Constitutional Law Prof Blog

Response and Reply in the Alien Enemies Act Case

The plaintiffs filed their response to the Administration's application for Supreme Court review in the Alien Enemies Act Case, and the Administration filed its reply.

Recall that the district court issued a temporary restraining order, halting the Administration's effort to remove certain Venezuelan citizens to El Salvador. The D.C. Circuit declined to stay the TRO, and the Trump Administration asked the Supreme Court to intervene. We posted most recently here. The full docket for the case is here.

Yesterday the plaintiffs filed their response, and today the Administration filed its reply.

In their response, the plaintiffs argue that the TRO isn't an appealable order, that the Administration failed to establish irreparable harm, that the Administration is wrong to claim that the plaintiffs could only file a habeas petition in Texas (and not the case here), and that the Administration isn't substantially likely to prevail on the merits.

On that last point, the plaintiffs argued that their claims are justiciable, and that the Administration isn't likely to prevail on its AEA justification (or that the President lacks exclusive and preclusive Article II power to deport the plaintiffs, irrespective of the AEA). To underscore the stakes, the plaintiffs write,

The Government reportedly has already sent more than 130 Venezuelan men to El Salvador, including some whom it seemingly sent in violation of the district court's March 15 order. They have been confined, incommunicado, in one of the most brutal prisons in the world, where torture and other human rights abuses are rampant. And were there any doubt about how these men will be treated, the Salvadoran President released a video, re-posted by President Trump and Secretary Rubio, showing them being brutalized immediately upon departing. The Salvadoran President has stated, moreover, that the men remain imprisoned there for the remainder of their lives, without access to the outside world. And it is becoming increasingly clear that many (perhaps most) of the men were not actually members of Tren de Aragua, and were instead erroneously designated as such in large part because of their tattoos, a wholly unreliable means of identifying membership in a particular gang. The TRO is thus essential to ensure that more individuals who have no affiliation with the gang will not be sent to a notorious foreign power.

The implications of the government's interpretation and execution of the AEA are staggering. . . . The Court should deny the government's extraordinary request to vacate a TRO that would allow the government to immediately begin whisking away anyone else it unilaterally declares to be a member of a criminal gang to a brutal foreign prison.

In its reply, the Administration doubles-down on its argument that the plaintiffs should have filed habeas petitions in Texas, not the Administrative Procedure Act claim in D.C. As to the President's authority under the AEA, it argues that the President validly concluded "that TdA is effectively an arm of the Maduro regime" and "that TdA is 'conducting irregular warfare and undertaking hostile actions against the United States' by illegally entering and committing brutal crimes as a means of 'destabilizing' the United States and terrorizing its citizens."

Dems and LULAC Sue to Halt Trump's Elections EO

Several groups of Democrats and the League of United Latin American Citizens separately sued this week to halt President Trump's EO on elections.

The claims are similar to the claims lodged by the League of Women Voters; we posted on that case here.

The complaint in Democratic National Committee v. Trump is here; the full docket is here. The complaint in League of United Latin American Citizens v. Executive Office of the President is here; the full docket is here.

LWV Sues to Halt Trump Election EO

The League of Women Voters sued in federal court today to halt President Trump's EO on elections. (The full docket in the case is here.)

LWV claims that President Trump's EO violates the separation of powers and orders the Election Assistance Commission to engage in illegal conduct. Here's from the complaint:

1. In the President's [EO], the President attempts to usurp the power to regulate federal elections from Congress, the States, and an independent agency to which Congress delegated certain limited responsibilities.
2. The President may do no such thing. Under the Constitution, the President has no authority to make or change the rules for conducting federal elections.
3. Not only does the [EO] attempt to rip power away from the entities that have actual constitutional and statutory authority to regulate federal elections, it does so in violation of the text and purpose of federal laws Congress enacted to make it easier for Americans to register to vote and cast ballots in federal elections.
4. Specifically, the [EO] purports to order the Election Assistance Commission to require a passport or other citizenship document to register to vote using the federal voter registration form prescribed by Congress (the "Federal Form"), and to do so within 30 days. Yet federal law gives the President no authority over the Federal Form specifically and federal elections more broadly. And the president has no decision-making authority over the EAC, an independent bipartisan agency. That agency has repeatedly considered and rejected requests to add such a requirement of documentary proof of citizenship to the Federal Form.
5. The [EO] also unlawfully claims to direct the EAC to take other actions, including decertifying all state voting machines across the country, and purportedly imposes a nationwide absentee and mail ballot receipt deadline for federal elections that would effectively overturn the laws of eighteen states by executive fiat and threat of coercive action. The scope and impact of this attempted power grab is staggering. With a stroke of the pen, the President claims unilateral authority to change the rules for voter registration and election administration across the country in a manner that would threaten the ability of millions of eligible Americans to register and vote and upend the administration of federal elections.

District Court Says Alabama Can't Punish Residents, Orgs for Out-of-State Abortions

A federal district court ruled Monday that the Alabama attorney general can't prosecute people in Alabama for going to another state, or assisting others in going to another state, to obtain an abortion.

The ruling strikes a significant blow to a state effort to enforce its own abortion ban beyond its borders.

