The Lawsuits Against The Trump Administration

This is Terry Gross. When I was celebrating my 50th anniversary hosting Fresh Air, I asked my guest, Roastmaster General Jeff Ross, to roast me. Terry Gross, a barely living legend. Still at it. Listen to Fresh Air on the NPR app or wherever you get podcasts. President Trump has tested the limits of the law since the day he took office to start his second term. This includes signing an executive order to end birthright citizenship, terminating or freezing billions of dollars in federal funding, and enacting sweeping tariffs on foreign goods without congressional approval. But these actions have not been met with silence. Over the last eight months, hundreds of lawsuits have been filed by state attorneys, physicians, media organizations, international students, and others to challenge the... Trump administration's policies. Now, it's difficult to keep track of it all, but today we're going to try. After the break, we check in on major lawsuits against the administration. Where do these lawsuits stand now? And what do they mean for our country's system of checks and balances? I'm Jen White. You're listening to the 1A podcast. We'll meet our panel and jump right in in just a moment. Stay with us.

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campaign promise does not ensure or guarantee its legality. And an argument that they have come back to repeatedly is that we said we were going to do this. The American people want this. They want tougher borders. They want violent criminals out of the country and so on. But he's taken aggressive steps that quite frankly may not comport with the law and merely waving a wand and suggesting that these folks... are enemies of the United States and ought to be out of the United States without any sort of due process, access to hearings, or anything else that we would afford. Even violent people in the United States, that's just not there. And that's a backdrop to all of these cases that touch on national security. So when we talk specifically about the Alien Enemies Act and how the Trump administration used that authority, how is it being challenged legally? Well, it's being challenged in the court saying that merely using this as a tool and deporting or removing people from the country without any process, access to hearings, access to speak to an attorney, access to question. the conditions of their confinement is unlawful. And those have been brought, you know, lawsuits have been brought to challenge that. Now, the 250 Venezuelan migrants have since been moved from El Salvador's mega prison, Seacot. They were sent to Venezuela. Mary, federal courts around the country are split over whether the Trump administration invoked this law properly. Where does a case stand now? Well, the most significant decision is the one out of the Fifth Circuit last week, and that was a two-to-one decision that actually, you know, took the case back from the Supreme Court. And the Supreme Court had, you know, intervened when people were being taken to planes to be deported to El Salvador, the Supreme Court. told the Fifth Circuit to determine whether the Alien Enemies Act applied here, interpret it and interpret its constitutionality, and determine whether those people had had enough due process, the same due process you were just talking about. In this decision, the Fifth Circuit determined that there was no predatory incursion or invasion. Those are terms used in the Alien Enemies Act that supported use of that Alien Enemies Act. The Act says that when there's a declared war, which there's not, an invasion or predatory incursion by a foreign nation, that's when it could be used. And the judge that wrote the majority opinion, Judge Southwick, a conservative judge, he faced this in originalism. He looked at the definitions of those terms. invasion and predatory incursion back in the late 1700s when the Alien Enemies Act was first enacted. He looked at constitutional use of those terms. He looked at what our founders, James Madison and others had said about those terms, and concluded that this had to be a hostile type of invasion, actually an act of war, and that there was just nothing even deferring to the president's

