To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: June 5, 2018
Re: Inside Trump’s Plan to Pack Our Courts and Repeal the New Deal

Thanks to remarkably candid revelations from officials and supporters of the Trump administration, the outline of the strategy Trump has embraced to effectively repeal the New Deal and its protections for all Americans—or to “dismantle the administrative state,” as right-wing advocates prefer to put it—has become clear. But there has been less focus on the full effects of that strategy on our rights and liberties and on the key role that Trump’s team intends his federal judicial nominations to play in implementing that plan going forward and locking it in even after Trump is no longer president.

The Objective: Gut New Deal-Era Protections

At least as far back as the days of Ronald Reagan and Barry Goldwater, an important far-right objective has been to repeal the New Deal. But what does that mean today? It includes dismantling the social safety net that began under Franklin Delano Roosevelt and continued to expand though legislation and other efforts in the 1960s and beyond. It means eliminating key programs like Social Security and Medicare for the poor, for seniors, and other vulnerable Americans.

Equally important, according to far-right activists, is scrapping the progressive set of laws and agencies that are designed to ensure that only safe and effective drugs are put on the market; that there is a minimum wage, a forty-hour work week, and an opportunity for workers to bargain with their employers; that factories do not dangerously pollute the air we breathe and the water we drink; that discrimination based on race, gender, and other characteristics does not shape people’s life opportunities; that health and safety on the job is protected; and much more.

If all this were eliminated, the country would return to the “supposedly golden era” when big business and wealthy individuals controlled society without federal government protections to safeguard the interests of everyday Americans.

Before Donald Trump, the Right proposed widely different methods for achieving this goal. One idea was flooding the government with lawsuits to try to paralyze federal agencies. Another was to call for a constitutional convention to “rein in an out-of-control federal bureaucracy.” But with the rise of Donald Trump—and with early Trump adviser Stephen Bannon pledging the “deconstruction of the administrative state”—a more realistic and all-too-achievable plan has emerged and been fully embraced by Trump and his advisers.

The Trump plan has two parts, both of which are already in motion and producing dangerous results.

Part One of the Trump Plan: Appoint Hostile Agency Leaders

The first step has been to put far-right advocates who share the goal of “dismantling the administrative state” in charge of cabinet departments and important federal agencies. Exhibit A is Environmental Protection Agency (EPA) administrator Scott Pruitt, the former Oklahoma attorney general who has crusaded against federal environmental and other authority. Putting aside his widely reported ethical failings, Pruitt has delighted industry leaders and far-right advocates by moving to shrink the agency’s reach, alter its focus, and pause or reverse numerous environmental rules.

This has sometimes come in the form of individual cases, such as an instance where an Ohio community had to send a letter of protest to the EPA for its failure to act against a hazardous waste incinerator, despite evidence the EPA had previously recognized about its discharge of harmful pollutants. Other examples include broader regulatory actions, such as a proposed rule to significantly limit what science can be used in writing future EPA regulations—which almost a thousand scientists have warned would greatly weaken EPA’s ability to consider and act on scientific evidence.

As Republican and former EPA administrator William Ruckelshaus has explained, Pruitt is pulling down the entire apparatus built over 40 years to “protect public health and the environment.”

But the EPA is far from the only part of the federal government being effectively dismantled under Trump, a project that is already causing serious harm to the American people. To name just a few examples:

• Relaxed safety enforcement by the federal Mine Safety and Health Administration has contributed to an almost doubling of the number of coal miner deaths in Trump’s first year, rising from 8 in 2016 to 15 in 2017.
• Both the Department of Education and the Department of Justice have significantly cut back on civil rights enforcement across the board, which one expert has called “stunning” and “dangerous.”
• The Occupational Safety and Health Administration has abandoned plans to regulate combustible dust, even though industrial explosions and other incidents have caused hundreds of deaths and injuries.
• The Department of Transportation has delayed indefinitely a proposed rule that would have required heavy trucks to have software that would limit speeds in dangerous situations, which was expected to save almost 500 lives and up to nearly $5 billion in costs each year.
• Since taking over the Consumer Financial Protection Bureau, Trump budget director Mick Mulvaney has “halted all new investigations, frozen hiring, stopped data collection” and “dropped most cases against payday lenders — a primary focus of the consumer bureau.” In January, he submitted a budget request of zero dollars for the agency.