The case, Yellowhammer Fund v. Attorney General, arose when the Alabama attorney general announced that he'd prosecute people in Alabama for going to another state, or assisting others in going to another state, to obtain an abortion. The state AG seemed to adopt a theory that these individuals violated a state law criminalizing a conspiracy to engage in out-of-state conduct that, if done in the state, would be illegal. Abortions are now illegal in Alabama, except in an emergency. The full docket is here.

Plaintiffs sought declaratory relief and a permanent injunction. The court declared that the AG's use of the criminal code violated the right to travel and the First Amendment. It then said that it'd "retain[] jurisdiction to issue an injunction to enforce the declaratory judgment and to provide other relief, should such become necessary." (It also said that "costs are taxed against defendant . . . .")

The court first concluded that the AG's action violated the right to travel of the clients of a plaintiff-organization and a doctor. "The court finds that the claim is meritorious because (a) the right to travel includes the right both to move physically between States and to do what is lawful in those States, and (b) prosecuting those who facilitate lawful out-of-state abortions, as the Attorney General threatens to do, would violate that right."

The court next concluded that the AG's "threatened enforcement of Alabama's criminal laws imposes a content- and viewpoint-based restriction on speech," in violation of the First Amendment. That's because "[i]t restricts information and discussion about a specific subject--abortion--to forbid encouraging a specific viewpoint--access to a legal out-of-state abortion." (In other words, organization can't inform individuals of their out-of-state abortion options.) As to strict scrutiny analysis, the court said that the state's interests aren't compelling; but even if they were, "[t]hreats of prosecution cannot serve a State's legitimate interest when the State does not have legitimate authority to punish lawful behavior conducted in other States."

Finally, the court concluded that some of the organizational-plaintiff's actions were protected by the right to expressive conduct. As to funding, "the court finds that Yellowhammer Fund's act of pledging and providing funds on behalf of pregnant Alabamians who seek a legal abortion outside Alabama is expressive conduct, and, therefore, subject to First Amendment protection." But on the other hand, "Yellowhammer Fund's physically transporting pregnant women out of state to abortion appointments does not constitute expressive conduct under the First Amendment."

The court declined to address certain other claims, including free association and due process.

Court Postpones Administration's Revocation of TPS for Venezuelans

A federal district court today postponed DHS Secretary Kristi Noem's decisions to vacate and terminate earlier extensions of temporary protected status for Venezuelan citizens.

The ruling allows Venezuelan citizens with TPS to remain in the country pending further litigation. The ruling applies nationwide.

The case, National TPS Alliance v. Noem, arose when Secretary Noem vacated a decision by the Biden-era DHS to extend TPS designation to Venezuela through October 2, 2026. (Under federal law, the Secretary of DHS may designate a country for TPS when individuals from that country cannot safely return due to armed conflict, natural disaster, or other extraordinary and temporary circumstances. Individuals with TPS can apply for immigration status; they may not be removed; and they are given work authorization. The Biden-era DHS re-designated Venezuela for TPS in 2023; it then extended that designation through October 2, 2026.) Just three days later, Secretary Noem terminated the 2023 designation.

On the likelihood of success on the merits, the court found that Secretary Noem's decision to vacate the extension violated the timeframes set in the TPS statute, that it was based on a legally flawed rationale, that Secretary Noem failed to consider alternatives short of termination, and that the decisions unlawfully discriminated against Venezuelans.

Can Trump Serve a Third Term?

The Twenty-Second Amendment prohibits it. But President Trump and some supporters think it's possible. Politico runs through some possible scenarios here.

Supreme Court to Hear Arguments in Case Testing Religious Exemption from State Unemployment Compensation Program

The Supreme Court will hear arguments today in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, a case testing whether the First Amendment's Religion Clauses prevent a state from denying an exemption from the state's unemployment compensation program to a religious organization when that organization provides secular services. My preview, from the ABA Preview of United States Supreme Court Cases, with permission, is here:

ISSUE

Did Wisconsin violate the Religion Clauses when it denied an exemption from the state’s unemployment compensation program to Catholic Charities and four sub-entities because they were not “operated primarily for religious purposes” under Wisconsin law?

FACTS

Catholic Charities Bureau (CCB) is a not-for-profit corporation in Wisconsin that operates as the social ministry arm of the Diocese of the Superior, a diocese of the Roman Catholic Church. CCB’s mission is “[t]o carry on the redeeming work of our Lord by reflecting gospel values and the moral teaching of the church.” Since 1917, CCB has fulfilled its mission by “providing services to the poor and disadvantaged as an expression of the social ministry of the Catholic Church.” CCB’s “purpose” “is to be an effective sign of the charity of Christ” by providing services without discriminating by “race, sex, or religion.” CCB pledges that it “will in its activities and actions reflect gospel values and will be consistent with its mission and the mission of the Diocese of Superior.”

CCB oversees several separately incorporated sub-entities that provide direct services to the community. CCB provides management services for its sub-entities; it establishes and coordinates their missions; and it approves all capital expenditures and investments of the sub-entities. CCB’s executive director supervises the sub-entities’ operations.

