administrative State
The president may be short on intellectual candlepower, but Steve Bannon, his former chief strategist, isn’t. At a meeting of the Conservative Political Action Conference in February, Bannon explained that one of his—and the president’s—central goals was “the deconstruction of the administrative state.”
What Bannon meant by the catch phrase was nothing less than the dismantling of the social safety net and the regulatory framework instituted since the New Deal to protect the public from the most predatory aspects of the free market.
Although Bannon left the White House in August, his influence was felt early in Trump’s first year and lives on. One of Trump’s first executive orders, signed Jan. 30, required that executive departments slash two regulations for every new regulation they create.
In addition, Trump has stacked his administration with Cabinet members and directors dedicated to undermining the statutory goals and objectives of the agencies they have been appointed to lead. These include Scott Pruitt, a longtime foe of environmental protection, to head the Environmental Protection Agency; Betsy DeVos, a right-wing heiress and foe of public schools, to lead the Department of Education; and tea party zealot Mick Mulvaney to serve as director of the Office of Management and Budget and, more recently, as acting director of the Consumer Financial Protection Bureau. Policies adopted by DeVos and Pruitt have sparked several high-profile lawsuits that will take years to resolve.
The Justice Department, under the leadership of Attorney General Jeff Sessions, has also gotten into the business of deregulation. The department recently announced that it had revoked 25 policies that had been in place since 1975. Among the policies sent to the dustbin were those that encouraged the department to enforce restrictions on some interstate shipments of firearms, give guidance to local law enforcement to refrain from imposing excessive fines on poor people, and advise public agencies on integrating disabled employees more completely into their workplaces.
The #MeToo Movement
Along with shameless economic inequality and racism, sexual harassment in all its various guises has long been among America’s nastiest vices. Worse, harassment on and off the job often went unpunished and ignored, swept under the rug by an “old boys” network that sought to normalize and excuse misconduct as “locker-room talk” or otherwise healthy heterosexual behavior.
Thanks to the allegations of abuse brought by 19 women against Trump during the campaign, and to the many women who have come forward with tales of assault and rape against rich and powerful men like movie mogul Harvey Weinstein, the #MeToo movement has emerged as a powerful force, spawning a spate of firings and resignations in both the public and private sectors.
At least six senators have called for Trump to resign for his abusive history, including Democrats Kirsten Gillibrand of New York and Kamala Harris of California and independent Bernie Sanders of Vermont.
The movement has also prompted a wave of litigation and related developments in the legal system. In November, famed attorney David Boies lost The New York Times as a client as a result of his firm’s alleged role in helping to cover up Weinstein’s abuse history. More recently, 9th Circuit Court of Appeals Judge Alex Kozinski was forced to resign in the face of sexual misconduct complaints by former law clerks and female colleagues dating from the mid-1980s. The movement will only gather steam in 2018.
#FakeNews, the First Amendment and Net Neutrality
Still another signature of the Trump campaign and mode of governance has been hostility to the news media, the First Amendment and internet neutrality.
Trump began his presidential bid with a series of blistering attacks on the mainstream media. In a February 2016 appearance on Fox News he said, “We ought to open up the libel laws,” thus making it easier to sue journalists who write critical things about him.
Since then, he has railed almost daily on Twitter and elsewhere against #FakeNews whenever the press has gotten under his skin with stories about his conduct and public commentary. The administration has even threatened to ban individual reporters, such as CNN’s Jim Acosta, from attending White House news briefings.
In an important step toward reinstating Cold War-style censorship, the Justice Department demanded in September that the television network RT America register as a “foreign agent” in order to remain on the air. Faced with being shuttered, the network has complied.
But perhaps the most significant attack on press freedoms during Trump’s first year came earlier this month when the Federal Communications Commission voted 3-2 to end the Obama-era policy of net neutrality. Henceforth, broadband behemoths like AT&T and Verizon will be allowed to control the speed of internet traffic, speeding up some websites and slowing down others, and imposing access fees on content providers, which could squeeze alternative publications out of the electronic marketplace. Legal observers expect a number of lawsuits to be filed in January, challenging the new policies.
The Mueller Investigation, Presidential Pardons and the Specter of Impeachment
Of all the legal battles of 2017, none was more vital than the investigation into alleged Russian meddling in the 2016 presidential race, conducted by Robert S. Mueller III. And none will be more critical heading into the new year.
To date, as I have previously reported, Mueller has indicted two top Trump campaign aides—Paul Manafort and Rick Gates—on charges of money laundering, failing to register as foreign agents, conspiracy against the United States, and other serious federal felonies stemming from their work on behalf of the former pro-Russia government of Ukraine. In addition, Trump’s first national security chief, Lt. Gen. Michael Flynn, has pleaded guilty to lying to the FBI about his post-election contacts with Russia’s then-Ambassador Sergey Kislyak about the lifting of U.S. sanctions. And former foreign policy adviser George “Coffee Boy” Papadopoulos has pleaded guilty to lying about his attempts during the campaign to obtain dirt on Hillary Clinton, including her 30,000 deleted emails, from Russian sources.
No one seriously believes that Mueller is finished. Both Donald Trump Jr. and the president’s son-in-law, Jared Kushner, are on the hook for various acts and omissions that fall within Mueller’s broad mandate to investigate “any links/and or coordination between Donald Trump’s election campaign and Russia, and any matters that may arise directly from the investigation.” The president is also in jeopardy for possible obstruction of justice.
Because Mueller shows no signs of letting up next year, a host of critical questions will come to a head:
Will the Mueller probe provoke Trump to pardon his family members should they, too, be indicted?
Will Trump take the unprecedented step of pardoning himself if Mueller concludes that he is indeed guilty of obstruction and provides Congress with grounds for impeachment?
Will Trump fire Mueller in a desperate attempt to end the Russiagate inquiry, as a number of Republican House members and the president’s Fox News echo chamber have urged?
Will the nation survive the ensuing constitutional crisis if Trump takes any or all of the above steps?
Stay tuned. 2018 is shaping up to be a most fateful and interesting year.