factual findings about Trenda, there's nothing that amounted to an invasion or predatory incursion. So that case has not yet been, the government has not yet sought to take that back to the Supreme Court, but that is the case that is the furthest along because it is a... federal circuit court opinion. And I suspect we will see the Supreme Court answering that in due course. Now, we recently highlighted the stories of two families who've been directly affected by the Trump administration's crackdown on immigration. One of the men in these families was among those Venezuelans deported to El Salvador in March. He was... Seeking asylum in the U.S. had a pending immigration case. You can find that show on our website at the 1A.org. But, Elliot, I'm curious what the implications of a case like this are, not just for immigrants in the U.S., but for the question of presidential power more broadly, considering it's done. These 250 Venezuelans are out of the country. Yes, the case is still pending, but... they're already gone. Right. And the question is, what's the remedy? And when the administration takes a particularly aggressive action that might not comport with the law, certainly people can sue, people can challenge. But the harm has occurred to these individuals. They have suffered some sort of harm. Now, okay, could they be brought back to the United States? Possibly. But. In practice, that's simply not going to happen. And so there are any number of areas in this aggressive period of litigation in the United States. There are a number of areas in which, yes, the courts might be able to provide some remedy, but the person on the other side of it has lost in practical terms, even if they may ultimately win in legal terms. On his first day in office, in his second term, President Trump signed an executive order to end birthright citizenship. It's a right established by the 14th Amendment. It was ratified by Congress in 1868. And the order would mean that any child born in the U.S. to parents without legal status or who are in the country legally but temporarily would no longer be considered a U.S. citizen. Ameri, your co-counsel in the case challenging this executive order in Casa v. Trump. Tell us about the case and where it stands right now. Sure. So this is the case that was one of three that went up to the Supreme Court after the litigants in these three separate cases, had obtained universal injunctions against that executive order. And that means an injunction barring it anywhere in the country. And that's significant, right? Because every... court, every court to have ruled on this has held that by the plain terms of the 14th Amendment, as well as a congressional statute that was enacted thereafter, birthright citizen applies to everyone that is born here and subject to the jurisdiction of this country. When our case resulted in a universal injunction and two other cases, but...

brought by groups of states resulted in universal injunction, the government went to the Supreme Court not to challenge the merits of the decision about birthright citizenship, but to only challenge the scope of the relief, universal injunctions. That resulted in an opinion that has had some pretty significant consequences, not just for this case, but for so many other cases, because the Supreme Court held that you cannot, district courts cannot issue nationwide universal injunctions unless it's necessary for complete relief to the plaintiffs, which is something that's almost too complicated for us to get into this morning. But they did leave open other alternatives like class action lawsuits. And that is one of the things that our case, right after the Supreme Court's opinion, we then refiled an amended complaint alleging a class action of all those. babies born or who will be born who would be subject to this executive order. We then obtained a class-wide relief, which then applies nationwide in joining that birthright citizenship order. The states who brought other cases, they went back to court and said, we need this for complete relief because people move between states and we've got to be able to know who is a citizen and who's not. And there's no way to do that without this applying to the entire country. So these are the cases, and there's several others where those decisions have been made, and we're waiting to see which one the Solicitor General of the United States will seek to take back to the Supreme Court to actually have the court issue a decision on the merits of the birthright citizenship executive order. We'll head to a quick break here and be back with more of the conversation in just a moment. Stay with us.

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Let's get back to the conversation. This August, the Trump administration deployed thousands of National Guards members to Washington, D.C. The president says they were deployed to combat crime in the city. D.C. officials pointed the fact that violent crime in the district is at a 30-year low. In June, the administration deployed the National Guard to Los Angeles during protests against ice raids. Now, both cities have since sued the administration. Elliot, let's start with Los Angeles. Last week, a federal judge found that Trump's deployment of the National Guard violated the Posse Comitatis Act. Just really briefly, what is the act and how is the judge saying the administration violated it? The Posse Comitaditas Act says, in effect, that military cannot do law enforcement functions. our military are not the police. And most importantly, an enduring question of our time is where law enforcement ends and where national security begins and immigration begins. And all of this is being blurred together by the Trump administration right now. Now, the judge had ruled, as you said, that by deploying military, National Guard to Los Angeles, You know, the Trump administration had violated the Posse Comitatist Act by having these law enforcement, pardon me, military officials engaging in law enforcement functions, basic street functions that violated the law. Now, the judge has paused that order to give the administration time to appeal it, which they certainly will, given the critical stakes for all sides in the case. Mary, how far do you expect this case to go? Because as we've seen lower court judges don't always or even often have the final word. Sure. So this case already has been to the Ninth Circuit once that was on Judge Breyer, the district court judge's original order that sort of enjoined the entire federalization of the National Guard and the deployment of the military. But that was stayed by the Ninth Circuit. He then had a full trial on the issue Elliott just mentioned whether there was a violation of the posse comatose. Comitatus Act by the Federalized National Guard, and he concluded there had been. So that case, as he indicated, will probably go back to the Ninth Circuit. And then, depending on what the Ninth Circuit rules, you could see the U.S. government going up to the Supreme Court again. So, for example, if the Ninth Circuit were to say uphold Judge Breyer's decision about the Posse Comatitis Act, I would expect. the government to seek review in the Supreme Court. And this is important because The president is, of course, threatening to deploy National Guard or the military to other cities, including Chicago and Baltimore and Portland and New Orleans and several others that he's mentioned. And it's not entirely clear what authority he will use. In Los Angeles, he federalized the National Guard, put them under the control of the federal military, which means they would be violating Posse Cometatus Act if they were engaging in law enforcement functions, which is what Judge Breyer concluded.

