Can The Courts Stop Trump?
Sources:
April Rubin, Tracking: States suing to block Trump's birthright citizenship order, Axios, Jan. 22, 2025, https://www.axios.com/2025/01/22/tracking-state-lawsuits-trump-birthright-citizenship
Peter Charalambous, Laura Romero, Soo Rin Kim, Judge temporarily blocks Trump's executive order on birthright citizenship, calling it 'blatantly unconstitutional', ABC, Jan. 23, 2025, https://abcnews.go.com/US/judge-challenge-trumps-executive-order-ending-birthright-citizenship/story?id=118005855
Joan Biskupic, How the modern Supreme Court might view the 14th Amendment and birthright citizenship, CNN, Jan. 23, 2025, https://www.cnn.com/2025/01/23/politics/supreme-court-birthright-citizenship-14th-amendment-wong-kim-ark/index.html
The Trump-Vance Administration is trying to Make it easier for politicians to fire career, independent civil servants, Democracy2025 Response Center,
https://www.democracy2025.org/response-center/jWoZii
The Trump-Vance Administration is trying to Expand fast-track deportations nationwide, Democracy2025 Response Center, https://www.democracy2025.org/response-center/2025-01720
The Trump-Vance Administration is trying to Undermine strong rules and protections by creating the "Department of Government Efficiency", Democracy2025 Response Center, https://www.democracy2025.org/response-center/tbd-23715
Immigrants’ Rights Advocates Sue Trump Administration Over Fast-Track Deportation Policy, ACLU, Jan. 22, 2025, https://www.aclu.org/press-releases/immigrants-rights-advocates-sue-trump-administration-over-fast-track-deportation-policy
Veterans, Teachers, Public Health Professionals, Consumer Advocates, and Watchdog Groups File Suit Challenging the DOGE’s Secret Operations, Democracy Forward Press Release, Jan. 20, 2025, https://democracyforward.org/updates/doge-lawsuit-release/
DHS Rule on Expedited Removal: https://www.federalregister.gov/documents/2025/01/24/2025-01720/designating-aliens-for-expedited-removal
Transcript:
In the days since Trump’s inauguration, he has issued a flurry of presidential orders and proclamations aimed at enacting his campaign promises as quickly as possible, largely in line with the Project 2025 playbook and orchestrated behind the scenes by his many advisors and lackeys. My episode on Wednesday covered the first 48 hours, and a few more orders have happened since then. However, just as quickly in response to these presidential actions, numerous lawsuits have already been filed to attempt to halt the orders and protect the rights of millions of Americans, from government workers to immigrants. In a country led by a power hungry fascist and his megalomaniac billionaire benefactors and a spineless conservative congress willing to sell their souls for a spot in Trump’s good graces, it is, unfortunately, the courts that present the final barrier to the most illegal and atrocious of this administration’s attempts to roll back civil rights and liberties that have stood for generations. But will these lawsuits be successful in a judiciary stocked with Trump appointees, including at the very top in the Supreme Court? Let’s see if we can find some hope in the courts as draconian order after order comes down the pipe. Let’s get into it.
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Democracy Forward has created a really helpful dashboard at Democracy 2025 dot com, click on “response center.” It provides real-time analysis of Trump administration actions as well as info about litigation related to each action. It’s a hell of a lot more user-friendly than the white house dot gov press site where the presidential actions are being published, though you should always check there for the most up-to-date actions.
The national treasury employees union has sued on behalf of unionized employees in 37 different federal agencies to fight against the reinstatement of Schedule F employees, something that Trump created at the end of his first term but Biden quickly did away with. It removes due process protections for thousands of government employees and allows for their dismissal at will depending on whether or not they sufficiently bend the knee. After they are fired, new employees loyal to Trump can be put into every level of every agency in the government. According to the lawsuit, Congress explicitly ensured that federal employees should have due process rights prior to termination, so Trump’s order violates Congressional laws and intent, and it also violated Office of Personnel Management regulations, so it is an overreach of his executive power and cannot stand. That lawsuit was filed January 20th and nothing has happened yet. It is all but certain that numerous more lawsuits will be filed by unions on behalf of government employees at the federal and state level as new orders and regulations roll out that trample on the rights of employees everywhere. Turns out issuing sweeping orders creates a logistical hellscape that is often in direct violation of union contracts.
