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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

STATE OF NEW YORK, et al.,

Plaintiffs,

v.

DONALD TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, et al.,

Defendants.

C.A. No. 1:25-cv-00039

REQUEST FOR EMERGENCY RELIEF TO ENFORCE TEMPORARY RESTRAINING ORDER OF JANUARY 31, 2025, UPON EVIDENCE OF VIOLATION

PLAINTIFF STATES’ MOTION FOR ENFORCEMENT OF THE TEMPORARY RESTRAINING ORDER

On January 31, 2025, this Court issued a Temporary Restraining Order enjoining Defendants, including the President of the United States, Donald J. Trump, the United States Office of Management and Budget, and the United States Treasury Department, from “reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant)” by any means, including through oblique means “such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025.” TRO 12, ECF No. 50 (“Order”). Yet Plaintiff States and entities within the Plaintiff States continue to be denied access to federal funds. These denials continue to cause immediate irreparable harm as demonstrated in the temporary restraining order proceedings and will be further demonstrated in support of the Plaintiff States’ request for preliminary injunction, filed simultaneously with this motion. Jobs, lives, and the social fabric of life in the Plaintiff States are at risk from the disruptions and uncertainty that have continued now a full week after entry of the Order. As this Court noted, executive action that is “in name-only and may have” proceeded “simply to defeat the jurisdiction of the courts” weighs in favor of temporary but decisive action. Order, 10. Unfortunately, such action is once again necessary on an urgent basis.

The sands have only continued to shift since January 31. As explained below, there has been an ever-changing kaleidoscope of federal financial assistance that has been suspended, deleted, in transit, under review, and more since entry of the Order. These conditions persist today. In particular, Defendants have—for the first time this week—taken the position that certain federal funds, including federal financial assistance under the Inflation Reduction Act (“IRA”) and the Infrastructure Improvement and Jobs Act (“IIJA”), is outside the scope of the Court’s Order, a position contradicted by the plain text of the Order and the notice Defendants previously filed with the Court explaining their view of the scope of the Order. See Order 11-12.

And, while it is imaginable that a certain amount of machinery would need to be re-tooled in order to undo the breadth of the Federal Funding Freeze, there is no world in which these scattershot outages, which as of this writing impact billions of dollars in federal funding across the Plaintiff States, can constitute compliance with this Court’s Order. Defendants contemplated an all-of-government “pause” on federal funding could be implemented in the less than 24 hours between when the OMB Directive issued and when it took effect. Yet, as to a number of funding sources that provide critical services in Plaintiffs’ States, the situation has not changed at all nearly a week after the Court’s Order, which noted that “[t]he evidence in the record at this point shows that . . . the Executive’s decision to pause appropriated federal funds [for at least some federal programs] ‘remains in full force and effect.’” Order 10.

Defendants also seek resort to unspecified administrative and operational delays—but these are the delays the Defendants are enjoined from imposing. This Court should enforce the plain text of its temporary restraining order and order Defendants to immediately restore funds and desist from the federal funding pause until the preliminary injunction motion can be heard and decided, a process which is proceeding expeditiously in separate proceedings before this Court.

I. FACTUAL BACKGROUND

A. Court Order

This Court’s Order restrained three types of conduct. First, Defendants shall “not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.” Order 11. Second, the Defendants shall not accomplish any of the listed prohibited activities during “‘identif[ication] and review’ of federal financial assistance programs, as identified in the OMB Directive.” Order 12. Third, the Federal Funding Freeze is not to be reinstituted under any name—Defendants are “restrained and prohibited from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant).” Id. Moreover, the Court required affirmative action of the Defendants—that is, if any grant needed to be stopped, delayed, or otherwise withheld in the regular order, Defendants are required to “comply with all notice and procedural requirements in the award, agreement, or other instrument” governing the federal financial assistance at issue. Id.

In addition, in recognition that the scope of the Federal Funding Freeze was vast, the Court ordered Defendants’ attorneys to “provide written notice of this Order to all Defendants and agencies and their employees, contractors, and grantees by Monday, February 3, 2025, at 9 a.m.” and file a copy with the Court at the same time. Id.

B. Defendants’ Subsequent Conduct

1. Notice of Court Order

Defendants filed the Notice of Court Order on Monday, February 3, 2025. In it, Defendants stated their understanding of the scope of the Court’s Order, telling all of their “employees, contractors, and grantees” that “Federal agencies cannot pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Notice of Ct. Order 1, ECF No. 51-1. Defendants accompanied their filing of the Notice with a brief cover memorandum to the Court, which elaborated on their views that:

• the Order did not restrain the “President or his advisors from communicating with federal agencies or the public about the President’s priorities regarding federal spending.”

