//  9/8/17  //  Commentary

On Wednesday, President Trump reportedly failed to obtain congressional Republicans’ desired outcome in the debt ceiling negotiations: raising the debt ceiling for more than a year.  Trump instead agreed to Nancy Pelosi and Chuck Schumer’s proposal for a more temporary, three-month-long increase.

The day before the debt ceiling negotiations, President Trump allowed Attorney General Jeff Sessions to announce that the Department of Homeland Security was rescinding the DACA program in six months, and would not process any DACA re-authorization requests filed after October.

These back-to-back developments reflect a pattern in the Trump administration.  On the one hand, the Republicans have failed to achieve any meaningful legislative reforms or major legislation, despite Trump’s repeated claims to the contrary and despite the Republicans’ control of both Congress and the Presidency.  On the other hand, the Republicans have been able to achieve major policy changes that advance their agenda — primarily through the agencies that are now led by Trump’s nominees.

One particular agency and nominee has been able to effect major changes across a variety of areas: the Department of Justice, led by Jeff Sessions.  In the seven months since President Trump — with the help of the Republican-majority Senate — installed Sessions at the helm of the Department of Justice, DOJ has flipped positions on key immigration, civil, consumer, and workers’ rights litigation and policy from the Obama era and beyond.

We’ve attempted to catalogue these flips below:

 

Immigration

 DACA

Sessions announced on Tuesday that Trump is ending the Deferred Action for Childhood Arrivals (DACA) program, which made eligible for work permits an estimated 1.2 million immigrants brought to the United States as young children. Despite widespread bipartisan approval of the popular program, Sessions told the president that he “would not defend what he considered an unconstitutional order in court,” The New York Times reported on Monday.

Sessions, who personally advocated for rescinding DACA both as a Senator and Attorney General, announced the change. Sessions also formally sent a letter to DHS advising an end to the program, which was published Tuesday.

DAPA

Whether Trump’s position on DAPA is a change or just a refusal to litigate a dead issue is an open question. The facts: On June 15, then-Department of Homeland Security Secretary John Kelly rescinded the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) “after consulting with the Attorney General.” The program would have allowed some parents of American citizens and legal permanent residents to stay in the U.S. and apply for three-year work permits. DAPA was enjoined nationwide by U.S. District Judge Andrew Hanen in February 2015, an order subsequently affirmed by the Fifth Circuit. The litigation stalled after the Supreme Court deadlocked 4-4 in DOJ’s appeal of that ruling in United States v. Texas.

Kelly rescinded the program because, he wrote, “there is no credible path forward to litigate the currently enjoined policy.” According to 2016 estimates from The New York Times, 3.6 million immigrants might have benefited from DAPA.

 Catch-and-release detention

In a February 20 memorandum, Kelly wrote plainly that “catch-and-release” policies, which permitted immigration officials to “parole” rather than detain individuals who are likely to show up for immigration hearings and who are not deemed safety risks, “shall end.” To deal with the costs and legal fallout associated with detaining nearly every immigrant detained who might be removable, Kelly said he would work with DOJ to “surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants.”

According to data reported in respondents’ merits brief in Jennings v. Rodriguez, immigrants like Mr. Rodriguez held in detention in the Central District of California were detained for a median of one year. More than 20 percent were detained for more than a year. Many were legal permanent residents wrongfully detained, or arriving immigrants eventually granted asylum in the United States.

Sanctuary cities

Whether or not the Trump Administration’s policies on sanctuary cities can be fairly characterized as a reversal is also unclear. The Obama Administration reportedly pushed back against sanctuary cities like San Francisco, and in July 2016 threatened to cut funding from cities that refused to comply with information-sharing requirements outlined in 8 U.S.C. § 1373(a).

In public statements, Trump’s administration has intimated that it may (attempt to) interpret the statute more broadly than his predecessor’s did. But as Joshua Matz and Nikolas Bowie have written, there’s a large gap between what the Trump Administration says it plans to do with regard to sanctuary cities and what it is actually doing — let alone what it is legally empowered to do.

