Solicitor General Noel Francisco Poised to Exit Justice Department

Standing outside the Department of Justice in Washington, Assistant U.S. Solicitor General Erica Ross poses last month with U.S. Solicitor General Noel Francisco after becoming the first lawyer to argue in the Supreme Court’s first arguments conducted via telephone. (AP Photo/Jacquelyn Martin)

WASHINGTON (CN) — After nearly four years of arguing for the Trump administration in high-stakes Supreme Court battles, Solicitor General Noel Francisco plans to leave the Justice Department, according to multiple reports Thursday morning.

Francisco has worked as solicitor general since 2017, and his tenure at the office has included arguing for the Trump administration in Supreme Court cases over President Donald Trump’s wind-down of the DACA program, his travel-ban order that blocked people from several Muslim majority countries from entering the United States and a recent dispute over the structure of the Consumer Financial Protection Bureau.

CNN first reported on Wednesday night that Francisco has told the department he plans to leave, citing sources familiar with the move. The Justice Department did not return a request to confirm the report.

Francisco’s second-in-command, Principal Deputy Solicitor General Jeffrey Wall, is likely to take over the job in an acting capacity, CNN reported.

A former clerk for Justice Anthony Scalia, Francisco previously worked in the George W. Bush White House and at the Justice Department. He also spent time in private practice at the Washington, D.C., firm Jones Day.

In addition to arguing cases directly involving the Trump administration, Francisco has represented the administration’s interests as a friend of the court in a range of politically charged cases, including over the application of employment discrimination protections to gay and transgender people, the ability of public unions to collect fees from nonmembers and whether a baker could be compelled to make a cake for a gay couple getting married if he has a moral objection to same-sex marriage.

Informally deemed the 10th justice, the solicitor general’s office is the most frequent litigator at the court and has a unique opportunity to try and influence the court.

In one case decided last year, the court hewed closely to Francisco’s suggestions for paring back a key administrative law doctrine known as Auer deference in which courts general defer to agency interpretations of their own ambiguous regulations.

The high court also frequently gives the solicitor general’s office time at arguments that do not directly involve the federal government, a rare distinction that has become more common over time and that some have suggested gives the office an unusually prominent role.

Alan Morrison, the dean for public interest and public service law at George Washington University Law School, said Francisco’s legacy from his time as solicitor general will be how willing his office was to accelerate review of cases by asking the justices to weigh in before an appeals court ruled in the dispute. 

While the Supreme Court typically only takes up cases on appeal from a federal appeals court, Francisco’s office has in multiple high-profile instances — most notably the dispute over the inclusion of a citizenship question on the 2020 census — asked the court to review a decision directly from a federal district court.

“Whether right or wrong, future solicitors general will be much less reluctant than they have in the past to seek early intervention by the high court when the U.S. is unhappy with how a case is going,” Morrison wrote in an email.

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