Originally Published in The Sacramento Bee
Andrew Sheeler and Kate Irby - August 10, 2020
California has spent $43 million suing President Donald Trump’s administration over the past four years in a legal campaign that the state’s Democratic attorney general says has saved billions of dollars in funding the state would have lost had the White House carried out its policies.
The lawsuits have prevented or stalled the Trump administration’s efforts to put a citizenship question on the census, weaken climate change policies, revoke California’s authority to set its own car pollution standards and rescind an Obama-era Deferred Action for Childhood Arrivals that protects young immigrants from deportation.
The lawsuits have also stymied some of Trump’s key campaign promises, at least temporarily, such as his assertion that he’d build a wall on the Mexico border and rescind the Affordable Care Act.TOP ARTICLES
“We didn’t wake up in the morning and say, ‘Wouldn’t it be fun to sue Donald Trump again?” he said.
His department provided a summary of its costs in fighting the lawsuits to The Sacramento Bee, updating figures it released in 2018.
The new tally shows rising spending on the cases. California has spent
- $3.7 million in the state budget year that ended on June 30, 2017.
- $11.3 million in the budget year ending June 30, 2018.
- $12 million in the budget year that ended on June 30, 2019.
- $16 million in the state budget year that ended on June 30, 2020.
The lawsuits continue a trend of legal warfare between presidents and attorneys general from opposing parties that accelerated in the Obama administration.
Republican-led field Texas 48 lawsuits against Obama’s Democratic administration, according to an analysis by the Texas Tribune.
Since Trump’s election, Democratic-led California has filed or joined more than 90 lawsuits against the Republican administration.
There’s disagreement over whether state lawsuits against the White House have become more common against Trump because of politics, or because of Trump’s broad attempts to undo a range of Obama-era policies covering health care, education, the environment and immigration.
“Obama pushed executive power, like DACA, but it’s nothing compared to what the Trump administration has done in pushing the boundaries of the law,” said Erwin Chemerinsky, dean of Berkeley Law at UC Berkeley. “Like rescinding DACA, or funding the border wall after Congress refused, or arguing the Affordable Care Act is unconstitutional. This is one of the most radical administrations in memory.”
Trump’s allies argue California’s relative success with stalling policies has been due to legal tactics that should be scaled back if not outlawed.
Attorney General Bill Barr contends the state lawsuits have had an overly broad impact on the administration’s agenda because they’ve led to nationwide injunctions from lower courts, preventing the government from enforcing contested policies against anyone in the country. Barr has argued that the practice by lower courts has become much more common during the Trump administration.
‘WE’RE NOT JUST FIGHTING, WE’RE WINNING’
California has scored some high profile wins in court against Trump.
Take, for example, the U.S. Supreme Court decision on the Deferred Action for Childhood Arrivals program, or DACA.
In a 5-4 decision, the court rejected Trump’s attempt to repeal legal protections for DACA recipients, siding with plaintiffs in the case, including California.
Or the time Trump tried to have the question of U.S. citizenship added to the U.S. census, which critics argued would discourage undocumented residents from responding to the survey. An estimated 2 million undocumented immigrants live in the state, and deterring them from participating in the census could deprive California of the federal funding and political clout that are tied to the decennial count.
California was among the states that challenged the decision, and a federal judge blocked that policy.
California also has won cases when the Trump administration sued to challenge state laws.
In June, the Supreme Court declined to hear the Trump administration’s challenge to the California’s 2017 “sanctuary state law,” which prevents local law enforcement officials from assisting immigration enforcement agencies in detaining and transferring the custody of immigrants.
A federal judge last month rejected a Trump administration’s lawsuit that aimed to weaken California’s greenhouse gas cap-and-trade program, one of the state’s signature environmental policies
“We’re not just fighting, we’re winning,” Becerra said.
Some of the Trump administration’s legal losses centered on shortcuts it took in proposing policy changes.
The Supreme Court decisions siding with California on Trump’s census and DACA proposals, for example, called out the administration for failing to carry out a thorough administrative process before changing government policies. ‘
“Justice Holmes famously wrote that ‘[m]en must turn square corners when they deal with the Government.’ … But it is also true, particularly when so much is at stake, that ‘the Government should turn square corners in dealing with the people,’” Chief Justice John Roberts wrote in the June decision upholding the DACA program, quoting the late Justice Oliver Wendell Holmes.
Those rulings leave Trump a window to try again.
He’s announced a review of the DACA program, and one of California’s latest lawsuits against the Trump administration challenges the White House’s new effort to strike undocumented residents from the census.
The courts have found on several occasions, said UCLA law professor Laura E. Gómez, that Trump’s proposals are arbitrary and capricious.
“I think that’s an area where Trump has gotten into particular trouble,” Gómez said.
IS THIS THE NEW NORMAL?
White House officials declined to comment on how the many lawsuits have affected their agenda. But a Justice Department official pointed to a speech and op-ed by Barr that decried the increased use of nationwide injunctions.
Injunctions are common enough in courts, but Barr’s argument was they used to mainly be applied to the parties suing. For example, if California sued the Trump administration and a court issued an injunction, it would only apply to California.
Now, Barr argues, it’s become much more common for those judges to put a nationwide injunction on the Trump administration while policies go through the courts.
“Shrewd lawyers have learned to ‘shop’ for a sympathetic judge willing to issue such an injunction,” Barr wrote in the Wall Street Journal op-ed. “These days, virtually every significant congressional or presidential initiative is enjoined—often within hours—threatening our democratic system and undermining the rule of law.”
Barr said the Obama administration faced 20 nationwide injunctions in eight years, while Trump’s administration faced double that in the first three years of his term.
Chemerinsky doubted that the nationwide injunction issue has actually gotten worse.
“The difference is there’s just so many more lawsuits against the Trump administration, so of course there’s more nationwide injunctions,” he said.
Chemerinsky also said the lawsuits have to affect how the Trump administration handles priorities, especially now with the election looming. Some of Trump’s policies enacted in 2017 are still tied up in the courts, and if Democratic presidential candidate Joe Biden wins in November, many if not most of those policies will be overturned.
“And even if he wins in November, some of these cases are still going to take years to continue going through courts,” Chemerinsky said.
WHAT’S AT STAKE FOR CALIFORNIA
California is far from alone in taking on the Trump administration. Other states, cities and organizations all have sued Trump, often in conjunction with the Golden State.
But if not the most prolific litigant, California is certainly one of the most high-profile.
“I would definitely say that California has been one of the genuine leaders,” Gómez said.
But Gómez is cautious in ascribing a winning record for California. She said she would have to see empirical data of lawsuits and their resolutions not just against Trump, but also Obama, in order to do a comparison.
“I think it’s a mixed record,” she said.
Gómez pointed to high-profile losses for California, such as Trump’s ban on travelers from predominantly Muslim countries. While the courts balked at Trump’s initial ban, his administration was able to tweak it in such a way that the courts found it acceptable.
Or even with the DACA win, Gómez said. While the court prohibited the president from eliminating DACA, the administration has refused to accept new applications, she said.
“I’m really not sure overall if you tally up the wins and losses that Trump has been thwarted,” Gómez said.
But sometimes, just slowing down the Trump administration and forcing them to reassess can be a victory, said Thomas A. Saenz, president and general counsel for the Mexican American Legal Defense and Educational Fund.
“I would say it’s important even if you’re not always victorious,” he said.