 

Voting rights

Two of DOJ’s more stunning reversals have shown up in the realm of voting rights — unsurprising, perhaps, from Sessions, who as a U.S. Attorney in Alabama in 1985 unsuccessfully charged a group of black civil rights activists with voter fraud.

 Texas’ voter ID law

Obama’s DOJ sued Texas in 2013 to enjoin its voter ID law that, in addition to creating other obstacles to vote, dramatically narrowed the acceptable types of ID voters could present. For example, the law barred Texas and federal government-issued photo IDs, while accepting IDs like gun permits that are more likely to be carried by white voters. In February, the department withdrew its claim that Texas enacted the law with discriminatory intent. The plaintiffs in the case carried on with the claim, and  District Judge Nelva Gonzales Ramos found in their favor in April.

In July, DOJ went so far as to file a brief in support of Texas’ latest iteration of the law, which it claimed complied with the Voting Rights Act. Sessions’ DOJ lost again in late August when Judge Ramos granted a permanent injunction blocking Texas’ new version of the bill.  In a divided decision, the Fifth Circuit Court of Appeals recently said that Texas could enforce the law in an upcoming election.  That decision may be appealed to the full Fifth Circuit or to the Supreme Court.

 Voter purges

DOJ switched sides in Husted v. A. Philip Randolph Institute, a suit challenging Ohio’s practice of purging voters from its rolls based on voters’ inactivity. In Ohio’s biggest counties, Reuters found that voters in Democratic-leaning neighborhoods were struck from the rolls at about twice the rate of those in Republican-leaning neighborhoods.

DOJ had filed amicus briefs in Husted itself and in a similar case in Georgia arguing that the law violated the National Voter Registration Act (NVRA). The amicus brief filed by Trump’s DOJ was signed, as noted by Justin Levitt on Election Law Blog, by exactly zero career civil rights attorneys:

“[T]he Department argued that the NVRA forbids that practice in a guidance document first issued in 2010 and in two recent amicus filings, including a brief filed in the court of appeals in this case. ... After this Court’s grant of review and the change in Administrations, the Department reconsidered the question. It has now concluded that the NVRA does not prohibit a State from using nonvoting as the basis for sending a Section 20507(d)(2) notice.”

DOJ has also updated its Guidance on the NVRA, as Levitt has noted.

 

Segregation and racial disparities in schools

Affirmative action

By directing the Civil Rights Division to investigate “race-based discrimination” in a suit targeting Harvard’s admissions policy and funded by the same person behind Fisher v. Texas, Trump’s DOJ has indicated that it is more than willing to pursue the end of affirmative action. As Ira Katznelson recently wrote in The New York Times, the Trump administration’s shift on affirmative action is a stark reversal not just from the Obama administration but from the George W. Bush administration and administrations before his, too.

 Title IV

This one is not quite a reversal — yet — but as Adam Serwer recently wrote in the Atlantic, the Civil Rights Division’s latest budget notes that DOJ plans to review its “regulatory materials” related to areas covered by the statute, i.e. segregation in educational institutions receiving federal funds, and has threatened to slash consent decrees in school segregation cases, according to former Division attorney (and Take Care contributor) Samuel Bagenstos.

 

LGBT rights

Transgender students

In February, Sessions’ DOJreversed its Obama-era position that federal nondiscrimination policies require schools to allow transgender students to use the restroom they choose. Education Secretary Betsy DeVos was at first uncomfortable with the policy reversal, but changed her mind after a conversation with Sessions and the President.

DeVos has equivocated on whether she believes Title IX extends protection to LGBT students

Title VII

On the same July day that President Trump first tweeted his surprise ban on transgender people serving in the military, an unprompted DOJ filed an amicus brief in an employment discrimination case arguing that Title VII doesn’t protect against discrimination on the basis of sexual orientation. As Richard Thompson Ford explained in July, the EEOC and the Seventh Circuit had previously adopted the opposite view. 