authorities he could try to use, though, where national guards could voluntarily, governors could voluntarily send their national guards into other states under what's called Title 32, where they stay under the control of the governor and they're not federalized and under the control of the U.S. military. But that raises other complications because if the receiving state, let's say, Illinois, and of course J.B. Pritzker's been vocal about this, if they are objecting and another state sends their national garden to perform lawn function. enforcement functions, that really feels something like an invasion of one state into another. So that will raise all kinds of additional issues involving state sovereignty and other things like that. So it remains to be seen exactly what the Trump administration will rely on and how these cases will make their way up through the courts. But I assure you that they will. And Illinois Governor J.B. Pritzker, a Democrat, and we should mention that most of these cities, the president is pointing to our Democratic... cities or Democratic-run cities, but he has said that this amounts to an invasion. Elliot, when we look at D.C., that's a unique case because it's not a state. Therefore, the federal government has authority over the city's National Guard. Trump is allowed to deploy the Guard for 30 days. Anything beyond that requires congressional approval. The 30 days ends Wednesday. So... According to two White House officials, the National Guard plans to extend its day to November 30th. Congress has not voted on this. D.C. officials have filed a lawsuit against the administration. They did that at the end of last month. So. What is the city arguing in this lawsuit and where does this stand? The city's arguing a few things in the lawsuit, Jen. Number one, that the deployment is illegal on its face for the reasons you said, that this question of, is, is D.C. a state, is D.C. a city? Is D.C. under federal control is at the center of it? And unlike Chicago or other places, there is ambiguity as to D.C. status and that has given the president a slightly longer leash to behave in the way that he has with respect there. Number one. So the deployment itself is illegal. Number two, that... By doing so, the president has violated or infringed on the district's autonomy. It is still under home rule, you know, the terms you've heard being a DC radio station, that's violated by the president's action. And then most importantly, also as we've been talking about throughout the program, that the president has infringed on the constitutional prohibition. of against using the military for domestic law enforcement. So all of these questions. And it was in the district's attorney, the district attorney general's interest to list all of these different bases so that the courts have different avenues they could, you know, follow in in deciding to rule in the district's favor. They've given a few different arguments. Now, which of them stick? We don't know. And again, it's trickier here solely on account of DC's unique status.

Mary, just contextualize for us the amount of legal action we've seen against the Trump administration. Every presidential administration ends up having lawsuits issued against it. But... Are we seeing more of that during the second Trump term? Oh, gosh, yes. I mean, it's just staggering. I mean, well over 100 lawsuits in the district courts, the challengers to executive overreach have been overwhelmingly winning those cases. Even in the federal courts of appeals, many of those have resulted in wins. On emergency motions taken up to the Supreme Court, the Trump administration has had a real significant run of success, not across the board, as we talked earlier, particularly when it came to issues of due process related to summary removals of immigrants from the country. The Supreme Court stepped in against the Trump administration and said all nine justices agreed that people must have a right to due process, notice, and an opportunity to be heard. before they're deported. But in other cases, and this is one of the reasons I think that many people are frustrated, litigants as well as courts, including the lower courts, is because the Trump administration is running to the Supreme Court on an emergency docket when it loses in the lower courts and asking the Supreme Court to stay those rulings. And the Supreme Court is sometimes doing that with... zero or very little explanation. So lower courts are left not knowing exactly what to do on remand because they don't have an exact reason for the court's rulings. And that makes it very difficult for our system of justice. And it also, I think, is really impacting the legitimacy of the Supreme Court when they do not have transparency into the reasons why they are intervening and staying well thought out, well-reasoned decisions. of the lower federal district courts and courts of appeals. I want to be sure to get to this story, Mary. Last week, the U.S. carried out a military strike on a Venezuelan boat in the Caribbean, killing 11 people aboard. The administration says the boat was carrying illegal narcotics. Now, Vice President JD Vance wrote over the weekend on X, and I'll quote him here, killing cartel members who poison our fellow citizens is the highest and best use of our military, end quote. There isn't a lawsuit, but the legality of this attack is being questioned by some experts in the law of war. Tell us why. Sure. I actually think this is one of the most shocking things that happened in the last couple of weeks, notwithstanding a lot of shocking things. And, you know, there has to be legal authority, domestic and international, to take a strike on a boat coming up through the waters from another country. And... The domestic law right now does not support that strike. The most you could come, Congress has to authorize that. We don't get to just kill people because we think they might be members of a drug cartel. So the president may.

