Opinion Columnist
Washington Post
Catherine writes:
. . . .
That’s because the pretense was nonsense from the start. Trump’s regulatory agenda was never about helping the economy; it was always about rewarding friends and punishing enemies. White House officials have weaponized the “administrative state” they claim to hate and have repeatedly tried to strangle disfavored groups with regulations and red tape.
Not just Twitter, either.
Arbitrary delays in processing visa applications, for example, have been used to punish immigrants and the companies that employ them. U.S. Citizenship and Immigration Services has rejected visa applications because applicants lack a middle name. It has also waited to mail approved visas until (oops!) after the visas had already expired.
The additional costs and uncertainty these processing changes create for workers and their employers are a feature, not a bug.
Elsewhere, both federal and state officials have ratcheted up bureaucratic hurdles for the poor, as Georgetown University professors Pamela Herd and Donald P. Moynihan have documented.
Right now, for example, states can decide a poor family is automatically eligible for food assistance if the family is enrolled in other means-tested safety-net programs. The Trump administration is trying to block states from doing this, and require more paperwork to prove eligibility. By the administration’s own calculations, this would cause 1 million children to lose their automatic eligibility for free school lunches.
The administration, of course, argues that its regulatory decisions are determined not by Trump’s political whims but by meticulous analysis of what’s best for the economy.Helpfully, a method exists to check their work: the cost-benefits analysis that agencies must produce ahead of major rule changes.
These records show, however, that the administration has repeatedly struggled to prove that its regulatory actions actually increase economic and social welfare.
To get the numbers to work out in its favor, the administration has had to cook the books.
. . . .
The only upside to this slapdash math is that it makes the administration’s most damaging and punitive regulatory changes less likely to hold up in court. Already, the Trump administration has lost more than 90 percent of the legal challenges to its regulatory policies, according to New York University’s Institute for Policy Integrity. By comparison, previous administrations lost only about 30 percent of the time.
“A lot of these losses have been because of the poor quality of the analysis — who’s harmed, who’s helped, by how much,” said Richard Revesz, a law professor who directs the institute.
The only thing that may save us from the administration’s regulatory vindictiveness is its incompetence.
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Read the rest of Catherine’s article at the link.
As usual, Catherine’s analysis is “spot on.” My problem is this.
If the same private litigant and his or her lawyers kept presenting Federal Courts with false, misleading, or just plain faked evidence and statistics, the private lawyers likely would be facing discipline or disbarment for failure to provide “candor to a tribunal.” The client would be facing large penalties and likely contempt for continuing to institute or cause frivolous litigation.
Yet, except for occasional “harsh but toothless” language in judicial opinions or a couple of minor fines, Trump, his sycophantic toadies, and his battery of unethical Government lawyers get off scot-free for abusing the Article III Judiciary and our legal and judicial processes. Meanwhile, the private litigants are forced to file the same challenges over and over again in different jurisdictions across the country. In the area of immigration, asylum, and human rights, most of the lawyers are donating their time pro bono, while the unethical Government attorneys and their corrupt clients are on the taxpayer’s dime.
The occasional Equal Access to Justice Act award against the Government seldom comes close to compensating private lawyers for their actual lost time and lost opportunities. Nor does it deter the Trump regime, because it comes out of “you of the taxpayers’” pocket.
A Federal Judge demands accurate statistics from DHS after private litigants show the last batch was bogus; the DHS merely submits another set of bogus or misleading data, forcing the private litigants to once again have to demonstrate their unreliability. Government officials and their attorneys claim, contrary to fact, that there is no “child separation” policy, but suffer no consequences other than to be told to stop violating the Constitution. Instead of doing that, they “repackage” unconstitutional child separation as a bogus “parental choice.” So, now the private litigants, who have already won once, have to show that the latest iteration of a clearly illegal and contemptuous policy is what it is: unlawful.
A Federal Judge orders they DHS to make individualized release determinations for detainees held in overcrowded substandard conditions that violate the Government’s own health guidance. Instead of doing that, the DHS merely moves them to another, slightly less crowded facility with equally bad conditions and falsely claims they have “fixed” the problem. Again, the private litigants have to gather new evidence that the move has not materially reduced the health risks to the clients. And so on.
Essentially, the Trump regime and their lawyers are playing a big game of “hide the ball;” every time the private advocates show the Federal Judge where the ball actually is hidden, the Government simply moves it again. And, unfortunately, most Federal Judges give the regime and its ethics-challenged lawyers unlimited “plays” at the expense of the other side. Even when relief is ordered, it just solves the “problem of the moment” rather than halting the pattern of ethical abuses, contemptuous attitudes, and unlawful conduct by the regime and its complicit lawyers.
In effect, the regime has “weaponized” the Federal Courts and the Article III Judiciary in a way not dissimilar from how Sessions and Barr have “weaponized” the Immigration Courts. Turning the Article III Courts into a feckless “runaround” where the individuals and their lawyers “lose even when they win” makes the process punitive and serves as a deterrent to those seeking to challenge the regime’s overtly lawless agenda.
The November election is the chance to throw a scofflaw regime out of office. But, the deep-seated institutional and integrity problems of an Article III Judiciary, beginning with the dangerously complicit and spineless in the face of tyranny “Roberts Court,” that has allowed itself to be “weaponized” and used by the army of authoritarian scofflaws to punish those seeking to uphold the Constitution and the rule of law won’t be solved so quickly. The Article III Judiciary requires an institutional re-examination and a philosophical and ethical overhaul so that it serves the Constitution, due process of law, and equal justice for all, rather than protecting the interests of an insular right-wing minority that seeks nothing less than the disintegration of our nation and our cherished democratic institutions.
PWS
05-29-20