U.S. Attorney General Merrick Garland looks on as President Joe Biden speaks at the White House on June 23, 2021.

U.S. Attorney General Merrick Garland looks on as President Joe Biden speaks at the White House on June 23, 2021.

(Photo: Mandel Ngan/AFP via Getty Images)

Biden Admin Still Pushing Trump-Era Legal Positions After Two Years in White House

"As the previous administration violated legal and ethical norms at every turn, Attorney General Merrick Garland's choice of continuity with the Trump DOJ's positions erodes the integrity of the very institution he is determined to protect," said one researcher.

Two years after President Joe Biden was inaugurated, his administration continues to advance Trump-era legal positions in dozens of court cases, a progressive watchdog group revealed Friday.

Former President Donald Trump's Department of Justice (DOJ) "consistently made a mockery of the law throughout his four years in power," the Revolving Door Project (RDP) noted in the latest release of its long-running litigation tracker.

Even though "their laughable reasoning and indefensible positions were struck down at a historic rate, many cases were still waiting for Biden," RDP wrote. "Two years into Biden's presidency, an alarming number remain, either in some form of pause or advancing forward with the Biden administration adopting Trump's position."

RDP's litigation tracker, a noncomprehensive database updated Friday to include additional cases and developments, breaks down legal actions across more than a dozen categories. A selection of the Biden administration's moves follows:

  • Biden's DOJ bowed to Republican pressure and pulled out of settlement talks with migrants whose families were separated at the border;
  • The Biden administration continues to misuse Title 42 public health authority, first misused by Trump, to turn away asylum-seekers at the border; and
  • The Biden administration continued to defend the practice of violating the legal rights of unaccompanied migrant children under the Migrant Protection Protocols (MPP) program.
  • Though Biden canceled the Keystone XL pipeline on his first day as president, his Department of Justice defended the Trump-approved Line 3 pipeline in court; and
  • The Biden administration urged an appeals court to overturn an offshore fracking ban once backed by Vice President Kamala Harris.
  • Biden's DOJ defended Betsy DeVos and her corrupt Education Department's actions in court.
Voting Rights
  • Biden failed to defend voting rights amid historic assault.
Criminal Justice Reform
  • Biden endorsed an expansion of police power.
Social Security
  • Biden's DOJ defended a Social Security provision that deprives Puerto Rico residents of benefits before the Supreme Court.
Executive Power and Immunity
  • Biden's DOJ is defending former President Trump in a defamation lawsuit stemming from a sexual assault accusation; and
  • Biden's DOJ argued to toss out lawsuits against Trump and top officials for violently removing protestors ahead of a photo-op.
Death Penalty
  • Biden's DOJ asked the Supreme Court to reinstate the death sentence in the Boston Marathon bomber case.
International Law/Human Rights
  • Biden's DOJ declined to take a position on whether prisoners at Guantánamo have due process rights.

"Fidelity to Trump-era positions takes many forms," RDP pointed out. "Biden's DOJ successfully defended Trump-era warrantless searches of travelers' phones; in 2022, the public learned that customs officials maintain a huge database of travelers' copied phone data. The DOJ continued to prosecute an Indigenous woman arrested while praying on sacred grounds disrupted by Trump's border wall construction. They successfully defended the 17-year allowance Trump's EPA granted to Montana to fail to meet clean water standards for nutrient pollution."

In addition, the Biden White House persists "in siding with the pork industry against California and animal rights groups in a high-profile Supreme Court case, despite dozens of Democratic lawmakers urging a change of course," RDP continued. "National Pork Producers Council v. Ross is not the only animal farming case in which the Biden-Garland Justice Department continues to maintain Trump administration positions. The latest update to the litigation tracker shows the Justice Department continuing to defend multiple Trump-era Department of Agriculture decisions that excuse or enable the cruel treatment of poultry, lab-kept primates, and pigs in slaughterhouses."

In a statement, RDP researcher Ananya Kalahasti said that "as the previous administration violated legal and ethical norms at every turn, Attorney General Merrick Garland's choice of continuity with the Trump DOJ's positions erodes the integrity of the very institution he is determined to protect."

"While the Justice Department makes concerted strides towards a more just application of the law in many cases," Kalahasti added, "it pulls backward in others, muddling the legacy and body of precedent it is shaping in real-time."

RDP researcher Hannah Story Brown observed that although "the Justice Department has chosen continuity with its Trump-era position in amicus filings before the Supreme Court in National Pork Producers Council v. Ross... the Biden administration still has a potent opportunity to chart a better course, withother ongoing cases like Suncor v. Boulder County Commissioners, a climate damages case in which the Supreme Court has solicited the Justice Department's opinion."

Brown made clear that RDP is "watching closely to see whether the Justice Department chooses to break from or maintain the position it first adopted under disgraced former DOJ environmental attorney Jeffrey Clark in related state-level climate cases."

Under normal circumstances, maintaining the previous administration's positions "would be relatively routine," RDP argued. "Even if the White House is shifting from one party to another, it is not generally assumed that all of the federal government's litigation positions will change. Instead of a blanket reversal, each case tends to receive a thorough review before the new administration decides to stay the course or reverse."

"But these are not normal circumstances," the group continued. "At every turn and in every corner of the federal government, the Trump administration gleefully trampled the law. In fact, loyalty to the president's person—which plainly required a willingness to ignore legal constraints—was a nonnegotiable condition of employment. In the wake of such an attack, normal deference is not warranted."

"The Biden administration must move quickly to drop, reverse, or settle the cases that Trump left behind," RDP stressed. "And—we would have thought this wouldn't need to be said—the administration should adopt Trump's positions about as often as a stopped clock is accurate."

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