Constitutional Law Prof Blog

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.

Court to Test Congressional Delegation to FCC

The Supreme Court will hear oral arguments today in Federal Communications Commission v. Consumers' Research, a case testing the limits of Congress's authority to delegate power to an administrative agency. In particular, the case tests whether Congress can delegate power to the FCC to determine the amount that communications providers must contribute to a fund to subsidize access to telecommunications in rural areas. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

In 1996, Congress amended the Communications Act of 1934 to make it easier for the Federal Communications Commission (FCC, or Commission) to ensure that affordable and reliable communications services remained available throughout the United States. The legislation sought to achieve this objective, known as “universal service,” by directing the FCC to establish a set of programs called the Universal Service Fund, specifying that telecommunication carriers must “contribute” to the Fund, and directing the FCC to use the balance in the Fund to subsidize universal service. (FCC previously achieved this same objective informally, by allowing telecommunications providers to charge above-cost rates in cities while charging below-cost rates in rural areas.)

The Act specifies six “principles” that direct the FCC’s use of this authority. First, services should be available at “just, reasonable, and affordable rates.” Next, “all regions of the Nation” should have access to services. Third, customers throughout the nation should have access to services that are “reasonably comparable” in quality and price to services in urban areas. Fourth, carriers should make “equitable and nondiscriminatory” contributions to universal service. Fifth, universal service subsidies should be “specific, predictable[,] and sufficient.” And finally, “schools,” “libraries,” and “health care providers” should have access to services. 47 U.S.C. § 254(b). The Act authorizes the FCC to adopt additional principles under certain circumstances. Moreover, the Act specifies the entities that must pay contributions, the entities that may receive subsidies, and the types of services that the Fund may subsidize.

Pursuant to the Act, the FCC established four universal service programs, which assist rural, insular, and high-cost areas; low-income customers; schools and libraries; and rural healthcare providers. All four programs subsidize telephone and high-speed internet services.

In 1997, the FCC directed the establishment of the Universal Service Administrative Company (USAC) to help it administer the Fund. The USAC is a private, not-for-profit corporation chartered in Delaware, but it operates under the FCC’s oversight and control.

The FCC appointed the USAC as the Fund’s “permanent Administrator.” 47 C.F.R. § 54.701(a). Under FCC regulations, the Administrator provides financial projections that the FCC uses in computing universal service contributions, and it bills and collects contributions. The Administrator also disburses money to program beneficiaries pursuant to FCC rules. But the Administrator exercises no independent regulatory power, and it must comply with FCC rules. Any party aggrieved by an Administrator decision can request review by the FCC.

Under FCC regulations, the Administrator must submit to the FCC its projected expenses for the universal service programs at least 60 days before the start of each quarter. The Administrator must also provide “the basis for those projections.” 47 C.F.R. § 54.709(a)(3). These projections “must be approved by the Commission before they are used” to calculate contributions. 47 C.F.R. § 54.709(a)(3).

Under FCC regulations, the Administrator must also project revenues for each quarter. It must report the total contribution base to the Commission at least 30 days before the start of each quarter.

Based on the Administrator’s projections, the FCC computes a “contribution factor”—a number based on the ratio of the projected expenses to the total revenues. The FCC publicizes the projections and contribution factor in a public notice and on its website. It retains the power to revise the projections and to set them “at amounts that the Commission determines will serve the public interest.” If the Commission takes no action within 14 days, the numbers are “deemed approved.” 47 C.F.R § 54.709(a)(3). Once the FCC approves the contribution factor, the Administrator calculates each carrier’s contribution and sets a percentage of each carrier’s revenue that it must pay. Carriers, of course, can pass the cost of their contributions to their customers.

In November 2021, the Administrator submitted its projections for program expenses for the first quarter of 2022. In December, it submitted its calculation of the total contribution base for that quarter. Based on those numbers, the FCC proposed a contribution factor of 25.2 percent.

A group of consumers, a nonprofit corporation, and a carrier (the respondents) filed comments with the FCC asking the Commission to set the contribution factor at 0 percent. They based their request on a claim that the Universal Service Fund was unlawful because Congress impermissibly delegated its legislative power to the FCC and the FCC impermissibly redelegated power to the Administrator. (The respondents filed similar claims with regard to other quarters’ contribution factors in the Sixth, Eleventh, and D.C. Circuits.) Several groups of Universal Service Fund beneficiaries intervened in support of the government.

The FCC took no action within 14 days, and the Administrator’s earlier proposed contribution factor was deemed approved.

The objecting group then filed a petition for review in the Fifth Circuit. A three-judge panel unanimously denied the petition for review, but a sharply divided en banc court reversed. The Court granted the petitions for a writ of certiorari filed by the government and the intervenors. It also directed the parties to brief this additional question: “Whether this case is moot in light of the challengers’ failure to seek preliminary relief before the Fifth Circuit.”

CASE ANALYSIS

As a general matter, Congress cannot delegate away its lawmaking authority to administrative agencies. This is called the nondelegation doctrine. But nevertheless, the Court has historically given Congress quite a bit of latitude in delegating authority to agencies to interpret, apply, and enforce federal law. So long as the law gives agencies an “intelligible principle” on which to act, the law does not impermissibly delegate away lawmaking power.

Also as a general matter, government departments, including administrative agencies, cannot delegate away their regulatory authority to private entities. Private entities can advise administrative agencies, but they cannot make ultimate administrative decisions. This is sometimes called the private nondelegation doctrine.

The parties wrangle over the application of the nondelegation doctrine, the private nondelegation doctrine, and the combination of the two doctrines. As instructed by the Court, they also wrangle over mootness.

The government argues first that the case is not moot. The government notes that “the FCC sets a new contribution factor each quarter” and argues that “because a quarter is too short a period for a challenge to the factor to be fully litigated, this case fits within the ‘capable of repetition, yet evading review’ exception to mootness.” According to the government, the respondents’ failure to seek preliminary relief does not change that conclusion, because the exception focuses on the nature of the lawsuit (and not the conduct of the parties) and because “this Court has applied the exception even when litigants have failed to move for preliminary relief.”

The government argues next that the Fifth Circuit erred in holding that the universal service contribution system violated the nondelegation doctrine. The government says that the Act provides a sufficiently “intelligible principle” for the FCC to act. The government points out that the Act includes six enumerated “principles” that “define[] the general policy that the FCC must pursue,” and that the Act “also defines the boundaries of the FCC’s authority,” for example, who pays the universal service contributions, the terms by which the funds must be used, and more. According to the government, the Act’s “detailed guidance far exceeds what this Court’s precedents require.”

The government argues that “[t]he FCC did not subdelegate legislative power to the private Administrator.” To the contrary, the government says that the Administrator, a private entity, merely proposes contribution rates to the FCC, and the FCC makes the ultimate decision to adopt those proposals or not.

Finally, the government argues that “[t]he combination of Congress’s grant of discretion to the FCC and the FCC’s conferral of responsibility upon the Administrator does not violate the nondelegation doctrine.” Again, the government contends that the Act provides a sufficiently intelligible principle, and that “it effects a grant of executive power.” “That executive power does not become legislative power simply because the Commission, in carrying out its universal service responsibilities, considers advice provided by the Administrator.”

Intervenors and petitioners in a companion case offer substantially similar arguments.

The respondent counter first that the Act impermissibly delegates taxing power to the FCC “without objective or meaningful limits on the size of the tax.” The respondents contend that this violates both the original understanding of the nondelegation doctrine and “the modern nondelegation framework test, which still requires Congress to ‘clearly delineate’ delegated power.” The respondents offer a “simple but meaningful” fix: “Congress could clearly add a specific tax rate or appropriate money directly.” They add that this “multi-billion-dollar social welfare program” is no “trifling detail that can be left to agency bureaucrats to fill up.”

The respondents argue next that the Act “violates the private nondelegation doctrine.” They say that the “FCC has abdicated substantive review and independent approval of USAC’s proposals, which are ministerially converted into a Contribution Factor that is ‘deemed approved’ after just fourteen days.”