claim that this was his inherent constitutional authority, but that really stretches things because, again, we have no idea what evidence the president may have had about the occupants of that boat, whether they were cartel members, and even if they were, U.S. law does not allow a strike. Use of inherent authority would be for things like emergencies and self-defense. And it's hard to imagine when the administration has admitted that our Coast Guard, in its normal law enforcement functions, could have interdicted this boat like it has done many times before, could have searched it, could have obtained the drugs, if there were drugs, et cetera. And that was not the choice made. And then international law raises a number of additional legal issues. So this is a very, very, very serious incident and remains to be seen whether this will be attempted again. And, you know, what kind of, I mean, it's tough here on litigation, right? Because the people in the boat are no longer living. Elliot, you had something to add. Oh, just a brief point I would add to all the wonderful things Mary noted there that a few times the administration has made the point that, well, if there were a boat of al-Qaeda members carrying bombs into the United States, we would not hesitate to drop bombs on them. And it's just a faulty analogy given effectively the Declaration of War against al-Qaeda in 2001 as a global terrorist organization. No one is suggesting that anybody wants drug smugglers in the United States. the equation of one to the other where there was a clear legal distinction made by Congress is just a faulty comparison. But it gets back to this issue of accountability and remedy that you pointed to earlier when we were talking about the case of the Venezuelan immigrants who were expelled from the country without any legal recourse. And I... What we've seen in this administration is a willingness to what the kids would say, I think it's like, don't ask, just apologize later, right? But the legal system in this country works pretty slowly. Right. And so the administration is moving forward on certain actions, and then these things work their way through the court. But the remedy for it is still very unclear. And like I said about the political popularity, the gut feeling is, well, you know, ultimately they did a good thing. They're making Americans safer. You know, to your point, perhaps the people in this boat were Trendyaragua members and arms of the Venezuelan government and potentially engaged in terrorist acts against the United States. Okay, perhaps that's the case. That doesn't mean that international law. empowers or enables the government to simply, without any, you know, engage in an extrajudicial killing. And so, yeah, the vibes are great on it, but that doesn't mean that it comports with the law. We're rounding up some of the major legal challenges against the Trump administration. Unfortunately, we have to let Mary go. Mary McCord is the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University. Mary, thanks so much for joining us. Thanks for having me, Jen. Back with more in a moment.

You might have heard of Nepo babies, maybe even Nepo parents. Now there's Nepo husbands, spouses or partners to high-profile women riding on their coattails. On It's Been a Minute, we talk about the many shapes and forms they come in and the scrutiny they face. See what's shaping culture this week. Watch or listen to It's Been a Minute on the NPR app or YouTube. Let's get back to the conversation and add another voice. Kate Shaw is a professor of law at the University of Pennsylvania Law School. She's also a Supreme Court contributor for ABC News and co-hosts of the podcast, Strict Scrutiny. Kate, welcome back. Thank you so much for having me. So let's start with the latest Supreme Court news. On Monday, the court blocked a federal court's ruling that barred federal agents from conducting immigration stops in Los Angeles based solely on an individual's race, language, job. or location. Now, the Constitution's Fourth Amendment protects people from unlawful searches and seizure. So, Kate, tell us more about this case and what the Supreme Court said about it. Sure. So this case grows out of these very aggressive immigration raids in Los Angeles. The administration was conducting earlier this summer. And in response to challenges to some of those raids, lower courts found, just as you said, that some of these mass detentions and stops were being conducted unlawfully. They were essentially mass, they were stops without individualized suspicion and based rather on... criteria like ethnicity type of employment, right, where individuals working at a site like a car wash or like a landscaping outfit were individuals speaking Spanish. And in response to those kinds of criteria, immigration officials were conducting these mass detentions. And lower courts found that that was likely a violation of the Fourth Amendment. and barred the federal government from continuing to engage in these mass detentions or mass stops. And the Supreme Court yesterday, without a word of explanation from the majority, put on hold that lower court ruling, meaning the administration is again free to engage in the kind of immigration enforcement and stops that it was engaging in, even though a lower court found that that likely violated the Constitution. I believe Justice Sonia Sotomayor wrote the dissent. What did she say? She did. I mean, this was a scathing dissent in which she essentially said... We are now, we, the Supreme Court, is greenlighting a state of affairs in which we are living in a country in which the government can seize anyone who looks Latino, who speaks Spanish, or who appears to work in a low-wage job. So you've essentially told a class of Americans, they have to be affirmatively ready at any moment to prove their lawful status in this country simply because they may be perceived to be here.

