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The Trump Administration's Legal Incompetence Is Statistically Provable, Borderline Hilarious

The stats on how bad Trump's legal work has been are just fascinating.

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(Photo by Jim Lo Scalzo – Pool/Getty Images)

Every lawyer in the country knows that legal arguments deployed by the Trump administration are bad to the point of laughable. The administration’s work product is shoddy and rushed. Their theories respect no statute, precedent, or doctrine. They expect legal victories to be handed to them by partisan hacks they appoint as judges, and assume judges they did not appoint are partisan hacks. Even the lawyers who have debased themselves defending the Trump administration know that they’re making bad arguments.

And so the Trump administration loses, in court, all the time, seemingly at a world-historical pace. We’ve all seen this anecdotally. Today, there is a fantastic piece in the Washington Post detailing the Trump administration’s legal incompetence at a statistical level.

Federal judges have ruled against the Trump administration at least 63 times over the past two years, an extraordinary record of legal defeat that has stymied large parts of the president’s agenda on the environment, immigration and other matters…

Two-thirds of the cases accuse the Trump administration of violating the Administrative Procedure Act (APA), a nearly 73-year-old law that forms the primary bulwark against arbitrary rule. The normal “win rate” for the government in such cases is about 70 percent, according to analysts and studies. But as of mid-January, a database maintained by the Institute for Policy Integrity at the New York University School of Law shows Trump’s win rate at about 6 percent.

It’s hard to express just how BAD you have to be at implementing legal policies for your policies to consistently violate the APA. Clearing the standard of “arbitrary and capricious” is NOT HARD. The only people who fail at rulemaking as much as the Trump administration does are estranged parents competing to buy the love of their only child.

The administration’s record of failure is hurting the causes some Republicans were willing to tolerate bigotry and sexism to support:

Seth Jaffe, a Boston-based environmental lawyer who represents corporations and had been looking forward to deregulation, said the administration has failed to deliver.

“I’ve spent 30 years in the private sector complaining about the excesses of environmental regulation,” Jaffe said, but “this administration has given regulatory reform a bad name.”

Some errors are so basic that Jaffe said he has to wonder whether agency officials are more interested in announcing policy shifts than in actually implementing them. “It’s not just that they’re losing. But they’re being so nuts about it,” he said, adding that the losses in court have “set regulatory reform back for a period of time.”

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Jaffe thinks that regulatory reform is the answer, not deregulation. And he laments that Trump does not know the difference. But, as a New York-based global citizen who wants my children to be able to navigate around lower Manhattan without gills, Trump’s lack of understanding is my salvation. From day one of the Trump presidency, Trump’s own incompetence has been the greatest asset to his enemies.

Trump thinks, and the mouthbreathers in his base believe, that all the losses are because of “Obama judges” on “the Ninth Circuit.” But, thus far, judges appointed by Republican presidents have also joined in trying to teach the Trump administration how “the law” works:

Democratic appointees, many of them tapped by presidents Barack Obama and Bill Clinton, are responsible for 45 decisions. Republican appointees dating back to President Ronald Reagan issued the other rulings. Magistrate judges, who are not appointed by presidents, made three of the decisions.

On major issues on which multiple judges have ruled, there has been little disagreement among them, no matter where the judges are located or who appointed them.

Trump is desperately trying to appoint judges who will not respect the rules of law that Democratic- AND Republican-appointed judges have upheld. He can’t win in court, so he’s trying to change the courts. It’s an old trick from tyrants Trump is too lazy to read about.

Going forward, I don’t see how any law firm could hire any lawyer with “Trump administration” on his or her résumé. There are mafia lawyers with higher ethical and professional standards than the people working for Trump.

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But I know those former Trump lawyers will get hired, because law firms will hire a goblin king if they think it will help them score lucrative goblin business.

The real reason the Trump administration is constantly losing in court [Washington Post]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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