It’s been a dizzying year of President Donald Trump using his considerable executive power to reshape the law, often under the radar, in ways that will reverberate long after he is out of office. Here are just a few of the low-lights.
UNDERMINING ADMINISTRATIVE AGENCIES
The rollback of legal norms and precedent began with Trump’s picks for agency heads—people who either hated the purported mission of the agency they were tapped to run, were utterly inexperienced, or, in some cases, both.
- Department of Education
Trump’s Secretary of Education, Betsy DeVos, has long worked to privatize public education. In Michigan, she did so by increasing the number of charter schools and pushing for vouchers that would allow students to attend private religious schools with public taxpayer money, all in the name of “school choice.” She brought that same philosophy—and much more—with her to the U.S. Department of Education (DOE).
Some of her first hires were a number of charter school backers, school voucher enthusiasts, and for-profit college executives. For her assistant secretary for civil rights—the portion of the agency that oversees things like sexual assault allegations at college campuses—DeVos named Candice Jackson, who told the New York Times she believes that 90 percent of campus sexual assault complaints “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”
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Jackson fits right in to DeVos’ overall ethos about campus sexual assault. Right away, DeVos met with mens’ rights activists and groups that believe the real victims of campus sexual assault are those who are accused of rape, not those who are attacked. She then rolled back the increased Title IX protections the Obama-era DOE had put into place.
Under Obama’s Department of Education, colleges were required under Title IX—which bans discrimination on the basis of sex—to come to grips with the massive number of sexual assaults that occur on campus each year, and the fact that many victims found their institutions had either performed shoddy and subpar investigations, or failed to investigate their allegations altogether. DeVos wasted no time changing how Title IX would be applied to campus sexual assault cases, allowing universities to apply a more stringent standard when reviewing those cases. This means it will be even tougher for people alleging a Title IX violation to see their claims result in disciplinary action.
- Department of Justice
Even as the Trump Department of Justice (DOJ) has flipped positions in a number of lawsuits—more on that later—it has also worked, via agency maneuvers, to undercut civil rights.
Attorney General Jeff Sessions believes that white applicants are discriminated against in college admissions. In response, he’s putting together a unit to investigate race-based admissions, with a clear eye toward getting a case in front of the United States Supreme Court that will eviscerate affirmative action.
Sessions is also picking people deeply opposed to civil rights protections to supposedly oversee civil rights for the DOJ. Eric Dreiband is a great example. In private practice, he represented giant companies that were accused of discrimination, including defending Abercrombie & Fitch over its refusal to hire a Muslim woman who wore a headscarf. Now he’ll control the division that is supposed to protect people from those kinds of actions.
Just as Betsy DeVos has attacked Title IX’s protections for victims of sexual assault, Sessions’ DOJ is attacking Title IX’s protections for trans students. Almost immediately upon taking office, Sessions undid the Obama-era regulation that required schools to let transgender students use bathrooms consistent with their gender identity.
- Pro-Corporate Agency Moves
There was never any question that Trump and his cronies would shift policies to favor corporations over people. Take, for example, Rebeckah Adcock. She’s a former lobbyist for the pesticide industry who now regulates pesticide use. Even though her ethics agreement bars her from talking to certain industry cronies and deregulation fetishists, she’s continued to talk to anyone she wants, including her old lobbying partner. Essentially, decisions about the safety of pesticides will be outsourced to an industry that doesn’t want to see pesticides regulated.
The head of the Environmental Protection Agency (EPA), Scott Pruitt, is well-known for his opposition to clean-air regulations. Now, he’s got the power to dismantle those regulations. Scientists who receive EPA grants are now barred from serving on the EPA’s Science Advisory Board, and they’re being replaced with fossil fuel company executives, chemical industry trade association members, and red-state government officials. Higher levels of air pollution are right around the corner.
Under Obama, the Equal Employment Opportunity Commission made strides towards closing the gender pay gap by mandating that companies collect summary data on pay by race and gender and holding White House summits to address the issue. Business groups attacked the regulations as too burdensome, even though it is absurd to think that large corporations don’t already track their own pay data. In September, Trump’s administration killed the rule. Now, there’s no public accountability for corporations like Google that have massive and persistent gender and racial pay gaps.
But nowhere is the prioritizing of business over people more evident than what is happening at the Consumer Financial Protection Bureau (CFPB). Under Obama, Richard Cordray, the head of the agency, worked to protect consumers from predatory lenders, reformed mortgage rules, and fined banks who misled consumers. When Cordray stepped down, as the statute that gives the CFPB its power directed, he named another pro-consumer person, Leandra English, to head the agency. Trump promptly overruled that, installing his Office of Management and Budget (OMB) director, Mick Mulvaney, to run the agency—while continuing to run the OMB. Mulvaney hates the CFPB and has called it a “sick, sad joke.” Under Mulvaney, expect many consumer protections to rapidly disappear.
ABOUT-FACE ON LITIGATION
Trump hasn’t just upended executive agencies since taking office. His Department of Justice has switched sides in some of the most important civil rights legislation in the courts.
Few have been harder hit by the Trump DOJ’s about-face on litigation and policy positions than LGBTQ folks.
In May 2016, the Obama administration sent a “Dear Colleague” letter to public schools across the country advising that Title IX requires them to allow trans students to use restroom and locker room facilities that align with their gender identity. Schools that refused risked their federal funding.