The respondents argue that the combination of Congress’s delegation to the FCC and the FCC’s delegation to the Administrator “violates the Legislative Vesting Clause.” They say that this double-layered scheme—a “sweeping delegation of the taxing power, with a subdelegation of that power to private entities with a personal financial interest in the size of the tax”—represents an especially egregious violation of the separation of powers.

Finally, the respondents argue that the case is not moot. They say that the dispute is still live, because the courts could award restitution to them, and that in any event the dispute is likely to recur. Moreover, they contend that requiring a party to seek emergency relief would “cause serious repercussions,” like “an explosion of motions for emergency relief” and an increased chance that “the underlying dispute evades review.”

SIGNIFICANCE

Most immediately, this case touches on a key program to provide affordable and reliable access to telecommunications for rural communities and others who might otherwise lack access. The many amici who weighed in to support the Act reflect how critical this issue is to a wide range of diverse communities. A ruling that strikes the Act could significant restrict, or even wipe out, affordable access for these communities. As the respondents point out, Congress could amend the Act. But it’s not at all clear that an amendment could clear this Congress. In short, a Court ruling that strikes the Act could significantly restrict affordable access to rural communities.

Telescoping out, the case could mark a significant step in the Court’s longer-term move to limit the powers of administrative agencies, in this case by reinvigorating the nondelegation doctrine. That doctrine gives Congress quite a bit of flexibility to delegate broad authority to agencies to interpret, apply, and enforce the law. Indeed, the Court has not overturned a single piece of legislation as violating the nondelegation doctrine since 1935. As a result, Congress has been able to legislate broadly, leaving the details up to the agencies.

To many, this makes good sense. After all, Congress lacks the institutional expertise to legislate with details on every matter, whereas agencies have that expertise. Moreover, Congress can’t always legislate to respond with detail to new or evolving situations, whereas agencies can. To those who support a weak nondelegation doctrine, Congress should be able to legislate in broad terms, leaving the details to the agencies, so long as the legislation provides some guidance (an “intelligible principle”) to direct them.

But to others, a weak nondelegation doctrine allows Congress impermissibly to delegate away its lawmaking power, handing that power over to unelected agencies. After all, Congress is the branch of government that has the law-making power, not agencies. And Congress is directly accountable to voters; agencies, in contrast, are only accountable through the President. To those who support a strong nondelegation doctrine, broad congressional delegation is an even greater problem when agencies make decisions restricting liberty or when agencies re-delegate their authority to private actors, as the respondents argue here.

The Court’s relaxed approach to the nondelegation doctrine has been under attack in recent years and decades, along with other attacks on the powers of the administrative state. For example, in 2022 the Court ruled that in certain “extraordinary cases,” where the “history and breadth of the authority that [the agency] has asserted” and the “economic and political significance” of that assertion provide a “reason to hesitate before concluding that Congress” intended to delegate that authority, an agency must point to “clear congressional authorization” for its actions. West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022). The Court applied this “major questions doctrine” (a close cousin of the nondelegation doctrine) to restrict agencies’ authorities in some hot-button cases since. More recently, the Court reversed the decades-old “Chevron doctrine,” which said that courts defer to an agency’s reasonable interpretation of ambiguous federal law. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). A string of other rulings cabin agencies’ powers by restricting how the agencies are designed by Congress.

As to the nondelegation doctrine, the Court most recently applied its relaxed approach and upheld a broad congressional delegation just six years ago in Gundy v. United States. 588 U.S. 128 (2019). But in that case, just four justices—all from the progressive wing, and including Justice Ruth Bader Ginsburg—wrote to affirm the relaxed approach. Justice Neil Gorsuch dissented, joined by Chief Justice John Roberts and Justice Clarence Thomas, and argued for a robust nondelegation doctrine. Justice Samuel Alito wrote that he would be open to reconsidering the Court’s approach to the nondelegation doctrine in an appropriate case. Justice Brett Kavanaugh was recused.

Given the line-up in Gundy, the changed composition of the Court (Justice Amy Coney Barrett replaced Justice Ginsburg), and the justices’ votes in other cases restricting the powers of the administrative state, and given the nature of this case (which includes a congressional delegation to an agency, an agency delegation to a private entity, and the combination of those delegations), look for the Court to tighten up its approach to the nondelegation doctrine and further restrict how Congress can delegate power to agencies.

Court Halts Trump's EO Targeting Law Firm

A federal district court yesterday temporarily halted enforcement of President Trump's EO that targeted the law firm Perkins Coie. The temporary restraining order enjoins the Department of Justice and other federal agencies from "implementing or enforcing Sections 1, 3, and 5 of Executive Order 14230 . . . entitled 'Addressing Risks from Perkins Coie LLP."

Here's the full docket for the case.

President Trump's EO appears to have no basis, except for political retribution. Perkins Coie alleged that it constituted an unconstitutional exercise of judicial authority (for attempting to regulate and sanction lawyers for professional misconduct, a judicial function); that it violated procedural due process; that it was unconstitutionally vague; that it violated equal protection; that it violated free speech and associational rights (in several ways); and that it violated the right to counsel.

The ruling means that the defendant agencies can't enforce those sections of the EO for now, and pending further litigation. It's not a final ruling on the merits (although it's not hard to see why it foretells a final ruling on the merits).

Administration Asks Supreme Court to Stay Universal Injunctions in Birthright Citizenship Cases

The Trump Administration asked the Supreme Court to stay "universal" injunctions issued by three separate district courts in cases challenging President Trump's EO purporting to deny birthright citizenship to certain individuals born within the United States.

The application does not ask the Court to weigh in on the underlying merits. But it nevertheless rehearses the Administration's arguments against birthright citizenship for individuals that the Administration says are not "subject to the jurisdiction thereof." (Short version: "The original public meaning of the term 'jurisdiction' refers [to] 'political jurisdiction' (which turns on whether a person owes allegiance to, and is entitled to protection from, the United States), not regulatory jurisdiction (which turns on whether a person must follow U.S. law).")

If the Court grants the Administration's request, the court rulings would still enjoin the Administration from denying birthright citizenship to parties before those courts. If the Court denies the request, the rulings stay in place, and the Administration could not enforce the EO nationwide pending further litigation.

Here's the Administration's arguments why universal, or nationwide, injunctions are unlawful:

Universal injunctions transgress constitutional limits on courts' powers, which extend only to "render[ing] a judgment or decree upon the rights of the litigants." Universal injunctions are also incompatible with "'foundational' limits on equitable jurisdiction." "[N]ationwide injunctions have not been good for the rule of law," and "ris[k] the perception of the federal courts as an apolitical branch." And universal injunctions compromise the Executive Branch's ability to carry out its functions, as administrations of both parties have explained.

Supreme Court Rebuffs Administration Effort to Halt Foreign Aid Funding

A sharply divided Supreme Court today rebuffed the Trump Administration's effort to halt foreign aid funding for work already done. The ruling also suggests that as many as five justices won't abide the Trump Administration's gambits.

The case, Department of State v. AIDS Vaccine Advocacy Coalition, arose when a district court ordered the Administration to make payments for foreign-aid work that was already completed pursuant to valid contracts at the time of the court's earlier temporary restraining order. (The earlier TRO enjoined the Administration from halting all foreign development assistance. The more recent order--the one at issue here--ordered the Administration to make payments only for work already done.) The Trump Administration asked the Court to intervene, and Chief Justice Roberts issued a temporary stay. Today the Court vacated that stay and reimposed the district court's temporary restraining order that the Administration pay for foreign-aid work already done.

This doesn't mean the case is over. The district court is still considering the plaintiffs' motion for a preliminary injunction. In today's order, the Supreme Court instructed the district court to "clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines."

This also doesn't necessarily mean that five justices ruled against the Administration on the merits. In typical style for this kind of ruling, the Court did not say exactly why it vacated the Chief's earlier order and reinstated the district court TRO. For some or all in the majority, this might've only been because TROs aren't typically appealable, and they declined to treat the TRO as an (appealable) preliminary injunction. If so, the ruling doesn't necessarily foretell anything about the merits. (Still, we might reasonably guess that justices who think the TRO went too far would go out of their way to treat it as a (appealable) preliminary injunction, and those that think it was proper would see it as an (unappealable) TRO.)

