“Examining Trump’s Legal Battles with Federal Agencies and the Supreme Court’s Role”

Former President Donald Trump‘s top lawyer said this five years ago at a conservative conference: The goal was to identify the judges who would help advance the administration’s regulatory agenda.

White House Counsel Don McGahn said on stage at the 2018 Conservative Political Action Conference, “Here, there’s a coherent plan where judicial selection and regulatory effort are really two sides of the same coin.”

That plan is now bearing fruit. The Supreme Court’s new nine-month term begins Monday, featuring three major cases brought by judges appointed by Trump that could affect long-standing federal agencies. The process began when, among other things, a look into Trump’s thinking about the possible nominees was conducted, which included an examination of their records, something the previous administration didn’t do, McGahn said. He recently cited Supreme Court Justice Neil Gorsuch, appointed by Trump, as an example of what the White House was looking for.

Long after leaving Trump’s office, his judges and justices are leaving their mark, working as participants, critics say, in what former Trump adviser Steve Bannon called the “deconstruction of the administrative state.”

Before the Supreme Court now in all three cases, Trump-appointed justices were involved in lower court rulings that have boosted the court’s appetite for reviewing legal issues. A conservative majority on the court has repeatedly signaled a desire to rein in the administrative state.

“The administrative state has long been under attack,” said Brian G. Gorod, of the Center for Constitutional Accountability, representing the consumer Financial Protection Bureau vs. the Community Financial Services Association, the federal agency established to protect consumers from illegal financial practices. The issue is whether the agency’s funding mechanism, rather than specific congressional appropriations, is unconstitutional.

First, they have to find suitable advocates to bring challenges.

Second, it’s making sure “you have judges on the bench who are receptive to those arguments,” he said.

McGahn did not respond to messages seeking comment on Bannon’s messages challenging Trump’s perspective.

With agreement from Senate Republicans, Trump gave priority to judicial appointments. He appointed 54 appellate court judges and 174 district court judges, along with three Supreme Court justices. President Joe Biden, now with the assistance of a Democratic-controlled Senate, has followed Trump’s leadership in filling judicial vacancies quickly, with considerable success.

The Supreme Court hears oral arguments Tuesday in a case that is one of the three regulatory matters currently pending. The Consumer Financial Protection Bureau vs. Community Financial Services Association is threatened by a federal agency established to protect consumers from unlawful financial practices. The issue is whether the agency’s funding mechanism, rather than specific congressional appropriations, is unconstitutional.

Advocates are represented by Noel Francisco, who served under Trump as solicitor general and works for the Jones Day law firm, like McGahn. Francisco did not respond to a request for comment on Bannon’s challenges.

In another case yet to be determined, the justices will consider whether the SEC has the power to impose fines on violators of securities laws without the authority to issue rules or guidance to clear up what the law means.

Finally, in the Lopar Bright Enterprises vs. Raimondo case, the court will consider whether to overturn a 1984 landmark decision that gave federal agencies leeway in interpreting unclear laws. Gorsuch’s criticism of that ruling while working as an appeals court judge during his appointment to the Supreme Court put him on Trump’s radar as a potential Supreme Court candidate.

In both the CFPIB and SCC cases, the Biden administration is appealing decisions issued by conservative judges in the 5th American Circuit Court of Appeals. In the Loper Bright case, which relates to regulations on fishing, the American Appeals Court for the District of Columbia, where Democratic appointments hold a majority, ruled in favor of the government.

In the CFPIB case, all three judges—Don Willett, Kurt Engelhardt, and Cory Wilson—were appointed by Trump. The decision against the agency was unanimous. Previously, Judge Lee Yeakel, appointed by President George W. Bush, had issued a decision in favor of the agency.

In the Zirksy decision, also from the 5th Circuit, a panel that included a Trump-appointed judge, Andrew Oldham, and two other judges, Jennifer Elrod and Eugene Davis, appointed by Presidents George H. W. Bush and Ronald Reagan respectively, disagreed with the agency’s decision. It went directly to the Court of Appeals, so no district court ruling was involved.

Especially in the 5th Circuit, where six of its 16 active judges are Trump-appointed, it serves as a favored venue for conservative activists and Republicans to bring legal challenges.

Greg Lipper, the attorney who filed a brief in support of CFPIB, said, “In court, you have justices who are “quite extreme and aggressive, both of whom issue really remarkable decisions.”

Jen Mascott, a professor at George Mason University Law School, who filed a brief supporting CFPIB, pushed back against that assessment, saying that cases are brought to judges by the parties who give them shape. They have to deal with the actions of regulatory agencies.

She said, “I truly think the litigators drive the claims. They decide what to bring. They have to deal with the actions of regulatory agencies.”

She added that if federal agencies exercised more restraint in their use of power, there wouldn’t be so many cases challenging regulatory decisions.

Mascott said, “Now, what we’re seeing is a response to broad presidential and agency actions under both parties. I don’t think, no, this process is especially political.”

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