We are coming to the end of President Trump’s term in office, and it seems it is time to take a final tally of the administration’s record in Court. The last four years have been marked by incredible overhauls in policy at agencies across the Federal Government, and historic litigation challenging those policy changes. We’ve seen an exodus of career civil servants and a remarkable number of “Acting” heads of major agencies as these tremendous policy shifts have occurred, leading to what one would expect are less experienced individuals leading the charge on these changes. But has that had a meaningful effect on the administration’s ability to implement and defend its policy changes? With the understanding that the answer is certainly more nuanced than this, and the understanding that my cursory review runs afoul of the old phrase that “correlation does not equal causation,” it appears the answer is yes.
As background, several studies over the years put administrations’ historic win rates on major agency actions somewhere in the range of 70%. According to analysis by the Institute for Policy Integrity at the New York University School of Law, however, this administration’s win rate falls closer to 17%. Filtering for our own field here at Joseph & Hall of immigration, the number falls to just 5%. Of course this data is not inclusive of every piece of litigation that has been filed, but many of the major cases, including some that we litigated ourselves, are included. Such a stark contrast to the norm is shocking, but perhaps reflects what we have been seeing on ground for some time – for whatever reason, this administration simply could not follow the law when implementing new policy.
Bethany A. Davis Noll and Christine Pries, both Directors of at the Institute for Policy Integrity, provide a bit more depth to the analysis here for those interested, but the bottom line seems to be that this administration’s record in Court has been abysmal any way you cut it. It also goes to show how effective legal challenges to new agency actions are. It also perhaps shows what many industries already know – lawsuits are an important check on the Government’s power, and can effectuate changes in the way agencies create policy. With the threat of lawsuits pending, agencies must act with care in implementing new rules and regulations. A clear example that seems so long ago was that lawsuits forced three iterations of the so-called “Muslim Ban” before the policy was considered good (or watered down) enough to be put into practice.
A blog post perhaps is not the best forum for discussing just how impactful “impact litigation” can be, but in the end, by continuing to litigate unfair and unlawful government action, we at Joseph & Hall will continue to fight for a more just and fair immigration system for all.
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