At the same time, however, CCB does not require its employees or employees of its sub-entities to be of any particular religious faith. CCB similarly does not require those who receive services from sub-entities to be of any particular religious faith. Program participants do not receive any religious instruction, and CCB and its sub-entities do not attempt to “inculcate the Catholic faith with program participants.”

Four of CCB’s sub-entities are involved in this case. First, Barron County Developmental Services contracts with the Department of Vocational Rehabilitation to provide job-related services for individuals with disabilities. Next, Black River Industries, Inc., provides services to individuals with developmental or mental health disabilities and individuals with limited incomes. Third, Diversified Services, Inc., provides work opportunities for individuals with developmental disabilities. Finally, Headwaters, Inc., provides support and training services related to daily living for individuals with disabilities.

In 1972, the Wisconsin Department of Industry, Labor and Human Relations determined that CCB was subject to the state’s unemployment compensation program and therefore required to make contributions to the program. The Department made this determination after CCB self-reported that its operations were “charitable,” “educational,” and “rehabilitative,” and not “religious.” CCB has made unemployment contributions ever since.

In 2015, the Douglas County Circuit Court determined that a sub-entity of CCB was exempt from the unemployment compensation program on the ground that it was “operated primarily for religious purposes.”

The next year, CCB and the sub-entities in this case asked the Department of Workforce Development (DWD) for a similar determination. In support of their request, they cited the state unemployment-compensation law, which exempts those “[i]n the employ of an organization operated primarily for religious purposes . . . .” Wis. Stat. § 108.02(15)(h)(2). DWD denied the request, stating that “these organizations are supervised and controlled by the Roman Catholic Church, but it has not been established that they are operated primarily for religious purposes.” After some back-and-forth rulings at the administrative level, the state Labor and Industry Review Commission (LIRC) concluded that CCB and the four sub-entities were not “operated primarily for religious purposes” under Wisconsin law and therefore not exempt from making payments to the state unemployment insurance program.

The circuit court reversed, and the appellate court reversed again (restoring LIRC’s conclusion). The Wisconsin Supreme Court affirmed, and CCB and its sub-entities brought this appeal.

CASE ANALYSIS

The First Amendment contains two religion clauses: the Establishment Clause, which prohibits the government from “establishing” religion; and the Free Exercise Clause, which prohibits the government from restricting or interfering with the free exercise of religion. Rather than focusing on the clauses individually, the parties frame their arguments around principles that emerge from the Religion Clauses as read together.

CCB and its sub-entities (together, CCB) argue that the state’s denial of an exemption violates the Religion Clauses in three ways. First, CCB asserts that the denial “violates the principle of church autonomy by penalizing Catholic Charities because of its structure, including the fact that it is separately incorporated from the Diocese of Superior.” CCB says that “[i]t would violate Catholic social teaching to force Catholic Charities to be ‘absorbed and substituted’ by ‘social entities of a higher level,” and therefore the state’s decision to deny an exemption “unless [CCB] merges with the Diocese thus penalizes it for following specific Catholic teachings about church governance.” CCB contends that the Religion Clauses prohibit such state meddling in a church’s decisions on church governance.

CCB argues next that Wisconsin’s denial of an exemption impermissibly entangles the state in religion by second-guessing CCB’s religious commands and beliefs. It says that “Wisconsin has taken it upon itself to override the Catholic Church’s beliefs about whether (for example) helping those with developmental disabilities is a religious act, and to force Catholic Charities to participate in the State’s unemployment compensation system on that basis.” CCB contends that the Religion Clauses prohibit this kind of co-opting of its religious beliefs.

Finally, CCB argues that the state’s denial amounts to impermissible state discrimination among religions. According to CCB, “[u]nder the Wisconsin Supreme Court’s test, religious groups that serve only those of their own faith or that proselytize can obtain the tax exemption, as can religious groups with a simpler internal structure.” But CCB contends that Wisconsin law treats CCB differently “because it follows particular Catholic beliefs and has a particular Catholic polity.” CCB says that the Religion Clauses prevent this kind of discrimination, too.

The government weighs in as amicus to support CCB. The government argues that the Wisconsin Supreme Court misconstrued the federal analogue to Wisconsin’s law, the Federal Unemployment Tax Act (FUTA). According to the government, contrary to the Wisconsin Supreme Court’s reading, “[t]he statutory text makes clear that the relevant inquiry is whether the organization actually operates primarily for religious reasons, not whether another organization could undertake the same activities for nonreligious reasons.” Because the Wisconsin Supreme Court based its interpretation of Wisconsin law on its misinterpretation of FUTA, the government argues that the Court should reverse.

Wisconsin counters that the exemption is specifically designed not to entangle the state in religion. The state says that in applying the exemption it “searches for distinctively religious activities like worship, ritual, teaching the faith, or spreading a religious message—all of which can pose entangling unemployment questions when discharging an employee who engages in them.” Wisconsin claims that this approach is analogous to the approach to the “ministerial exemption,” the Religion Clauses doctrine that allows religious organizations to make employment decisions without state interference about their employees who fill religious roles.

