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Regulatory Dark Matter and the Corruption of the Department of Justice

Last week, in a case brought by the State of Texas and several other states and state agencies, a U.S. District Court (Judge O’Connor, Northern District, Texas) issued a preliminary injunction against the feds’ rule, or maybe it’s just a suggestion, contained in a “Dear Colleague” letter regarding bathroom, locker room, and shower access for transgendered individuals. Judge O’Connor ordered some further briefing on the appropriate scope of the injunction. The ruling is just one brief episode in the transgender bathroom saga, whose trajectory points to yet another Supreme Court determination on conflicts between the Constitution’s Meaning of Life Clause and the rule of law as we thought we knew it. (Said conflict is resolved by the proposition that a right-minded administration gets to do what it wants.) But the decision is still worth a few remarks and, for the lawyers in the audience, a quick read.

I mean, a quick read. In 38 double-spaced pages, including the summary of the background and legal standards and the signature page, the judge disposes of the government’s multiple defenses to the highly unusual remedy of a preliminary injunction: no standing for the plaintiffs; lack of ripeness and final agency action; no need for notice and comment proceedings because the transgender rule is just a piece of advice; plaintiffs have alternative remedies; it’s just a Spending Clause thing; the injunction would cause harm to defendants and third parties. Along the way the judge disposes of additional objections—e.g., the government’s contention that the plaintiffs’ motion was untimely because it was filed twelve days after the rule, or maybe it was just advice, went out.

Can a court dispose of a half-dozen fairly complicated questions in an opinion you can write in an idle afternoon, over a six-pack of Coors? In this case, any of my AdLaw students could. It’s common practice for the government to throw up jurisdictional defenses, whether or not it has them: it’s a zero-cost proposition, and you might find a district judge who is sufficiently dumb or lazy to buy them. These defenses, in contrast, were either cranked up by a moron or else, in bad faith. Judge O’Connor’s opinion rests not on some abstruse theory but on rote citations, directly on point. (Among them: a recent Fifth Circuit precedent. Government: we realize it governs this case but we don’t agree with. District Court: I don’t have that option. News to the DOJ?) And the government here insists that its position wasn’t really its final word (and therefore not subject to judicial challenge) even though a half-dozen federal agencies had signed off on it; and even as it was and is seeking to enforce the strictures of its “advice” against allegedly non-compliant jurisdictions.

In response to the ruling, the DOJ said it was “disappointed.” It was not: it knew it was coming. They’re not idiots; they’re strategists. The strategy is to do the thing you want to do even if it’s obviously illegal; to hammer the nearest target (North Carolina), in a legal setting where the defenses are attenuated and the defendants look obstinate or worse; and to bet that the media drumbeat will carry you through.

The amazing thing about Judge O’Connor’s ruling is not the result but its anodyne tone: how does a district court confronted with this stuff keep its cool? That question in turn begets others: how can DOJ’s lawyers look themselves in the mirror, and how can a rule-of-law country live with lawyers who can?

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