In any event, the bottom line is a sharp rebuke to the Trump Administration and its efforts unilaterally to cut funding that Congress authorized (and, in this case, that was already due for work already completed). If, as many think, the Trump Administration's strategy in gutting USAID and unilaterally halting foreign-aid funding was a test run for how it might gut other agencies, the Court's ruling signals that the Court--or at least five justices--may not always go along.

Justice Alito dissented, joined by Justices Thomas, Gorsuch and Kavanaugh. Justice Alito argued that the district court TRO was effectively a preliminary injunction, that it violated sovereign immunity by ordering the government to pay out money, and that it swept too broadly by ordering the Administration to pay out to entities that were not parties to this litigation.

District Court Temporarily Halts Access to Education, Personnel Management Records by DOGE Affiliates

A federal district court in Maryland issued a temporary restraining order against Department of Education and Office of Personnel Management officials preventing them from granting access to protected agency records by DOGE affiliates within those agencies. (The complete docket in the case, American Federation of Teachers v. Bessent, is here.)

At the same time, the court declined to halt access to Treasury Department records, noting that a different court already did that, just four days ago. (That case docket, New York v. Trump, is here.)

The court also noted that several other courts have declined to issue temporary injunctions in similar cases, holding that the plaintiffs in those cases didn't show a likelihood of success on the merits or that they didn't demonstrate irreparable harm.

The court's ruling means that DOGE affiliates at Ed. and OPM can't access certain of those agencies' protected records for now, pending further litigation. Those records include names and addresses, social security numbers, dates of birth, tax and financial information, and student loan information, among other personal information. The TRO applies to members of the plaintiff unions and membership organizations, which include former federal employees, federal student aid recipients, and six military veterans who received federal benefits or student loans.

The court ruled that access to the records by DOGE affiliates likely violated the Privacy Act, which protects certain government records with personal information from disclosure, and that the DOGE affiliates couldn't show a need-to-know exception to the Act.

The ruling is a setback for DOGE and the Trump Administration, and a victory for the plaintiffs' members and their effort to protect their private information.

Special Counsel Seeks to Halt Removals of Probationary Employees

Special Counsel Hampton Dellinger announced yesterday that his Office filed initial requests with the Merit Systems Protection Board to pause the Trump Administration's terminations of six probationary employees across Executive Branch agencies. (Dellinger himself is back in business after the Trump Administration purported to remove him, thanks to a temporary restraining order, and the Supreme Court's decision not to vacate that order. Dellinger's Office isn't the same as Jack Smith's office. The Office of Special Counsel enforces certain federal employment laws and, as here, brings claims of prohibited personnel practices.) One of those requests to stay is here.

Dellinger's requests could be impacted by another move by the Trump Administration, to remove the head of the MSPB, which is also now in litigation. (The issue in that case, like the issue in Dellinger's case of his own purported removal, involves the President's power to remove officers within the Executive Branch, or the "unitary executive theory.") If President Trump can remove members of the MSPB so as to deny it a quorum, it can't take any action.

If the Trump Administration responds to Dellinger's requests, it may invoke a strong version of the unitary executive theory. At its most modest, that theory says that the President has unilateral and plenary power to remove principal officers in the Executive Branch, and that Congress cannot restrict that power by statute. Stronger versions say that the President has even more power over Executive Branch actors and actions. Here, the Administration may argue that the President has unilateral and plenary authority to remove probationary employees, without regard to the statutory and regulatory processes and protections for removing those employees. (Executive employees are different than executive officers under the Constitution. Applying the unitary executive theory to employees would mark a significant expansion of the theory, at least under current law.) In issuing its summary termination notices (and in unilaterally taking so many other actions with Executive Branch actors, agencies, and actions), the Administration certainly seemed to be relying on a stronger or expanded version of the theory.

Dellinger argues that the Administration's moves to terminate probationary employees may violate federal law and regulations on merit-systems principles, reductions in force (RIFs), and employment protections for probationary employees. (He claims that the Administration is effectively using the RIF process to bypass the procedures required to remove probationary employees. That's because the termination e-mails suggested that termination was due to restructuring and managing staffing levels, not performance. In any event, he argues that the Administration is also violating procedures required to remove probationary employees for performance reasons.)

As to merit-system principles, Dellinger argues that the Administration's summary terminations violated the following statutory principles, under 5 U.S.C. Sec. 2301(b):

• Selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills;
• All employees should receive fair and equitable treatment with proper regard for their constitutional rights;
• The Federal work force should be used efficiently and effectively;
• Employees should be retained on the basis of the adequacy of their performance; and
• Employees should be protected against arbitrary action.

As to RIFs, Dellinger argues that the Administration's summary terminations violated the RIF process outlined in federal law and regulations. (He notes that probationary employees are covered by RIF procedures.) In particular, he argued that the Administration failed to "provide for an orderly process of determining which employees are retained rather than separated and ensuring that those decisions are made according to merit-based factors," in violation of 5 U.S.C. Sec. 3502 and 5 C.F.R. Sec. 351.501-506; failed to "provide employees with 60 days of notice and to keep in a paid status during that time if possible," in violation of 5 C.F.R. Secs. 351.803 and 806; failed "to provide employees with information about their right to reemployment and career transition assistance," in violation of 5 C.F.R. Sec. 351.803; and failed to "provide employees subject to RIF with notice and the right to appeal their termination . . . to the Board," in violation of 5 C.F.R. Sec. 351.901.

As to performance-related terminations of probationary employees, Dellinger argues that the Administration's summary terminations failed to notify employees why they were being separated, including "at a minimum . . . the agency's conclusions as to the inadequacies of [their] performance or conduct," in violation of 5 C.F.R. Sec. 315.804(a).

District Court Halts Immigration Enforcement in Quaker, Cooperative Baptist, and Sikh Houses of Worship

A federal district court in Maryland today issued a preliminary injunction that prevents the Trump Administration from enforcing immigration laws in Quaker, Cooperative Baptist, and Sikh houses of worship that were plaintiffs in the case.

The ruling is a setback for the Trump Administration and its effort to reverse a Biden-era policy not to enforce immigration law in sensitive areas, including schools, hospitals, and places of worship. At the same time, the ruling is a victory for the plaintiff houses of worship and their desire to keep immigration enforcement out.

The case, Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security, arose when Quaker, Cooperative Baptist, and Sikh congregations sued DHS for reversing the Biden-era policy and generally authorizing enforcement of immigration law in houses of worship. The plaintiffs argued that the new policy violated their expressive-association rights under the First Amendment and the Religious Freedom Restoration Act.

The district court ruled that the plaintiffs were likely to succeed on the merits. As to expressive association, the court held that the plaintiffs demonstrated a significant burden on their rights (because immigration enforcement would deter attendance at worship), while the government provided no interest for the policy and failed to show how the policy was sufficiently tailored. As to RFRA, the court said that the plaintiffs demonstrated a substantial burden on their religious practices (again, because immigration enforcement would deter attendance), while the government articulated no compelling interest and failed to show how its policy was the least restrictive means of achieving such an interest.

The court preliminarily enjoined the government from enforcing its new policy, and ordered the government to continue enforcing the Biden-era policy. The court declined, however, to apply the injunction beyond the Quaker, Cooperative Baptist, and Sikh plaintiffs in this case.

District Court Declines to Halt Dismantling of USAID

A federal district court on Friday denied the plaintiffs' motion for a preliminary injunction that would halt the Trump Administration's efforts to dismantle the United States Agency for International Development, or USAID. (The full docket for the case, American Federation of Government Employees v. Trump, is here.)

The ruling allows the Administration to keep USAID employees on paid administrative leave and to maintain its pause on funding to the agency. The court's ruling suggests that the plaintiffs aren't going to succeed on the merits, at least not yet, in court. That's because the court held that alternative statutory schemes allow and require USAID employees to bring administrative complaints before they appeal to court.