Wisconsin argues next that it did not impermissibly discriminate against CCB in denying the exemption. On the one hand, the state says that “[t]he Establishment Clause allows [it] to tailor this accommodation to the religious organizations—unlike [CCB]—whose employment decisions might well present entangling religious questions.” On the other, it claims that tailoring the exemption to religious organizations does not violate CCB’s free-exercise rights. According to the state, that’s because CCB has “no religious objection to participating in the unemployment system; they do not show that Wisconsin targeted their faith; and they cannot claim that the exemption favors secular organizations over religious ones.” In any event, Wisconsin asserts that the exemption is “properly tailored to accommodate only those organizations that present entangling unemployment questions,” that is, religious organizations unlike CCB, when the state might violate the Establishment Clause.

Wisconsin argues that denying CCB an exemption does not violate principles of church autonomy. The state says that denying the exemption only affects “minor and incidental economic incentives on their corporate affiliation choices,” and not the “matters of faith and mission” that are at the core of church autonomy.

Finally, Wisconsin argues that the Wisconsin Supreme Court’s interpretation of the exemption is not at issue. But even if it is, the state says that the state Supreme Court’s interpretation was “consistent with the statute’s plain language, context, and purpose,” and legislative history and judicial precedent.

SIGNIFICANCE

Every state and the federal government exempt religious organizations from their unemployment compensation programs if they “operate primarily for religious purposes.” As a result, this case could affect how every state and the federal government apply their exemptions. Moreover, given the size and reach of Catholic Charities and other similar organizations, this case could affect a wide swath of community services and community-service providers.

This case is one in a string from recent years that tests whether and how government must accommodate religion under the First Amendment’s Religion Clauses. The Court in these cases has moved to expand religious liberties, to provide greater space for religion in public life, and to compel states to treat religion on par with how they treat similarly situated secular entities.

Here are just three examples. The Court ruled that a school district’s efforts to avoid an Establishment Clause violation by forbidding a football coach from praying with students on the field after games violated the coach’s free-exercise rights. Kennedy v. Bremerton School District, 597 U.S. 507 (2022). The Court held that a state law that prohibited students from using a generally-available student-aid program to attend private religious schools violated the Free Exercise Clause. Carson v. Makin, 596 U.S. 767 (2022). And the Court ruled that a state program that provided grants for schools to purchase rubber playground surfaces, but that excluded religiously-affiliated schools, violated the Free Exercise Clause. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017).

At the same time, the Court has clamped down on government discrimination against religion when government enforces generally-applicable laws. For example, the Court ruled that a state civil-rights commission violated the free-exercise rights of a cakeshop owner when the commission expressed animus against the owner in enforcing state anti-discrimination law. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018). Similarly, the Court ruled that Philadelphia violated the free-exercise rights of Catholic Social Services when the city’s contract for foster-care services allowed for discretionary exceptions to its general non-discrimination provision. Fulton v. City of Philadelphia, Pennsylvania, 593 U.S. 522 (2021). 

If this trend holds, look for the Court to favor CCB’s position.

One more point. This isn’t the only case dealing with the Religion Clauses this Term; there are two other significant cases coming in April. In Mahmoud v. Taylor, No. 24-297, the Court will determine whether public schools violate parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against the parents’ religious convictions. In Oklahoma Statewide Charter School Board v. Drummond, No. 24-394, the Court will assess whether a state violates the Free Exercise Clause by excluding private religious schools from the state’s charter-school program solely because the schools are religious.

 

D.C. Circuit Allows Trump to Remove NLRB, MSPB Officers Pending Appeal

A three-judge panel of the D.C. Circuit stayed lower-court orders preventing President Trump from removing officers of the National Labor Relations Board and the Merit Systems Protection Board at will.

The emergency ruling means that President Trump can remove those officers--and deprive the agencies of a quorum--pending appeal. One plaintiff already asked the full D.C. Circuit to issue an administrative stay of the panel's ruling. (The full docket is here.)

This fast-moving case, Harris v. Bessent, which consolidates a case involving the NLRB and another one involving the MSPB, is significant, because it tests the reach of Humphrey's Executor v. United States, which upheld for-cause removal protections for members of the FCC, and, more generally, tests the reach of the unitary executive theory.

Two judges on the panel sharply limited Humphrey's Executor to its precise facts, writing that the case means only that the President cannot remove officers of multi-member agencies like the FTC in 1935 (the subject of that case), which do not wield significant executive authority. But according to those two judges, the NLRB and the MSPB do wield significant executive authority. Therefore, Humphrey's Executor does not apply, the for-cause removal protection for officers of those agencies is invalid, and the President may remove officers of those agencies at will. (The two judges in the majority differed slightly in their assessments of how close a case this is. But they essentially applied the same reasoning.)

This matters, because Congress designed the NLRB and MSPB (and certain other multi-member agencies) to be able to do their jobs independently, and without political influence. Congress protected that independence with the for-cause removal protection for officers of these agencies. Without for-cause removal, the President may remove officers at will, or for purely political reasons, even, as here, depriving them of a quorum to do their statutorily-mandated and congressionally-funded jobs.

Judge Millett, dissenting, summarized the stakes:

The two opinions voting to grant a stay rewrite controlling Supreme Court precedent and ignore binding rulings of this court, all in favor of putting this court in direct conflict with at least two other circuits. The stay decision also marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.

