It’s déjà vu all over again. A federal judge has blocked a lawful Trump-administration policy, essentially enshrining the Obama administration’s policy choices in social-justice granite. The practical result is a judicial equivalent of a one-way ratchet. The pattern is clear:
Step One: The Obama administration uses its executive power to implement a progressive policy (such as DACA or the contraceptive mandate).
Step Two: The Trump administration uses its executive power to repeal the Obama-administration action and implement a more conservative policy.
Step Three: Progressive plaintiffs file suit in a friendly jurisdiction using dubious legal theories to seek a broad injunction against the Trump-administration action.
Step Four: Progressive judges join the #Resistance, write obviously flawed opinions, and seek to freeze Obama’s policies in legal amber.
The latest example came yesterday, when Judge Haywood Gilliam of the Northern District of California blocked implementation of the Trump administration’s religious and moral exemptions to the Obama administration’s contraception mandate. This time, mercifully, the order wasn’t a nationwide injunction. It applies to the 13 states (and District of Columbia) before the court, but it’s important nonetheless. The religious liberties of employers in those jurisdictions are once again placed in jeopardy.
The opinion itself was everything we’ve come to expect from Trumplaw, defined as the crafting of new judicial standards for the sake of defeating Donald Trump. The Affordable Care Act did not, by its plain terms, contain a contraception mandate for employers. As the Supreme Court explained in Burwell v. Hobby Lobby, the statute required “an employer’s group health plan or group-health-insurance coverage to furnish ‘preventive care and screenings’ for women without ‘any cost sharing requirements.’” Congress, however, “did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision.”
In plain English, that means that the contraception mandate was at heart a regulatory mandate. Congress made an express delegation of its lawmaking authority (which is problematic on its own terms, but that’s a topic for a different day). The mandate was therefore a creation of the executive branch, and its contours are thus defined by the executive branch. The Trump administration has left the Obama regulatory mandate largely intact, but it has slightly expanded the employer moral and religious exemption in a manner it believes is consistent with the requirements of the Religious Freedom Restoration Act.
How slight is the expansion? The regulatory impact analysis indicated that it would affect between 31,700 and 120,000 women nationwide. For perspective, there are approximately 74.6 million women in the civilian labor force. The Trump religious exemption would therefore affect between 0.0004 percent and 0.0016 percent of the female workforce. And, keep in mind, each one of the affected women has voluntarily chosen to work for her employer. There are ample alternative choices if these women choose to prioritize contraception access in their employment decision.
But no. Even that tiny concession to religious liberty was too much for Judge Gilliam. In his order, he left the regulatory discretion in the hands of the Obama administration and bound the Trump administration to Obama’s regulatory action. In essence, he granted the Obama administration’s regulations full statutory force — even to the point of calling them (wrongly) a “statutory mandate.”
This is the one-way ratchet in action. It’s reminiscent of the manner in which different federal courts have protected the Obama administration’s DACA program. DACA, you may recall, wasn’t an act of Congress. It wasn’t even a regulation. It was created by a three-page memorandum from homeland security secretary Janet Napolitano. Read it here.
But what one administration creates by memo another administration can revoke by memo — correct? Well, not if you’re a federal judge who believes he’s resisting bad policy. Then you elevate the Obama-administration action to (at the very least) the level of a regulation, and you require the incoming administration to apply statutory procedures that the outgoing administration actively and intentionally scorned.
I’ve written about the judicial resistance from the moment it emerged during the litigation of the so-called travel ban, but now that it’s 2019, it’s necessary to revisit the issue. As a new presidential election comes into view, it’s important to note that judicial resisters can win even when their decisions are overturned on appeal. Simply by creating a substantial delay, they can either limit the effective duration of a disfavored policy or — if the delay lasts long enough — block it entirely until the next election and a new administration takes the helm.
Think, for example, how judicial protection for DACA is affecting the present political debate. A lawless policy lives on, and Democrats now wager that they can wait out the clock. They can block the wall and protect “Dreamers,” at least so long as the courts can keep DACA alive. There is an active disincentive for meaningful compromise, and judges are only adding to the dysfunction of American democracy.
One final note. Democrats who relish their judicial success should beware. They’re relying on Republican appointees to treat Democratic presidents with greater fairness and integrity than progressive judges have treated the Trump administration. While I hope and expect the vast majority of originalist judges to remain true to their judicial philosophies, we’ve already seen at least one example of what conservative judicial lawlessness can look like: Just last month Judge Reed O’Connor struck down the entire Affordable Care Act. Fortunately, he had the judicial restraint to stay the effect of his order pending appeal.
Judge O’Connor’s order could well be a preview of coming attractions in a Democratic administration. The plague of forum-shopping combined with broad injunctions means that even one federal judge can create an immense amount of mischief. And if the Trump era has taught us anything, it’s that there’s a vast constituency of Americans ready and willing to deploy each and every political weapon at their disposal — regardless of its constitutionality. We have no reason to believe than any side of the judicial divide is immune to this impulse. Progressive judges are winning, for now. They may live to regret the power of their precedent.