The ruling also suggests that USAID employees and unions may not be the best plaintiffs to challenge and halt the Administration's dismantling of the agency. Recipients or beneficiaries of USAID contracts or programming may be in a better position to raise and prevail on the separation-of-powers arguments that were at the core of the plaintiffs' complaint in this case.

The plaintiffs' amended complaint raised several challenges to the Administration's efforts to dismantle the agency, all reducing to the argument that the President lacks unilateral and plenary power, without congressional say-so, to dissolve USAID. But the court focused on the effects that the Administration's actions had on USAID employees. It held that the plaintiffs' complaint amounted to employment grievances that are covered by comprehensive statutory schemes and that require employees to raise their grievances before administrative agencies before bringing them to court. In short,

it appears likely that the claims made by plaintiffs in seeking preliminary injunctive relief "fall within the exclusive statutory scheme[s] of [the Federal Service Labor-Management Relations Statute, the Civil Service Reform Act, and the Foreign Service Act], which plaintiffs "may not bypass by filing suit in the district court." That is almost certainly true of plaintiffs' claims regarding the placement of their members on administrative leave and their members' possibly expedited recall from post, because, for all the reasons just discussed, those claims concern changes in employment conditions and are thus "of the type" that Congress intended to be redressed through the applicable remedial frameworks. And it may well also be true of plaintiffs' claims regarding the funding freeze itself, because plaintiffs' present allegations of injury from that action again turn on its effects on their members in their capacities as employees--like its supposed infliction of additional financial liability for the cost of contracts or unpaid living expenses. As much as plaintiffs assert that they "challenge a sweeping scheme to dismantle an entire agency," their only ripe theories of harm fundamentally rely on their members' employment relationship with USAID.

 

District Court Halts Key Portions of Trump EOs on DEI

A federal district court this week issued a nationwide preliminary injunction halting key portions of President Trump's executive orders on diversity, equity, and inclusion efforts in the government and the private sector. The court ruled that the portions likely violated due process and free speech.

The case is significant, because it temporarily halts some of the Trump Administration's signature efforts, and because it shows the difficulties for the Administration in achieving these goals moving forward. (Turns out that it's not so easy to unilaterally wipe away DEI efforts while still complying with due process and free speech, let alone Spending Clause and separation-of-powers restrictions.)

The case, National Association of Diversity Officers in Higher Education v. Trump, arose when a group of plaintiffs challenged provisions in two of President Trump's executive orders: EO 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing (January 20, 2025); and EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (January 21, 20215). (The full docket is here.) In particular, the plaintiffs challenged the following provisions:

• The Termination Provision. Section 2(b)(i) of the January 20 EO directs every agency to "terminate, to the maximum extent allowed by law, all . . . 'equity-related' grants or contracts."
• The Certification Provision. Section 3(b)(iv) of the January 21 EO requires "[t]he head of each agency" to "include in every contract or grant award" a requirement that the recipient "certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws." (Including such a provision would allow individuals (called "relators") to sue any entity that may be noncompliant with the provision for damages under the False Claims Act.)
• The Enforcement Threat Provision. Section 4(b)(iii) of the January 21 EO directs the Attorney General to make "recommendations for enforcing Federal civil-rights laws" and to devise a plan for "each agency" to "identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars . . . ."

The plaintiffs claimed that the Termination Provision violated the Spending Clause (which gives Congress, not the President, the power to set conditions on federal funds) and that it was unconstitutionally vague in violation of the Due Process Clause. They claimed that the Certification Provision violated free speech and the separation of powers (similar to the Spending Clause claim, that Congress, not the President, has the power over government spending). The plaintiffs claimed that the Enforcement Threat Provision was unconstitutionally vague, and that it violated free speech.

The court ruled that the plaintiffs were likely to succeed on the merits of their due process and free speech claims. (It did not rule on their Spending Clause and separation-of-powers claims.) In sum,

The term "DEI," of course, is shorthand for "diversity, equity, and inclusion." And ensuring diversity, equity, and inclusion has long been a goal, and at least in some contexts arguably a requirement, of federal anti-discrimination law. But the administration has declared "DEI" to be henceforth "illegal," has announced it will be terminating all "'equity-related' grants or contracts"--whatever the administration might decide that means--and has made "practitioners" of what the government considers "DEI" the targets of a "strategic enforcement plan." But the Challenged Orders do not define any of the operative terms, such as "DEI," "equity-related," "promoting DEI," "illegal DEI and DEIA policies," or "illegal discrimination or preferences," let alone identify the types of programs or policies the administration considers "illegal."

***

But it is not just the vagueness of the Challenged Provisions that renders them unconstitutional. There is a label for government action that seeks to "deter . . . principles" that the government disagrees with: "restrict[ion]" of "expression because of its message, its ideas, its subject matter, or its content." And the most "blatant" and "egregious form of content discrimination" is viewpoint discrimination. The Certification and Enforcement Threat Provisions squarely, unconstitutionally, "abridge[] the freedom of speech."

Supreme Court Allows Special Counsel to Remain in Office, for now

The Supreme Court on Friday declined to vacate a district court temporary restraining order that required the Trump Administration to reinstate Special Counsel Hampton Dellinger. We most recently posted on the case here, with links to further background. In short: President Trump fired Special Counsel Dellinger; Dellinger sued, arguing that President Trump removed him without cause, in violation of his for-cause statutory removal protection; the President argued that the removal protection violated the separation of powers; the district court entered a temporary restraining order requiring the Administration to keep Dellinger in office until the court ruled on Dellinger's motion for a preliminary injunction. President Trump then asked the Supreme Court to vacate the TRO, but the Court yesterday declined.

Technically, the Court held President Trump's application in abeyance until February 26, when the district court will hear arguments on Dellinger's motion for a preliminary injunction. The move came in light of the facts that TROs aren't ordinarily appealable and the lower court's TRO is due to expire soon, on February 26.

Justice Sotomayor and Jackson would have denied President Trump's application entirely.

Justice Gorsuch dissented, joined by Justice Alito. They would have treated the TRO as an appealable preliminary injunction, vacated the order, and remanded the case.

While the Court split on whether to grant President Trump's application to vacate the district court TRO, no justice said anything about the underlying issue, whether the Special Counsel's statutory for-cause removal protection impermissibly encroaches on the President's Article II powers. In a spate of actions and defenses to litigation, the Trump Administration is taking a strong view of the "unitary executive" theory--the idea that the President enjoys plenary power over the Executive Branch, notwithstanding the fact that Congress designed, vested with authority, and funded the Executive Branch. At its core, the unitary executive theory says that Congress cannot create barriers to the President's at-will termination of officers within the Executive Branch. More aggressive versions of the theory, pushed by the Trump Administration, say that the President has plenary control over other positions within the Executive Branch, and even over the how agencies make decisions and how they're funded--again, notwithstanding the fact that Congress has the power to structure, vest with authority, and fund executive agencies, and that the President is charged with enforcing congressionally-created law.

The Supreme Court has moved in recent years in the direction of the unitary executive theory. But it has not come close to endorsing the views coming out of the Trump Administration.

By adopting more an aggressive view of the unitary executive theory--one not (yet) endorsed by the courts--the Trump Administration appears to be teeing up a case for the Supreme Court, with hopes and expectations that the Court will validate its muscular view of presidential authority. Dellinger's case is the first test case in this Trump Administration to reach the Court. The Court's ruling yesterday gives us few, if any, clues about how the Court might treat these aggressive claims in this and future cases.

States Sue Musk and DOGE

A group of states, led by New Mexico, sued Elon Musk and DOGE last week, arguing that Musk's position violates the Appointments Clause and that DOGE is acting without statutory authority. The states moved for a temporary restraining order. The court heard arguments today, and it reportedly did not go so well for the plaintiffs. The ruling should come soon. (The full docket is here.)