In February 2017, the Trump administration rescinded that letter, stating that schools should not rely on the Obama-era interpretation of Title IX when determining what, if any, policies to implement with regard to transgender students and access to facilities that align with their gender identity.
This about-face threw a wrench into Gavin Grimm’s lawsuit against the Gloucester County School Board. Grimm—who was slated to have his case heard by the Supreme Court—found himself on the business end of a motion to dismiss filed by the school board. We’re still waiting for a ruling on that motion, though it doesn’t look good: Gavin Grimm has since graduated and the board is arguing that his lawsuit is moot.
Women are another group that have felt the brunt force of Trump’s tyranny. During the Obama administration, you could always count on the Obama DOJ being on the side of reproductive rights in the umpteen birth control benefit lawsuits—from Hobby Lobby to Little Sisters of the Poor—that have been filed over the last 5 years.
But that has changed. The Trump administration is now on the side of employers who want to claim religion as the reason individuals on their insurance plans shouldn’t have access to contraception. This has been a boon for employers and schools that have endeavored to deprive their workers and students of birth control. Notre Dame, for example, sued the Obama administration seeking an exemption from the birth control benefit. After Obama handed the keys to Trump, the university filed a joint status report with the DOJ—no longer were the two parties on opposite sides.
Then there’s workers’ rights—such as wage and overtime disputes, or discrimination and other forms of unfair treatment. And yet again, the Trump administration proved it was on the side of big business and not workers. It did so most recently in NLRB v. Murphy Oil, a case currently before the Roberts Court that will determine whether agreements to resolve employer-employee disputes through arbitration (as opposed to class action lawsuits) are enforceable. (Arbitration is notoriously terrible for workers.)
Trump’s solicitor general filed an amicus brief in June contending that the Trump administration had reached the opposite conclusion than the Obama administration had. Surprise, surprise.
And finally, there’s the lawsuit involving Texas’ voter ID law SB 5, which courts have repeatedly said was intentionally discriminatory and designed to suppress the votes of Black and brown Texans. The Obama administration fought for voters. And—no surprise here—Trump in September asked the Fifth Circuit Court of Appeals to allow the state to enforce the law. Because who cares if Black and brown Texans can’t vote? It’s not like they were (probably) gonna vote for him.
Overall, Trump has thrown the judiciary into a tailspin. The immediate effect on the courts is to sow confusion and delay, in addition to the denial of individual justice. And to add insult to grave injury, Trump frequently takes to Twitter to rail against the judges who rule against him, further trying to delegitimize any legal authority he disagrees with.
Senate Judiciary Committee Chair Chuck Grassley (R-IA) spent years trying to take control of the federal judiciary for conservatives. To do that, he had to break Senate norms to obstruct the maximum number of President Obama’s judicial nominees, including Supreme Court nominee Merrick Garland. Once President Trump took office, anything remotely resembling Senate Judiciary Committee norms got tossed into the trash fire of 2017, starting first with Supreme Court Justice Neil Gorsuch’s confirmation, followed by the entire federal judiciary.
How broken are these norms? Well, when Obama was president, Grassley simply ground hearings of his nominees to a halt, even if those nominees had support from both their home-state senators. Normally having the support of both home state senators basically guaranteed a nominee’s confirmation. A refusal to turn in blue slips on a nominee, or—as Sen. Marco Rubio (R-FL) did at one point—pull their blue slip after already submitting it, is one way to obstruct their nomination by not advancing it to hearing. However when Sen. Al Franken (D-MN) tried to do so with the nomination of David Strass to the Eighth Circuit Court of Appeals, Grassley called foul and changed the rules so that a nominee could advance without a blue slip.
Grassley is now holding hearings at such a rapid pace even we can barely keep up. Seriously. He’s also not above producing political theater either, like coming out against the nomination of Jeff Mateer to be a federal judge in Texas after first pushing Mateer’s nomination through the Judiciary Committee. Grassley likely had less a change of heart and more a desire to seek political cover as outside pressure against some of Trump’s worst nominees increased.
Just how terrible are Trump’s nominees? Well, he’s on pace to get the highest number of “not qualified” nominees confirmed since the nonpartisan American Bar Association (ABA) started rating judicial nominees. So naturally Republicans are now attacking the ABA as having a liberal bias and being part of the “fake news” industrial complex. His nominees have litigated some of the most virulently anti-LGBTQ cases, like supporting North Carolina’s “bathroom bill” mandating individuals use the facilities matching their assigned sex at birth rather than their gender identity, for example. Another nominee, who is now a judge on the Eighth Circuit Court of Appeals, has been affiliated with a religious right advocacy organization that advocates for “conversion therapy” for LGBTQ youth.
There is also a decent chance Trump will get another Supreme Court nomination. Drunk on committee power, the smart money is that he (and the nominee is almost certain to be a man, based on Trump’s current list) will be more radical than Gorsuch.
The silver lining with the courts is that, so far, they have been the most effective stopgap to the worst of the administration’s policy, and those judges too have lifetime appointments. That efficacy is precisely why Trump and his enablers are coming for them.
So what can we say? The federal courts and agencies are a mess, and there is no clear path for progressives to fix them. All we can do right now is hunker down and keep fighting however we can, wherever we can, and whenever we can.