Biden pivots away from old court battles, helps ignite new ones
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[January 22, 2021]
By Lawrence Hurley
WASHINGTON (Reuters) - President Joe Biden
in his short time in office already has turned the page on some major
legal battles that consumed former President Donald Trump's
administration while also taking actions certain to ignite new ones
likely headed toward the U.S. Supreme Court.
The Democratic president, sworn in on Wednesday, quickly signed a flurry
of executive orders that wound down some of his Republican predecessor's
actions or set new priorities for his administration on issues ensnared
in legal disputes such as immigration, the U.S.-Mexican border wall and
Much as Trump overturned many of his Democratic predecessor Barack
Obama's policies, Biden has begun to do the same to Trump's actions.
"As all the Trump administration's reversals of Obama policies generated
litigation, the shift back to a Democratic president will too," said
John Elwood, a Washington lawyer who argues cases at the Supreme Court,
which has 6-3 conservative majority that includes three justices
appointed by Trump.
Biden ended Trump's travel ban on people entering the United States from
13 countries, most of which are Muslim-majority, a policy that the court
upheld in 2018 as a legitimate exercise of presidential power after a
vigorous legal fight.
Biden also terminated Trump's intention to exclude immigrants who live
in the United States illegally from the 2020 census count, a plan that
critics said was intended to cost Democratic-leaning states seats in the
U.S. House of Representatives to the benefit of Republicans. The
justices in December threw out litigation challenging Trump's plan, but
his administration missed deadlines and failed to put the policy in
Some of Biden's executive actions are sure to prompt fresh court battles
or reignite existing ones including orders bolstering LGBT rights and
buttressing a program that the Supreme Court blocked Trump from
rescinding that protects hundreds of thousands of immigrants dubbed
"Dreamers" who had lived in the United States illegally after entering
the country as children.
On both issues, the Supreme Court is likely to have the final say absent
the passage of legislation by Congress that cements the policies into
'A MAJOR CHECK'
Republican-led states and conservative advocacy groups are poised to
pursue legal challenges.
"I will fight against the many unconstitutional and illegal actions that
the new administration will take, challenge federal overreach that
infringes on Texans' rights, and serve as a major check against the
administration's lawlessness," Texas Attorney General Ken Paxton, a
Republican, wrote on Twitter soon after Biden's inauguration.
Last June, the Supreme Court in a 6-3 ruling found that a federal law
that bars sex discrimination in employment protects gay and transgender
people. The ruling left open the question of whether other federal laws
that bar sex discrimination, including in education, also protect LGBT
Trump's administration had argued that LGBT people were not included
within the definition of sex discrimination. Biden's executive order
made it clear his administration is steering a new course.
[to top of second column]
President Joe Biden swears in presidential appointees in a virtual
ceremony in the State Dining Room of the White House in Washington,
after his inauguration as the 46th President of the United States,
U.S., January 20, 2021. REUTERS/Tom Brenner/File Photo
Alliance Defending Freedom, a conservative Christian group that has
challenged similar policies, criticized Biden's order, in particular
as it applied to transgender people.
"As federal agencies begin to implement the order, Alliance
Defending Freedom will keep watch and is prepared to file lawsuits
if necessary to protect our constitutional freedoms," said Jeremy
Tedesco, a lawyer with the group.
The Supreme Court last June decided that Trump's plan to end the
Deferred Action for Childhood Arrivals (DACA) program - which
protects eligible Dreamers from deportation and provides them work
permits - ran afoul of a federal law called the Administrative
But the court has never ruled on whether DACA itself, which Obama
created by executive action in 2012 after bypassing Congress,
represented a lawful exercise of presidential power. Three of the
Supreme Court's conservative justices have deemed DACA
"substantively unlawful" and a challenge brought by Paxton is
pending in federal court in Texas.
Biden's executive actions could also make some existing cases at the
Supreme Court vanish. In one order, Biden stopped construction of
the border wall, one of Trump's signature projects. The justices are
scheduled to hear arguments on Feb. 22 on whether Trump overstepped
his constitutional powers by diverting military funds to pay for the
Biden is also seeking to end Trump's "remain in Mexico" policy that
barred thousands of migrants at the U.S.-Mexican border from
entering the United States while their asylum claims were being
assessed. The justices are due to hear litigation over the matter on
March 1 but could end up dismissing it in light of the policy
"Courts know that a change of administration often means a change in
policy and don't want to decide things unnecessarily," said Jonathan
Adler, a professor at Case Western Reserve University School of Law
The Supreme Court is also weighing whether to hear appeals launched
by Trump of lower court rulings against his regulation that barred
immigrants deemed likely to require government benefits from
obtaining legal permanent U.S. residency. Biden's Justice Department
could withdraw those appeals, leaving the rulings against the policy
(Reporting by Lawrence Hurley; Editing by Will Dunham)
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