Separately, 4 different lawsuits have been filed challenging the Department of Government Efficiency, aka DOGE, aka the US DOGE Service, aka the USDS, which Trump created via Executive oRder by renaming the US Digital Service to the US DOGE Service and moving it under the white house so they will report directly to the White House chief of staff, basically giving Elon Musk a direct line to Trump in the White House, officially, and making it sound like DOGE is simply tasked with handling and improving federal data systems to increase efficiency. This despite the fact that for MONTHS Trump and Musk have been promising that DOGE will create sweeping changes and cuts across all areas of the federal government, not just improve federal IT. The lawsuits against DOGE all generally allege similar things, summed up well by the press release from Democracy Forward, which is serving as counsel for Plaintiffs in the case titled “American Public Health Association v. Office of Management and Budget.” The press release says “According to the Complaint, “The “Department” of Government Efficiency is not a federal department. Elected representatives in Congress have not established nor have they funded such an enterprise. DOGE is, instead, a shadow operation led by unelected billionaires who stand to reap huge financial rewards from this influence and access. Despite these conflicts of interest, DOGE is slated to dictate federal policy in ways that will affect millions of Americans, including those communities that Plaintiffs represent. It is doing so under the shroud of secrecy with none of the transparency, oversight, or opportunity for public participation the law requires.”
The suit seeks a court order blocking the operation of DOGE until it comes into compliance with the law.” Those cases were filed on inauguration day and nothing has happened with them yet.
However probably the MOST litigation activity has been seen around Trump’s order to end birthright citizenship for babies born to undocumented parents or parents here temporarily. Largely because this one is the more clearcut completely unconstitutional move Trump has made.
Attorneys general in 22 states have sued to stop Trump’s birthright citizenship executive order from going into effect on February 20th. Numerous immigrants rights groups including the ACLU filed a separate lawsuit as well. A total of at least 5 separate lawsuits were filed nearly immediately upon the announcement of the birthright citizenship order. Multiple attorneys general as well as immigration and constitutional law experts have confirmed that Trump does not have the constitutional authority to get rid of birthright citizenship, a concept that has been accepted and established law for 150 years and has been upheld by the Supreme Court twice.
On Thursday, one of the lawsuits, filed by four state attorneys general in Seattle, was heard by Reagan-appointed Judge Caughenour and, in what is a rare moment wherein Reagan did not, in fact, ruin this one thing, his appointed judge temporarily barred the birthright citizenship order from taking effect. Saying, according to ABC news, quote, “I have been on the bench for over four decades. I can't remember another case where the question presented is as clear as it is here. This is a blatantly unconstitutional order." And listen I love when judges get sassy, as long as I agree with them, and this judge did. He asked the government’s attorney incredulously whether he actually legitimately thought this order was constitutional, saying “"I have difficulty understanding how a member of the bar can state unequivocally that this is a constitutional order. It boggles my mind. Where were the lawyers when this decision was being made?" An excellent question! Because you know there were definitely lawyers in the room. Perhaps they should be, I don’t know, investigated for professional misconduct and barred from practicing law? Just a thought. Given the track record of the attorneys Trump surrounds himself with, I can’t imagine you wouldn’t find some pretty damning evidence of incompetence. Listen I’ll make it easy for you, just go to project 2025 dot com and check out their little policy manual. Loooots of names in there to start taking a peek at.
The temporary injunction issued by the judge only lasts until February 6th, which is when the judge will hear arguments over whether to order a preliminary injunction. These are procedural protections put in place that allow a party to request that a judge temporarily stop something from happening in order to allow the case to play out and not cause undue harm in the interim, because we all know cases take fuckin’ forever. So this one is just saying hey don’t fuckin move, and then on February 6th, given his attitude at the first hearing, it’s very likely he’ll issue a preliminary injunction, which would remain in place, barring the implementation of the order, until the constitutionality of the order is sussed out in the courts.
That will of course be immediately appealed up to the Supreme Court, both the injunction AND the eventual lower court ruling on whether or not it’s constitutional. As to the injunction, typically the Supreme Court will look to the potential harms and the benefits of the injunction and will USUALLY stick with keeping things the status quo until the courts can suss out the larger constitutionality question–so allowing the injunction to remain in place instead of, you know, up ending 150 years of precedent. But THIS Supreme Court is fucking out of its mind so fingers crossed they surprise us and at least allow the injunction to stand.
As to how they’ll rule on the constitutionality is another question, because you know it’ll eventually get appealed up to them, and they are CHOMPING at the bit to dismantle every single right in given to us in the 14th Amendment, even the explicit ones.
