Jan 23, 2020

Trump's selective urgency at the Supreme Court

Photo: Samuel Corum/Getty Images

The Trump administration has consistently tried to get controversial cases in front of the Supreme Court as quickly as possible — but not when that might have meant striking down the entire Affordable Care Act before the 2020 election.

Why it matters: Trump’s Justice Department has tried to leapfrog the traditional process far more than its predecessors did, and at least one Supreme Court justice seems to be worried that it’s affecting the court’s work.

  • “It appears the Government has treated this exceptional mechanism as a new normal,” Justice Sonia Sotomayor wrote in a dissenting opinion last fall. “Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here.”

How it works: Legal challenges to federal law typically go through three steps: a district court, then an appeals court, and finally an appeal to the Supreme Court.

  • The Supreme Court almost never takes a case until it’s been decided by a lower appeals court. It can make exceptions, but those exceptions are rare.

But the Justice Department under President Trump has routinely asked the high court to step in before appeals courts have had a chance to rule.

  • It sought expedited Supreme Court action in lawsuits over the administration’s travel ban, its efforts to end the DACA immigration program, its changes to the 2020 Census, and the Pentagon’s ban on transgender troops.
  • The Obama administration, by comparison, only sought this expedited process once, in the litigation over the federal ban on same-sex marriage.

In many of those cases, the Trump administration has argued that lower-court rulings invalidating a federal policy are simply too pressing to leave to the normal process, which can take years.

Yes, but: In the latest challenge to the Affordable Care Act — in which a district court judge struck down the entire health care law — the Justice Department urged the Supreme Court not to expedite a hearing.

  • The 5th Circuit Court of Appeals hasn’t reached a definitive conclusion on whether the district court ruling was right or wrong.
  • But in this case, the Trump administration wants to let the lower-court process run its course — which, incidentally, will push an eventual Supreme Court ruling past the 2020 election.
  • “This is just the latest example, to me, of the seeming inconsistency in the federal government's position toward the need for expedition in the Supreme Court,” said Steve Vladeck, a law professor at the University of Texas who recently wrote a Harvard Law Review article about these timing considerations.

The big picture: Expedition isn’t always wrong, legal experts say. And in the ACA case, nothing out of the ordinary is happening.

It’s the selectivity with which DOJ seeks to expedite some cases, while letting others play out on a longer timeline, has raised some eyebrows.

  • “It’s easy to look at the pattern and find a lot of political calculations as opposed to legal ones,” Vladeck said.

In the Census case, for example, a faster timeline wasn’t particularly controversial. The government needed to start printing Census forms, and it needed a definitive answer on whether those forms could or couldn’t include a question about citizenship.

  • So it made sense to get the final say — the Supreme Court’s say — relatively quickly.
  • But others, including the administration’s attempts to end DACA, are a lot more comparable to the ACA. There doesn’t necessarily have to be a ticking clock forcing a faster-than-usual process.

The bottom line: “This is an administration that has no problem arguing that any time a federal statute is enjoined, the government suffers irreparable harm. They’ve argued that more often than any other administration,” Vladeck said. “But when it’s a statute they don’t like, they don’t seem to be in nearly as much of a tizzy.”

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