President Donald Trump’s $1.8 billion settlement with his own Justice Department, creating a fund that can be distributed to the president’s allies, stinks to high heaven. But Democrats have little standing to complain. They wrote and for decades followed the “sue and settle” playbook with which they sluiced money nefariously to allies to shape policy and collect taxpayer-funded payouts.Passed with the best of intentions in the 1970s, the Clean Air Act, Clean Water Act, and Endangered Species Act all contained “citizen suit” provisions empowering everyday Americans to sue in federal court when they believed an agency had failed to follow the law or act as required by statute. These laws also made federal agencies pay successful plaintiffs’ costs and legal fees.In theory, these provisions are a tool for good government, allowing citizens to ensure the executive branch enforces the law. (If immigration laws had citizen suit provisions, our country would look very different.)
But citizen suit provisions created a shortcut around normal federal rulemaking and appropriations. It did not take long for the Democratic Party and its activist allies to abuse it.
Under the Administrative Procedure Act, most federal rulemaking must undergo a burdensome and lengthy process before a new regulation can take effect. But when an agency is sued by an activist group, even when that group shares the same policy goals as the administration, the agency can enter into a consent decree, signed by a federal judge, that binds the agency to deadlines and priorities it might not otherwise have adopted.
