The lingering government shutdown means justice, in many cases, is grinding to a halt.
Fewer than half of the staff members in the Civil Division of the Department of Justice are considered “essential,” erasing the division’s presence from dozens of cases nationwide. That’s prompted judges to press pause on cases deciding the fate of issues ranging from how to treat sexual harassment cases on college campuses to whether federally sanctioned mining operations will sink canoeing businesses in Minnesota.
Story Continued Below
The freeze has already put major parts of the Trump agenda into limbo as government lawyers are no longer available to argue their legality. Whether the delay helps or hurts White House priorities varies case by case, however, and the shutdown’s effect has been uneven nationally as judges allow delays in some cases but not others.
The federal court system will have exhausted stopgap attempts to stay open as of Feb. 1, the Administrative Office of the U.S. Courts said this week. At that point, the country’s 94 district courts and 13 courts of appeals will have to decide which staff to furlough and which to bring in to work without pay, a spokesperson told POLITICO. Criminal cases would still proceed, but there would be no money to pay jurors the required $50-a-day stipend, the spokesperson said.
Courts have already suspended payments to attorneys appointed to represent defendants unable to hire their own lawyer.
“If the Judiciary does run out of funding, reversing many of these urgent stopgap measures once a shutdown ended would be a major organizational challenge affecting virtually every federal court and defender’s office,” the spokesperson said.
The White House and Justice Department did not respond to requests for comment.
Some judges have rebuked government attorneys for their requests to delay cases.
“Such lapses are not in any sense government ‘policy,’” Judge William Young of the U.S. District Court of Massachusetts wrote in several recent orders denying delay requests. “They are simply an abdication by the President and the Congress (which could override a presidential veto) of the duty to govern responsibly to the end that all laws may be faithfully executed.”
The shutdown “does not constitute ‘good cause’ for any stay,” Young continued. “In fact, it is laughable.”
That means in cases that are still being heard and at which DOJ lawyers are no longer present, plaintiffs find they are literally arguing with themselves.
“We are challenging unlawful actions by the government,” said Tania Galloni, managing attorney for Earthjustice, an environmental group opposed to the administration’s regulatory rollbacks. “The government’s position is, ‘We can’t talk about that right now because we decided not to fund ourselves.‘ It is pretty outrageous.”
The Justice Department did win an indefinite stay of all cases in a Georgia district court, including a lawsuit challenging reservoir operations on the Chattahoochee River, the subject of a legal fight among Alabama, Florida and Georgia since 1990. Galloni said a DOJ stay request was granted by the court in all cases before Earthjustice knew about it. Earthjustice has asked a district court in Tampa to limit how long the Justice Department can delay proceedings on a federal lawsuit filed by environmentalists involving oil drilling in the Gulf of Mexico, Galloni said.
‘What a mess’
In another example, the fate of Obamacare is now on hold after an appellate court halted its review of a lawsuit that could kill the entire 2010 health care law.
A federal judge in Texas last month ruled Obamacare is unconstitutional, throwing into jeopardy coverage for about 20 million Americans and potentially upending large swaths of the health care system. A coalition of Democratic state attorneys general defending Obamacare have asked the 5th Circuit Court of Appeals to quickly overturn the decision, but the appellate court — at the Trump administration’s request — paused the lawsuit earlier this month due to a lack of federal funding.
The move will drag out the legal fight over the law, which could wind up before the Supreme Court during the run-up to the 2020 election.
Obamacare remains in effect while the lawsuit works through the court system, and many legal experts expect the Texas judge’s decision will eventually be overturned. But Democrats who ran on a health care-heavy message in 2018 are sweating the latest legal threat to the law.
“Putting the [Affordable Care Act] in jeopardy imperils nearly every American,” said California Attorney General Xavier Becerra, who is leading the appeal, in a statement to POLITICO. “For the sake of America’s families, the misguided lawsuit against the ACA must be resolved quickly.”
