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.

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.

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.

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."

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.

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.

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).

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).

Can the Trump Administration Treat Government Employees' Non-Response to Musk's 5-Point Plan as a Resignation?

Over the weekend, Elon Musk posted on X that federal government employees "will shortly receive an email requesting them to understand what they got done last week." According to the post, "[f]ailure to respond will be taken as a resignation."

A couple hours later, the Office of Personnel Management sent an e-mail to federal government employees instructing them to reply to the e-mail with "appx. 5 bullets of what you accomplished last week" by midnight Monday. OPM's e-mail did not threaten to treat a non-response as a resignation. Musk sent a follow-up on X saying, "To be clear, the bar is very low here."

It's not clear what all this means. Still, Musk's posts and OPM's e-mail have created mass confusion in Executive Branch agencies (and a few instructions by agency heads not to comply).

But if we take the posts and the e-mail at face value, we might ask: Can Musk and OPM do this?

Probably not, at least under current law. Federal law and OPM regulations (5 U.S.C. Sec. 4302; 5 C.F.R. Sec. 430.201 et seq.) say that agencies must create and enforce performance appraisal programs; the regs also set standards for those programs. It's not at all clear that OPM can unilaterally impose an additional requirement (reporting five bullets) on employees covered by these plans on such short notice.

Moreover, federal regulations say that employees, not the government, request a resignation. 5 C.F.R. Secs. 715.201 and 715.202.

Finally, Musk's posts and OPM's e-mail, taken together (giving employees just one working day to respond, with such high stakes, and such indeterminacy), look like a forced resignation, which an employee could appeal through the Merit Systems Protection Board (or similar process, depending on the agency).

So if current law doesn't allow this, why are Musk and OPM doing it?

Musk and OPM might have designed the posts and e-mail simply to create mass confusion, or to create further uncertainty and frustration in the federal workforce, without ever intending to enforce the consequence of not responding. Alternatively, they might have designed the posts and e-mail to result in actual resignations, and resulting litigation, as yet another way to press a view of the unitary executive theory that would give the President plenary control over all executive employees (and not just officers), regardless of civil-service laws and regulations.

We don't know the end game yet; stay tuned.

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: Government Takes Special Counsel Case to Supreme Court

The Trump Administration asked the Supreme Court to intervene in the case of Special Counsel Hampton Dellinger and to vacate the district court's temporary restraining order and to stay the district court's order. The move came immediately on the heels of a D.C. Circuit ruling that denied the Administration's efforts to reverse or stay the district court order. Look here for background.

This case seems destined for the Supreme Court. The only question is whether the Court will take up the Administration's core constitutional claims now, or later, after the lower courts first pass on them.

The government's brief draws on recent Supreme Court rulings that struck for-cause removal protections for single heads of the Consumer Financial Protection Bureau (Seila Law LLC v. CFPB (2020)) and the Federal Housing Finance Agency (Collins v. Yellen (2021)), and the Office of Special Counsel's determination that the for-cause removal protection for the head of the Social Security Administration was unconstitutional. The framing means that the Court (if it takes up the case) will assess whether the Special Counsel and OSC wields the same kind of executive authority that those offices and agencies wield--whether the Special Counsel is like those offices for this purpose.

The government's brief also quotes Trump v. United States, the presidential immunity ruling from last summer:

As this Court observed just last Term, "Congress cannot act on, and courts cannot examine, the President's actions on subjects within his 'conclusive and preclusive' constitutional authority"--including "the President's 'unrestricted power of removal' with respect to 'executive officers of the United States whom [the President] has appointed.

The Court has been moving step-by-step and inexorably toward a unitary-executive theory of the President's power to remove officers in the Executive Branch over the last several years. This case could be the next step toward an even more robust unitary executive theory. Several or many other similar cases are in the pipeline, and will give the Court yet more opportunities to move in this direction.