What is more, the stay order strips the National Labor Relations Board and the Merits Systems Protection Board of the quora that the district courts' injunctions preserved, disabling agencies that Congress created and funded from acting for as long as the President wants them out of commission. That decision will leave languishing hundreds of unresolved legal claims that the Political Branches jointly and deliberately channeled to these expert adjudicatory entities. In addition, the majority decisions' rationale openly calls into question the constitutionality of dozens of federal statutes conditioning the removal of officials on multimember decision-making bodies--everything from the Federal Reserve Board and the Nuclear Regulatory Commission to the National Transportation Safety Board and the Court of Appeals for Veterans Claims.

Appeals Court Administratively Stays Preliminary Injunction Halting Ban on Transgender Military Service

The D.C. Circuit granted an administrative stay this week of the district court's March 18 preliminary injunction that halted enforcement of the Administration's ban on transgender persons serving in the military.

The order in Talbott v. United States of America is temporary, and only "to give the court sufficient opportunity to consider the emergency motion for stay pending appeal." According to the court, it "should not be construed in any way as a ruling on the merits of that motion." Moreover, "[i]f any action occurs that negatively impacts service members under [the Administration's ban] before the court lifts the administrative stay, the plaintiffs may file a motion to lift the administrative stay, and the court will consider it expeditiously." The court also ordered quick briefing on the Administration's motion to stay pending appeal. (Here's the complete docket at the D.C. Circuit.)

The precise effect of the administrative stay is uncertain. On the one hand, it's a stay, and allows the Administration to enforce the ban. But on the other hand, the court will consider any motion to lift the stay in response to Administration enforcement "expeditiously." On the third hand, briefing on the Administration's motion to stay pending appeal (which, unlike the administrative stay, requires the court to assess the merits) is due this week. Whatever happens, it seems, the court will quickly get to the merits (or, more accurately, the likelihood of success on the merits).

All this comes in response to a district court preliminary injunction, which halted enforcement of the Administration's ban on transgender persons serving in the military. In granting the PI, the court said that the ban was based on mere animus, and that it failed at both intermediate scrutiny and rational basis review.

The thorough memo in support of the PI is well worth a read--on the back-and-forth recent history of military service by transgender persons, on the deference that courts owe to the Executive in military matters, and on the fitness of the ban under intermediate scrutiny and rational basis review.

Court Temporarily Halts Dismantling of Voice of America

A federal district court issued a temporary restraining order on Friday preventing the Administration from dismantling Voice of America pending further litigation.

The ruling in Widakuswara v. Lake means that the Administration cannot terminate employees or contracts while the case moves forward. (The full docket in the case is here.)

The ruling is notable for rejecting the Administration's claims that retaining the skeletal staff required by statute, re-starting programming in Cuba, and making only cuts "to the maximum extent consistent with applicable law" mean that its actions were lawful. The Administration has used similar claims to defend other lawsuits challenging its dismantling of other agencies.

On the merits, the court ruled that the plaintiffs were likely to succeed on their claims that the dismantling was arbitrary and capricious in violation of the Administrative Procedure Act, because "[d]efendants failed to provide such reasoned analysis" for their actions. The court also ruled that the plaintiffs were likely to succeed on their Take Care Clause claim, because "[w]ithholding congressionally appropriated funds, and effectively shuttering a congressionally created agency simply cannot be construed as following through on this constitutional mandate." Similarly, the court said that the plaintiffs were likely to succeed on their separation-of-powers claim, because "[b]y withholding the funds statutorily appropriated to fully administer, USAGM, VOA, and its affiliates, the executive is usurping Congress's power of the purse and its legislative supremacy."

The court did not address any First Amendment issues or Appointment Clause issues (challenging Kari Lake's role), both of which were included in the plaintiffs' complaint.

First Circuit Declines to Stay Preliminary Injunction on Federal Funding Freeze

The First Circuit earlier this week declined to stay a preliminary injunction that required several agencies to reinstate funding for federal grants, contracts, and awards to plaintiff-states.

The ruling in State of New York v. Trump means that the district court preliminary injunction remains in place pending further litigation. That injunction prohibited the Administration from freezing appropriated funds to the plaintiff-states "under awarded grants, executed contracts, or other executed financial obligations." It also required the Administration to re-start such funding that it previously froze.

The case arose when various agencies implemented a funding freeze based on President Trump's early executive orders and a Directive from OMB. OMB later withdrew that Directive, but the agencies' funding freeze continued. Several states sued, arguing that the freeze violated the Administrative Procedure Act, and a federal district court issued a preliminary injunction. This week the First Circuit declined to stay that injunction.

In ruling that the Administration failed to demonstrate a likelihood of success on the merits, the court rejected the Administration's claim that the PI impermissibly covered a "broad programmatic attack" (rather than discrete agency actions) on non-final agency actions. Instead, the court said that the district court addressed "the discrete final agency actions"--"the decisions by the Agency Defendants to implement broad, categorical freezes on obligated funds." The court added, "we are not aware of any supporting authority for the proposition that the APA bars a plaintiff from challenging a number of discrete final agency actions all at once," and that the "funding freezes were categorical in nature."