out of lawful status, and the Supreme Court has essentially allowed that again. So Sotomayor said a lot about what was wrong with this ruling. What's really striking is that, again, the majority didn't explain at all why it was ruling in the way that it did. Is this the last word on this case, Kate? No, this is just about the kind of what happens while the legal challenge to this. policy and these actions proceed. So the Supreme Court often defends what it does without explanation on what's called the shadow docket, which is what happened yesterday, by saying we're just essentially setting a status quo while further legal proceedings unfold. But it's really important here the Supreme Court again said that status quo while further challenges unfold is that the administration is free to engage in this kind of enforcement activity. What does this mean for other constitutional rights that have historically prevented profiling based on race? ethnicity or nationality? You know, it's really hard to figure out how to square this. Again, unreasoned order with other things this Supreme Court has said, including very recently, right? The Supreme Court, I think it was not lost on a lot of commentators the kind of irony in the court yesterday, essentially saying it is fine to profile in the context of immigration enforcement, where in a very big opinion, just a couple of years ago, the Supreme Court said it is categorically impermissible for higher education institutions to pay any attention to race, even as part of a holistic analysis when they're doing admission. decisions. That was the case striking down affirmative action at Harvard and UNC and essentially at all universities nationwide. So the court seems actually very troubled by the use of race in some context, but seemingly pretty untroubled by its use in the context of immigration enforcement. What other major cases involving President Trump as a Supreme Court ruled on that people might have missed? Just give us a couple of important examples. It's a great question, you know, what people have missed because the way the Supreme Court has been ruling over the past few months... almost seems designed to fly under the radar. So these are not cases where there is an oral argument and then a lengthy written decision that gets a lot of coverage, usually at the end of June, right? That's kind of the rhythm of the Supreme Court we're familiar with. But then there is this other aspect of the court's work, the shadow docket, where emergency applications go to the Supreme Court and they often issue rulings without any explanation at odd hours and that don't necessarily attract the kind of attention they should because they're really important. So on the shadow docket since April, The Trump administration has actually been on this winning streak that has produced something like, depends on how you count it, but about 20.