The plaintiff-states argued that Musk is exercising officer-like authority, without an officer appointment under the Appointments Clause. According to the motion for a TRO:

Mr. Musk's de facto position--i.e., the position commensurate with the authority the evidence strongly suggests he is in fact exercising--is subject to the Appointments Clause, because he is acting with at least officer-level authority, in a continuing position. Without Congressional creation of that position and Senate confirmation, his actions violate the Appointments Clause for two reasons: first, his authority is at least as broad as a principal officer's, because he reports to no one but the President; therefore, his position requires Congressional creation and Senate confirmation. Second, even if he could be considered an "inferior officer," his position was not created by Congress under the Exceptions Clause and he has not been confirmed by the Senate.

They also argued that DOGE is acting without statutory authority:

Mr. Musk and DOGE's actions are not authorized by statute. The temporary organization statute, 5 U.S.C. Sec. 3161, cited in the President's Executive Order creating DOGE, does not provide Mr. Musk or DOGE with the authority it purports to exercise.

In response to a court question at today's hearing, Musk filed a notice arguing that he's just a presidential advisor, not an officer with any legal authority (and therefore not subject to the Appointments Clause), and that DOGE isn't ordering any actions on the part of Executive Branch agencies (and therefore can't be acting outside any statutory authority):

Elon Musk "has no actual or formal authority to make government decisions himself"--including personnel decisions at individual agencies. He is an employee of the White House Office (not USDS or the U.S. DOGE Service Temporary Organization); and he only has the ability to advise the President, or communicate the President's directives, like other senior White House officials. Moreover, Defendants are not aware of any source of legal authority granting USDS or the U.S. DOGE Service Temporary Organization the power to order personnel actions at any of the agencies listed above. Neither the President's Executive Orders regarding "DOGE" contemplate--much less furnish--such authority.

Update: Appeals Court Rejects Government Appeal and Stay in Special Counsel Firing

The D.C. Circuit last night rejected the Trump Administration's appeal and motion to stay the district court's temporary restraining order, which ordered the reinstatement of Special Counsel Hampton Dellinger after the Administration tried to fire him. See our most recent post for background.

The appeals court ruled that it lacked jurisdiction to issue a stay of a temporary restraining order, because such orders are generally not appealable. (Preliminary injunctions are appealable, but TROs are generally not.) The court rejected the government's effort to couch the TRO as an appealable preliminary injunction, rejecting the government's argument that the TRO functioned as a preliminary injunction because of the "extraordinary harm" it worked on the President:

The government and our dissenting colleague lean heavily on the importance of the constitutional dispute in this case, and the prospect of "extraordinary harm" to the Executive's Article II prerogatives if the Special Counsel post is not immediately filled by an individual of the President's choosing. But the interests asserted by the government will be vindicated on an expedited basis in the preliminary-injunction proceedings: In just two weeks, the district court might rule in favor of the government; and if it does not, the government can appeal any contrary ruling. Waiting two weeks to make arguments to the district court and then, potentially, to this court is not so prejudicial to the government's interests that we must rush to issue a ruling in two days, while scrambling the normal appellate process.

Judge Katsas dissented, arguing that "the President is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads."

District Court Reinstates Special Counsel, for now

A federal district court this week ordered the Trump Administration to reinstate Special Counsel Hampton Dellinger until the court has a chance to rule on Dellinger's motion for a preliminary injunction. The court scheduled a hearing on Dellinger's motion for February 26.

The case is significant because it tests the bounds of two recent rulings by the Supreme Court that struck tenure protections for other officers within the Executive Branch. This case tests whether those rulings, described and linked below, extend to a very different office, the Special Counsel. (We separately covered the Administration's decision not to defend the constitutionality of independent administrative agencies, and the related "unitary executive theory," here.)

The case arose when the Trump Administration informed Hampton Dellinger last Friday that it was removing him from his position as Special Counsel. (Dellinger's office is different than Jack Smith's office. Dellinger heads the Office of Special Counsel, an independent agency that protects federal employees from prohibited personnel practices. OSC also enforces the Hatch Act.) By statute, the Special Counsel is "appointed by the President, by and with the advice and consent of the Senate" to serve "for a term of five years." 5 U.S.C. Sec. 1211. "The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office." Id. Yet the Trump Administration sent Dellinger an e-mail that simply said that his position as Special Counsel "is terminated, effective immediately."

Dellinger sued on Monday, and the court issued an administrative stay of the Administration's action. Then on Wednesday the court issued a temporary restraining order, ordering the Administration to reinstate Dellinger until the court determines whether to issue a preliminary injunction. (The Administration sought to appeal the administrative stay and the temporary restraining order, but the D.C. Circuit rejected those moves, concluding that it lacked jurisdiction. (In general, a defendant cannot immediately appeal an administrative stay or temporary restraining order, but they can appeal a preliminary injunction.) A separate Administration effort to appeal appears to be pending.)

All this means that the Administration must reinstate Dellinger pending the court's ruling on his preliminary injunction motion, unless the D.C. Circuit intervenes in the Administration's separate appeal.

In granting the temporary restraining order, the court ruled that Dellinger was likely to succeed on the merits of his claim--that he was removed in violation of his tenure protection in the OSC statute. The court also rebuffed the Administration's claim that the tenure protection impermissibly encroached on the President's Article II authority and was therefore unconstitutional.

The court held that the Special Counsel was different than the head of the Consumer Financial Protection Bureau (whose tenure protections the Court struck in Seila Law LLC v. Consumer Financial Protection Bureau (2020)), the director of the Federal Housing Finance Agency (whose tenure protections the Court struck in Collins v. Yellen (2021)), and even the Commissioner of the Social Security Administration (whose tenure protections the Office of Legal Counsel determined were "constitutionally unenforceable"). The court wrote,

The OSC is not an agency endowed with the power to articulate, implement, or enforce policy that affects a broad swath of the American public or its economy. It does not have broad rulemaking authority or wield substantial enforcement authority over private actors; it has no authority over private actors. It is an agency with limited jurisdiction: its job is to investigate government employees' allegations of specifically identified prohibited personnel practices, and where appropriate, to seek corrective or disciplinary action. The agency's statutory functions require it to report directly to Congress about what it has found and whether any executive agency has stood in its way. While the federal workforce includes a large number of people, the Special Counsel is only called upon to interact with a small subset of them on an individual basis, and only in connection with one aspect of their personal employment situations; he does not guide or direct them in any way in connection with the policies they will promulgate or implement in the course of that employment.

DOJ Says it Won't Defend Independent Agencies

The Department of Justice announced this week that it won't defend the constitutionality of tenure protections for certain multi-member "independent" agencies in the Executive Branch. In particular, DOJ said that it won't defend the statutory tenure protections of members of the Federal Trade Commission, the National Labor Relations Board, and the Consumer Product Safety Commission when members of those agencies sue after President Trump fires them in violation of the statutory tenure protections.

The announcement came in a letter from Acting Solicitor General Sarah M. Harris to Senator Dick Durbin, Ranking Member on the Judiciary Committee.

DOJ's announcement means that the Trump Administration will not defend the constitutionality of statutory provisions for these agencies. Here's how it works:

• Congress designed these agencies to operate independently (or somewhat independently) by providing statutory removal protections for their members. The statutory protections say that the President can't remove members except for "inefficiency, neglect of duty, or malfeasance in office," or similar standards. (The agencies' organic statutes provide other protections, too, like terms of years.) The FTC organic statute is here; the NLRB statute is here; the CPSC statute is here.
• President Trump will fire (or already has fired, see below) members of these agencies at will, without meeting the statutory removal protections.
• Fired members will sue (or already have sued, see below), arguing that President Trump violated the statutory removal protections.
• DOJ will argue that the statutory removal protections impermissibly encroach on the President's Article II authority, that they are unconstitutional, and they therefore do not constraint President Trump in removing members--that he can remove members at will.

