Last June,
the Trump administration hauled Texas into court, claiming that a decades-old
state law once championed by Republicans violated federal law.
Within six
hours, the two sides reached an agreement, reported The New York Times.
Instead of
fighting, Texas
immediately settled. Led by Attorney General Ken Paxton, a close ally of
President Trump, Texas simply agreed the state law, which allowed undocumented
high school students to pay in-state tuition at public universities, should be
invalidated. The resolution eliminated any need for a slow and messy vote to
overturn the statute in the State Legislature.
It was one
of a string of lawsuits in which the Trump administration has reached
settlements with friendly adversaries.
The
strategy appears to have allowed the administration to do an end run around the
legislative process and enact policies that will affect states and, in some
cases, the whole country.
The
settlements have come despite Supreme Court rulings that require lawsuits to be
waged between adversarial parties and a reticence among administration
officials dating to Mr. Trump’s first term with entering legal settlements that
bind the government’s hands.
In some
cases, like in Texas, the legal maneuver has allowed states to quietly break
free from their own laws, outside the normal legislative process. In others, it
has helped the Trump administration lock in changes at the federal level that
could persist for years after Mr. Trump leaves office.
In
Florida, for instance, the Trump administration in February reached a legal
settlement with the Republican-led state requiring the Department of Homeland
Security to forgo one of its authorities to admit immigrants for 15 years.
Though reached with a state government, the settlement could affect immigration
policy for the whole nation, through the next four presidential
administrations.
In
Kentucky, the federal Transportation Department proposed a settlement in a case
with a pair of industrial companies challenging decades-old racial and
gender-based preferences, acceding to the businesses and agreeing to end use of
the preferences in its contracting nationwide.
Asked to
comment on the pattern of settlements, a spokeswoman for the Justice Department
indicated that the laws at issue in each case were problematic for different
reasons. In Florida, a judge had already sided with the state before the
agreement. And in Texas, the spokeswoman said the fact that the law remained on
the state’s books, despite the parties agreeing it was illegal, amounted to a
real dispute.
But the
speed at which cases have been settled and the shared political priorities
involved have led outside groups and former officials to call foul, arguing
that the cases appear plainly collusive.
“This
isn’t a controversy,” Shelby Leighton, a lawyer at Public Justice, said of
cases the Justice Department has brought regarding in-state tuition. She is
asking a judge in Kentucky to reject a settlement there similar to the one in
Texas. “The federal government and the state government agree a hundred percent
on the issue, and they’re just working together to do an end run around the
democratic process.”
The
Supreme Court has long maintained that federal judges cannot hear cases where
there is no genuine dispute between the parties, warning that the Constitution
bars judges from hearing cases that are not adversarial. Such collusive
lawsuits are dangerous, the justices have found in multiple instances, because
they exclude third parties with real stakes in the outcome.
For
decades, the Justice Department has likewise discouraged legal settlements that
could reduce the executive branch’s power in the long run.
In 1986,
President Ronald Reagan’s attorney general, Edwin Meese III, sent a memo to colleagues specifically urging them to use
caution when ending lawsuits through consent
decrees, a particular type of settlement in which the resolution is
monitored by a judge.
At the
time, the Reagan administration was defending the government against a crush of
lawsuits from environmental groups.
The
department, Mr. Meese wrote, should not enter into a consent decree that
“divests the secretary or agency administrator, or his successors, of
discretion committed to him by Congress or the Constitution,” particularly if
the power had been granted to allow government officials “to respond to
changing circumstances.”
The vision
was reaffirmed and expanded in 1999 by Randolph D. Moss, now a federal
judge in Washington, under President Bill Clinton.
In the
mid-2010s, during President Barack Obama’s second term, conservative scholars
accused him too of collusive lawsuits, criticizing what they called “sue and
settle” schemes, especially in the environmental realm. Academics cataloged a number of examples in which they said
watchdog groups sharing the administration’s environmental goals sued the
Environmental Protection Agency or a related department, followed by a quick
settlement that shifted regulations.
But Mr.
Trump’s officials have generally been critical of using legal settlements to
achieve policy aims, particularly given their history of use to force police
reform. Last year, Mr. Trump issued an executive order prompting the Justice
Department to withdraw
from oversight of nearly two dozen police departments.
For that
reason, the administration’s actions in Florida stunned many legal experts.
The state
had sued the Biden administration in 2023, seeking to stop the federal
government from paroling scores of migrants arrested at the southern border
into the country, just as strict
pandemic-era restrictions at the border were expiring.
At the
beginning of February, Mr. Trump’s Department of Homeland Security entered a
consent decree to settle the three-year-old suit, agreeing to impose a 15-year
freeze on using a mass parole power that allows the government to quickly
release migrants into the country while they wait for a court date.
Strikingly,
of the six members of the Florida attorney general’s office helping represent
the state when the suit was filed, four are now senior officials in Mr. Trump’s
Justice Department. Just two months before the case was settled, a fifth —
James Percival — took over as the top lawyer at the Department of Homeland
Security.
A homeland
security spokesman provided a signed ethics agreement Mr. Percival submitted to
the Office of Government Ethics in which he agreed to recuse himself from
lawsuits that he worked on, directly related to Florida. A separate signed
authorization from the department’s secretary, Kristi Noem, directed Mr.
Percival to step aside from cases involving the state “if you personally worked
on litigation related to the same matter while serving in the Florida Office of
the Attorney General.”
“Mr.
Percival has fully complied with that commitment during his D.H.S. employment,”
the spokesman said.
A
spokeswoman for the Justice Department said that the agreement was approved by
the department’s leadership and that the agency does not entirely avoid consent
decrees.
Under the
consent decree, Florida can return to court at any time to challenge any
federal parole policy, citing the consent decree in which the government agreed
to forgo the authority. The agreement will be overseen by Judge T. Kent
Wetherell, a Trump appointee.
Tom
Jawetz, who served as the Homeland Security Department’s deputy general counsel
in the Biden administration, said the agreement would put “an asterisk” on
future presidents’ ability to use the parole power, even if they hold different
policy views on immigration than Mr. Trump.
“They’re
going to have to think about, not just whether using parole is within their
legal authority, but also whether Florida is going to believe it’s a violation
of this consent decree, and what the consequences of being hauled into court
will be over that decision,” he said.
In the
case out of Kentucky that the Trump administration inherited, officials used a
lawsuit as an opportunity to take a swipe at diversity requirements set out in
a law passed by Congress.
On
returning to office, one of Mr. Trump’s earliest priorities was purging
race-based preferences and other hiring practices he deemed “diversity, equity
and inclusion” from the federal government and beyond. The president has said
those policies, intended to correct years of systemic racial inequality,
amounted to reverse racial discrimination against white people.
Two
federal contractors sued in 2023 over set-asides in the Disadvantaged Business
Enterprise Program, which Congress enacted in 1983. Last year, the
Transportation Department ceased defending the law and moved to settle with the
companies, adopting their stance that the practice of favoring businesses owned
by women or certain ethnic minorities was unconstitutional.
A judge
has not yet accepted the settlement agreement. But after a coalition of
minority-owned business groups intervened in the lawsuit, the Transportation
Department bypassed the court proceedings, issuing a new federal rule that effectively tossed out
the diversity requirements nationwide.
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