HOWEVER, immigration law professor Sandra Rierson told CNN recently that, in this case, the Supreme court would actually be pretty unlikely to reverse the longstanding precedent, especially, “If what they’re really concerned about is history and tradition in the United States.” Which is what they’ve claimed. The precedent was set in a case called United States vs Wong Kim Arc, decided in 1898, which confirmed the birthright citizenship of a man born to Chinese immigrant parents, here illegally during a time of intense anti-Chinese sentiment. In my episode on Wednesday we talked about this case, and about how it did lay out incredibly narrow exceptions to birthright citizenship, specifically children of foreign diplomats born here and children of enemies within who are illegally occupying the territory. That is commonly understood to mean enemy combatants, like soldiers here occupying US territory illegally during a war or something. While I’m sure the government would love to argue in favor of seeing illegal immigrants as enemies within illegally occupying the territory, the fact that Wong Kim Arc was decided at a time of intense anti-Chinese immigrant sentiment when there were specific laws in place banning Chinese immigrants from getting citizenship means they’d be hard pressed to argue that today’s immigrants coming in from Mexico are somehow different from the immigrants in that decision. As much as “national security” tends to win arguments in favor of doing awful shit, I think in this case the decision has already been made, the record is clear, and the text of the constitution itself is clear. That being said, there is a Trump-appointed appellate judge, Judge Ho, that has written concerning opinions advancing the idea that the immigrants at the southern border could be construed as an “invasion” and the Republican talking points in the last year have harped on the idea of “enemies from within” and an “invasion at the southern border.” So while there is no Supreme Court precedent to uphold Trump’s version of the 14th Amendment, there has been a fringe group of lunatics trying to make the argument against birthright citizenship sound legit, including John Eastman, a lawyer who actively pursued election fraud lawsuits on behalf of Donald Trump in the wake of the 2020 election. So, again, he surrounds himself with lawyers willing to say and do a lot of questionable things.
And I think it’s worth also taking a moment to discuss the Supreme Court case that the 14th Amendment was explicitly written to overturn, because I’ve noticed a pattern in Trump’s presidential actions so far: that of co-opting the history of civil rights in this country and rewriting it to the benefit of white people. That is some insidious propaganda that should not be overlooked. So we can’t overlook that in his order attempting to argue that the 14th Amendment didn’t ever mean to grant birthright citizenship to illegal immigrants, he is attempting to rewrite the interpretation of a constitutional amendment meant to right the wrong of one of the most notorious decisions in US Supreme Court history: Dred Scot v Sandford, in which the US Supreme Court held that people born in the US of African ancestry were not citizens. The decision led directly to the civil war, after which swift action was taken to outlaw not only slavery but also the vestiges of slavery–the long term consequences from enslavement. From this came the 14th Amendment, which explicitly stated that people born in the US are citizens, language that extended citizenship to not only African Americans but also all others born on US soil. The 14th Amendment is a direct acknowledgement of the wrongness of deeming a person born in the US not a citizen simply because of the conditions of their birth, or the enslavement of their parents at the time of their birth, or the color of their skin, or where their ancestors are from. So for Trump and his cronies to come in and say actually this NEVER applied to everyone and was ONLY meant to right the wrong of the Dred Scott decision is a gross misinterpretation of history, flipping the advancement of civil rights on its head in order to serve the very rich white people who originally did the enslaving and denied civil rights to large swaths of the population.
Similarly, Trump’s order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” rolls back a 60-year-old LBJ era civil rights executive order meant to decrease racism in federal hiring, and Trump’s order claims to be undoing these civil rights protections in the name of… civil rights. The quiet part he’s barely just not saying out loud is that the racism is against whites now. The fearmongering idea being that qualified white people are being discriminated against because of the color of their skin, and unqualified DEI hires (aka black and brown people and women) are taking what should rightfully be white male jobs because of racist and sexist policies. The order has the audacity to say “Longstanding Federal civil-rights laws protect individual Americans from discrimination based on race, color, religion, sex, or national origin. These civil-rights protections serve as a bedrock supporting equality of opportunity for all Americans. As President, I have a solemn duty to ensure that these laws are enforced for the benefit of all Americans.” He says this and, in the same breath, rolls back a civil rights-era order that ensures diversity in hiring at the federal level. In the name of ending discrimination. This is a commonly used tactic to try to justify ignoring long racist practices in this country. It is akin to legal reasoning, prior to the Supreme Court case that legalized interracial marriage, that said banning interracial marriage is not discriminatory because it equally bans whites and blacks from marrying, it doesn’t single out just black people.