consecutive wins at the Supreme Court, again, mostly under the radar, giving the president the power at least temporarily to do things like fireheads of independent agencies, engage in incredibly aggressive, not just these immigration stops, like in Los Angeles, but the rendering of individuals to third countries, places they may have no relationship with, the dismantling of the Department of Education. So those are just a few examples of things the Supreme Court has greenlit on the shadow docket, and people just may not have. really been aware of it. Well, it's interesting, Ellie, because this month a dozen federal judges appointed by both Democrats and Republicans told NBC News that the Supreme Court needs to better explain some of its rulings. They also criticized Chief John Roberts saying he should do more to protect the integrity of their work. Just explain a little bit more about this dynamic that's playing out between the Supreme Court and the lower courts and how this relationship is playing out specifically under this administration. Thankfully, both Kate and Mary have touched on this very point, which is that the Supreme Court largely exists to explain things. They don't hear trials in the sense of the kind that we watch on television. They ultimately get complicated legal questions and provide some guidance to the courts below them, both at the trial level and intermediate. immediate appeals level as to what to do. The court, and this is to Kate's point, has been ruling on an emergency basis and sending a lot of things back down without a lot of guidance. And so taking this immigration case yesterday, yes, Brett Kavanaugh did sort of put some meat on or defend the decision in some ways, but it was not in any means an explanation of how. how courts ought to proceed when determining what constitutes reasonable suspicion to apprehend or stop or question an individual. The guidance just isn't there. So what ends up happening is that things get kicked back down, judges rule on them again, and send them back to the Supreme Court, and the cycle continues. And so there's just not a lot of guidance coming down from the court right now. Let's go back to our inbox. Hi, this is Beth from Edina. Minnesota. And I'm curious about who is paying for the defense of all these Trump lawsuits. I am very much in favor of the judicial working on our behalf to save the democracy that we are trying to save. And I'm curious, and I think the public would be interested to know, what is it costing us as taxpayers to do these illegal actions and then have to pay to defend them. Thanks for that message, Beth. We also heard from Randy who asks, when the Trump administration is taken to court, who or what pays the Trump administration's legal fees? And, Ellie, this is a question. We've been kidding a lot in our inbox. Your response? It's a very simple question. It comes out of the Justice Department's budget's budget. I mean, the Justice Department typically is the entity that represents the government on these big constitutional questions. Now, Justice Department's got a $34 billion budget roughly, and it would come out of that. Now, again, there might be circumstances where the Defense Department is sued and maybe some of the...

their attorneys will be part of the suit or whatever else. So it's, that's the way the government works. And the government, governments across political parties are sued all the time. Now, as Mary had said earlier in the program, there is an alarming uptick in the amount of lawsuits that we've seen with this administration. So yes, it has gotten more expensive. Yeah. We've been discussing lawsuits challenging the Trump administration, but the administration has filed its fair share of lawsuits as well. The Department of Justice sued the entire federal district bench in Maryland, claiming that the state court overstepped its authority. That's after Maryland imposed a 48-hour freeze on deportations for migrants who filed petitions to challenge their detentions. And a federal judge ultimately dismissed the DOJ's case. But Kate, to your mind, what concerns does this raise about the Trump administration's approach to judges who rule against it? I mean, this lawsuit was incredibly aggressive, and that's what the district court who threw out this lawsuit essentially found. You know, it is not unreasonable for an administration to say, we actually take issue with the way that a certain federal district or a federal court of appeals is, you know, setting its operating rules. And so we want to have a conversation or a dialogue about, you know, this particular set of rules that the Maryland district bench had been used, had been using. And what this judge who. responded to this lawsuit. They brought in another judge because the Trump administration sued the entire district bench so they couldn't have somebody from that court resolving the complaint. And so they brought in a judge from elsewhere. And, you know, what the judge said was you just cannot ratchet up the sort of aggressiveness of your dispute with the federal judiciary when there are... many, many less confrontational ways to express your displeasure with a particular kind of procedures being used in a federal court. So I think it's emblematic in some ways of just how aggressive this administration has been in its dealings with, well, the law in general and federal courts in particular. So it is not stopping to do, I think, a careful legal review of many of the actions that it is taking. It is simply trying things and essentially inviting lawsuits that inevitably come. And it is at the same time. targeting federal judges in ways I don't think we've seen before. This lawsuit was totally novel and unprecedented. We have seen rhetoric that is quite sort of harsh directed at federal judges from the very top levels of the administration, including the president. And those kinds of criticisms, I think, are not things we have seen before. Well, we'll have to leave the conversation there. Lots more to talk about another day. That's Kate Shaw. She's a professor of law at the University of Pennsylvania Law School. She's also a Supreme Court contributor for ABC News and co-host of the podcast, Strict Scrutiny. And Elliot Williams is a legal analyst for CNN and a guest host for 1A. He also served as Deputy Assistant Attorney General for Legislative Affairs at the Department of Justice from 2013 to 2017. Elliot Kate, thanks so much. Thanks, Jen. Today's producer was Haley Blassingame. This program comes to you from WAMU, part of American University in Washington distributed by NPR. I'm Jen White. Thanks for listening, and we'll talk again tomorrow. This is One-A.

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