The Washington 180 – Once Again

With Joe Biden being elected President and the Republicans very possibly keeping a majority in the Senate,¹ we may have another “Washington 180” coming up next year. 

After the Republicans took the House in 2010, Barack Obama couldn’t get Congress to pass his agenda.  When Congress wouldn’t pass the laws he wanted, President Obama turned to what he called his “pen and phone.”²  Sometimes, departments and agencies followed the Administrative Procedure Act and adopted formal regulations.  Other times, they just issued new interpretations of laws or prior regulations.  Or they sent so-called “Dear Colleagues” letters to state and local governments setting out new rules, with an implied threat to cut off federal funding if they didn’t follow the new rules or standards.

I objected to this way of governing.³  In some cases, people challenged these actions, and courts overturned what the Obama administration was trying to do.  But in other cases, people went along because they afford to risk losing federal money or being charge with a crime.

Not surprisingly, when Donald Trump became president, he proceeded in much the same way.  It was faster than passing laws, and President Trump had no understanding of proper legal process and constitutional norms.  Which is where the Washington 180 comes in. 

When President Obama’s administration was issuing a “Dear Colleague” letter to colleges on how to handle sex harassment claims and having the EPA come up with new interpretations of the Environmental Protection Act to do things they couldn’t get Congress to agree to (or didn’t even ask Congress to approve), Democrats were happy, and Republicans objected. 

But when President Trump took office, positions changed.  While Democrats had previously objected when the courts blocked Obama administration actions, now they thought it was great when courts blocked what President Trump was trying to do.  Republicans, on the other hand, went from cheering the courts, when they blocked what President Obama was trying to do, to booing the courts, when they blocked what President Trump was trying to do.  In other words, the Washington 180.

When Joe Biden becomes President, we will see if the two sides do the Washington 180 again.  Actually, we know they will do it because for most politicians it’s not about following proper process, in other words, the rule of law; it’s about getting the result they want.  I.e., it’s about the ends rather than the means.

One part of the Washington 180 may change soon, however.  During the Trump administration, federal district court judges issued nationwide injunctions against agency actions or presidential orders much more frequently than they had before.  There were three times as many of these injunctions issued during President Trump’s four years in office than in President Obama’s eight years.  Democrats, of course, would say this was appropriate because President Trump’s actions violated the law and/or Constitution, while President Obama’s didn’t.  Republicans do not agree.

The U.S. Supreme Court will be hearing a case this term about when district court judges can issue nationwide injunctions.  If the Supreme Court puts limits on the ability of the district court judges to issue such injunctions, Democrats may be happy.  On the other hand, Republicans who didn’t like district court judges issuing nationwide injunctions during the Trump administration may be upset if they can’t do the same thing during a Biden administration.   This may be starting to happen already.  Scott Keller, solicitor general of Texas from 2015 to 2018, wrote in Monday’s Wall Street Journal supporting the right of federal district court judges to issue nationwide injunctions in appropriate cases.  (The question, of course, is what is an appropriate case.)⁴  

In any case, be sure to watch for the Washington 180 once Joe Biden is sworn in.  It’s always fascinating to see our politicians change their position so quickly and with so little shame.
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¹ Actually, even if the Democrats win both of the Georgia Senate seats in the January 5 run-off, a 50-50 Senate with Vice President Kamala Harris holding the tie-breaking vote isn’t necessarily going to pass all of the legislation that President Biden wants, particularly because it is unclear whether the Democrats will be able to get the filibuster rule on passing legislation changed.
² President Obama said that he had to act since Congress wouldn’t.  He seemed to think that Congress’s refusal to act gave him the authority to act, which is not my view of the Constitution.
³ See, inter alia, here and here. 
⁴ I am not familiar with the facts or details of the case, but my general thought is that federal district court judges should not be issuing as many nationwide injunctions as they did in the last four years, regardless of who is president.