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Federal Courts Checking and Balancing More Than Ever Before

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By George Khoury, Esq. on April 11, 2019 9:00 AM

The system of checks and balances in our nation has really been being put through the paces. Recent reports explain that President Trump’s policies have resulted in more lawsuit losses than any other president in recent history.

Shockingly, as reported by the Washington Post, whereas, on average, presidents have about a 70 percent win rate, President Trump is sitting at about a 70 percent loss rate. In fact, in cases rooted in the Administrative Procedures Act, the current administration wins only about 6 percent of the time. What’s more is that a majority of the cases involve the APA.

What’s Behind the Low Win Percentage?

As the experts interviewed by the Post explain, much of the administration’s legal problems stems from the policies being poorly vetted and rushed into the rulebooks. A common thread in many of the APA based cases involves new regulations being issued without being adequately researched first, nor being based upon objective facts. Another common problem in these cases involves agencies failing to allow for public comment prior to implementation.

These failures have been characterized in many different ways, including the DOJ and other agency attorneys “failing to do their homework.” But, notably, some of Trump’s policies do end up winning in court, but generally only after the administration satisfies the many requirements the lower courts pointed out were lacking (for example Travel Bans 1.0, 2.0 and 3.0).

Partisan Judging

It’s no secret that President Trump has made his best efforts to sway the partisan balance of the judiciary and the Supreme Court. But, the post article notes that SCOTUS has not necessarily been a friend to President Trump’s legal actions, and that the current federal judiciary is made up of a majority of democratic appointments, who provide the first level of checks and balances against executive and federal agency actions.

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