The Trump administration is facing an avalanche of lawsuits over the avalanche of legally dubious executive orders that President Donald Trump issued over the last two months. Though it has scored some victories, most notably by decapitating the Office of Special Counsel last week, it has also faced many more defeats or delays along the way.
The Supreme Court gave the first glimpse into how it will handle a second Trump administration last week by narrowly ordering the State Department to disburse $2 billion in congressionally appropriated funds to USAID contractors for work they had already done. Though the ruling was merely preliminary, it suggested that at least five justices were not willing to give Trump carte blanche.
Federal judges in the lower courts also now appear to be losing their patience with the Trump administration’s constant efforts to evade legal constraints. The administration itself also appears to be fed up with the federal judiciary, asking the Supreme Court this week to defang a key tool used by judges to keep it in check. Trump and his allies are not merely trying to win lawsuits now, they hope to bring the judiciary itself to heel.
One case involved the administration’s efforts to fire federal employees. Over the last month, federal agencies have laid off thousands of probationary employees in an attempt to reduce head counts. Federal law does not give full civil service protections to probationary employees, but it does require the government to have some sort of legitimate reason to fire them. Instead, the Office of Personnel Management furnished a template that blandly told each employee that the cause was performance-based without specifying further.
That was not enough, Justice William Alsup said, during a hearing earlier this week. “It is sad, a sad day when our government would fire some good employee, and say it was based on performance, when they know good and well, that’s a lie,” he told the Justice Department, using unusually strong language for a judge. He said that the lying “should not happen in our country” and that it was a “sham to avoid statutory requirements.”
Alsup was particularly incensed by the government’s volte-face on whether a key witness would be testifying. Charles Ezell, the acting OPM director, signed a sworn declaration that his office did not actually direct federal agencies to carry out the firings. After Alsup ordered him to appear at a hearing to testify, the federal government withdrew Ezell’s declaration and said he wouldn’t be appearing.
That evasive maneuver prompted Alsup to tell the Justice Department lawyers that “you’re not helping me get to the truth” and described their evidence as a “sham.” He concluded by issuing an order that the federal agencies in question must rehire the probationary employees. The Trump administration denounced Alsup’s order as “attempting to unconstitutionally seize the power of hiring and firing from the executive branch” and said it would appeal the decision.
Trump’s campaign to ban transgender soldiers from the armed forces also ran into deep skepticism from a federal judge on Wednesday. A group of active-duty military personnel are suing to prevent the ban from going into effect, citing the Fourteenth Amendment’s equal protection clause. A Justice Department lawyer reportedly struggled to answer questions from Judge Ana Reyes on the rationale behind the policy.
At one point, Reyes quoted from remarks by Secretary of Defense Pete Hegseth about the ban that denigrated transgender soldiers by claiming they were inherently untrustworthy and couldn’t meet minimum standards. “You would agree with me that calling people liars and lacking integrity and not able to meet rigorous standards for discipline is insulting?” Reyes asked the lawyer. “Yes or no, or you can’t say?” The lawyer replied with a “maybe.”
Reyes also cast doubt on the studies cited in Hegseth’s order to implement the ban. At one point, she got the Justice Department’s lawyers to admit that they hadn’t read the studies in question and gave a 30-minute recess so that they could familiarize themselves with the material. When they returned, Reyes went through the evidence point by point and asked why she should give any weight to Hegseth’s “cherry-picked” and “misleading” interpretation of it. She indicated that a ruling in that case would likely come next week.
The Trump administration is pushing back, as well. Shortly after Trump issued an executive order in January that purported to end birthright citizenship, federal courts in three different states blocked it from taking effect. All three courts generally held that the order was plainly illegal under both the Fourteenth Amendment and a century and a half of Supreme Court precedent.
On Thursday evening, the Justice Department asked the Supreme Court to intervene in an unusual way. The administration did not quite ask the justices to overturn the lower court injunctions altogether. Instead it asked them to end the practice of so-called “universal injunctions” against the federal government and rule that the lower court’s injunctions have no effect beyond the litigants themselves.
That procedural attack would have profound consequences. In one of the three cases, Trump v. CASA, the litigants include five plaintiffs who allege that they or their child would be harmed by the birthright citizenship order. The lower court issued an injunction that barred the Trump administration from carrying out the order not only against the five plaintiffs but also against anyone else for whom it might apply—hence the “universal” part of the injunction. (These used to be called “nationwide injunctions,” but that apparently wasn’t dramatic enough.)
Critics of universal injunctions describe them as an abuse of the judicial power, one that exceeds the courts’ traditional limits on jurisdiction and relief. The foremost opponents of the practice today are Justices Clarence Thomas and Neil Gorsuch, who have written multiple concurring and dissenting opinions over the years denouncing the practice. Every other conservative justice but Chief Justice John Roberts has joined their criticism from time to time, although with varying degrees of enthusiasm about ending the practice.
Why hasn’t the court done anything about them? For one thing, universal injunctions have their benefits for judicial economy and administrative clarity, which may offset some of the unease that the less strident justices have with them. Georgetown University law professor Steve Vladeck also noted last year that Gorsuch, the most consistent critic of universal injunctions, had nonetheless voted in favor of them 11 times—in every instance to block Biden administration policies from going into effect. Maybe they aren’t so bad after all when they’re applied to the right people.
Whatever the court ultimately decides, it is notable that the Trump administration is being consciously self-limiting here. Trump’s lawyers—and that is how the Justice Department now sees itself—have almost always taken maximalist approaches to their legal arguments, reflecting their boss’s own approach to human interaction. Tactically nuanced litigation is not how they got a Supreme Court ruling that gives presidents sweeping immunity to commit crimes, after all.
I’m sure the Trump administration would like to curtail universal injunctions on its own terms. At the same time, I can’t help but wonder if this is an attempt to solicit a “win” from the Supreme Court on birthright citizenship. Granting the administration’s request to limit the injunctions would technically say nothing about the merits of such a case. Trumpworld may nonetheless try to spin it as a victory against birthright citizenship and invoke it against the multitude of legal experts who (correctly) argue that Trump cannot end it by executive order. If the court really does want to curb universal injunctions, it would be hard to find a less fitting case than this one to do it.