Which, like, sure, but let’s not pretend anti-miscegination laws were passed to equally benefit black and white people. They were passed because black people were seen as inferior, in order to control the “purity” of the white race, and to ensure that white women remained the property of white men. Because you cannot take a law in isolation out of context, but if you do then you can make convincing-sounding arguments that everything is fine and well reasoned. So Trump can turn around, take the anti-discrimination laws of the 1960s completely out of the context of the 1960s and the 300 years prior, and say no no these have been distorted to allow for discrimination against white people, completely ignoring the 300 years of discrimination against people of color that necessitate an enforced righting of wrongs because of the inherent, ingrained racism up to that point in hiring. Racism that continues to this day, as evidenced by studies that show candidates with “black-sounding” names get fewer interview offers, with one study even showing that black candidates with a clean record got fewer offers than white candidates with a felony on their record. So yeah there’s clearly some racism that needs to be controlled for to ensure that people ACTUALLY have a fair shot. But Trump is co-opting the language of the oppressed to say no actually WE are oppressed by being forced to consider race and sex in hiring practices that disproportionately favors people who aren’t white men. OUR civil rights are under attack. WE favor good clean equal opportunity, and the libs want equal outcomes even if the candidates aren’t qualified. Again, removing any historical context and saying the left is just obsessed with making sure quotas are met. Meanwhile we’re screaming that no we also just want to make sure everyone has an equal opportunity to succeed, something that is not available to people based on their race and sex because of deeply entrenched racism and sexism that still very much impacts whether people are given equal opportunities to succeed. I want a female pilot when I get on that plane because I know how much harder she had to work to get to that position. Because there is inherent sexism that requires we be harder workers and more qualified than men to get the same job. History shows this. Study after study shows this. But by ignoring all of that and removing context, Trump and his cronies can co-opt laws and regulations put in place for black and brown people, for women, for trans people, and say no I’m a champion of civil rights so these cannot stand. It’s insidious, it’s manipulative, it’s propaganda, and he knows he can get away with it because our schools have been stripped of the ability to teach the context necessary for the electorate to understand what he’s doing.
At this time it doesn’t appear there is litigation aimed at this specific order, likely because it is within his right to rescind past executive orders, which is what this does. The court battles will likely happen down the line as more individual people face race and sex-based discrimination in hiring, which is still illegal. It’ll just become so widespread and accepted that being able to prove its happening will be even harder. Oh and the DOJ has suspended all activity in the civil rights divisions of every US attorneys office in the country. That affects hundreds of federal attorneys and thousands of cases currently underway that ensure the enforcement and punish the violation of essential civil rights laws–everything from disability discrimination to discrimination in education, employment discrimination and more. The laws are still on the books but they can’t be enforced if there are no attorneys to enforce them.
Okay so those are the known lawsuits happening immediately in response to Trump’s presidential actions, but the problem is that now that he’s in office and has issued a slurry of directives, the agencies are now taking action in new and nefarious ways, some of which will have widespread consequences that will muck up both federal and state agencies that rely on federal dollars for literally YEARS to come. And some of the directives coming from agencies serving Trump’s agenda are ALSO getting hit with lawsuits. And while the best place to see Presidential actions is via white house dot gov, the best place to see what federal agencies are doing is the federal register at federal register dot gov, where you can see that day’s publication of all the actions published that day across the federal government. Which, as you can guess, becomes immediately overwhelming. This is where picking a cause you care about and paying attention to that agency or to the watchdog organizations keeping tabs on that agency can help reduce the overwhelm.
Specifically, the ACLU and other immigrants rights organizations have sued the Department of Homeland Security over a directive just issued that dramatically expands the scope of expedited removal across the United States. Expedited removal is a limited process under which DHS officers in ICE and the border patrol can immediately remove immigrants who are within 100 miles of the border, crossed it illegally, meaning not through an official port of entry, and have been here fewer than 14 days. Basically, it denies due process to people who are here illegally and just got here. They can be detained and removed without a lawyer or a hearing. But the new ruling dramatically expands that to include ANYWHERE in the United States, not just within 100 miles of the border, and to include any person who is an immigrant here illegally and cannot prove to the ICE officer that they have been in the US continuously for the past TWO YEARS. So anyone who’s been here illegally for under 2 years can be forcibly removed without due process, anywhere in the country. And if they cannot prove, to the satisfaction of the ICE officer, whatever that means, that they are here legally or have continuously been here illegally for over 2 years, then they can also be forcibly removed without due process. Due process is a right protected by our constitution to both citizens and non-citizens alike. It requires that anyone who is having their life, liberty, or property revoked by the state, say through forcible detention and removal, be given notice and a hearing before a judge. This is to ensure proper enforcement of the law, and because life, liberty, and property, are protected things in this country that we care deeply about not allowing the state to be able to remove willy nilly without legal justification. This expansion of expedited removal revokes due process requirements for millions of people who still deserve due process whether or not they broke the law in coming here. We give criminal defendants due process, we should give everyone due process whether or not they are here legally, that is a long held standard in this country, at least in theory. Under this new rule, according to the ACLU press release, immigrants “would get less due process contesting their deportation than they would contesting a traffic ticket.” And according to the complaint, the new rule “disregards nearly three decades of experience showing that the expedited removal process, even when used at the border for new arrivals, is rife with errors and results in widespread violations of individuals’ legal rights. That experience shows that the government has erroneously deported numerous individuals through expedited removal, including U.S. citizens and individuals with bona fide fears of persecution in their countries of origin. Numerous reports, including a comprehensive study commissioned by Congress, have extensively documented the widespread abuse and serious flaws in the expedited removal process at the border.” And now they’re expanding it nationwide to anyone here less than 2 years, giving low level DHS officers carte blanche to determine, based certainly on racial profiling and a lack of much legal knowledge, who has “sufficiently” proven they’re here legally or have been here for more than 2 years CONTINUOUSLY. That ACLU complaint was just filed on the 22nd so nothing has happened yet.
