The Revolving Door Project, a partner of Prospect, examines the executive and power of the president. Follow them on therevolvingdoorproject.org.
Almost six months into President Biden’s term in office, his Justice Department is understaffed and unprepared to address the government’s pressing issues. Under the leadership of Attorney General Merrick Garland, the Justice Department remained without a candidate or nominee for several key positions, including the Attorney General, Director of the Executive Office for Immigration Review, and Assistant Attorneys General for the Office of Justice Programs and the Antitrust and Tax Departments.
Equally disappointing is the failure of the Biden administration to propose even a first round of nominees to fill the 93 US attorney positions. The impact of these vacancies can be seen in the Justice Department failing to undo the disastrous legacy of Donald Trump. Worse still, in many cases Biden’s Justice Department has argued to uphold the former president’s positions. The DOJ’s ability to implement Biden’s agenda in key areas such as criminal law reform, voting rights, immigration, tax policy and antitrust law depends on the presence of strong, high-profile officials.
As demonstrated by the murder of George Floyd and the summer of protest that followed, there is an urgent need to overhaul policing in the United States. While many of the necessary changes need to be made at the local level, the Department of Justice, particularly through the Office of Justice (OJP) programs, has the power to respond to this need in important ways. The OJP manages the Bureau of Justice Statistics and is the pathway to reintroducing the Arrest-Related Deaths (ARD) program and police-public contact statistics that can keep the public informed of ongoing police misconduct. However, without a permanent lead from the OJP or the Bureau of Justice Statistics, the Office is less likely to take these steps.
Similarly, the record of acting Attorney General Elizabeth Prelogar, who has repeatedly defended Trump-era positions, including one calling for a massive increase in police power, should make nomination and confirmation of a permanent replacement an urgent priority. In the case of Caniglia v. Strom at the Supreme Court, the DOJ von Biden, headed by Acting Attorney General Prelogar, advocated the extension of police powers to enter a citizen’s home “to protect” and to serve as a “community administrator” as long as the police are “sensible “Acts.” The police officers defended their actions even more outrageously as protected by the doctrine of qualified immunity, a position that Prelogar expressly took in her letter to the court. For its part, the court unanimously rejected this extensive interpretation of the function of “community administrator”.
Read more about the revolving door project
Prelogar’s tenure as acting attorney general is also notable for her failure to defend the right to vote amid an onslaught of election suppression laws being passed across the country. In a landmark voting case, the Trump administration tabled brief supportive government regulation to collect ballots, despite a lower court ruling finding the measures disproportionately harmful to minorities. Acting Attorney General Prelogar withdrew from the case for reasons unknown, and without further guidance, the Biden DOJ informed the court that while the brief “does not reflect current views of the United States,” it does not “seek any further substance.” close”. Filing in these cases. ”The Supreme Court ruled in line with Trump’s view.
Another obstacle to Biden’s criminal agenda is US law firm vacancies. After asking 56 Trump-appointed US attorneys to step down in February 2021, Biden has not yet nominated a replacement (in many cases, Trump officials’ first assistants remain in charge). As our colleague Mariama Eversley noted in the prospectus back in March, the Trump DOJ removed non-loyalists, so the continued presence of those close to Trump is a major obstacle to an agenda of public interest. U.S. attorneys are responsible for prosecuting matters ranging from civil rights and police misconduct to white-collar crime and drug offenses, with significant discretion over what to prioritize with their limited resources and what crimes defendants should be charged. The nomination of progressive and reform-minded US attorneys would be an important step in building a fairer justice system. The delay unnecessarily prolongs the status quo, which addresses frivolous corporate misconduct and is tough on crime.
Unfortunately, this is not the only damaging status quo that remains intact under this DOJ. Surprisingly, one of the Biden administration’s early moves in immigration policy was the appointment to the country’s immigration courts of 17 Trump-recognized officials, including former prosecutors and advisers to Immigration and Customs Enforcement (ICE). These Trump-affiliated judges now have immense power to approve or (more likely because of their ideological leanings) applications from migrants to remain in the country, which puts the lives of thousands of immigrants at risk. Just last year, immigration courts under the Trump administration rejected 72 percent of asylum applications. Now some of those prosecutors who argued against the granting of asylum have the power to rule on cases.
The Biden government needs to turn this page, and hiring someone who believes in a just and humane immigration system to serve immediately as director of the Executive Office for Immigration Review (EOIR) would be a good start. Working with the Attorney General’s office, a new EOIR director would need to devise plans to stamp out white supremacy, adequately staff the immigration system, and drop unnecessary cases brought up by Trump-era officials.
Another area in which the Justice Department has the opportunity to bring about transformative change is in antimonopoly work. Biden’s regulation to encourage competition has been hailed as a fundamental shift in the US’s view of business, but prospectus Alex Sammon noted that the key position in the Justice Department, assistant attorney general for antitrust, remains vacant. The executive order specifically calls for heightened enforcement by the Federal Trade Commission and the DOJ’s Antitrust Division to challenge previous bad mergers and “vigorously” enforcing antitrust laws, but without a confirmed AAG, the division will struggle to deliver quickly and effectively.
The final AAG spot without a nominee or appointee is the Tax Department’s Assistant Attorney General who is tasked with enforcing the country’s tax laws in both civil and criminal proceedings. As the latest series from ProPublica points out, the implementation of the tax law is very poor, as most of the wealthiest individuals in the country pay incredibly low effective tax rates. The Biden government has already promised to strengthen the Internal Revenue Service and raise the corporate tax rate. Strengthening enforcement in the Justice Department will be key to implementing these changes.
A robust Justice Department is essential to Biden’s promise to “rebuild better”. The department will certainly play an important role on a variety of issues including criminal law reform, voting rights, immigration, tax and antitrust policy. Biden’s goal was to lead the country from the disastrous Trump years into a fair, just, and prosperous future. But the inertia in appointing progressive leaders in the offices charged with handling these issues is a real obstacle. Biden must act quickly to hire publicly minded individuals eager to begin the urgent task of realigning the country’s path towards the goal of equal justice under the law.