Litigation Tracker: Major Decisions Facing the Biden Administration

As with all presidential transitions, 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 now 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.

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Litigation Tracker Major De... by Just Security


About the Author(s)

Tess Bridgeman

Co-Editor-in-Chief of Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. Follow her on Twitter (@bridgewriter).

Margaret Shields

Maggie Shields (@Maggie_Shields1) is a Student Staff Editor at Just Security and a JD student at NYU School of Law.

Mari Dugas

Mari Dugas is a JD candidate at NYU School of Law where she is a Student Scholar with the Reiss Center on Law and Security. Follow her on Twitter (@marilisdugas).

Nicholas Tonckens

Nicholas Tonckens is a JD candidate at New York University School of Law, where he is a Student Scholar with the Reiss Center on Law and Security. Follow him on Twitter (@nicktonckens).

Karl Mihm

Karl Mihm is a Student Staff Editor at Just Security and JD candidate at NYU School of Law.