Transgender prisoners

Not long before Obama left office, his Bureau of Prisons issued a memo directing that transgender prisoners be permitted transfer to prisons matching their gender identity. In a lawsuit challenging that change and other regulatory changes made earlier in Obama’s presidency, four female prisoners represented by a Christian-right legal group argue that transgender women should not be permitted in women’s prisons.

In a filing in the case, Fleming v. United States, DOJ didn’t defend the policy, though it opposed the women’s suit on other grounds.

Antidiscrimination Law

Yesterday, the United States filed an amicus brief arguing for a constitutional exemption from antidiscrimination laws protecting LGBT individuals.  Its argument would also extend to antidiscrimination protections for other groups as well.

   

Private prisons

In addition to the shift on transgender prisoners’ rights outlined above, in February Sessions rescinded an Obama-era memo directing DOJ to reduce and eventually get rid of the federal government’s reliance on private prisons.

 

Sentencing

DOJ has backed off of Obama-era memos directing prosecutors to avoid charging people with certain drug offenses triggering severe mandatory minimums except in certain cases, to sharp criticism from former Attorney General Eric Holder.

Sessions has directed federal prosecutors to instead charge the most serious crimes they can prove in every case.

“These are not low-level drug offenders we, in the federal courts, are focusing on,” Sessions said in a speech announcing the changes, according to The Washington Post. “These are drug dealers, and you drug dealers are going to prison.”

 

Policing

Providing military gear to police

In late August, President Trump signed an executive order rescinding one signed by Obama in the wake of Michael Brown’s death in Ferguson. The order was aimed at restricting police departments’ access to militarized vehicles recycled from the Defense Department, including “armored vehicles, grenade launchers, high-caliber weapons, and camouflage uniforms,”according to CNN. Sessions announced the change to cheers at the annual Fraternal Order of Police conference.

“(W)e are fighting a multi-front battle: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism,” Sessions said in announcing the change, “combined with a culture in which family and discipline seem to be eroding further and a disturbing disrespect for the rule of law.”

Consent decrees

Sessions has taken steps to minimize and possibly undo the consent decrees that his predecessor’s DOJ had obtained against a variety of police departments.  DOJ obtained the consent decrees after documenting how police departments were engaged in illegal and unconstitutional activity, often with a racialized impact.  Sessions has indicated that DOJ is rethinking the consent decrees and may revisit them.

Civil asset forfeiture

In July, Jeff Sessionsreversed the Obama administration’s move to restrict federal involvement in asset forfeiture, a maligned practice allowing police to seize cash and other property, generally without either charging the owner or proving that the owner is linked to a crime. Among other restrictions on asset forfeiture, the Obama administration, citing budget cuts, had at one point suspended payments under the federal government’s equitable sharing program. The program allowed local police departments to seize property under federal law — which is generally more permissive than state asset forfeiture law — and keep as much as 80 percent of the profits for their own departments. But the program was later revived.

Sessions’ new policy empowers local police to expand their asset forfeiture programs. His move has already spurred bipartisan pushback.

 

Consumer and worker protection

Consumer Financial Protection Bureau

In PHH Corporation v. Consumer Financial Protection Bureau, pending before the D.C. Circuit after that court granted rehearing en banc, DOJ switched sides and filed an amicus urging the court to find that the CFPB’s independent structure violates the separation of powers and to make the CFPB director removable at the president’s will.

DOJ had previously filed an amicus supporting the agency’s request for rehearing.

Class action waivers

After representing the NLRB in its petition for certiorari and its reply brief in NLRB v. Murphy Oil USA, Inc., DOJ has left the NLRB on its own in the case — and taken the opposite position in a new amicus.

At issue is whether corporations may require their employees to sign binding arbitration agreements barring workers from pursuing claims on a classwide or collective basis without violating the National Labor Relations Act.

***

When Trump was engaged in his public attack on Jeff Sessions, many wondered why Sessions would stick around.  This list provides one answer, as does the grin on Sessions’ face while he announced his plan to rescind DACA.  This list may also explain what some congressional Republicans think they are getting from Trump, even while their legislative agenda remains stagnant.

 


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