Looking back on President Donald Trump’s first 100 days, NBC News has reported that his administration has faced more than 200 civil lawsuits to date — and that these lawsuits have been largely successful, with judges across the country ordering more than 100 injunctions or pauses.
Usually, I am a glass half-full kind of girl. But lately, there have been signs that many of these injunctions are not actually stopping or preventing the actions at issue.
First, even putting aside perhaps the two most glaring examples of the Trump administration’s failure to follow court orders — the cases of Kilmar Abrego Garcia and those Venezuelan men deported and imprisoned in El Salvador pursuant to Trump’s invocation of the Alien Enemies Act — there are multiple other litigations in which the administration has skirted, if not outright flouted, compliance.
In late March, for example, a Massachusetts federal judge issued a temporary restraining order forbidding the Department of Homeland Security from deporting any immigrant with a final removal order to a third country (meaning a destination other than the country designated during immigration proceedings) “UNLESS and UNTIL Defendants [the administration] provide that individual, and their respective immigration counsel, if any, with written notice of the third country to where they may be” deported and a “meaningful opportunity” to seek protection against torture. Yet through a sworn declaration, a regional immigration official has now admitted, after lawyers for individual men reported that their Venezuelan clients were nonetheless deported to El Salvador, that at least four Venezuelans were deported to El Salvador after the temporary restraining order was entered. Still, the administration insisted that it hadn’t violated the order, because all four were first transferred to Guantanamo Bay, Cuba, and then flown to El Salvador on flights operated by the Defense Department, which is not a defendant in the lawsuit, and without any Homeland Security personnel on board.
And it isn’t just the immigration context in which the administration is giving court orders a wink and a nod.
And it isn’t just the immigration context in which the administration is giving court orders a wink and a nod. Consider the administration’s efforts to dismantle the Consumer Financial Protection Bureau through massive reductions in force, among other maneuvers, which a federal district court judge in Washington broadly forbid in late March. But then, an appeals court added an exception: The administration could terminate employees if, after a “particularized assessment,” such employees were determined to be “unnecessary to the performance of defendants’ [the CFPB’s] statutory duties.” Within a week, and without any proof that such assessments had taken place, the agency issued “reduction in force” notices to more than 1,400 employees, or more than 80% of its workforce.
To the original district court judge, the CFPB’s action triggered “significant grounds for concern” that the administration had not complied with court orders, and by Monday night, the appeals court all but agreed, reinstating the entire injunction while the administration appeals. But can the damage be reversed? After all, internal documents and communications filed in the litigation reflect the panic and chaos that has ruled the agency for months.
But the Trump administration’s noncompliance isn’t the only barrier to meaningful courtroom victories — and for some litigants, it’s not even the most significant one.
One lawyer involved in states’ lawsuits against Trump policy initiatives and funding freezes, who requested anonymity out of fear of retribution, explained that in the cases they are litigating, the administration has largely complied with court orders. And while there have been occasional hiccups along the way, as when a funding stream that a court ordered to be restored was not turned back on, the lawyer said the Justice Department has helped resolve those issues.
On the other hand, the Supreme Court itself has become an obstacle for litigating states.
On the other hand, the Supreme Court itself has become an obstacle for litigating states. Specifically, that lawyer noted that since the high court ruled that challenges to grant terminations are essentially contract disputes over money damages between the U.S. and grant recipients, such cases must be brought in a specialized federal court, the Court of Federal Claims, where relief — much less immediate reinstatement of federal grants — could be harder to come by.
Further, the lawyer reminded me that in May, the justices will hear oral arguments on the administration’s bid to limit the impact of nationwide injunctions against Trump’s attempt to end birthright citizenship to the three judicial districts where those court orders were issued. Put another way, if those injunctions are effective only in those three districts, the birthright citizenship case would not only restore Trump’s executive order across most of the country, but it could also effectively end district courts’ ability to issue nationwide injunctions. That would mean plaintiffs seeking to prevent any of Trump’s executive orders from fully taking effect would have to file and win lawsuits in each and every one of the 94 federal district courts in the country to obtain the kind of relief a single court can render now.
And finally, the nature of the federal budgeting and appropriations process means that court challenges to funding freezes and revocations might soon present diminishing returns. After all, if a presidential administration suddenly cuts off congressionally appropriated funding or guts an agency created and maintained by statute, that arguably is an unconstitutional act as well as a violation of multiple statutes, both specific to that agency and governing administrative procedures generally. But what if, for the coming fiscal year, Congress implements Trump’s priorities by zeroing out funding for agency-run grant programs, medical and scientific research, and even federal employee compensation? That would likely fall into the category of what one law professor I know calls “awful but lawful.”
None of this means courts have been or will be useless in upholding the rule of law. But increasingly, my friend Steve Vladeck’s warning has become my mantra: “The courts alone can’t save us.”