2018 continued to be a tumultuous and troubling year for Americans who believe that our Constitution protects us from violations of free speech, free press, due process, equal protection under the law, and the arbitrary power of government to usurp the rule of law. In 2018, the federal courts demonstrated again that they serve as the safety valve, checking abuses of power by the executive branch of government, including notably President Donald Trump and his administration.
More than one thousand Americans from forty different states have joined together in declaring independence from the policies and practices of President Trump. They anticipated that President Trump and his administration would violate basic American values and are documenting the major federal lawsuits challenging the President and his administration. See declaration17.com.
During 2018 we monitored approximately 25 major federal lawsuits that were filed against the President and his administration, challenging: the foreign and domestic emoluments clauses; placing new conditions on distributing policing grants to sanctuary cities; adding a new question to the 2020 census that asks: “Is this person a citizen of the United States?”; immigration policies such as Travel Ban III, DACA II, Asylum restrictions/bans, and the right to a bond hearing pending an asylum petition; free speech/twitter bans; free press-revoking Jim Acosta’s (CNN) White House credentials; the Affordable Care Act; and the Appointment Clause as it applies to the appointment of Matthew Whitaker as Acting Attorney General.
These lawsuits have produced approximately 30 decisions/orders in 25 cases. (5 from the U.S. Supreme Court, 4 from the Fourth, Seventh and Ninth Circuits, and 21 from district courts in New York, Maryland, District of Columbia, California, Pennsylvania, and Texas; 5 of the 25 cases are pending a decision. [The overwhelming majority of the more than two dozen decisions/orders regarding discovery/procedural issues in the census question case were not included in this overview.])
Of these 30 decisions/orders, the Trump administration has prevailed in only two:(1) the U.S. Supreme Court’s upholding Travel Ban III in June 2018 and (2) the Affordable Care Act (ACA) case ruled by Judge Reed O’Connor of the Federal District Court in Fort Worth, Texas in December 2018. This case is on appeal to the Fifth Circuit and a stay of the order was granted pending the appeal.
One decision/order granted the Trump administration’s request for a stay in the 4th Circuit in an emoluments clause challenge and one decision/order by the U.S. Supreme Court granted a writ of certiorari in the census question case as to whether a “district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials.”
In the remaining 26 decisions/orders the federal courts were very clear in understanding their role in interpreting the law and in consistent and eloquent language describing their role as protector of the rights enumerated in the Constitution by holding the executive branch of government and the President accountable for abuses of power. For example, the 7th Circuit in a sanctuary cities case out of Chicago, Illinois stated: “In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.”City of Chicago v. Sessions, No. 17-2991, at *3 (7th Cir. April 19, 2018).
Judge Jon Tigar of the Northern District Court of California in an asylum ban case, stated: “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.” East Bay Sanctuary Covenant v. Trump, No. 3:18-cv-06810-JST, at *2 (N.D. Cal. Nov. 19, 2018) (order granting temporary restraining order.).
And, Judge Naomi Buchwald from the Southern District of New York in the case where President Trump blocked a group of citizens from using Twitter accounts to criticize his activities declared “A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.” Knight First Amendment Institute v. Trump, No. 1:17-cv-05205, at *2-3 (S.D.N.Y. May 23, 2018).
If we combine 2017 (see 2017: The Constitution, Federal Courts and President Trump, N.Y.L.J., Jan. 9, 2018, commentary) and 2018, the major federal lawsuits we monitored challenging President Trump and his administrations are as follows: 55 major federal lawsuits were filed; 68 decisions/orders were issued; in 3 of the 68 decisions/orders, President Trump and his administration prevailed (one is on appeal now and a stay of the order was granted pending the appeal – ACA), 1 of which is a stay and 1 is grant of a writ of certiorari; and in 63 of the 68 decisions/orders, the President and his administration did not prevail or did not substantially prevail.
One other important development that arose in 2018 warrants discussion. After Judge Tigar’s asylum ban decision/order in November 2018, President Trump challenged the decision and called Judge Tigar an “Obama Judge” attempting to politicize the Judge and his judicial decision. Chief Justice of the Supreme Court John Roberts quickly responded publicly by saying: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
To underscore Chief Justice Robert’s point, we note that the Chicago, Philadelphia and California sanctuary cities cases were decided by federal judges appointed by Republican presidents.
The independence of the federal judiciary is an essential aspect of our constitutional democracy. When the executive and/or legislative branches of government violate constitutional rights and the rule of law, an independent judiciary serves the function of respecting and preserving constitutional and statutory rights. And as we turn to 2019, it is crucial to remember the judiciary’s role in upholding those basic rights.
Norman Siegel is a civil rights lawyer at the law firm of Siegel Teitelbaum & Evans, LLP.