The court also rejected the Administration's claim that the PI impermissibly halted legal freezes, along with the illegal ones. The court noted that the district court found that "[t]he OMB Directive essentially ordered agencies to effectuate the blanket pause and then decide later which funding streams they actually had lawful authority to withhold," so that the agencies themselves didn't have a chance to sort out legal versus illegal freezes.

Finally, the court rejected the Administration's claim that the PI interferes with the President's authority to supervise federal agencies under Article II, and that the President's EOs were lawful. The court noted that the PI enjoined the agencies' "categorical funding freezes," and that "the Defendants have not demonstrated that they have a likelihood of success in demonstrating that the injunction reaches lawful conduct."

Federal Employee Targeted for DEI Efforts Sues, Alleging Illegal Discrimination

A federal employee who was removed from her position pursuant to President Trump's executive orders eliminating DEI from the federal government sued this week, arguing, among other things, that her removal violated anti-discrimination laws.

The employee brought the case at the Merit Systems Protection Board and sought class certification for all employees targeted by the Administration's anti-DEI purges.

The employee alleged that the Administration discriminated against her on the basis of sex (because "[t]he government-wide RIFs required by [the EOs] disproportionately singled out federal workers who were not male or white") and political affiliation, and that the Administration violated RIF procedures.

Court Halts Dismantling of CFPB

A federal district court yesterday halted the Administration's dismantling of the Consumer Financial Protection Bureau pending further litigation and ordered that the Administration "reinstat[e] and preserv[e] the agency's contracts, work force, data, and operational capacity, and protect[] and facilitat[e] the employees' ability to perform statutorily required activities."

The lengthy and thorough ruling included a forceful rebuke of the Administration's efforts to dismantle the CFPB and the Administration's efforts to mislead the court into believing that it wasn't, in fact, dismantling the agency.

The court's order is a preliminary injunction, which means that the Administration can appeal it (and almost surely will).

The court ruled that the plaintiffs were likely to succeed in their claims that the Administration exceeded its authority under the Constitution and violated the Administrative Procedure Act. In short, on both claims the court said that Congress created the CFPB and required that it perform certain functions, and that the Executive Branch can't unilaterally undo that congressional design.

The full docket in the case, National Treasury Employees Union v. Vought, is here.

District Court Halts Noncitizen Removals to Third Countries without Process

A federal district court yesterday issued a temporary restraining order that prevents the government from removing noncitizens to third countries without first providing them notice and an opportunity to argue that they would face persecution in the third country.

The ruling means that the Administration cannot enforce its February 18 directive to remove certain noncitizens to third countries without first providing notice and process. The Administration already filed a notice of appeal to stay the order. (The full docket is here.)

The case, D.V.D. v. U.S. Department of Homeland Security, arose when four noncitizens challenged the Administration's efforts to remove them to third countries--countries other than the country or alternative country of removal designated in their prior immigration proceeding. (For example, one of the four, from Guatemala, alleged that he was previously granted withholding from removal to Guatemala based on his well-founded fear of persecution there, but that the Administration then removed him to Mexico without offering him an opportunity to argue that he faced persecution there, too.)

The plaintiffs alleged that in removing the four (and the class they represent) to third countries without process, the Administration violated statutes that protect individuals from removal to countries where they would face persecution, including the Immigration and Naturalization Act (which protects individuals from removal to any country "if the Attorney General decides that [their] life or freedom would be threatened in that country" on a protected ground) and the Foreign Affairs Reform and Restructuring Act of 1998 (which prevents removal to a country where a person is likely to be tortured); the Due Process Clause; and U.S. treaty obligations.

The Administration argued that the court lacked jurisdiction under federal law that directs final orders of removal to the courts of appeals (not the district courts), and, in any event, that the legal authorities that the plaintiffs cited don't require notice and an opportunity to argue persecution in these cases. (For example, the Administration argues that the INA only requires withholding from removal "if the Attorney General decides," but that the Attorney General didn't decide, and that law doesn't require notice and process.)

 

Fourth Circuit Stays District Court Injunction Halting the Dismantling of USAID

The Fourth Circuit today stayed a district court preliminary injunction that ordered Elon Musk and DOGE to stop dismantling USAID. The ruling means that Musk and DOGE may continue with whatever actions they took, and are taking, to destroy the agency.

The case, J. Does 1-26 v. Musk, arose when USAID employees sued Musk and DOGE to halt their dismantling of the agency. The plaintiffs argued that Musk's actions violated the Appointments Clause, because Musk acted as the Administrator of DOGE without being properly appointed to that job. They argued that Musk and DOGE violated the separation of powers by dismantling the agency contrary to federal law that established it and funded it.

The district court issued a preliminary injunction halting Musk and DOGE from taking certain further actions to dismantle the agency.

Today, the Fourth Circuit stayed that injunction pending appeal.

The court held that the defendants were likely to prevail on the merits. It said that current evidence "creates a strong likelihood that [Musk] functioned as an advisor to the President . . . not as an Officer who required constitutional appointment," because his decisions were ratified by agency officers and because the district court found that he was "acting without authority." The court also said that current evidence doesn't support that Musk and DOGE were the ones who dismantled USAID; instead, agency officers authorized, or may have authorized, any ultimate decisions.

