Senate Judiciary Committee via AP
U.S. District Judge Matthew Kacsmaryk is seen during his confirmation hearing before the Senate Judiciary Committee, December 13, 2017, on Capitol Hill in Washington.
We normally think of courts as places to go for justice. But what if the judge is lawless?
The Biden administration and the rest of the country faces this problem right now. Right-wing attorneys general, led by Texas’s Ken Paxton (who is himself under indictment for corruption), have developed a legal strategy that threatens to strangle the president’s power: filing litigation in courts where only right-wing judges serve.
U.S. District Court Judge Matthew J. Kacsmaryk, who before being appointed by Donald Trump was an anti-LGBT and anti-abortion activist, is considering a nationwide injunction against mifepristone, a medical abortion pill. And on Thursday, Kacsmaryk’s Texas colleague, District Court Judge Reed O’Connor, struck down Affordable Care Act requirements that health insurance companies cover preventive care, like cancer screenings and medications to stop the spread of HIV.
Earlier, Republicans have gotten injunctions against Biden’s climate and immigration policies. They have already successfully sued to block the administration’s COVID mandate in the military, to exempt religious employers from sex discrimination laws, and prevent the administration from even considering the social cost of carbon emissions.
Republican litigators haven’t been right on the merits, or at least, the outcome of these initial cases was never in doubt. That’s because they have intentionally drawn judges whose only fitness to serve was being a reliable rubber stamp for GOP priorities. That isn’t luck, because in Texas, several judicial districts have only one or two judges. Kacsmaryk is the only federal judge in Amarillo. Want to bring a crazy lawsuit against Biden administration policies? Simple: File it in Amarillo. O’Connor is Paxton’s “go-to” judge in Fort Worth. He previously struck down portions of the Affordable Care Act in reasoning that even conservative legal scholars said was “embarrassingly bad” and “an assault on the rule of law,” and this week, he did it again.
Declaratory judgments are just common sense: Parties need certainty and clarity as to their legal rights.
At this point, the Justice Department appears content to wait for such suits and hope to win them on appeal. But it can’t count on that: Texas is in the Fifth Circuit, with a supermajority of Trump judges. That appeals court upheld O’Connor’s first ACA ruling, and may uphold the second. While the Supreme Court overturned the first (and when such a very conservative Court overturns this kind of ruling, it shows how bad it was), to put it mildly, we cannot count on the high court.
What is to be done? The best short-term answer is to beat the Republicans at their own game, and sue first.
That might seem strange: How could the administration sue itself? It wouldn’t. Rather, it would bring a legal action in the District of Columbia for what is called a declaratory judgment, which sets forth the relevant rights of different parties.
Congress passed the Declaratory Judgment Act in the 1930s, and since then, such actions have become common. Suppose someone has a patent, but knows that a competitor could sue at any time for infringement. She can sue for a declaratory judgment stating that she has a lawful patent. In a 1995 Supreme Court case, an insurer sued for a declaratory judgment that it was not liable for damage in an oil field, and the high court ruled unanimously that it could.
Declaratory judgments are just common sense: Parties need certainty and clarity as to their legal rights. As a supportive Kentucky congressman named Ralph Waldo Emerson Gilbert remarked when debating the Declaratory Judgment Act, “Under the present law you take a step in the dark and then turn on the light to see if you have stepped in the hole. Under the declaratory judgment law, you turn on the light and then take the step.” This is particularly applicable under the present circumstances, because American law and Supreme Court precedents have long attempted to stop abusive forum-shopping of the sort that Paxton and other Republican AGs are engaging in.
As soon as the administration issues a controversial rule that it has reason to know will be challenged by abusive litigation, it should immediately bring an action in federal court in the District of Columbia that the rule passes legal muster. The defendants would be states with histories of filing abusive litigation, as well as groups like Stephen Miller’s America First Legal, which has already proclaimed its strategy of filing abusive suits in front of handpicked judges. No one’s rights are violated by such an action: If Republican AGs want to argue against a rule’s validity, they can always do so. What they can’t do is look for their favorite right-wing judge to give them a preordained ruling.
The federal government’s action should include a prayer asking the judge to mandate that challenges to the rule must be brought in the District of Columbia (which in fact is the law in any event). If Paxton and others sue in Amarillo anyway, they will be in contempt, and the administration can show a judgment that it is acting legally.
Will such a strategy always work? Possibly not. Judges have discretion as to whether to entertain these actions, and some might believe that there is not enough of a controversy yet. But consider the Labor Department rule that President Biden just issued: 17 states announced that they would sue as soon as the rule is final, and as soon as it was, they immediately brought action—in Amarillo. (Judge Kacsmaryk has already denied the Justice Department’s motion to change venue.) The controversy existed as soon as the administration issued the rule. The law might require blind justice, but it does not require judges to be blind to obvious facts and a very clear right-wing pattern and practice. Even some of the Trump-appointed judges on the D.C. district court have shown an ability to follow the law.
If there were an easy solution, the administration would have used it already. By sitting back and allowing itself to be abused, however, the administration ensures a loss. Bold legal action is better. As Wayne Gretzky—and Michael Scott—famously said: You miss 100 percent of the shots you don’t take.
