President Trump is trying to reverse Obama's legacy through legal battles

Richard Wolf | USA TODAY

Show Caption Hide Caption Report: Justice Dept. to take on affirmative action The Justice Department will take on affirmative action, according to a report in the New York Times.

WASHINGTON — From affirmative action and immigration to voting rights and LGBT protections, the Trump administration is switching sides in some of the nation's most consequential legal battles.

The rapid-fire reversals of Obama administration policies and legal positions throws the weight of the U.S. government from one side to the other in a number of hotly contested court battles, including several headed toward the Supreme Court.

In the space of 12 days recently, the Justice Department said civil rights laws do not protect gays and lesbians from workplace discrimination and voting rights laws do not prevent states from cleansing registration rolls of non-voters. In between, it indicated it may fight, rather than defend, affirmative action policies at colleges and universities.

That followed similar about-faces in some of the biggest legal battles waged by President Barack Obama to defend his signature immigration, health care and climate change initiatives. Trump also has flipped the government's position in lesser-known court fights over workers' rights, women's rights and transgender rights.

"Many of these changes are not just changes in policy, but they’re actually reversing the U.S. government's official position on what statutes mean," says David Cole, legal director for the American Civil Liberties Union. "What a statute means ought not change from one administration to another. The law is the law.”

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Policy changes at the start of a new administration are nothing new, particularly when the White House changes hands politically. What appears to be different now is the volume of change, the number of ongoing court battles and the mandate Trump claimed to dismantle the key achievements of his predecessor.

In some cases, the new administration is threatening to take its policy reversals even further through court action:

• On immigration, the Department of Homeland Security in June ended Obama's program to protect from deportation millions of undocumented immigrants whose children are citizens or permanent residents. Now, faced with legal action by Texas and other states, it is considering ending the five-year-old program that has protected 800,000 immigrants who came to the United States as children.

• On health care, the administration is mulling whether to drop its appeal of a lower court decision striking down a provision of Obama's Affordable Care Act that pays insurers to keep costs down for low-income participants. Without the reimbursements, insurance premiums could skyrocket. A coalition of Democratic attorneys general is preparing take over the appeal if necessary.

• On climate change, the government has played a similar waiting game, getting the same appeals court to delay ruling on Obama's landmark Clean Power Plan, which cuts greenhouse gas emissions from coal-fired power plants. That keeps the policy, which has been on hold for 18 months, from taking effect.

In the climate change and other environmental lawsuits, “their first course of conduct has been to try to get the courts off their back," says David Doniger, director of the climate and clean air program at the Natural Resources Defense Council.

Reversing field

The latest example of Trump reversing Obama in court came in a voting rights case to be heard by the Supreme Court this fall. The justices will rule on Ohio's challenge to a federal appeals court ruling that struck down its method of purging voters from registration rolls based on inactivity.

Obama's Justice Department last year urged the appeals court to rule against Ohio because its method of culling voter registration rolls "triggers the removal process without reliable evidence that a voter has moved and ... inevitably leads to the removal of voters based on failure to vote."

But this month, Trump's Justice Department intervened on Ohio's side, asserting that Ohio "does not remove registrants solely for their initial failure to vote" but only if they fail to answer a notice and continue to miss federal elections.

The Ohio reversal follows the Trump administration's decision to reverse its predecessor's position against Texas' tough photo identification requirements. A federal judge found that the law was intended to discriminate against minorities, but in February the Justice Department dropped that claim, and last month it said a revised law no longer harmed minorities at all.

On voting rights and other issues, "this is the most aggressive set of changes we've seen," says Paul Smith, vice president of the Campaign Legal Center and a frequent Supreme Court litigator who specializes in defending voters' rights.

Before the Ohio case is heard, the Supreme Court will open its 2017 term in October with a major case about workers' rights to file class action lawsuits rather than being forced to resolve disputes through arbitration.

Obama's Justice Department defended the National Labor Relations Board's determination that forced arbitration is an unfair labor practice. The Trump administration switched sides in June, leaving the NLRB to represent itself in court.

And before long, the high court is likely to take on the threshold question of whether federal civil rights laws regarding discrimination in education and employment cover sexual orientation and gender identity. Federal appeals courts have split on the issue.

The federal Equal Employment Opportunity Commission, dominated by Obama's appointees, argued in May that gays and lesbians should be covered under the laws. But the Justice Department last month said the opposite.

Big decisions to come

The immigration, health care and climate change battles could reach tipping points in the next few weeks.

Texas and other states opposed to Obama's immigration policies have given the Trump administration until Sept. 5 to make its next move on the program affecting immigrants who came to the U.S. as children.

A group of immigration law scholars and professors wrote to Trump Monday, urging that he keep the program intact despite the chance it would be thrown out in court.

"The legal authority for the executive branch to operate DACA 2012 is crystal clear," they said. "As such, choices about its future would constitute a policy and political decision, not a legal one."

A decision is imminent this month on the Obamacare lawsuit. While the administration has maintained insurance company reimbursements for the time being, Trump has talked brazenly about letting the program fail and has criticized Senate Republicans for not repealing it.

"This is an essential component of the political battle that’s taking place between the Democrats and the president," says Ron Pollack, the founder of the health care advocacy group Families USA.

On affirmative action, the Trump administration has yet to announce any new policy or legal action. But while the Obama administration sided with the University of Texas in its successful defense of racial preferences, Trump's Justice Department recently asked lawyers to investigate complaints that Harvard University's affirmative action program helps blacks, Hispanics and even white students over Asian Americans.

"This administration seems to be much more willing to let politics override legal judgments in the positions they take in court," the ACLU's Cole says. "In the long term, that's likely to make their views less influential."