They need to shake this off
This is in a Members-Only article at TPM (which you should subscribe to if you can, it’s great) but I don’t think they’ll mind if I post this letter they received from one of their readers:
Yesterday afternoon, you retweeted the Politico story on the White House lawyers’ conservative approach to post-Dobbs fixes saying “If this is true it shows a total misunderstanding of the current political moment.”
That is exactly the problem.
For decades, lawyers for the Executive Branch, in both DoJ and the White House, have urged their “clients”—agencies and the President—not to be overly aggressive in exercising their authority for fear that agency action would be invalidated in court.
There were very good reasons for this caution. Government lawyers wanted to be in a strong position when defending their clients and feared that they would have less credibility in critically-important cases if forced to defend close-to or over-the-line administrative actions. In other words, the (likely accurate at the time) belief was that if government lawyers were not forced to defend marginal exercises of federal power, they were more likely to win when it really counted—when key federal government prerogatives were on the line. Or at least they would win in the non-marginal cases.
In addition, losing in court was generally perceived to be a black mark for an agency or department. A referee presumed to be neutral had concluded government had abused its authority.
Government lawyers haven’t recognized, or don’t want to recognize, that their world has fundamentally changed.
Today’s federal courts are highly skeptical of everything the federal government does, or tries to do—including actions that ten or twenty years ago would have easily been upheld in court. And they have imposed, and are imposing, new and much more restrictive constraints on agency authority. Finally, does anyone believe that caution by Biden Administration lawyers will give them more credibility, and a better chance to win, when they go before today’s courts?
In other words, is the old approach the right one for this very different judicial landscape? There is a strong argument that it is not.
To begin with, continuing to apply the “don’t do it if we are likely to get sued and might lose” standard drastically limits the scope of permissible government action. Every action that moves the needle more than a tiny bit in the progressive direction is going to be met with a lawsuit. And that lawsuit likely will be filed in a judicial district populated by conservative judges. And those conservative judges are likely to rule against the Biden Administration. So losing is a strong possibility in virtually every single case.
But much more importantly, applying the old standard lets the courts avoid public accountability for their new, dramatically more constraining, constitutional and statutory construction standards.
If a federal agency acts, but a court holds the action unlawful by applying those new restrictive standards, that opens the door to a public conversation about an activist judiciary. But if the agency never acts, or takes only ineffective half-measures, it is the agency, and the President, who are attacked for failing to address a problem effectively. The courts get a complete pass, even though their new standards are the reason that the government couldn’t take appropriate action.
In today’s post-Dobbs world, moreover, it is at least questionable whether the public would perceive judicial invalidation of government action as a black eye for the Executive Branch rather than yet another example of newly-muscular conservative court majorities changing the legal rules.
But there is that tradition of government lawyers’ caution when it comes to actions that will generate lawsuits.
The key question, therefore, is whether those lawyers—and more importantly their clients, the policymakers responsible for delivering results to the American people—will step back and reassess that tradition and decide whether it fits the dramatically changed judicial environment that the Administration now faces.
That is partially a legal question, but it’s not clear that the old standard is providing much legal benefit in this very different legal environment. So it is much more a policy and political question: which approach best shows the American people why the federal government is unable to address the nation’s problems effectively? Isn’t our key dysfunction the toxic combination of congressional paralysis and judicial aggressiveness. Don’t Americans deserve—and shouldn’t progressives want—to shine a bright spotlight on that reality?
This strikes me as right on the money. It’s yet another example of Democrats’ ongoing fealty to the “Don’t Make Trouble” Doctrine and it’s never been more self-destructive.