Today marks the one-year anniversary of the start of Merrick Garland’s tenure as attorney general, so it is an occasion to consider how the Department of Justice has changed from what preceded it. When Jeff Sessions became attorney general in 2017 following a Democratic administration, he made his mark with a number of measures that reflected his commitment to the rule of law. Today, the Department offers us a reminder that elections have consequences. Garland has used his platform to undo much of the prior policy he inherited and to please the Left on every conceivable issue before him.
Barely over a month into his new job, Garland rescinded a 2018 Sessions memorandum that reformed the process of obtaining consent decrees and settlement agreements with state and local governments so that they would be narrowly tailored to remedying alleged violations instead of seeking to achieve broad policy objectives that would not normally be obtainable through litigation. Garland’s Justice Department instead pursued broad-ranging pattern-or-practice probes in cities including Minneapolis and Phoenix precisely with a view toward obtaining police department overhauls through consent decrees. That went well beyond the justice that was already being sought through separate federal criminal investigations of police misconduct in cases like the police killing of George Floyd.
On immigration, Garland vacated several decisions made by Sessions and his successor, William Barr, abandoning limitations on asylum eligibility claims based on fear of private criminal activity absent a government’s inability or refusal to curtail it and restoring wide discretion for immigration judges to administratively close cases.
On July 1, Garland imposed a federal moratorium on the death penalty. The rationale he advanced for doing so was a review of federal execution protocols and practices. But of course this comports with a longstanding priority among liberals to do away with the death penalty, a goal they are glad to seek by judicial fiat if that is what it takes.
Another Sessions policy had been to rein in administrative agencies, which imposed under the guise of issuing guidance documents virtual regulations that bound parties outside the executive branch. Sessions’ 2017 memorandum on the subject established that guidance documents were simply to restate existing legal requirements, not to impose new, coercive rules upon parties outside the government. Garland rescinded the memorandum on the same day he issued his death penalty moratorium.
Also last summer, the Justice Department filed suit in an attempt to invalidate the Republican-run State of Georgia’s new election law as an attempt by the legislature “to deny or abridge the right of Black Georgians to vote on account of race or color.” The lawsuit was part of the exercise in demagoguery that President Biden and numerous congressional Democrats engaged in when they compared Georgia’s law to Jim Crow. Biden specifically asserted that the law “makes Jim Crow look like Jim Eagle.”
What nonsense. State election officials had sent every active voter unsolicited applications for a mail ballot under a temporary pandemic emergency authorization in 2020. After confusion resulted, Georgia’s new law barred the unsolicited mailing, but it actually expanded voting access from the law that had governed before the pandemic. Its no-excuse absentee voting contrasted with sixteen states, including Biden’s home state of Delaware and deep-blue New York, that imposed stricter voting requirements. The Georgia law authorized and set standards and security measures for drop boxes to deposit ballots, and drop boxes had been illegal in 2019. The law also expanded early voting days and hours. Of course, the politicized Biden/Garland Justice Department has been glad to leave blue states with stricter election laws alone.
In October, parents angry at school boards for mask and vaccine mandates, school closures, and the woke indoctrination that plagues so many classrooms found themselves in the crosshairs of the Garland Justice Department. The attorney general issued a memorandum directing the FBI to work with law enforcement to develop “strategies for addressing threats against school administrators, board members, teachers, and staff.” Of course, many of the referenced threats consisted of the basic exercise of First Amendment rights, and much of the parental anger that captured recent headlines was grounded in legitimate grievances against an educational establishment that was disregarding the best interests of students.
To be sure, some incidents involved threats of violence that were legitimate subjects for law enforcement—but on the state and local level. There was no federal interest implicated by the underlying conduct, and the Justice Department revealed its own warped priorities by treating parents the way it would potential terrorists. Perhaps that is why the Justice Department’s announcement of a domestic terrorism unit in January raised the question of how soberly it would define who constitutes a threat.
Not to leave any stone in the culture wars unturned, the Justice Department filed a lawsuit in September that made scurrilous claims straining to establish the Biden administration’s ability to block Texas’ “heartbeat” law. The Fifth Circuit stayed a district court injunction against Texas, and after the Supreme Court heard the administration’s appeal attempting to vacate the stay, it dismissed certiorari as improvidently granted, with only Justice Sotomayor in dissent.
In other Supreme Court cases, Garland’s Justice Department took positions against religious freedom claims. It joined powerful teachers’ unions in support of Maine’s ban on families from using education vouchers at private schools with a “sectarian” curriculum. It asked the Court to lift a preliminary injunction protecting Navy Seals with religious objections to a vaccine requirement from “adverse action.”
The Department also staunchly defended Harvard University’s racially discriminatory admissions policies in what will likely be the Court’s most important affirmative action case in a generation. The discrimination facing Asian American college applicants is so stark that, according to a Princeton study, students of that background must score 140 points higher than whites on the SAT to have the same chance of admission to private colleges—a disadvantage sometimes called “the Asian tax.”
In short, whether the issue has been policing, immigration, the death penalty, overreaching federal agencies, election law, education, abortion, religious freedom, or affirmative action, the Garland Justice Department has veered well to the left of most law-abiding citizens.
Of course, this record reflects a Biden administration that already demonstrated it had been captured by the Left from day one. Radicals appointed to top Justice Department positions, such as Associate Attorney General Vanita Gupta and Assistant Attorney General for Civil Rights Kristen Clarke, additionally illustrated this trend. But no official in the Justice Department bears as much blame for its ideological compass as the man who runs it. Just as Garland was misbranded as a moderate by his boosters back in 2016, when President Obama nominated him to the Supreme Court, Joe Biden was misbranded as a moderate when he ran for president in 2020. If either man can now be described as moderate, I would be afraid to see who meets the definition of extreme.