As of April 2018, it was estimated that agencies under Trump had cancelled hundreds of regulations across the federal government. As one expert explained, these rollbacks of “critical public protections” will leave American consumers, workers, children, and others vulnerable” every day to such risks as “air and water pollution, unsafe products and tainted food, dangerous workplaces and a newly deregulated Wall Street that once again could threaten economic collapse.”

Part Two of the Trump Plan: Pack the Courts, Starting with Gorsuch

Numerous court challenges have been filed in response to these and other actions by the Trump administration, ranging from the multiple lawsuits against Trump’s anti-Muslim travel ban to a lawsuit against the Department of Housing and Urban Development for suspending an important fair housing rule. So far, such challenges have produced mixed results, with some courts upholding the Trump administration actions and others striking them down.

That’s where part two of the plan comes in: appoint new judges to lifetime federal posts who also oppose the “administrative state” and will not only vote to uphold the actions of the Trump administration but will also stop any efforts after Trump leaves office to restore the New Deal safety net and past protections from federal agencies.

White House counsel Donald McGahn has openly acknowledged this “coherent plan” and has himself identified a prime example of its implementation: Supreme Court Justice Neil Gorsuch.

One of the factors that reportedly had a major influence on McGahn and others who interviewed Gorsuch, reviewed his record, and ultimately recommended that President Trump nominate him was Gorsuch’s deeply negative view of the so-called Chevron doctrine. Named after a unanimous 1984 Supreme Court decision, the Chevron doctrine provides that courts should generally defer to administrative agencies’ interpretation of the laws that Congress has charged them with enforcing—particularly when the laws are ambiguous—unless the regulation or other interpretation is unreasonable.

Based on that common-sense proposition, which even Justice Antonin Scalia largely agreed with, courts have usually upheld federal agency rules that protect health, safety, the environment, and other values. As Representative Hank Johnson explained in opposing a House Republican bill seeking to eliminate the doctrine through legislation, repealing the Chevron doctrine would “shield entrenched economic interests from liability and make it harder for agencies like the Environmental Protection Agency to deal with emerging public health threats.”

In accord with the House Republican bill and other right-wing advocates, however, Gorsuch strongly criticized Chevron before being nominated to the Supreme Court. He once even took the highly unusual step of writing a concurring opinion to his own majority opinion in a case to argue that Chevron should be overruled and that it represents an “abdication of the judicial duty.” This made Gorsuch an ideal Supreme Court nominee to help achieve the right-wing objective of “dismantling the administrative state.”

In fact, Gorsuch has performed precisely as far-right advocates hoped on the Supreme Court. He commented in a dissent that by not accepting one case, the Court had “passed up another opportunity to remedy” what he considers the improper increase in authority by federal agencies. In another case early in 2018, he cast the deciding vote in a ruling that more than 100,000 workers were not eligible for federally-mandated overtime pay and, as Justice Ruth Bader Ginsburg put it, undermined “more than half a century” of Supreme Court precedent on the National Labor Relations Act (NLRA), a New Deal era law that has protected vulnerable workers for decades.

Even before the Court’s blockbuster decisions expected in June on Trump’s Muslim immigration ban and on public sector unions, in which Gorsuch is widely expected to side with Trump, Gorsuch recently wrote a 5-4 decision in Epic Systems Corp. v. Lewis which, as Justice Stephen Breyer warned in oral argument, undermined “the entire heart of the New Deal” by seriously weakening collective action by workers. A perennial problem for workers has been efforts by businesses to underpay them in violation of minimum wage laws, known as “wage theft.” Since the amount lost by any one individual may be too small to justify a lawsuit, workers have banded together for years to sue offending businesses, and the National Labor Relations Board (NLRB) has ruled that such collective action is appropriate, despite efforts by business to force workers to individually arbitrate such claims.

But in Epic Systems, Gorsuch wrote a 5-4 decision refusing to defer to the NLRB and ruling that businesses can force each individual worker to arbitrate claims of wage theft. Justice Ginsburg wrote a stinging dissent, explaining that the majority ruling was “egregiously wrong” and would produce “huge under-enforcement of federal and state statutes designed to advance the well- being of vulnerable workers,” with some 25 million employment contracts affected. Notwithstanding Gorsuch’s denial, Ginsburg wrote that the ruling harks back to the pre-New Deal era of harmful “yellow dog contracts,” when workers were forced to accept contracts that banned them from joining with other workers, including to form a union.

