Biden’s DOJ just asked the Supreme Court to do a huge favor for Donald Trump

In what is likely to be one of her final actions as the federal government’s top Supreme Court litigator, Solicitor General Elizabeth Prelogar asked the justices last week to significantly diminish the power of lower court judges to block federal laws and policies. Should the Court take her up on this invitation, the biggest immediate beneficiary is likely to be President-elect Donald Trump, because the Court’s decision would limit judges’ ability to halt Trump administration policies, even if those policies are illegal.

The case is known as Garland v. Texas Top Cop Shop, and the stakes are potentially enormous. In it, a federal trial judge, relying on highly dubious reasoning, struck down a federal law requiring many businesses to disclose their owners to the federal government. If the Supreme Court were to uphold this judge’s reasoning, that would be a constitutional earthquake, as the trial judge’s opinion attacks Congress’s broad power to regulate businesses and the economy.

That outcome is probably unlikely, however, because the trial judge’s opinion is poorly argued.

Yet, even assuming that the Court does not use this case to drastically rework the balance of power between Congress and private businesses, the stakes in Top Cop Shop are still quite high. That’s because the trial judge in this case, Amos Mazzant, issued a “nationwide injunction” preventing the federal government from enforcing the ownership-reporting law against anyone at all. Now the Court might limit the power of low-ranking federal judges like Mazzant to issue decisions that make rules for the nation as a whole.

The question of whether a single federal trial judge should have the power to halt a federal law or policy throughout the entire country is hotly contested. As Justice Neil Gorsuch wrote in a 2020 opinion arguing against nationwide injunctions, “there are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.” If nationwide injunctions are allowed, any one of these district judges could potentially halt any federal law, even if every other judge in the country disagrees with them.

The problem is particularly acute in Texas’s federal courts (Mazzant sits in the United States District Court for the Eastern District of Texas), where local rules often allow plaintiffs to choose which judge will hear their case. During the Biden administration, Republicans often selected highly partisan judges to hear challenges to liberal federal policies — and those judges frequently rewarded this behavior by issuing nationwide injunctions.

Such injunctions can potentially be lifted by a higher court, but the process of seeking relief from such a court can take weeks or even months — and that’s assuming that the appeals court is inclined to follow the law. Federal cases out of Texas, for example, appeal to the US Court of Appeals for the Fifth Circuit, which is dominated by far-right judges who frequently defy Supreme Court precedents that are out of favor with the Republican Party.

Moreover, while some Republican judges such as Gorsuch expressed doubts about these nationwide injunctions, the GOP-controlled Supreme Court frequently let such injunctions against the Biden administration remain in effect for many months — even if a majority of the justices eventually concluded that the policies at issue in those cases, which often involved disputes over immigration policy, were legal. So the Court apparently did not view ending the practice of nationwide injunctions as a high priority so long as those injunctions thwarted Democratic policies.

Now, however, Republican Donald Trump is about to take office. And the Biden administration is nonetheless asking the Supreme Court to limit the power of lower courts to block Trump’s policies. For that reason, the Court’s decision in Top Cop Shop could be one of the most significant cases of the next several years, as it could drastically increase Trump’s ability to implement policies that federal courts determine to be unlawful.

The broader legal dispute in Top Cop Shop is very silly, as the federal law at issue in this case is obviously constitutional.

Top Cop Shop involves the Corporate Transparency Act (CTA), which Congress enacted in the waning days of the first Trump administration as part of a broader national defense bill. In enacting that law, Congress found that “malign actors seek to conceal their ownership” of corporations and other businesses to “facilitate illicit activity” such as money laundering, funding terrorism, and various forms of fraud. Accordingly, the law requires a wide array of businesses to disclose their owners.

Broadly speaking, the CTA requires companies to reveal the identity of any owner who “exercises substantial control” over the business, or who “owns or controls not less than 25 percent of the ownership interests of the entity.” The law contains several exceptions, including one for corporations and other business entities that are “not engaged in active business.”

Mazzant, a right-wing Obama appointee who was recommended by Sen. Ted Cruz (R-TX) as part of a bipartisan deal, ruled that the CTA is unconstitutional because it exceeds Congress’s authority to “regulate commerce … among the several states.” But this argument is ridiculous.

The Supreme Court has repeatedly held that Congress’s authority over interstate commerce permits it to regulate any activity that “substantially affects interstate commerce.” The CTA regulates the activity of owning and operating a business — something that obviously affects interstate commerce because businesses exist for the very purpose of engaging in commercial activity.

The Court’s precedents, moreover, do not simply allow Congress to regulate isolated activities that impact interstate commerce. Congress’s power “extends to activities that do so only when aggregated with similar activities of others.” That means even if one particular business does not have much of an impact on interstate commerce, Congress can still regulate that business so long as all of the businesses in the United States, taken in aggregate, have such an impact.

So, to strike down this law, a judge would have to conclude that all of the businesses in the United States, combined, do not have a substantial impact on interstate commerce. That’s preposterous.

To be sure, this is the same Supreme Court which recently held that Trump is allowed to use the powers of the presidency to commit crimes. So there’s no guarantee that these justices will not embrace ludicrous legal arguments. Still, the Supreme Court would need to completely mangle existing law in order to strike down the CTA.

Because the substantive legal arguments against the CTA are absurd, the Court could simply block Mazzant’s decision and reaffirm longstanding rules governing congressional regulation of private businesses. That said, in its brief to the justices, the Biden administration suggests that they could also take a different path and use Top Cop Shop to rein in nationwide injunctions.

The justices typically get to decide which legal issues they want to resolve and which ones they want to put off until another day. So, in a case like Top Cop Shop, where the lower court both issued an overly broad injunction and struck down a federal law on erroneous grounds, the Court could choose to weigh in on either of these issues.

The case against these injunctions, at least when issued by federal trial judges, is straightforward. Recall Gorsuch’s argument that there are more than a thousand federal trial judges in the country, each of whom could potentially issue a nationwide injunction that no other judge would support.

This problem, Gorsuch wrote in 2020, created “asymmetric” stakes where a plaintiff challenging a federal law or policy needs only to find one judge anywhere in the country to win a court order that, at least temporarily, blocks that policy. Meanwhile, “the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.”

As an alternative to a nationwide injunction, Gorsuch argued, trial judges should issue more limited orders permitting the plaintiffs in a particular case — and only those plaintiffs — to ignore a federal law or policy while the court’s order is in effect. As Gorsuch wrote, injunctions are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit,” not to allow one low-ranking judge to set national policy.

Unsurprisingly, both Democratic and Republican administrations have urged the justices to rein in these injunctions. In a May 2019 speech, for example, then-Attorney General William Barr argued that nationwide injunctions reflect “a departure not only from the historically settled limitations of [constitutional separation of powers], but also from our traditional understanding of the role of courts.” And as Prelogar’s brief shows, the Biden administration is so frustrated by these injunctions that it’s even asking the Court to do something about them on its way out the door.

The Republican Supreme Court did very little to limit nationwide injunctions while a Democratic administration was the target of those injunctions. But, now that a Republican president is about to take over, it’s possible that this Court will finally address a problem that both political parties agree is serious.

If that happens, the most immediate beneficiary would be Donald Trump. But a Supreme Court decision limiting the power of judges like Mazzant to set federal policy could also benefit all future presidents, regardless of whether they are Democrats or Republicans.