Every day government attorneys are unavailable is a day counterparties can’t receive important information through discovery or freedom of information requests, said Katherine McGerald, executive director of SurvJustice, a group challenging in the U.S. District Court of Northern California changes the Trump administration made to Title IX sexual discrimination procedures on college campuses.
The court granted DOJ lawyers’ request to halt the case because of the shutdown. But it also agreed with SurvJustice that the government will need to offer a “status report” on Tuesday and could resume the case even if administration lawyers aren’t available.
“We understand” that government lawyers are bound by the rules of the shutdown, McGerald said. “But this can’t go on forever, or it will impact the case.”
A closely watched legal fight over Harvard University’s use of race in admissions could also come to a halt. With no sign of the government restarting, it’s an open question whether a hearing scheduled for next month will occur.
Asked what might happen if the shutdown is still going by then, Edward Blum, who leads Students for Fair Admissions, the anti-affirmative action group suing Harvard, replied: “No one knows. What a mess.”
Playing into the opposition’s hands
In other cases, the lack of administration lawyers has played right into opposing parties’ hands.
The lack of government attorneys has already thrown more confusion into when pipeline developer TransCanada will be able to build its controversial Keystone XL oil pipeline. President Donald Trump campaigned on getting the pipeline built after the Obama administration quashed it over environmental issues, but the project remains mired in the courtroom after green groups challenged the way Trump’s State Department issued permits.
Now, the Justice Department attorneys who regularly flew to the federal courtroom in Great Falls, Mont., have been furloughed, leaving TransCanada alone to defend the project in a Montana courtroom.
That means no one from the government is available to answer questions as to how long it might take the State Department to redo the challenged permits, a key question TransCanada wants answered, said Doug Hayes, senior attorney for the Sierra Club, one of the environmental groups involved in the case.
“The question is for the government, but there‘s no one there,” Hayes said of the latest hearing.
In another example, a judge for the U.S. District Court in South Carolina granted government lawyers their shutdown-related request to delay a case a group of communities filed against the Commerce Department over its granting of seismic survey permits in November. The department’s action would allow companies to survey for undersea oil and gas reserves off the Atlantic coast.
But the judge also ruled that during the delay, the Interior Department, which oversees offshore drilling, cannot issue its own survey permits until the government reopens.
That delay has given lawmakers opposing offshore drilling breathing room to work on legislation intended to block federal efforts to expand oil production into the Atlantic, said Alan Hancock, energy and climate advocacy director at environmental group Coastal Conservation League.
“As the shutdown continues, and the seismic permits aren’t being issued, progress continues at the statehouse,” Hancock said. “While the court system is on hold, state governments are moving on this.”
Not off the hook
In-house judicial proceedings at the Securities and Exchange Commission are on hold, and the U.S. Tax Court has canceled 18 hearings so far. A number of lawsuits against the Environmental Protection Agency have also been put on ice because of the shutdown, according to a POLITICO review of court records. That includes challenges to rules related to haze in Texas, refrigerant leaks and pollution liability for power plants. At least three lawsuits seeking communications, ethics documents and financial records for former Administrator Scott Pruitt have also been stayed.
But judges are not letting EPA off the hook every time. In at least five cases, federal judges told EPA the shutdown is not a good enough reason to delay legal proceedings, at least for now.
The courtroom isn’t the only place where the lack of funds has forced the Justice Department to cut corners. The absence of some furloughed workers at the FBI — housed within the department — meant those still showing up couldn’t do their jobs.
One FBI employee working on cases against MS-13 gang members complained that the shutdown meant no direct access to a Spanish interpreter to translate messages from an informant.
“Since the shutdown, I have not had a Spanish speaker in the Division,” one agent wrote in an FBI official collection of employee shutdown stories. “We have several Spanish-speaking informants. We are only able to communicate using a three-way call with a linguist in another division.”
Toby Eckert, Patrick Temple-West and Benjamin Wermund contributed to this report.