In a piece at The Hill Jonathan Turley observes that the Biden Administration is faring even worse in the courts if anything than the Trump Administration did at this point in its term:
Across the country, trial courts have been finding constitutional violations by the Biden administration in areas ranging from immigration to the environment to pandemic relief. The administration actually began with the same court record as the Trump administration, which lost an early challenge to its travel ban. (The Supreme Court later upheld the core elements of the travel ban and rejected the general claims raised against it.) Biden also lost a critical immigration fight when a federal court enjoined his 100-day moratorium on deportations. In a 105-page opinion, the court found that the administration omitted “any rational explanation grounded in the facts reviewed and the factors considered†and left only “an arbitrary and capricious choice†of the president in this early immigration order. Sound familiar? It should: That was the same argument used against Trump.
Being president is a lot harder when you actually have to obey the law and stuff. The losses can’t reasonably be attributed to partisan judges, either:
One of the most remarkable court losses was delivered at the hands of the Supreme Court in the case of Terry v. United States. It involved a criminal defendant in a crack case who argued for a sentence reduction under the First Step Act. The Trump administration argued against the defendant’s claim — but this was one of many positions that the Biden administration changed before the court. The Biden administration informed the court that it not only would refuse to defend the judgment below — and defend the federal statute — but was “confessing error†in the case.
The move by the Biden Administration was astonishing on a number of levels. Acting Solicitor General Elizabeth Prelogar informed the Supreme Court in March, on the actual due date for the government’s brief. Oral argument was scheduled for April; the court was forced to reschedule the oral argument for a special sitting in May, a completely avoidable conflict the administration created by waiting a ridiculous two months to inform the court. The Biden Justice Department simply suggested in a letter that the Supreme Court find someone else to defend a federal law. Moreover, the Biden administration was confessing error in a case where the government was likely to win. In other words, it was refusing to make an argument with which many if not most of the justices would agree.
Instead, the Biden administration advanced an argument that was so weak that the justices referred to its arguments as a meritless “sleight of hand†to evade the clear, obvious meaning of the statute. They ruled unanimously against the administration and the defendant. Eight justices signed on to the opinion of Justice Clarence Thomas entirely, and Justice Sonia Sotomayor concurred with his interpretation of the First Step Act. So, the Biden Justice Department confessed error and abandoned an argument that, ultimately, garnered a unanimous vote of the Supreme Court.
While continually claiming to be a champion of “the rule of law†in public, the Biden administration has been found to be a transgressor in these cases. These losses constitute an inauspicious start for any administration.
Turley I believe left out one of the important aspects of Terry v. U.S., which is that Terry opposed the U.S.’s conduct. That seems strange given that Terry wanted the U.S. to release him early and the U.S. reversed positions to state that Terry was eligible for early release.
The reason Terry opposed the U.S. was because he was scheduled to be released in September in any event. He was angry that the U.S. waited until the last minute to switch positions and if the SCOTUS did not hold a special setting, the case would have been decided after Terry had been released. In turns out to be a moot point, because the case was lost, but Terry’s interest would have been better considered by the Biden administration by defending the institutional interests of the Office in a timely and professional manner.