Trump Defying Court on DACA, Title VII Rulings

           Presiding over the most lawless presidency in U.S. history, Donald Trump has been giving the finger over the past few weeks not only to Congress, but also to the Supreme Court. Trump’s defiance of Congress comes in the form of an attempt to use executive orders to enact tax policy, a power that the Constitution very explicitly gives to Congress and specifically to the popularly elected House of Representatives.

Trump’s defiance of the Supreme Court comes in the form of refusing after two months to comply with two of the Court’s high-profile rulings that went against the administration’s legal positions. The administration has done nothing as of yet to notify employers of the Supreme Court’s 6-3 decision in Bostock v. Clayton County [June 15] that the federal job discrimination law known as Title VII prohibits discrimination against LGBT employees.

The administration has engaged in more open defiance of its other high-profile defeat from mid-June: the Court’s 5-4 decision in DHS v. Regents [June 18] rejecting the administration’s protracted effort to rescind the policy known as DACA that protects young immigrants brought to the United States as children. Rather than doing nothing, the Department of Homeland Security has actively obstructed the Court’s ruling by refusing to accept new applicants for DACA status and by limiting renewals for DACA recipients from two years to one year.

The administration may get points from Trump’s political base for stiff-arming the

Supreme Court, but the policies are out of step with the American public. A poll conducted as recently as June found that 74 percent of Americans favor giving legal status to the so-called “Dreamers,” who have lived in the United States since childhood and know no other country than the United States. A Gallup poll conducted in June 2019 found that 53 percent of respondents favored new laws to protect LGBT employees from discrimination in the workplace.

            Both of these decisions came as surprises to many Court watchers and, it would seem, to the administration as well. Solicitor General Noel Francisco had personally argued for the administration in both cases and, with two Trump appointees now on the Court, probably expected to win both. Instead, Chief Justice John Roberts joined liberal justices to help form a majority in both cases. Roberts wrote the DACA decision himself and assigned the Title VII case to the first of Trump’s appointees, Justice Neil Gorsuch.

            Trump reacted nonchalantly to the Title VII ruling on the day of the decision. “I’ve read the decision, and some people were surprised,” he told reporters when questioned, “but they’ve ruled and we live with their decision.” Three days later, however, Trump reacted more assertively against the Court’s ruling on DACA. “Now we have to start the process all over again,” he said.

            Officials at the Department of Homeland Security went further by declaring that the Court’s decision to block the department from rescinding DACA “has no basis in law.” The federal judge who ruled against DHS in one of the DACA cases took Attorney General William Barr for the department’s comment. “The attorney general should advise his client Mr. Wolf that it is not a benefit to anyone to have a federal agency take issue with a decision of the Supreme Court,” Judge Nicholas Garaufis said.

            In his opinion, Roberts found called the department’s move “arbitrary and capricious” in administrative law parlance because it was based solely on the never-adjudicated view that the Obama era policy was illegal from the outset. After the decision, the department’s memorandum announcing the new restrictions repeated the same doubts about DACA’s legality that the that the Court had found inadequate.

            The Trump Labor Department has been less open about defying the Supreme Court on the Title VII case. The Labor Department routinely advises other executive branch agencies about changes in the law and also enforces the requirement that employers post notices about Title VII’s provision at workplaces.

With no action from the Labor Department as of mid-July, fourteen legal advocacy groups joined in a letter dated July 16 addressed to Barr that said it was “imperative” for DOJ to “ensure that enforcement of this decision, as to the definition of sex discrimination through federal civil rights laws and regulations, is uniform across the federal government.” One week earlier, 100 Democratic members of the House or Senate joined in a letter calling on Trump to direct federal agencies to “review of all regulations, executive orders and agency policies that implicate legal protections for LGBTQ individuals under federal civil rights laws.” The letter cited 32 policies for the administration to rescind.

The online gay news site Gay City News tried in early August to find out what if anything was being done about the Court’s decision at any of the Cabinet-level agencies involved: Education, Justice, or Labor, and got no substantive response. Justice and Labor similarly gave no substantive response when queried by the national newspaper USA Today.

To its credit, the semi-independent Equal Employment Opportunity Commission (EEOC) did post a straightforward, informative notice about the decision on its website on June 30 under the heading, “What You Should Know: The EEOC and Protections for LGBT Workers.” The notice included instructions for private company employees and federal agency employees on how to file a complaint with the EEOC “if you think you have been discriminated against.” Compared to that simple step, the silence from Trump’s Cabinet-level departments is truly deafening.