Welcome to “The Brief,” a monthly roundup of Democracy Forward’s latest work to use the law to fight for good government on behalf of all Americans. Read on below for news of our victories, newest filings, latest case updates, and resources to learn more.
As summer begins, our fight for the promise of good government continues. In this issue, we focus on our work to achieve environmental safety, fair lending, representation of LGBTQ+ and Native foster youth, immigration reform, and regulatory transparency.
Read on — and stay tuned for exciting things to come later in June!
The latest in our ongoing cases:
In response to our lawsuit, Biden’s Interior Department affirms, commits to enforcing offshore drilling safety rules
What’s new? In response to our lawsuit on behalf of Healthy Gulf, the Department of the Interior has affirmed its commitment to enforcement of offshore drilling safety rules. The critical safety measures were designed to prevent another Deepwater Horizon disaster. Interior’s announcement marks a reversal of the Trump-era policy.
What happened? The Trump administration adopted a secret policy under which offshore drillers obtained waivers of important equipment testing requirements according to criteria that were never made available for public comment. More than 960 waivers were granted to offshore drillers between January 20, 2017, and March 22, 2018.
What we did: We uncovered Trump’s illegal Waiver Rule and filed suit on behalf of Healthy Gulf in 2019. This month, in response to the agency’s announcement that it is ensuring compliance with the critical safety rules we were able to voluntarily dismiss the suit.
As our counsel Kristen Miller explained: “We’re pleased that the Biden administration’s Interior Department has affirmed its commitment to the rule of law when making decisions that impact the health and safety of our coastal communities and workers.”
“The Biden administration on Monday said it will return to Obama-era practices for granting waivers of offshore drilling safety regulations after environmental groups alleged the Trump administration relied on criteria that were not available to the public.”
Agency hits pause on disastrous Trump administration changes to anti-redlining Community Reinvestment Act.
Just in: The Office of the Comptroller of the Currency (OCC) announced that it will halt further implementation of its Trump-era 2020 Community Reinvestment Act rule and will reconsider the rule in its entirety—a necessary first step toward reversing the Trump administration’s unlawful rollback of critical anti-redlining regulations.
Portions of the harmful rule that have not yet been implemented—including provisions affecting how banks’ compliance with the rule will be evaluated and the implementation of additional data reporting requirements—will not go into effect as planned. Provisions that are already in effect require further action from the OCC.
What did the Trump admin do? Amid a pandemic, the ensuing economic downturn, and urgent calls for racial justice, the Trump administration issued a new rule that unlawfully weakened measures meant to protect communities of color from the discriminatory practice of redlining.
Worse yet, the Trump administration kept the public in the dark throughout the rulemaking process by withholding key data and analysis about its decision-making. It publicly criticized and attempted to silence opposition to the proposed changes and repeatedly failed to comply with Freedom of Information Act requests we submitted on behalf of NCRC and CRC.
We filed suit last year to challenge these unlawful Trump administration actions on behalf of the National Community Reinvestment Coalition and the California Reinvestment Coalition, and we’ll press forward to ensure that either the OCC or the court rescinds these harmful rules.
What’s next: “We are pleased that the administration has taken this important first step,” explained managing senior counsel Michael Ceja Martinez. “We will continue our work to ensure the OCC is held accountable and follows the law.”
Advancing coalition’s lawsuit to protect vulnerable populations in foster care system.
What’s new: We pressed forward with our lawsuit challenging a Trump-era rollback of important child welfare data collection requirements. In our latest filing to the court, we detail the legal failings of the Trump administration’s rollback, highlight the importance of the scrapped data, and explain why the rollback should be reversed.
What did Trump do? Last year, the Trump administration unlawfully eliminated requirements that child welfare agencies report data on American Indian and Alaska Native children and LGBTQ+ youth and their families.
Without this data, organizations and agencies lack the information they need to identify the most pressing challenges facing children and families, direct resources more effectively, and reduce negative outcomes for marginalized youth in the foster care system.
We’re continuing our fight in court to reverse the Trump administration’s unlawful rollback and protect American Indian and Alaska Native children and LGBTQ+ youth in the foster care system from statistical erasure. The rule is unlawful and must be set aside either by the administration or the court.
Putting down some new roots—
We filed a brief to protect immigrant rights:
Immigration groups push back on Arizona, Montana efforts to invoke unlawful, Trump-era restriction on DHS policy changes.
What happened? Arizona Attorney General Mark Brnovich sued the Biden administration in an attempt to defend an unlawful agreement his office made with Trump’s illegally appointed DHS official Ken Cuccinelli in the final days of the Trump administration. The lawsuit, joined by Montana, claims Biden’s immigration enforcement priorities guidance—which seeks to make enforcement more just and humane—violates that unlawful agreement.
