Why is Trump losing so often in court?

Yesterday, the Supreme Court upheld the Trump administration’s position that the government has the power to arrest noncitizens who commit certain crimes and hold them in immigration jails before a deportation proceeding, without regard to how long ago they were released from prison. Two immigrants had argued that statutory language barred the government from arresting them after they were free for 24 hours, a deadline that often would be difficult to meet because some states and localities don’t disclose when they will release these people.

This is a nice win for the Trump administration. So, how did the Washington Post report it? In a grudging article on the seventh page of the paper edition.

Meanwhile, the Post’s lead headline in the paper edition proclaims: “Trump’s agenda hits wall in courts: 63 adverse rulings in past two years.” The article doesn’t mention yesterday’s Supreme Court ruling.

Post reporters Fred Barash and Deanna Paul view these 63 rulings as demonstrating that the Trump administration acts lawlessly, without regard to the requirements of administrative law. This, they insist, is “the real reason the Trump administration is constantly losing in court.”

That’s one spin. Another is that, collectively, the 63 rulings stand only for the proposition that plenty of federal judges don’t like President Trump and/or disagree with the substance of the administrative actions they are reviewing.

Almost half of the 63 rulings in question (29 of them) came from jurisdictions within the left-wing Ninth Circuit. This percentage is wildly out-of-line with a random distribution. In other words, the numbers the Post touts are the result of extreme bias.

That’s not the only bias. According to the Post, 45 of the decisions came from judges appointed by a Democratic president. Three came from magistrate judges who are not appointed by the president. Only 15 (less than one-fourth of the total) came from judges appointed by a Republican — George W. Bush in most cases.

And keep in mind that many members of the class from which Republican-appointed judges are selected dislike President Trump. Indeed, the Republican president who selected most of these judges is a world-class Never Trumper.

Many of the adverse rulings cited by the Post involve findings that the Trump administration didn’t jump through this or that hoop in the Administrative Procedure Act. Fair enough, perhaps. But would these judges give a Democratic president a pass in similar circumstances?

I’d bet that many Democratic appointed judges would do just that.

It’s also the case that conservative judges have become less willing recently to defer to administrative agencies. Justices Scalia and Gorsuch led the charge. This shift in conservative thinking will likely cause administrations of both political stripes to lose more administrative law cases than in the past.

The Post’s article concludes with this quotation from a college dean:

If the Trump administration wants to win future cases, they must do a better job of persuading judges appointed by Democratic presidents.

That sounds like mission impossible, and the dean likely knows it. Most of these judges are leftists who probably hate Trump. They are not persuadable.

The key, instead, is getting as many of these cases as possible before the Supreme Court and confirming lots of new lower court judges. If the latter can be accomplished, let’s see how the next Democratic president fares in court.

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