Editor’s note: First published on Feb. 22, 2021; last updated November 19, 2021.
As with all presidential turnovers, the Biden administration has inherited a docket of pending litigation related to the previous administration’s policies and actions. These cases involve a range of complaints originally brought against or brought by the Trump administration on hot-button policy issues, such as asylum, the death penalty, and the use of emergency executive authorities. The Biden administration must decide whether to change course or maintain the Trump administration’s litigation posture.
In some cases, we can reasonably anticipate that the government’s posture in court may change — or at least, in order to be consistent with key Biden policy priorities, it should change. For instance, some of the ongoing cases rest on issues that are key policy rifts between the two administrations, such as whether the Executive had the legal authority to divert funds appropriated for other purposes for construction of the Border Wall or whether the so-called “Remain in Mexico” program (Migrant Protection Protocols) aimed at keeping asylum seekers from U.S. territory is legal. Others involve issues that may not have been heavily litigated on the campaign trail, but present moral and legal issues that are key to restoring U.S. global leadership. These cases include complaints against the government involving torture, sanctioning international prosecutors, and the use of the federal death penalty. In some of these cases, the Biden administration may face decisions regarding whether to abandon appeals, leaving decisions seen as unfavorable to the executive branch on the books.
Other cases present more complicated policy issues but also involve highly aggressive legal positions, such as using emergency authorities to implement outright bans of the TikTok and WeChat platforms. In these cases, the Biden administration may face more difficult decisions on how to construe executive authority, including whether to dial back Trump administration legal interpretations in order to preserve what deference from the courts remains after the judiciary reacted with greater-than-usual skepticism to the Trump administration’s extreme claims. And yet, in other cases, the Biden administration may be swayed from its policy positions in order to defend Executive branch institutional prerogatives in court, or may simply share the Trump administration’s views, such as in the case seeking the extradition of Julian Assange from the United Kingdom.
Below we have compiled key cases concerning major Trump-era national security issues and decisions. Each case chart below explains the main issue in the case, the case’s procedural posture, and both the Trump and Biden administration’s litigation postures (if any). These charts show what is at stake and what comes next in cases that will be early tests on key legal policy issues for the Biden administration.
The charts are available both as a PDF document as well as a Scribd document below.
If you believe we are missing a significant issue or development, send us an email message at email@example.com.
Table of Cases
- Migrant Protection Protocols/Remain in Mexico Program
- The Border Wall Case
- Jurisdiction Over Retired Servicemembers
- Federal Death Penalty in Boston Marathon Bombing Case
- Assange Extradition from the UK
- Torture and Guantanamo Military Commissions
- Medical Commissions for Guantanamo Detainees
- Torture and Guantanamo Habeas Cases
- Due Process at Guantanamo
- Former Executive Officials’ Testimony to Congress
- Social Media Registration for Visa Applicants
- Jean Carroll FTCA Litigation
- Asylum Cooperative Agreements and Safe Third Country Policy
- Bars to Asylum Eligibility Rule
- Unlawful Command Influence by the President
- Third-Country Transit Ban
- Asylum Ban at the Southern Border
- Temporary Protected Status
- Free Speech and Chinese Tech Platforms (WeChat) – CASE CLOSED
- Free Speech and Chinese Tech Platforms, Part Two (TikTok) – CASE CLOSED
- Immigration and Public Benefits – CASE CLOSED
- International Criminal Court Sanctions – CASE CLOSED
- Prepublication/SCI Disclosure Litigation Against John Bolton – CASE CLOSED
As mentioned above, the Tracker with detailed information for each case is available as both a PDF document and below as a Scribd file.