And all these lawsuits I’ve just mentioned are just the beginning of a long, uphill battle against the slew of presidential actions and resulting agency actions that will lead to lawsuits in an attempt to safeguard the rights of millions and millions of Americans across the country. However, I wanted to highlight these lawsuits today not only to keep you ABREAST of the latest updates but also because it is a kernel of hope to hold on to. Yes, Trump made so many executive actions in his first 48 hours as President that it took ME 12 hours of work just to put together an episode about all of them. But, just as swiftly, numerous organizations were ready in the wings with complaints drafted ready to file lawsuits the moment his orders came down. These organizations represent hundreds if not thousands of activists, organizers, lawyers, and everyday people, all acting in concert to try to protect our rights and privileges. You don’t just draft a complaint in a day and file it, these organizations had the foresight to prepare for this day, and they have acted swiftly. The courts, of course, will not act as swiftly, but I take comfort in knowing the sheer number of people who are acting as watchdog and legal safeguards to try to prevent as much damage as possible. I was in law school during the first Trump administration, and I found comfort then in the law professors who were much smarter and more experienced than me and doing incredible work to try to fight his policies or educate the next generation of lawyers that were going to fight the good fight next. There are so many heinous fucking people surrounding Trump and dedicating their lives to bigotry, hatred, and self-aggrandizement. But, as Mister Rogers always said, look for the helpers. You cannot let yourself get consumed by solely staring into the darkest parts of these moments. There are good, smart, deeply empathetic people doing tireless work to protect all of us. Will it be enough? I don’t know. Unfortunately this isn’t a superhero movie where good triumphs over evil and everything is black and white. The good guys don’t usually win in real life. Progress is a slow trudge against the ugliest parts of human nature. It’s never linear, success never looks like what you want it to, but you trudge on knowing that it’s about something bigger than you, something the soulless ghouls Trump surrounds himself with will never understand in their endless struggle to trod on as many people as possible in order to come out on top. I’d rather lose every single time and be on this side of history than lose my humanity in order to be on theirs. Do not look away, but be sure to focus on what matters. Pick the cause you care most about so as not to drown in the onslaught of information. Focus your finite amount of time and attention on things that matter instead of doomscrolling on the very apps that are run by billionaires who, and pardon me because fuck JK Rowling forever but Harry Potter offers some apt comparisons to fascism, have voldemorted their souls into oblivion in the name of power, power they gain more of the more you give them your attention. Focus on the cause you care about most, focus on improving your skills and education, rent a book from the library, join a knitting circle, grow a little garden on your windowsill, and focus on the community you are directly a part of. Odds are it is full of helpers, too.
And you can join me over on my Patreon community where I just launched the Why, America? Co-Learning Lab, a learning community having discussions and making connections, along with a monthly syllabus curated by me. All year we’ll be covering topics under the umbrella theme of “Eat the Rich: Building Solidarity in the New Gilded Age.” This month’s topic is all about learning from history to fight for the future. We’re looking at and discussing past movements to see where we can learn from history, because it does have a tendency to repeat itself. This is all hosted over on Patreon, which is linked down below. If you’re interested, please join us.
Thank you to my multi-platinum patrons Art, David, R_H, L’Etranger (Lukus), Joshua Cole, Thomas Johnson, and Tay. Your generosity makes this channel what it is, so thank you!
And if you liked this episode, you’ll like the one from Wednesday where I cover all the presidential actions Trump took in his first 48 hours as president.