Both in its disregard of the NLRB ruling and in its severely limited interpretation of the NLRA, Gorsuch’s Epic opinion is a perfect example of a Trump-picked Supreme Court justice working towards the goal of repealing the New Deal.

Lower Court Judicial Nominees to Carry Out the Plan

In addition to Gorsuch, a number of other people nominated by Trump to be judges, or judges on Trump’s Supreme Court short list, share a strong opposition to progressive action by government agencies and the New Deal safety net. This is particularly true among Trump nominees to the powerful federal courts of appeals, one step below the Supreme Court, and appellate judges on the Trump Supreme Court short list. For example:

• Don Willett, nominated by Trump and confirmed to the Fifth Circuit court of appeals and included on Trump’s Supreme Court short list: As a Texas Supreme Court justice, Willett wrote several concurring opinions advocating that the courts should be more aggressive in reviewing and striking down laws and rules that protect health, safety, and social welfare but that (in his view) arguably violate economic rights like freedom of contract. In Patel v. Texas Dep’t of Licensing and Regulation, he agreed with the majority that Texas was improperly requiring more than 700 hours of training for certain cosmetic workers to be certified, but wrote separately to encourage more activism by the courts in striking down government rules and laws and thus providing what he called “more robust judicial protection of economic rights.” He specifically criticized “New Deal-era” Supreme Court decisions upholding New Deal and similar laws, and he defended the much-reviled ruling in Lochner v. New York in 1905. In Lochner and similar cases, a right-wing Supreme Court majority struck down maximum hours, minimum wage, child labor, and other laws as violating “freedom of contract.” As one analyst explained, Willett’s opinions paint “the picture of a man eager to roll back nearly a century of American law.”
• Brett Kavanaugh, a judge on the D.C. Circuit court of appeals and included on Trump’s Supreme Court short list: Kavanaugh is well known for consistently voting to reverse actions by agencies like the EPA, OSHA, and the National Labor Relations Board that try to protect public health, safety, and welfare. In one decision, later reversed by the full D.C. Circuit, he ruled that the Consumer Financial Protection Bureau (CFPB) was unconstitutional because the president could only fire the CFPB director for cause, a view that the en banc majority explained “flies in the face” of Supreme Court precedent. Kavanaugh has been praised by right-wing commentators for his efforts to limit or overturn the Chevron doctrine, including in one dissent where he argued that the Federal Communications Commission (FCC) rule providing for net neutrality—which was since withdrawn under Trump—was improper and beyond the FCC’s authority. In one case, where he tried to reverse an EPA fine against a company that had improperly shipped a corrosive chemical without taking proper precautions, he was outvoted by two other very conservative Republican appointees, who noted that the EPA action would help prevent “significant risks to public health and the environment” from hazardous wastes.
• Andrew Oldham, nominated by Trump to the Fifth Circuit court of appeals and currently general counsel to Texas Governor Greg Abbott: In addition to opposing the substantive work of federal agencies like the EPA and the Department of Labor, Oldham has attacked what he calls the agencies’ constitutional “illegitimacy.” Oldham helped file dozens of lawsuits challenging actions by federal agencies. He was heavily involved in what Abbott called “the Texas plan,” a 92-page manifesto attacking the “administrative state” and including proposed constitutional amendments to destroy it. In describing an EPA plan that he opposed which was designed to limit harmful carbon emissions, Oldham attacked the “entire edifice of both the Clean Power Plan and the agency that promulgated it” as “utterly and fundamentally illegitimate.”
• David Porter, nominated by Trump to the Third Circuit court of appeals and currently a lawyer at a Pittsburgh law firm: Porter has close connections to far-right groups that support the theories embraced by Trump on repealing the New Deal, such as the Federalist Society and the Center for Vision and Values. He personally argued that Congress did not have the constitutional authority to enact the Affordable Care Act (ACA), a theory rejected by the Supreme Court. He personally represented the Republican caucus of Pennsylvania’s General Assembly in trying to defend the constitutionality of an anti-environment bill that significantly increased the amount of state land available for natural gas extraction. As Pennsylvania Senator Bob Casey has explained, Porter has “advocated legal theories that stack the deck against workers, deny Pennsylvanians access to health care, and undermine the equal protection of our laws for all Americans.”
• Greg Katsas, nominated by Trump and confirmed to the D.C. Circuit court of appeals: Before being confirmed, Katsas served as deputy White House counsel and described his role as providing advice on “virtually any legal issue of interest.” Katsas reportedly worked on the administration’s efforts to “roll back regulatory powers across the federal government.” Katsas was specifically involved in the process of selecting Trump’s nominees for the claimed in court that the ACA went beyond Congress’ power.
• David Stras, nominated by Trump and confirmed to the Eighth Circuit Court of Appeals and included on Trump’s Supreme Court short list: When Stras was nominated, then-Minnesota Senator Al Franken and others explained that his record, including his embrace of the philosophies of Clarence Thomas and Antonin Scalia, suggested that he would “reliably rule in favor of powerful corporate interests over working people.” This conclusion is evidenced by a number of his dissents on the Minnesota Supreme Court, such as in one case where he tried to narrowly interpret state law that was passed to protect accident victims so as to enable a large insurance company to severely limit the amount it had to pay out after a tragic school bus accident. In another dissent, Stras claimed that a state law that regulated attorneys’ fees in workers’ compensation cases unconstitutionally infringed on the power of the judiciary, similar to Gorsuch’s arguments against Chevron And in addition to applauding Scalia and Thomas, Stras wrote an article praising Justice Pierce Butler, one of the reactionary Supreme Court justices who voted to strike down New Deal regulations and minimum wage laws during the Lochner era. Stras specifically commended Butler for his “embrace” of “private property” rights, a cornerstone of opposition to the New Deal.