An anti-immigrant agreement? The “SAFE Agreement” was an effort to tie the hands of incoming DHS leadership. It required DHS to provide Arizona with “180 days’ written notice… and an opportunity to consult and comment” if it were to alter immigration enforcement in any way.
The agreement (one of a handful Trump’s DHS unlawfully signed with jurisdictions like Arizona) was intended to get in the way of the Biden administration as it turns the page from the Trump administration’s anti-immigrant agenda. The agreement is also unlawful, and cannot be enforced, because it was signed by Ken Cuccinelli, who was illegally appointed to his role at DHS.
We’re fighting back: We filed an amicus brief on behalf of AILA, CLINIC, NIJC, NILC, and RAICES explaining to the court that Ken Cuccinelli’s illegal appointment as Acting Deputy Secretary of Homeland Security invalidates the unprecedented agreement at the heart of Arizona’s lawsuit. Cuccinelli lacked the necessary constitutional or statutory authority to sign off on the agreement. (In March 2020, a separate lawsuit we filed prompted a federal court to rule, for the first time, that Cuccinelli was illegally appointed to one of his posts at DHS. Seven other courts and the Government Accountability Office subsequently concluded that the officials who appointed him to his position as DHS Deputy Secretary had themselves been appointed unlawfully.)
In the news— Arizona Republic | Legal showdown over Biden’s deportation priorities set in Arizona court
We called for change to improve accountability:
Public interest orgs call for improvements to Regulations.gov after Trump-era revamp reduced transparency.
Out-of-site, out-of-mind? Under the Trump administration’s mismanagement, a new Regulations.gov website was developed without a number of important features that had allowed individuals, academics, and public interest groups to effectively research and participate in federal rulemaking.
The new website has a more difficult user experience that makes it harder for an average person to search for a rulemaking e-docket, review public comments (which can hit hundreds of thousands), sign up for email alerts, or effectively use the platform’s API, among other features.
Why does it matter? Organizations that hold agencies accountable—from advocacy groups like Public Citizen, Planned Parenthood, NRDC to academic institutions like Georgetown ICAP— rely on public comments to help inform them on what feedback an agency received, and may have addressed, during the rulemaking process.
Since complex rulemakings may have tens or even hundreds of thousands of comments submitted by advocates, lobbyists, or individuals, it is critical that the primary platform the public reads and uses to leave these comments on be easily accessible and transparent.
We let GSA know: After exhausting the website’s feedback form and finding limited transparency about the former administration’s process for updating the website, we led a coalition of public interest groups that sent a detailed 66 page letter to the General Services Administration detailing our concerns with the current Regulations.gov.
We submitted important information in an HHS rulemaking:
SAGE, 70 Other Orgs Comment on Proposed Revision of Data Collection to Include Older Americans’ Gender Identity.
We helped SAGE and more than 70 other elder, healthcare, and LGBTQ+ advocacy organizations submit a comment on the Biden administration’s proposed revision of the National Survey of Older Americans Act Participants.
In the comment, the organizations applauded HHS’s existing survey question on sexual orientation and suggested that the agency proceed expeditiously with asking about, and ultimately sharing, survey data on participants’ gender identity. Incorporating a question on gender identity into the survey would ensure that older transgender adults—a vulnerable population of great social and economic need—are accurately counted for federal funding to service providers. The groups explain in the comment that:
“Given the especially high risk of greatest social and economic need faced by transgender older adults, the great risk that they will not access the services and supports they need to live independently, and the paucity of data, the need for [HHS’ Administration for Community Living] to collect data about the gender identity of participants in Older Americans Act-funded programs is especially great.”
Read the entire comment here.
And we responded to DHS’s request for information:
Detailing errors in Temporary Protected Status policies for CLINIC.
On behalf of the Catholic Legal Immigration Network, Inc, we submitted a public comment to USCIS that detailed errors in two harmful Trump-era policies that impede Temporary Protected Status (TPS) beneficiaries’ path to permanent residence.
These policies deprive TPS beneficiaries with decades-long ties to their communities of the opportunity to make those ties permanent by applying for permanent residence in the U.S. As CLINIC stated in its comment:
“Both the TPS Policy Alert and [another adopted policy decision] leave TPS beneficiaries in an uncertain and precarious position. Absent these policies, many more TPS beneficiaries would be able to regularize their status, plan for their future, and deepen their ties in communities that some have called home for decades. These policies also deny them the ability to become naturalized U.S. citizens, should they wish to do so.”
Read the entire comment here.