The Court upheld the constitutionality of independent agencies in 1935 in Humphrey's Executor v. United States. But independent agencies have long been in the sights of those who promote the "unitary executive theory"--the idea that the President has plenary authority to supervise and ultimately remove those within the Executive Branch who exercise law-enforcement (or law-execution) authority. (Justice Scalia set out the theory in his sole dissent in Morrison v. Olson, a 1988 case upholding the statutory removal protections for the independent counsel.) For some, the unitary executive theory goes further, giving the President plenary power over everything that goes on within the Executive Branch, without regard to Congress's powers to create agencies and offices within the Executive Branch, to vest them with legal authority, and to fund them.) The Supreme Court has been moving in the direction of the unitary executive theory over the past years and decades. But it hasn't overruled Humphrey's Executor. (In 2020, in Seila Law LLC v. Consumer Financial Protection Bureau, the Court said that Humphrey's Executor was an "exception" to the general rule that the President has the power to supervise and remove those who assist the President "in carrying out his duties." (According to the Court in Seila Law, the President's removal power was recognized by the First Congress and confirmed by the Court in 1925 in Myers v. United States.) The Court in Seila Law ruled that the statutory for-cause removal protection for the head of the Consumer Financial Protection Bureau impermissibly encroached on the President's powers, and therefore violated the Constitution.)

Harris's letter sets out DOJ's new position as follows:

The Department has concluded that those tenure protections [for the FTC, NLRB, and CPSC] are unconstitutional. The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow "exception" to the "unrestricted removal power" that the President generally has over principal executive officers and that the exception represents "'the outermost constitutional limit[] of permissible congressional restrictions'" on the President's authority to remove such officers. Further, the Supreme Court has held, the holding of Humphrey's Executor applies only to administrative bodies that do not exercise "substantial executive power." The Supreme Court has also explained that Humphrey's Executor appears to have misapprehended the powers of the "New Deal-era FTC" and misclassified those powers as primarily legislative and judicial.

The exception recognized in Humphrey's Executor thus does not fit the principal officers who head the regulatory commissions noted above. As presently constituted, those commissions exercise substantial executive power, including through "promulgat[ing] binding rules" and "unilaterally issu[ing] final decisions *** in administrative adjudications." An independent agency of that kind has "no basis in history and no place in our constitutional structure."

To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions.

At least one member of these agencies already sued. Gwynne Wilcox, a member of the NLRB, sued President Trump after he purported to remove her in violation of the statutory protection for NLRB members. (Here's the docket, with links, by Courtlistener.) Wilcox's removal, if upheld by the courts, would also deprive the NLRB of a quorum, so that it can't do its work.

D.C. Circuit Upholds Law that Could Ban TikTok

The D.C. Circuit on Friday upheld a federal law that would ban TikTok in the United States unless its Chinese owner, ByteDance, sells the app to a non-Chinese company by January 19, 2025.

The ruling set off a flurry of criticism and widespread concern by TikTok content creators.

The case, TikTok v. Garland, tests the Protecting Americans from Foreign Adversary Controlled Applications Act, signed by President Biden on April 24, 2024. The Act makes it "unlawful for an entity to distribute, maintain, or update" an app controlled by "a foreign adversary." It specifically calls out ByteDance-owned entities, which includes TikTok.

This means that it's unlawful to "distribute, maintain, or update" TikTok, or to provide "internet hosting services to enable the distribution, maintenance, or updating" of it. The prohibition kicks in on January 19.

Importantly, the Act doesn't regulate TikTok itself. Instead, it prohibits third parties from supporting the app in the United States so long as it's owned by a Chinese entity.

But the Act provides for an exemption if ByteDance sells TikTok to a non-Chinese entity.

TikTok sued, arguing that the Act violated the First Amendment. The D.C. Circuit disagreed.

The court first assessed the applicable level of scrutiny. Strict scrutiny would apply if the Act regulated speech based on content; intermediate scrutiny would apply if not. According to the court, "[t]he question whether intermediate or strict scrutiny applies is difficult because the TikTok-specific provisions are facially content neutral, yet the Government justifies the Act in substantial part by reference to a foreign adversary's ability to manipulate content seen by Americans." 

In the end, the court said that it didn't matter, because the Act failed even the more rigid strict scrutiny. The court said that the government had valid compelling interests in protecting national security--"to counter (1) [China's] efforts to collect data of and about persons in the United States, and (2) the risk of [China] covertly manipulating content on TikTok." The court then explained why the Act was narrowly tailored to achieve these interests:

Here the relevant provisions of the Act apply narrowly because they are limited to foreign adversary control of a substantial medium of communication and include a divestiture exemption. By structuring the Act in this way, the Congress addressed precisely the harms it seeks to counter and only those harms. Moreover, as already explained, the Act's emphasis on ownership and control follows a longstanding approach to counter foreign government control of communication media in the United States.

Ghost Guns at the Supreme Court

The Court will hear oral arguments tomorrow, Tuesday, in Garland v. VanDerStok, the case testing whether ghost-gun kits are regulable "firearms" under the Gun Control Act of 1968. Here's my argument Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

 

Case at a Glance

The Gun Control Act of 1968 requires any manufacturer or dealer of “firearms” to obtain a federal license, to maintain records related to the acquisition and transfer of firearms, and to conduct a background check before transferring a firearm to a non-licensee. The Act also requires importers and manufacturers to mark firearms with a serial number. The Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces the Gun Control Act, issued a rule that applies these requirements to manufacturers and dealers of kits that contain easy-to-assemble firearm components, but which are not (yet) operational firearms. 

INTRODUCTION

The lower courts ruled that the definitions of “firearm” and “frame or receiver” in the Gun Control Act did not encompass gun kits, and that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority under the Act in regulating the kits. The Supreme Court, however, allowed the regulation to go into effect pending appeal.

ISSUES

1. Is “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” a “firearm” under the Gun Control Act?

2. Is “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” a “frame or receiver” under the Act?

FACTS

The Gun Control Act of 1968 requires those who import, manufacture, or deal in “firearms” to obtain a federal license, to maintain records related to the acquisition and transfer of firearms, and to conduct a background check before transferring a firearm to a non-licensee. The Act also requires importers and manufacturers to mark firearms with a serial number.

The Act defines “firearm” as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3). Subsection (B), which covers “the frame or receiver of any such weapon,” ensures that these key structural components of a firearm are separately subject to the recordkeeping, back-ground check, and serial-number requirements in the Act, even if they are sold alone. The Act does not define the terms “frame” or “receiver,” however.

The Act authorizes the Attorney General to prescribe “such rules and regulations as are necessary to carry out” the Act. 18 U.S.C. § 926(a). The Attorney General, in turn, delegated this authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Soon after Congress adopted the Act, ATF’s predecessor agency promulgated a regulation that defined “frame or receiver” as “[t]hat part of a firearm which provides housing for the hammer, bolt or breech-block, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 33 Fed. Reg. 18,555, 18,558 (Dec. 14, 1968). The regulation did not specify that this definition included separate components that, alone, were incomplete or non-functional. But through agency guidance, ATF has “long held” that components need not be complete or functional to qualify as a “frame or receiver” under the Act.

More recently, technological advances have allowed companies to sell easy-to-assemble firearm kits that contain separate unassembled firearm components. These kits, widely available online, allow purchasers to assemble a fully operational firearm within minutes. Some manufacturers claimed that these kits were not “firearms” under the Act and therefore sold them without complying with the Act’s requirements. These firearms, once assembled, are commonly called “ghost guns,” because they lack serial numbers and transfer records, and because individuals can purchase them without a background check.

In response to the proliferation of ghost guns, ATF promulgated a new rule that refined its definition of “firearm” under the Act in two key ways. First, the new rule defined “firearm” to “include a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” 27 C.F.R. § 478.11. Second, the new rule also specified that “frame or receiver” under the Act includes “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.” 27 C.F.R. § 478.12(c). (The new rule explicitly excluded components that “ha[d] not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon,” 27 C.F.R. § 478.12(c), so that it would not apply to components typically purchased in bulk by commercial firearms manufacturers.)

The rule does not prohibit the manufacture or sale of any firearm to any individual who is lawfully entitled to possess it. It also does not prohibit a person from making their own firearm for their own personal use, and it does not require such a person to mark their home-made firearm with a serial number. Rather, the rule simply requires manufacturers and sellers of firearm parts kits to obtain licenses, mark their products with serial numbers, maintain transfer records, and conduct background checks. These are the same conditions that apply to the commercial sale of fully functional firearms.

