Now we know why the Trump administration has been so intent on reshaping America’s courts. For more than a century, governmental decisions have for the most part been made based on facts and law. Sure, politics intercedes at times, and no one would deny that the decision-making gears of the federal bureaucracy grind slowly. But the executive branch of government makes thousands of decisions every month, from administrative to regulatory, most of which the public never hears about, and despite the oftentimes rancid rhetoric of critics, most are sound and based on facts, the law, and a sincere desire to advance the public interest.
And that’s a problem for an administration that acknowledges its desire to “blow up” the administrative state and effectively reverse decades of well-established rules, regulations, and protections that previous administrations, of both parties, have put in place.
Republicans know they can’t rewrite the laws that govern everything from food inspections to clean air and water, to safety on the job. Such changes would be tremendously unpopular with the public and impossible to pass even with Republicans in control of Congress.
President Trump may still labor under the illusion that he can sweep aside past decision-making with the swipe of a pen, but American government doesn’t work that way. We’ve limited the power of those who govern our country, and with good reason. Reversing the course of government takes time, and it’s subject to review by the public, and perhaps most importantly, by the courts.
And that’s where the Dec. 22 legal opinion by Department of the Interior legal counsel Daniel Jorjani, regarding the Twin Metals mineral leases, faces its toughest test. There is little doubt about the role that Jorjani was hired to play in Trump’s Washington. Jorjani was a top operative for the Koch brothers before being tapped to reimagine the legal framework that has governed the management of millions of acres of public lands in the U.S. for decades. He recently, for example, reinterpreted the Migratory Bird Treaty Act to allow energy producers to avoid penalty when their actions— such as oil spills— kill birds. Attempts to limit bird deaths cost money, however, and its money that the Koch brothers and their friends in the oil industry would just as soon deploy on more productive purposes, like buying up Senate seats. So their man at the Interior reinterprets the law, allowing them to kill birds without consequence.
It was the same process at work on the Friday before Christmas, when the department released Jorjani’s reinterpretation of the law governing the Twin Metals leases on the Superior National Forest. Previous legal counsels under both the Reagan and Obama Interior departments had determined that the Bureau of Land Management had discretion over whether to renew the Twin Metals leases. In 1986, officials with the Reagan Interior department questioned whether they could even legally renew the two federal mineral leases, then held by INCO, because the company had failed to begin production during the initial 20-year lease period. The suggestion that INCO had some kind of absolute right to renewal apparently never even crossed their minds. That question was examined by the legal counsel for the Obama administration, who found no basis for such a claim, under either the terms of the original 1966 lease or the substantially revised lease language approved in 2003.
Even Twin Metals acknowledged in its own feasibility study that renewal of the mineral leases is subject to the discretion of the BLM.
And those aren’t the only provisions that apply to these leases. Leasing federally-owned mineral lands in Minnesota national forests also requires approval from the U.S. Forest Service. If the Forest Service determines that the mineral development poses a significant environmental risk to important resources, the agency has the authority to block authorization of a mineral lease within a Minnesota national forest. That’s exactly what happened with the Twin Metal leases. As the BLM noted in its rejection letter to Twin Metals in late 2016, “the development and utilization of such mineral deposits shall not be permitted by the Secretary of the Interior except with the consent of the Secretary of Agriculture.” That statement wasn’t just an opinion— it’s a direct citation of federal law (16 U.S.C. § 508(b)). It’s the Secretary of Agriculture, by the way, who oversees the Forest Service.
Under federal law, if the Forest Service says no, the BLM is not authorized to approve the leases. Jorjani’s legal opinion doesn’t even address this issue, and it’s easy to understand why not. It’s a pretty big legal hurdle to surmount, even for someone who is little more than a bought-and-paid-for industry functionary.
The bottom line, of course, is that many of Jorjani’s legal opinions, including the Twin Metals decision, probably can’t survive the inevitable court challenges— unless the courts fail to be fair arbiters. And that’s why the Trump administration has focused so much energy on filling the courts with its lackeys, even as it has left hundreds of other important positions within the rest of the federal government vacant. The administration has salted the various departments with their own versions of Jorjani, who are busily reinterpreting previous federal decisions, findings, and law, in hopes of undermining or destroying federal administrative oversight over vast segments of the American economy and society.
They know such efforts are likely to face legal challenge, so they are hurriedly seeking to fill the backlog of vacancies on federal district courts that built up over the last couple years of the Obama administration, when Republicans in the Senate routinely blocked well-qualified candidates. Rather than seeking experienced judges, the Trump administration has focused mostly on the appointment of individuals who they believe will rule based on politics rather than the law. Matthew Peterson, who Trump nominated for the Washington, D.C. federal circuit court, was a typical example. You may have seen the video of his testimony before the Senate recently, which went viral after the clueless Petersen was unable to answer even basic questions about legal practice. He was one of three recent Trump nominees who had to withdraw their names after their gross lack of fitness was exposed publicly, and was too much even for some Republican senators. These are the kind of people that the Trump administration is trying to put in place throughout the federal court system. And there’s a method to their madness. With the right judges in place, operatives like Jorjani can undermine decades of administrative process, toss out reasoned decision-making, and twist the workings of their departments to the benefit of the Koch brothers and other big conservative funders.
The only question is whether they can complete their mission before the American voters can rein in this out-of-control administration.