Trump administration doing legislative end run by suing friendly adversaries

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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