President Donald Trump’s $1.8 billion settlement with his own Justice Department, creating a fund that can be distributed to the president’s allies, stinks to high heaven. But Democrats have little standing to complain. They wrote and for decades followed the “sue and settle” playbook with which they sluiced money nefariously to allies to shape policy and collect taxpayer-funded payouts.
Passed with the best of intentions in the 1970s, the Clean Air Act, Clean Water Act, and Endangered Species Act all contained “citizen suit” provisions empowering everyday Americans to sue in federal court when they believed an agency had failed to follow the law or act as required by statute. These laws also made federal agencies pay successful plaintiffs’ costs and legal fees.
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In theory, these provisions are a tool for good government, allowing citizens to ensure the executive branch enforces the law. (If immigration laws had citizen suit provisions, our country would look very different.)
But citizen suit provisions created a shortcut around normal federal rulemaking and appropriations. It did not take long for the Democratic Party and its activist allies to abuse it.
Under the Administrative Procedure Act, most federal rulemaking must undergo a burdensome and lengthy process before a new regulation can take effect. But when an agency is sued by an activist group, even when that group shares the same policy goals as the administration, the agency can enter into a consent decree, signed by a federal judge, that binds the agency to deadlines and priorities it might not otherwise have adopted.
What began as a relatively rare occurrence under the Carter and Clinton administrations became a perfected playbook under President Barack Obama. Obama’s EPA signed more than 120 consent decrees with left-wing plaintiffs, allowing it to accelerate hundreds of regulatory actions that imposed tens of billions of dollars in costs on consumers while directing taxpayer money to activist groups.
Obama expanded the practice beyond environmental policy, using settlements involving the Agriculture Department and the Housing and Urban Development Department to enrich his left-wing friends, housing groups, and minority farmers. By suing a friendly administration in federal court, left-wing activist groups could bypass the regular appropriations process and take billions of dollars through the Justice Department’s uncapped Judgment Fund.
That is essentially what Trump is doing with his fund for allies who claim they have been persecuted with prosecutions. He is taking his real claims against the Internal Revenue Service for the illegal disclosure of his tax returns and against the federal government for the FBI’s search of his Mar-a-Lago estate, and settling those claims with his own Justice Department. In exchange for dropping his claims, Trump is getting an apology from the federal government and the creation of a $1.776 billion “anti-weaponization fund,” which will make awards to people the federal government supposedly unjustly targeted for prosecution. The fund will be overseen by a five-person commission appointed by Trump’s attorney general, with members removable by Trump. It is a transparent effort to reward political allies at the expense of taxpayers.
THE EMPTINESS OF KAMALA’S BAD IDEAS
After the first wave of sue-and-settle lawsuits in the Carter administration, President Ronald Reagan’s attorney general, Ed Meese, created the “Meese Policy” to guide the Justice Department so that sue-and-settle lawsuits would not be abused. Under this policy, federal agencies were not allowed to use settlements to turn optional policy choices into binding legal commands. They could not agree to spend money Congress had not approved, promise to seek specific funding from Congress, or sign away the discretion Congress gave agency leaders to respond to changing circumstances, make policy decisions, or protect people who were not part of the lawsuit.
Ideally, presidents and their executive agencies would not abuse the federal court system to bypass the regulatory and appropriations processes. Unfortunately, presidents from both parties have shown that this is an unrealistic expectation. Congress should codify the Meese Policy so future presidents cannot do what Obama did and what Trump is doing now.