Although not as influential as court of appeals judges, a number of Trump’s nominees to become federal trial court judges have also embraced positions that oppose New Deal protections and the so-called administrative state. For example, Republican state senator Mark Norris, nominated to be a Tennessee district court judge, has advanced state laws that have overturned living wage ordinances in several cities and counties, removed federal prevailing wage requirements for construction workers, and barred workers compensation claims from being brought in court. Michael Truncale, a Republican donor and activist nominated to be a Texas district court judge, has severely criticized Social Security and Medicare, called for the abolition of the Department of Education, and claimed that the ACA is unconstitutional. And Oklahoma Supreme Court Justice Patrick Wyrick, nominated to be an Oklahoma district court judge and already on Trump’s Supreme Court short list, worked aggressively under then- Attorney General Scott Pruitt to challenge EPA environmental protections and told a conservative audience in 2016 that “the whole administrative state is unlawful.”

The Success and Dangers of Trump’s Court-Packing Plan

So far, the Trump administration’s efforts to “reshape the federal courts,” as the Heritage Foundation puts it, have been remarkably successful. The priority of this administration and Senate Republican Majority Leader Mitch McConnell has been the influential courts of appeals, and a record number of Trump appellate court nominees—21 as of mid-May—have been confirmed. This means that one out of every eight federal appellate judges have now been appointed by Trump, as Sen. McConnell recently exulted. In total, 39 Trump judicial nominees have been confirmed, with 82 more still pending. One right-wing commentator predicted that by 2019, Trump-appointed judges will be “participating in more than 15,000 decisions every year.”

As a report by the Senate Judiciary Committee Democrats recently explained, the administration and Senate Republican leadership have pursued a strategy of “pushing right-wing ideological nominees onto the courts with minimal review,” which threatens to “change the nature of the federal judiciary for decades” and significantly harm the rights of all Americans on “health care, the environment, workers’ rights,” and more. In fact, the same nominees with dangerous views on repealing the New Deal safety net also threaten other fundamental rights recognized by the courts that many right-wing conservatives oppose, such as reproductive choice, LGBTQ rights, and voting rights.

As Senator Richard Blumenthal put it, the Trump administration has “weaponized” judicial nominations to help “shut down” the crucial New Deal social safety net. And with a Senate Republican majority that continues to be more than willing to support the Trump nominations strategy, it’s hard to see what can stop this court-packing plan. Either a change of view among at least some Senate Republicans or a change in who controls the Senate majority is required if America is to preserve the essential protections of the New Deal.