In other words, the plaintiffs failed to name the right defendants:

The district court identified USAID as authorizing and ratifying all actions complained of except closing the prior USAID headquarters and taking down its website. Yet, neither the Executive nor USAID is named here. Confined to the two allegedly unlawful actions identified by the district court, there is no strong likelihood of success on the merits of a separation of powers claim against a defendant who the district court found to be acting without authority and who the government claims is not an Officer of the United States.

Judge Gregory concurred for the same reason, but had some sharp words about executive unilateral dismantling of a congressionally-created and funded administrative agency.

The court held that other stay factors also favored the defendants.

The court expressly held open the possibility that the plaintiffs might "develop evidence of unconstitutional conduct as the case progresses." But for now, "the record does not support the district court's finding of a likelihood of constitutional violations.

Trump Administration Seeks Supreme Court Intervention in Alien Enemies Act Case

The Trump Administration asked the Supreme Court to stay a district court temporary restraining order that prevents the government from removing certain Venezuelan citizens under President Trump's proclamation invoking the Alien Enemies Act. We most recently posted on the D.C. Circuit ruling here.

Most recently, the D.C. Circuit declined to halt the district court TRO. This meant that the TRO remained in place, and continued to prevent the Trump Administration from removing Venezuelans that, according to the Trump Administration, belong to Tren de Aragua, which the Administration previously designated a foreign terrorist organization. (This is the same case in which the Administration flew some alleged members of TdA to El Salvador, likely in violation of the district court order. That question--whether the Administration violated the TROs--is pending in the district court. Most recently, the Administration invoked the state secrets privilege and refused to answer the court's questions about the flights.)

Earlier today, the Administration asked the Supreme Court to stay the TRO. On the likelihood-of-success-on-the-merits, the Administration argued four points:

• The plaintiffs filed the wrong case in the wrong court. They should've filed a habeas petition in the district where they're detained (the Southern District of Texas), and not an Administrative Procedure Act claim in the D.C. District.
• The district court wrongly certified a class "to effectively impose a backdoor nationwide injunction against the Proclamation."
• The President's invocation of the Alien Enemies Act is lawful, because the President found "that TdA members are involved in, threatening, or attempting an 'invasion' or 'predatory incursion,' and that TdA has 'infiltrated,' and 'acts at the direction' of a foreign nation or government," based on TdA's "close entwinement with the Maduro regime in Venezuela."
• The TRO is appealable, and the Supreme Court should stop the increasingly common use of TROs to frustrate the Administration's agenda.

Chief Justice Roberts ordered a response to the Administration's application by 10:00 a.m. on April 1.

Ninth Circuit Upholds Preliminary Injunction in Probationary Employees' Case

The Ninth Circuit yesterday upheld a preliminary injunction issued by a district court in a case challenging the Trump Administration's summary removal of probationary employees at several agencies.

Just a couple days prior, the Administration asked the Supreme Court to stay the injunction. That request is still pending.

All this means that the district court injunction remains effective, unless and until the Supreme Court says otherwise. That injunction requires covered agencies to offer reinstatement to terminated probationary employees and to advise them that their removal was deemed unlawful by the district court.

The case, American Federation of Government Employees, AFL-CIO v. United States Office of Personnel Management, arose when organizations and unions sued to halt and reverse the Administration's summary removal of probationary employees at certain agencies. The district court issued a TRO then a preliminary injunction, ordering the agencies to reinstate the employees and advise them that the court deemed their removal illegal. In issuing the injunction, the court ruled that the plaintiffs were likely to succeed on the merits of their claim that OPM exceeded its authority in ordering the removals. (OPM has statutory authority over its own employees, but it doesn't have authority to order other agencies to remove their employees.)

The Administration asked the Ninth Circuit to stay the injunction pending further litigation. The Ninth Circuit declined, however, concluding that the Administration didn't demonstrate that it was likely to succeed in showing that none of the organizational plaintiffs had standing or that the claims belonged at the Merit Systems Protection Board (and not in federal court). It also said that the Administration didn't show that the district court clearly erred in finding that OPM directed the agencies to fire the employees.

Before the Ninth Circuit ruled, the Administration also asked the Supreme Court to stay the injunction. That request is still pending.

Back in the district court, the plaintiffs have now argued that the Administration isn't complying with the injunction. If the defendants continue to defy the court, the plaintiffs also asked the court to hold them in civil contempt.

Removed FTC Commissioners Sue, Likely Spawning Administration Challenge to Humphrey's Executor

Two Commissioners of the Federal Trade Commission who were summarily removed from office sued President Trump and FTC officials today, arguing that their removal violated the FTC Act, the Administrative Procedure Act, and the separation of powers.

The case tees up a challenge to the FTC's congressionally-created independent structure and the congressionally-created independent structure of other multi-member agencies.

The complaint in Slaughter v. Trump is here; the full docket is here.

The plaintiffs allege that on March 18 they each received an e-mail from Trent Morse, Deputy Director of Presidential Personnel, which "included a message from President Trump: 'I am writing to inform you that you have been removed from the Federal Trade Commission, effective immediately.'" The plaintiffs allege that the notice gave no reason for the removal.