A group of plaintiffs sued, arguing that weapon parts kits did not fall within the Act’s definition of “firearm” or “frame or receiver” and that ATF’s new rule therefore violated the Act. The district court ruled that the two provisions of the rule violated the Act but vacated the entire rule, including other portions of the rule that the plaintiffs did not challenge. The United States Court of Appeals for the Fifth Circuit stayed the district court’s vacatur as to the unchallenged portions of the rule pending appeal. The Supreme Court stayed the district court judgment in its entirety.

The district court then granted two plaintiffs and their customers an injunction pending appeal. The Fifth Circuit narrowed the injunction, but the Court then vacated the injunction in its entirety.

On the merits, the United States Court of Appeals for the Fifth Circuit ruled that the two provisions of the rule violated the Act. This appeal followed.

CASE ANALYSIS

The government starts by arguing that the rule’s first provision is consistent with the Act’s definition of “firearm.” The government says that the Act defines “firearm” broadly, and that the rule closely tracks the statutory language. It claims that the rule’s terms “completed,” “assembled,” and “restored” easily fit within the Act’s term “converted.” And it contends that the rule’s definition of “readily” “is consistent with both ordinary meaning and relevant precedent.”

The government argues next that the second provision “correctly clarifies” that the Act’s terms “frame[s]” and “receiver[s]” encompass “partially complete, disassembled, or nonfunctional” frames and receivers that “may readily be completed, assembled, restored, or otherwise converted to function” as frames or receivers. The government points out that the Act lacks any language that requires a frame or receiver to be “complete, operable, or functional,” and that the plain language of the Act therefore includes partially complete components as defined by the rule.

Finally, the government argues that “[t]he Fifth Circuit’s interpretation would . . . frustrate the Act’s manifest design by transforming its central definition into an invitation to evasion” of the Act by selling firearm kits rather than complete and functional firearms. The government says that the Fifth Circuit’s ruling would “recreate” the same problem that Congress sought originally to address in the Act: allowing “felons, juveniles, and those seeking guns for criminal purposes” to acquire them easily. The government claims that the Court “has declined to presume that Congress adopted such self-defeating legislation” in other cases under the Act, and that it should reject that interpretation here, too.

The plaintiffs counter that the Act’s definition of “firearm” includes only any “weapon” that may be readily converted to a firearm, not any item that may be converted. Because a parts kit is not itself a “weapon,” the plaintiffs contend that a parts kit is not a “firearm” under the Act, even if it is readily converted to a firearm. Moreover, the plaintiffs say that the Act only encompasses firearms that have a “frame or receiver.” But they assert that a kit that is regulated solely by the firearm-parts-kit provision of the rule will not have a “frame or receiver,” and therefore does not fall within the Act’s definition of a “firearm.”

The plaintiffs argue next that in contrast to the Act’s reference to “firearm” (which includes a weapon that may be readily converted into a firearm), the Act’s reference to “frame or receiver” does not include an item that may be readily converted into a “frame or receiver.” The plaintiffs contend that the rule, which regulates items that may be readily converted into a “frame or receiver,” exceeds the plain language of the Act.

Finally, the plaintiffs assert that the rule is invalid for other reasons. They say that the rule’s use of the word “readily” is unconstitutionally vague, and, because the Act is a criminal statute, the Court should interpret “readily” “against the Government (and against the Rule).” Moreover, they contend that the rule does not serve the government’s interest, because “kits targeted by the Rule are favored by hobbyists, while the vast majority of criminals prefer to get firearms that have been professionally manufactured.” They say that if the government seeks to regulate firearms kits, it must get specific statutory authority from Congress.

SIGNIFICANCE

ATF issued its rule in response to a proliferation of ghost guns, their use in crimes, and the Bureau’s inability to trace them in recent years. According to the government, in 2017, law enforcement agencies asked ATF to trace about 1,600 ghost guns. By 2021, they asked ATF to trace more than 19,000. Of the 45,240 firearms submitted to ATF without a serial number between 2016 and 2021, “ATF was able to complete only 445 traces to individual purchasers—a success rate of less than one percent.” The government claims that the rule would help ATF regulate and track ghost guns and, presumably, reduce their use in crimes. It says that the approach of the plaintiffs and the lower courts would allow individuals to sidestep the Gun Control Act’s “careful regulatory scheme” by allowing them “to anonymously buy a kit online and assemble a fully functional gun in minutes—no background check, records, or serial number required.”

The plaintiffs challenge the government’s claim that ATF’s rule would serve the government’s interests. They say that ghost guns “are favored by hobbyists,” and that “the vast majority of criminals prefer to get firearms that have been professionally manufactured.” The plaintiffs also assert that the government’s interpretation of the Gun Control Act—in particular, its reading of “frame or receiver” to include items that may be readily converted into a frame or receiver—could impact the regulation of other firearms, including the popular AK-47.

Just last Term, the Court addressed a similar case on the scope of ATF’s regulatory authority. Garland v. Cargill (Docket No. 22-976) involved a challenge to ATF’s authority to regulate a bump stock as a “machinegun” under the National Firearms Act of 1834. The Court ruled that a bump stock did not fit the definition of a “machinegun,” and that ATF therefore exceeded its authority in regulating bump stocks.

But that case does not necessarily foretell the result here. For one, the statutory language and challenged regulation are very different in the two cases. Even if the Court adopts a narrow interpretation of the statutory language in this case (as it did in Cargill), there’s still plenty of room for the Court to uphold ATF’s rule regulating ghost guns. Moreover, the Court already vacated the lower courts’ rulings pending appeal. While these vacaturs were preliminary, the Court’s actions may nevertheless predict its ruling on the merits.

One final point. Because the case is statutory, Congress can have the last word. Whatever the Court rules in this case, Congress can amend the Gun Control Act to encompass ghost guns, or not.

SCOTUS Argument Preview: Does a Plaintiff Have to Exhaust State Administrative Remedies Before Filing a 1983 Claim in State Court?

The Court will hear oral arguments tomorrow, Monday, in Williams v. Washington, a case testing whether a plaintiff must exhaust state administrative remedies in order to bring a state-court lawsuit under federal civil-rights law. Here's my preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

Several plaintiffs sued the Alabama Secretary of Labor to force the state Department of Labor to act promptly on their claims for unemployment compensation. The plaintiffs sued in state court under 42 U.S.C. § 1983, a federal statute that authorizes plaintiffs to sue a person acting under color of state law for violations of the U.S. Constitution or federal law. The Alabama Supreme Court dismissed the case on the ground that the plaintiffs failed to appeal their claim through the Department’s administrative process before they sued in state court, as required by state law. 

INTRODUCTION

Alabama law requires a plaintiff to appeal a denial of unemployment compensation through an administrative appeal process in the Department of Labor before they appeal to state court. At the same time, the Supreme Court has held that plaintiffs need not exhaust state administrative remedies before suing in federal court pursuant to Section 1983. This case tests whether and how that Court ruling applies to the plaintiffs’ state court case.

ISSUE

Does Section 1983 preempt Alabama’s requirement that a person exhaust the administrative appeal process before suing in state court?

FACTS

In the wake of a spike in unemployment compensation claims due to COVID-19, a group of Alabama residents sued the state Secretary of Labor, Fitzgerald Washington, in state court for failing to act timely on their unemployment compensation applications. The plaintiffs alleged that the state Department of Labor took months to make initial determinations on their claims for benefits, and that some plaintiffs never received these determinations. They also claimed that the Department stopped or denied benefits for a period without sufficient notice to the plaintiffs. And they alleged that the Department failed to schedule hearings to appeal adverse determinations.

The plaintiffs sued under the bread-and-butter federal civil rights law, 42 U.S.C. § 1983. Section 1983 authorizes plaintiffs to sue officers acting under color of state law for violations of their federal constitutional or federal statutory rights. In this case, the plaintiffs alleged that the Department violated their due process rights and the federal Social Security Act. The plaintiffs asked the court to direct the Department to make decisions promptly on all applications for unemployment compensation, and to notify claimants who requested a hearing and to schedule those hearings within 90 days of the request.

