The conservative legal movement has invested billions of dollars into transforming the federal judiciary into a vehicle to implement the pet policies of the far right. Americans are now tasting the fruits of this labor, and as evidenced by two new rulings by Trump-appointed judges, the taste is equal parts gross and bizarre. Last Friday, Judge Trevor McFadden, a trial court judge in the District of Columbia, determined that migrants are bad for the environment. And on Monday September 30, Judge Kathryn Mizelle, a trial court judge in Florida, found that a Civil War-era statute allowing whistleblower lawsuits has actually been unconstitutional all along.

McFadden was the judge in Massachusetts Coalition for Immigration Reform v. Department of Homeland Security, a case in which anti-immigrant activists used laws designed to protect the environment to challenge the Biden administration’s border policies. A federal law known as the National Environmental Policy Act requires agencies to analyze the environmental effects of any major federal action it may undertake. DHS did not perform such an analysis before it stopped construction on former president Donald Trump’s border wall in 2021, and ended Trump’s practice of turning away people requesting asylum at the southern border. In court, the government argued that its NEPA obligations were waived under federal law, and that requiring a NEPA analysis to stop building a giant wall “would lead to nonsensical results.” 

McFadden rejected these arguments. “The prior waiver was to build the border wall, not the opposite,” he wrote. “Stopping mid-construction was neither covered by the waiver nor likely value-neutral for the environment.” McFadden detailed the “tangible harms” suffered by one plaintiff, a rancher named Steven Smith, as a result of the Biden administration’s choices: “Migrants trespassed onto his land, stole his water, and trashed his property,” McFadden wrote. “Some of Smith’s cattle ate that trash and died.” Although McFadden recognized that presidents have “significant discretion” when it comes to immigration enforcement, he argued that this does not permit presidents to violate other laws, including NEPA, in the process.

McFadden’s conclusion—that the existence of brown people is a pressing threat to the environment—is not legal analysis. It is a racism-fueled determination that Republican presidents, and only Republican presidents, retain significant discretion over immigration policy. Donald Trump’s decisions are forever; Joe Biden can’t make any of his own.

Not to be outdone, Mizelle issued a ruling earlier this week in Zafirov v. Florida Medical Associates, a qui tam action brought under the False Claims Act, which Congress enacted in 1863 in response to defense contractor fraud during the Civil War. Qui tam actions are lawsuits that allow people with evidence of fraud against the government to sue the wrongdoer on behalf of the government, and collect a portion of any recovery as a reward. In 2019, Dr. Clarissa Zafirov sued her employer, a medical practice, alleging that by increasing the “risk adjustment scores” of its patients, her employer was obtaining more funding from the government than it was rightfully due.

This should not have been an especially notable case: Both fraud and qui tam lawsuits to stop it have been around for a long time. Yet Mizelle concluded that “the historical pedigree of qui tam provisions does not save Zafirov from qualifying as an officer under Supreme Court precedent”—essentially, a determination that a qui tam lawsuit is an unconstitutional exercise of executive power by someone who is not President of the United States. In support of this proposition, Mizelle leaned heavily on a 2022 dissent written by her old boss, Justice Clarence Thomas, that was joined by no other justice. On this basis, she struck down a 161-year-old statute that helps to recover billions of dollars in public resources every year.

Neither Mizelle nor McFadden is new to judicial nonsense. McFadden is the same judge who delivered the first acquittals in January 6 prosecutions, and accused the Department of Justice of treating the insurrectionists more harshly than people who protested racist police violence in 2020. Mizelle, whom the American Bar Association rated as “Not Qualified” for a judgeship due to her woeful lack of experience, famously struck down the federal mask mandate for airline travel in 2022. What she lacked in traditional qualifications, though, she made up for with conservative bona fides (a Federalist Society member in good standing) and life expectancy (when Trump nominated her in 2020, she was 33 years old).

Judges like Mizelle and McFadden are using the power of the judiciary to further conservative policy aims. They will continue to do so until lawmakers take notice and decide to do something about it.

 

Correction: An earlier version of this post misstated the court on which Judge McFadden sits. It is the District Court for the District of Columbia, not the District Court for the District of Massachusetts.