WASHINGTON — Donald Trump’s victory Tuesday heralds a potential sea change in court fights over a swath of Biden administration policies, including access to gender-affirming care, immigration, environmental rules and gun control.
The highest profile of those shifts may come at the Supreme Court, where the Biden administration is currently defending its positions in almost half a dozen cases on major issues that a Trump administration could reverse. But the Justice Department under Trump also could change or reverse positions in dozens of cases in lower courts across the country.
Jonathan Adler, a law professor at Case Western Reserve University, and other experts said there are some complications to changing tack while at the Supreme Court, but Trump has signaled hostility to many of the positions taken by the Biden administration.
“The court likes to think that the federal government has a fairly consistent position, and so your changes in position are kind of disfavored, but obviously can occur in cases and contexts where the position of the Justice Department reflects the policy views of the new administration,” Adler said.
President Joe Biden’s executive actions can easily be undone by Trump, sending rulemaking back to the drawing board, withdrawing guidance or rescinding executive orders. That’s reflected in court cases over executive action, as Trump’s second term could roll back Biden’s defense of his legacy.
In North Dakota, the Biden administration is defending its “waters of the U.S.” rule from a challenge by West Virginia and 23 other states. The Biden administration has been attempting to finalize that rule since itself reversing the Trump-era version after Biden took office.
In the same state, the Biden administration is defending its rule allowing Deferred Action for Childhood Arrivals program participants to obtain health insurance under the Affordable Care Act. Trump attempted to end both DACA and the ACA in his first term.
There have beensimilarflips over the last eight years. In 2021, the Biden administration switched sides to defend the Affordable Care Act after the Trump administration argued it was unconstitutional, and eventually changed positions on other cases.
In 2017, the Trump administration flipped position on an Obama-era argument that an Ohio practice of removing voters from its rolls violated federal law.
Tom Wolf, director of democracy initiatives for the Brennan Center for Justice at New York University Law School, said that even though changes in legal positions are likely, “ultimately it is going to be the Supreme Court as the ultimate determiner of how these cases play out.”
“While you can expect changes in litigation position coming out of this election, which is going to replace one administration with another with radically different views on lots of different things, the Supreme Court is in the driver’s seat ultimately,” Wolf said.
Transgender care, gun kit cases
The poster child for a high-profile change this time around may be the Biden administration’s lawsuit against Tennessee for its law restricting access to gender affirming care for minors, now at the Supreme Court. The case is scheduled for oral arguments next month, but the Trump administration may notify the justices that they intend to no longer pursue the lawsuit.
Trump spent much of the campaign railing against the presence of transgender women in school sports, falsely claimed that schools were performing gender-affirming surgeries and more. He has already pledged to roll back the Biden administration’s Title IX protections for transgender school students — itself subject to a court challenge.
The Tennessee case comes as more than two dozen states have passed laws banning or otherwise restricting gender transition care for minors, and several Republicans have pushed to do so at the federal level as well.
Although the Justice Department’s position in the case may change, families with children seeking gender-affirming care and civil rights groups have also been allowed to argue in the case.
The LGBTQ+ civil rights group Lambda Legal, one of the groups challenging the Tennessee law, vowed on Wednesday to fight any policy changes in the Trump administration in a statement from CEO Kevin Jennings.
“Lambda Legal successfully blocked multiple attacks by the first Trump administration, and we are ready to oppose any anti-LGBTQ+ actions this new administration takes,” the statement said.
The presence of the additional petitioners, as well as the fact that the case involves claims that Tennessee’s law violates patients’ parental rights, may complicate any of Trump’s efforts to undo the case. Adler said the justices could note Trump’s opposition and rule against Tennessee’s law, anyway.
That’s not the case for Garland v. Vanderstok, a challenge to a Bureau of Alcohol, Tobacco, Firearms and Explosives rule from 2022 that requires that sales of those gun parts kits comply with federal rules for commercially made guns, such as serial numbers, background checks and recordkeeping.
The justices heard oral arguments in that case in October but have yet to issue a decision. Adler said that it’s possible a reversal by the Trump administration could impact the outcome.
“If there’s some kind of pending challenge to a rulemaking it is common for the new administration to come in and tell courts ‘Hey we’re reconsidering this regulation, can you please put things on hold?’” Adler said.
Outside of those major cases, Adler said there are other disputes where the second Trump administration could change position from the Biden DOJ. That includes a case out of Hawaii in a dispute over whether climate change cases belong in federal court, and the justices asked the DOJ to share its legal position.
As Congress has remained at loggerheads over major policy issues, courts have increasingly become de facto policymakers — deciding which administrative actions pass muster — a trend likely to continue in the second Trump administration.
Wolf said court decisions have increasingly made de facto policy nationwide, led by the conservative Supreme Court.
“There is a substantial amount of policymaking happening in the courts right now, even as the Supreme Court tries to present it as simply legal interpretation,” Wolf said.