The Secretary moved to dismiss the case. The Secretary argued, among other things, that the court lacked jurisdiction because the plaintiffs failed to exhaust their unemployment-compensation administrative appeal process required under state law. Under this process, an applicant for unemployment compensation must appeal an initial denial to an administrative tribunal comprised of Department officers. Only then can an applicant appeal to state court. In other words, state law requires an applicant to exhaust this administrative-appeal process before they appeal to state court. The Secretary argued that the plaintiffs in this case bypassed the administrative appeal process, and that the state court therefore lacked jurisdiction over their claims.

The state circuit court granted the Secretary’s motion to dismiss, but did not specify the grounds for dismissal. The Alabama Supreme Court affirmed the dismissal on the sole ground that the plaintiffs failed to exhaust their state administrative remedies before bringing their lawsuit in state court. This appeal followed.

CASE ANALYSIS

The case asks whether the plaintiffs must exhaust state administrative remedies, as required by state law, before they can file their Section 1983 claims in state court. Stated only slightly differently, the case asks whether Section 1983 preempts the state-law exhaustion requirement, so that the plaintiffs need not exhaust state administrative remedies before filing their Section 1983 claims in state court.

The Court touched on the issue over thirty years ago, in Patsy v. Board of Regents of the State of Florida. 457 U.S. 496 (1992). The Court in Patsy ruled that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.” But the plaintiffs in Patsy filed their case in federal court, not state court, and the Court did not specifically address whether plaintiffs must satisfy a state exhaustion requirement that goes to the state court’s jurisdiction.

The parties wrangle over whether and how Patsy applies to this case, and whether Section 1983 preempts Alabama’s exhaustion requirement.

The plaintiffs argue that Patsy resolves this case. They claim that while Patsy involved a federal-court lawsuit, its reasoning applies equally to state-court lawsuits. They say that the Court confirmed this in Felder v. Casey, 487 U.S. 131 (1988), where the Court ruled that Section 1983 claims preempt state-law exhaustion requirements. In particular, the plaintiffs point to language in Felder that says that a state exhaustion requirement would force plaintiffs “to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries,” and that it would “produce different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court.” The plaintiffs assert that their Section 1983 lawsuit preempted Alabama’s exhaustion for these same reasons.

The plaintiffs go on to argue that the Alabama Supreme Court erred in ruling otherwise. The plaintiffs say that the state high court was wrong to distinguish between state-court lawsuits and federal-court lawsuits, because Patsy and Felder already held that Section 1983 preempts state exhaustion requirements in both forums. They contend that the court was also wrong to characterize the state’s exhaustion requirement as “jurisdictional,” because this label alone cannot overcome the preemptive effect of Section 1983. In addition, the plaintiffs assert that the court wrongly interpreted and invoked other Court precedent.

Finally, the plaintiffs argue that the Court should adopt a categorical rule that plaintiffs need not exhaust state administrative remedies before bringing a Section 1983 case in state court, unless Congress explicitly imposed an exhaustion requirement. But even if the Court declines to adopt a categorical rule, the plaintiffs contend that they should still prevail on the strength of their particular case. According to the plaintiffs, that’s because any administrative exhaustion requirement would undermine the very point of their Section 1983 case—that Alabama’s administrative process itself is broken.

The Secretary counters first that Section 1983 does not expressly preempt the state requirement that plaintiffs exhaust administrative remedies. If anything, he says, Section 1983 contemplates a role for administrative processes in protecting against constitutional and statutory violations, by creating liability “in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983 (emphasis added). Relatedly, the Secretary also contends that Section 1983 does “not occup[y] the entire field of rules regarding the structure and jurisdiction of state courts,” and therefore does not preempt state administrative processes under a “field” theory. And he says that the state exhaustion requirement does not conflict with Section 1983, because the state requirement “serves to facilitate a public-benefit program and does not defeat liability or single out civil-rights claims.”

Moreover, the Secretary contends that Court precedent supports his preemption arguments. The Secretary asserts that under Court precedent, states may regulate their courts through neutral rules, and that Alabama’s exhaustion requirement is just such a neutral rule. He also claims that the state’s exhaustion requirement is “jurisdictional,” meaning that it goes to the jurisdiction of the state courts, and is not “an outcome-determinative procedural rule or . . . defense on the merits.” The Secretary asserts that “[t]his Court has never applied § 1983 to preempt this sort of standard jurisdictional rule.” The Secretary contends that forcing Alabama state courts to adjudicate claims that are not within their jurisdiction would intrude on a core aspect of state sovereignty and “raise[] grave constitutional problems.”

Finally, the Secretary argues that Patsy and Felder do not support a categorical rule that Section 1983 preempts all state-law exhaustion requirements. He claims that Patsy was not a preemption case at all, and that it only held that courts cannot impose an exhaustion requirement. And he says that Felder involved “a discriminatory and outcome-determinative rule designed to minimize state liability,” not a neutral exhaustion requirement, like Alabama’s. 

SIGNIFICANCE

A Court ruling for the Secretary would require the plaintiffs in this case to exhaust their administrative appeals before filing their Section 1983 claims in state court. But as the plaintiffs point out in their opening brief, such a ruling would be especially paradoxical, given that the plaintiffs are challenging long delays, and even non-decisions, in that very process. In other words, a ruling for the Secretary could leave some of the plaintiffs in limbo until the Department starts moving claims.

Moreover, a ruling for the Secretary could affect the thousands of other Section 1983 claimants around the country by incentivizing states to impose exhaustion requirements and requiring other Section 1983 claimants similarly to satisfy exhaustion requirements before filing their claims in state courts. As the plaintiffs argue, this would undermine the purpose of Section 1983, to hold state officers to account for statutory and constitutional violations without undue delays or impediments imposed by the states.

On the other hand, the Secretary contends that the issue “has little practical significance.” Moreover, the Secretary says that a Court ruling for the plaintiffs could impermissibly intrude on state sovereignty by eviscerating the state’s exhaustion requirement, which, according to the Secretary, is a neutral jurisdictional requirement for state courts.

Finally, the case will resolve a lopsided split in the state high courts. State courts of final resort in Alaska, California, Colorado, Connecticut, the District of Columbia, Iowa, Kansas, Montana, Nevada, Ohio, Wisconsin, and Wyoming have all held that a plaintiff need not exhaust state administrative appeals before filing a Section 1983 claim in state court. Before the Alabama Supreme Court ruled, only the Supreme Court of South Dakota held that Section 1983 plaintiffs must comply with state exhaustion requirements.

Ninth Circuit Says Police Chief's Private Texts Aren't Protected Speech

The Ninth Circuit today rejected a First Amendment retaliation claim by a police chief who was forced to resign after sending private texts with a forwarded racist image. The court examined the language, form, and context of the texts and concluded that they did not constitute a matter of public concern under Pickering v. Board of Education.

The case, Adams v. County of Sacramento, arose when Kate Adams, who worked in the Sacramento County Sheriff's Office, sent private texts to colleagues that included forwarded racist pics. (Adams's texts seem to suggest that she disapproved of the forwarded pics.) Years later--after Adams was appointed as City of Rancho Cordova Police Chief and after the texts came out in the course of an EEO investigation involving one of the recipients--a county attorney told her that she'd have to resign or face an investigation that would fuel a "media circus" over the texts. Adams resigned, then sued, arguing that her forced resignation violated the First Amendment, among other things.

The Ninth Circuit ruled that Adams's speech wasn't protected public-employee speech under Pickering, and that she therefore had no First Amendment claim against her forced resignation. The court looked at the language, form, and context of the texts to concluded that they did not constitute a matter of public concern.

Judge Callahan dissented, arguing that this was an unusual case in that "Adams's speech occurred outside of work, was totally unrelated to her job, and should not have had any impact on her employment," and that "Adams should have the chance to hold the County accountable for its harsh reaction to her speech . . . ."