In a new post for the Notice & Comment blog from the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice, Erika Kranz expands on her recent paper, A Department Untethered: The Erosion of DOJ Settlement Norms and Implications for Environmental Law.
It examines a recent example where the administration changed its litigation position in a case that just reached the Supreme Court and identifies the case as one to watch now that the Court has remanded it back to the DC Circuit.
The Trump administration’s announcement in May of a nearly $1.8 billion “Anti-Weaponization Fund”—created (though later blocked and perhaps abandoned) as part of a settlement of President Trump’s lawsuit against the IRS — raised questions about whether the parties in the lawsuit were genuinely adverse, whether the court had jurisdiction, and what role courts have in policing potentially collusive settlements. Underlying these questions is a more fundamental one: what led the Department of Justice to pursue and approve this settlement?
As striking as the Weaponization Fund is, it is one example in a broader and growing pattern. Across a range of subject areas, the second Trump administration has pushed past the norms that have historically governed how the Department of Justice approaches settlements and changes in litigation position.