Trump’s pres­i­den­tial pen could re­make Supreme Court’s agenda

Daily Local News (West Chester, PA) - - WEATHER - By Mark Sher­man

WASH­ING­TON >> Even be­fore Don­ald Trump chooses a Supreme Court nom­i­nee, the new pres­i­dent can take steps to make sev­eral con­tentious court cases go away.

Le­gal chal­lenges in­volv­ing im­mi­gra­tion, cli­mate change, cost-free con­tra­cep­tive care and trans­gen­der rights all could be af­fected, with­out any help from Congress.

The cases turn on Obama ad­min­is­tra­tion poli­cies that rely on the pres­i­dent’s pen, reg­u­la­tions or de­ci­sions made by fed­eral agen­cies. And what one ad­min­is­tra­tion can do, the next can undo.

It is not un­com­mon for the court’s docket to change when one party re­places the other in the White House. That change in di­rec­tion is mag­ni­fied by the high­court seat Trump will get to fill af­ter Se­nate Repub­li­cans re­fused to con­sider Pres­i­dent Barack Obama’s nom­i­na­tion of Judge Mer­rick Gar­land.

“We were hop­ing we’d be look­ing for­ward to a pro­gres­sive ma­jor­ity on the Supreme Court. Af­ter the elec­tion re­sults, there is a new re­al­ity,” said El­iz­a­beth Wy­dra, pres­i­dent of the lib­eral Con­sti­tu­tional Ac­count­abil­ity Cen­ter.

The Supreme Court al­ready is set to con­sider a case in­volv­ing a trans­gen­der teen who was born fe­male, but iden­ti­fies as a male and wants to use the boys’ bath­room at his Vir­ginia high school. When the fed­eral ap­peals court in Rich­mond ruled in stu­dent Gavin Grimm’s fa­vor this year, it re­lied on a de­ter­mi­na­tion by the U.S. Ed­u­ca­tion De­part­ment that fed­eral law pro­hibit­ing sex dis­crim­i­na­tion in ed­u­ca­tion also ap­plies to gen­der iden­tity.

The new ad­min­is­tra­tion could with­draw the de­part­ment’s guid­ance, which could cause the jus­tices to re­turn the case to the lower courts to reach their own de­ci­sion about whether the law re­quires schools to al­low stu­dents to use bath­rooms and locker rooms based on their gen­der iden­tity.

“It is pos­si­ble, maybe even likely, that if the first ques­tion went away, then the court would send case back to the 4th cir­cuit” in Rich­mond, said Steven Shapiro, le­gal di­rec­tor of the Amer­i­can Civil Lib­er­ties Union, which rep­re­sents Grimm.

Trump al­ready has pledged to undo Obama’s plan to shield mil­lions of peo­ple liv­ing in the coun­try il­le­gally from de­por­ta­tion and to make them el­i­gi­ble for work per­mits. The Supreme Court, down to eight mem­bers af­ter Jus­tice An­tonin Scalia’s death in Fe­bru­ary, split 4 to 4 in June over the plan. The tie vote ef­fec­tively killed the plan for Obama’s pres­i­dency be­cause lower fed­eral courts had pre­vi­ously blocked it.

But the is­sue re­mains a live one in the le­gal sys­tem, and sup­port­ers of the Obama plan had hoped that a new Clin­ton ad­min­is­tra­tion would press for­ward.

Now, though, all Trump has to do is re­scind the Obama team’s ac­tions, which would leave the courts with noth­ing to de­cide.

A sim­i­lar fate may be in store for the cur­rent ad­min­is­tra­tion’s ef­forts to get cost­free birth con­trol to women who are cov­ered by health plans from re­li­giously-af­fil­i­ated ed­u­ca­tional and char­i­ta­ble or­ga­ni­za­tions. The jus­tices is­sued an un­usual order in the spring that di­rected lower courts across the coun­try to seek a com­pro­mise to end the le­gal dis­pute. The groups al­ready can opt out of pay­ing for con­tra­cep­tion, but they say that op­tion leaves them com­plicit in pro­vid­ing gov­ern­ment-ap­proved con­tra­cep­tives to women cov­ered by their plans.

The new ad­min­is­tra­tion could be more will­ing to meet the groups’ de­mands, which would end the con­tro­versy.

Women’s con­tra­cep­tives are among a range of pre­ven­tive ser­vices that the Obama health over­haul re­quires em­ploy­ers to cover in their health plans. All of that now is at risk, since Trump has called for re­peal of the health care law.

Obama’s Clean Power Plan, call­ing for cuts in car­bon emis­sions from coal­burn­ing power plants, also could be rolled back once Trump is in of­fice.

The fed­eral ap­peals court in Wash­ing­ton, D.C., is con­sid­er­ing a chal­lenge by twodozen mostly Repub­li­can­led states that say Obama over­stepped his au­thor­ity. The Trump team could seek to undo the rules put in place by the En­vi­ron­men­tal Pro­tec­tion Agency and it could seek a de­lay in the lit­i­ga­tion while do­ing so, said Sean Don­ahue, a lawyer for the En­vi­ron­men­tal De­fense Fund. Trump’s EPA would have to pro­pose its own rules, which al­low for pub­lic com­ment and le­gal chal­lenges from those who ob­ject, Don­ahue said.

En­vi­ron­men­tal groups ef­fec­tively fought rules that they said eased pol­lu­tion lim­its dur­ing Ge­orge W. Bush’s pres­i­dency.

As some is­sues pushed by Obama re­cede in im­por­tance, oth­ers that have been im­por­tant to con­ser­va­tives may get re­newed in­ter­est at the court. Among those are ef­forts to im­pose new re­stric­tions on pub­lic-sec­tor la­bor unions and to strike down more cam­paign-fi­nance lim­its, in­clud­ing the ban on un­lim­ited con­tri­bu­tions to po­lit­i­cal par­ties.


Pro-abor­tion rights signs are seen in front of the U.S. Supreme Court in Wash­ing­ton on Jan. 22 dur­ing the March for Life 2016.

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