But the FTC Act provides that FTC Commissioners are removable by the President only for "inefficiency, neglect of duty, or malfeasance in office." (That restriction on removal, or something like it, is one way that Congress ensures that certain officers can act independently.) The Supreme Court unanimously upheld this removal restriction in 1935 in Humphrey's Executor v. United States. More recently, the Court in Seila Law v. CFPB said that independent multi-member agencies were one of two "exceptions" to the President's power to remove officers within the Executive Branch.

The plaintiffs allege that "[t]he President's message briefly acknowledges Humphrey's Executor but asserted that it 'does not fit the principal officers who head the FTC today' because, '[a]s presently constituted, the FTC exercises substantial executive power.' After listing certain of the FTC's powers, the message stated: 'An independent agency of this kind has "no basis in history and no place in our constitutional structure . . . ."'"

Humphrey's Executor and independent multi-member agencies are the next targets for proponents of the unitary executive theory--the idea that the President has plenary power to remove officers within the Executive Branch, despite the fact that Congress created certain offices with independence.

It's not clear yet, though, how the Trump Administration will lodge its attack. The language in the plaintiffs' removal notice suggests that the Administration might first try to distinguish the current FTC from the FTC in Humphrey's Executor, arguing that independence in the current FTC is a greater encroachment on executive authority because (unlike the earlier FTC) it "exercises substantial executive power." That approach would affect independent multi-member agencies "with substantial executive power," but it could leave Humphrey's Executor itself and certain other independent multi-member agencies intact.

But if the Administration argues that Humphrey's Executor should be overruled--and if the Supreme Court ultimately agrees--this case could mark the end of independent multi-member agencies.

In other cases, the Trump Administration said that it intended to pursue both lines of argument.

D.C. Circuit Maintains Halt on Venezuelan Deportation under Alien Enemies Act

The D.C. Circuit today declined to stay a district court temporary restraining order that prevents the Trump Administration from deporting certain Venezuelan citizens under the Alien Enemies Act. The ruling means that the district court TRO remains in effect pending further litigation in the case, although the government is likely to ask the Supreme Court to intervene.

Recall that President Trump invoked the AEA to remove "all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua]" and who are not "naturalized or lawful permanent residents of the United States." The AEA says,

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

The AEA has only been invoked three times in our nation's history: in the War of 1812, in World War I, and in World War II.

Five Venezuelans sued to halt enforcement of President Trump's proclamation and filed an emergency application for a TRO. The district court issued a TRO for the five plaintiffs, then provisionally certified a class of all noncitizens in U.S. custody who were subject to the proclamation and issued a second TRO to cover the class. (The government's compliance or noncompliance with the court's TROs is also subject to dispute. Most recently, the government invoked the state secrets privilege in response to the court's order for more information.)

The government filed an emergency motion to stay the TRO with the D.C. Circuit. This afternoon, the D.C. Circuit denied the motion. The three judges wrote separately.

Judge Henderson argued that the court had jurisdiction to consider the emergency motion; that the district court had jurisdiction to issue the TRO; that the AEA issue was not a nonjusticiable political question; and that the balance of factors weighed against a stay (including that the plaintiffs were likely to succeed on the merits of their AEA claim).

Judge Millett argued that the court lacked jurisdiction to consider the emergency motion (because TROs aren't ordinarily appealable), and in any event that the AEA issue was not a nonjusticiable political question, that the district court had jurisdiction, and that the stay factors weighed against a stay.

Judge Walker dissented and argued that the court had jurisdiction to consider the emergency motion, and that the district court lacked jurisdiction, because the plaintiffs had to file habeas petitions where they are confined, in Texas.

Department of Education Asks Court to Reinstate Halt on Teacher Grant Programs

The Department of Education asked the Supreme Court to vacate a temporary restraining order issued by a district court judge that required the Department to reinstate two grant programs for teachers.

The case, United States Department of Education v. State of California, arose when the Department notified grant recipients in the Teacher Quality Partnership program and the Supporting Effective Educator Development program that funding would be halted. The Department cited various reasons in its form letter to recipients, but they all came down to the Administration's crack-down on DEI initiatives.

Eight states sued, arguing that the Department's move was arbitrary, capricious, or unlawful in violation of the Administrative Procedure Act. The district court issued a TRO, and the First Circuit declined to stay it.

On the (likelihood of success on the) merits, the First Circuit held that the Administration failed adequately to explain its decision to halt funding to these programs, which are created by Congress and provided for in law.

In moving to vacate and seeking an administrative stay at the Supreme Court, the government contends that the district court overreached in issuing a nationwide TRO, and that it lacked jurisdiction to hear a contract dispute. (Under the Tucker Act, federal government contract disputes go to the Court of Claims. But the plaintiffs pleaded the case as an APA violation, not a contract dispute, and the lower courts agreed. This defense--that challenges to the Administration's funding halts are contract disputes that belong in the Court of Claims--is a recurring and familiar government argument in cases challenging the Administration's funding halts.) 

The plaintiffs' response is due on Friday.