Sometimes the hardest part of winning a constitutional lawsuit is getting into the courtroom in the first place. When IJ sues over an unconstitutional regulation, the government’s first response is frequently not to defend the regulation but to say that we shouldn’t be allowed to sue at all. They say our clients haven’t been harmed by the regulation, or that we sued too soon, before the regulation went into effect, or that we sued too late, after the regulation already caused its harms.
That is exactly what happened in IJ’s lawsuit challenging Washington, D.C.’s new requirement that all day care providers in the city obtain college degrees. IJ sued on behalf of a group of workers with years of experience in child care who could not afford to return to school in order to keep doing the work they were already doing. But no sooner had we sued than D.C. changed the regulations in response to the lawsuit. Its new regulations made some of our clients eligible for renewable waivers of the college requirement—and, for the others, it pushed the rules’ effective date all the way out to 2023.
Armed with its new regulations, D.C.’s lawyers marched into court to ask the judge to march us out. After all, what did we have to worry about? Sure, our clients might be kicked out of a job, but not for at least a few more years.
It’s the kind of tactic that works all too often for the government. But not here: This May, we obtained a ruling from the U.S. Court of Appeals for the D.C. Circuit. The court held that having to spend any time at all complying with a regulation is an injury that allows you to sue now and that government cannot kick people out of federal court by giving them an “exemption” that can be taken away at any time.
A ruling like this seems like common sense—because it is. But it is common sense that has frequently eluded government attorneys. A major appellate opinion rejecting these arguments will help not only day care providers in D.C. but also people nationwide who want to defend their most basic rights in court.
Robert McNamara is an IJ senior attorney.