Neil Gorsuch gets most of the headlines regarding the Trump administration’s impact on the legal field moving forward. It makes sense: He is a nominee for — and should be confirmed to — the United States Supreme Court, the country’s most revered and highest profile court. He will vote on cases and write opinions that will shape the law for decades or longer.
Meanwhile, Attorney General Jeff Sessions generally makes the news for parsing his testimony before the Senate in a way that would make Bill Clinton proud. However, in the month since being sworn in, Sessions quietly demonstrated that an attorney general can mold the legal landscape just as easily as a Supreme Court justice. Maybe even more easily.
Colorado is probably ahead of the curve realizing this reality. Because our citizens exercised their civic right to make recreational marijuana legal, Sessions’ outspoken opposition made the front pages. His promise to reverse his predecessor’s prior position on recreational pot could present a major legal dispute brewing between the Centennial State and the Department Of Justice. It’s precisely these types of fights, pitting the federal government against states, which wind their way up to the Supreme Court. Both sides have the resources and the will to keep appealing, and the issues include core features of system of government.
Consequently, if Gorsuch gets the chance to rule on states’ rights versus Supremacy Clause constitutional questions surround pot, it will only be because Sessions created the controversy.
But that is only one example.
Recently the justice department also filed a motion to withdraw from the appeal over the rights of transgender citizens to use their bathroom of choice in public schools. That is a stark reversal from the previous administration. Sessions’ predecessor fought against states that challenged President Obama’s directive to allow students to use the bathroom of the gender they identified with. When thirteen states sought an injunction, the DOJ worked diligently to limit its effects to those states while protecting the rights of transgender children in the remaining 37.
And then there is the Texas voter identification case. The justice department previously claimed that the law had been enacted with the intention of discriminating against minority voters. Upon taking office, Sessions directed his agency to request that the court dismiss the claim. Wary of voter fraud and an on record supporter of increased integrity protections, Sessions is content to allow the Texas legislature to deal with any potential problems through legislation.
And this all occurred in the first month of Sessions term.
As the next few years progress, Sessions’ stamp on our country’s laws and legal system will only grow. Every time Sessions decides whether to challenge a law or withhold support, he effectively decides the law’s future. Even though cases may be carried forward or opposed by private parties, legal foundations, or states, the vast resources and position of the DOJ often carries the day.
Given the tumultuous start to the Trump administration, and the bitter partisan divide in the country, it seems likely that the courts will see an even greater influx of challenges. The immigration ban only provided a glimpse into the future. As President Trump attempts to repeal the Affordable Care Act or restructure the tax system or deregulate industries, lawsuits will be filed and the venue shifted to the legal community.
That is where Sessions and the DOJ will become the sword and shield for the Trump administration. And while the DOJ doesn’t always win, it always has a voice. And the voice is usually quite loud and quite persuasive. And it is going to sound a lot like Jeff Sessions.
Mario Nicolais is a constitutional scholar and advocate, managing partner of KBN Law firm, and general counsel for Vivage Senior Living healthcare organization. Follow him on Twitter @MarioNicolaiEsq