• the Order did not enjoin “the President’s Executive Orders, which are plainly lawful and unchallenged in this case.”

• the Order did not “impos[e] compliance obligations on federal agencies that are not Defendants in this case.”

2. Noncompliance with Court Order

Despite the Court’s order, Defendants have failed to resume disbursing federal funds in multiple respects.

IRA/IIJA funds. First, Defendants have failed to fully resume disbursing federal funds appropriated by the IRA and IIJA. Plaintiff States’ agencies that receive IRA/IIJA-appropriated funds under final grant agreements have been regularly refreshing federal payment portals—in particular, the Automated Standard Application for Payments (“ASAP”)—to check whether their grants have been restored. For some IRA/IIJA grants, grant accounts have reappeared over the course of the week in ASAP, and federal grantor agencies have communicated to the States that grant accounts are or will shortly be un-suspended. For other IRA/IIJA grants, as of the evening of Wednesday, February 5, grant accounts continue to be missing in ASAP and unavailable for drawing down disbursements; other grant accounts are still flagged as suspended or held “per executive order” or “for agency review.” In these cases, federal grantor agencies have replied to state agency inquiries with receipt-acknowledging non-answers or not replied at all—and often meetings with agency grant offices remain cancelled. The following grants are illustrative, although not exhaustive—many states have had these and other important grants frozen or paused:

• The Climate Pollution Reduction Grant program, administered by EPA and funded by a $5 billion IRA appropriation, supports States, tribes, and local governments in planning and implementing greenhouse-gas reduction measures. For example, the regional air district covering Los Angeles, California received a $500 million award, subject to a final grant agreement, to clean up the highly polluting goods movement corridor between the Imperial Valley’s logistics hubs and warehouses to the Port of Los Angeles. (Ex. 42 to Thomas-Jensen Aff. ¶ 8.)1 As of February 5, this grant and other Climate Pollution Reduction Grants remained inaccessible in ASAP. (Ex. 42 to Thomas-Jensen Aff. ¶¶ 8, 25; Ex. 28 to Thomas-Jensen Aff. ¶¶ 8, 11, 18–19; Ex. 84 to Thomas-Jensen Aff. ¶¶ 10, 11, 15; Ex. 106 to Thomas-Jensen Aff. ¶¶ 41–44; Ex. 83 to Thomas-Jensen Aff. ¶¶ 2, 25; Ex. 56 to Thomas-Jensen Aff. ¶ 12; see also Ex. 20 to Thomas-Jensen Aff. ¶¶ 19, 23 (as of Feb. 4); Ex. 44 to Thomas-Jensen Aff. ¶¶ 35–36 (same); Ex. 49 to Thomas-Jensen Aff. ¶ 19 (same); Ex. 97 to Thomas-Jensen Aff. ¶¶ 4(B), 5, 14 (same); Ex. 61 to Thomas-Jensen Aff. ¶¶ 8, 10 (same)).

• For sixty years, EPA has administered a national air monitoring network and research program under Clean Air Act sections 103 to 105. The IRA appropriated $117.5 million to fund air monitoring grants under this program to increase States’ abilities to detect dangerous pollution like particulate matter (soot) and air toxics, including in disadvantaged communities. These pollutants create a particular public health emergency in areas recovering from wildfires. As of February 5, air monitoring grants remained inaccessible in ASAP. (Ex. 28 to Thomas-Jensen Aff. ¶¶ 7, 18-19; Ex. 97 to Thomas-Jensen Aff. ¶¶ 12, 15; Ex. 42 to Thomas-Jensen Aff. ¶¶ 12-13, 25; Ex. 84 to Thomas-Jensen Aff. ¶¶ 12-13, 15; Ex. 106 to Thomas-Jensen Aff. ¶¶ 58-71; Ex. 73 to Thomas-Jensen Aff. ¶ 8; see also Ex. 23 to Thomas-Jensen Aff. ¶ 12 (as of Feb. 4)).

• The IRA appropriates $4.5 billion to the Department of Energy for the Home Electrification and Appliances Rebates Program. The rebate program, administered by state energy offices under final federal grants, subsidizes low- and moderate-income households’ purchase and installation of electric heat pump water heaters, electric heat pump space heating and cooling systems, and other home electrification projects. Thousands of homeowners across Plaintiff States have signed up for Plaintiff States’ programs, received approvals, and even started installation in reliance on these rebates, and are stuck paying their contractors an extra $8,000 if state energy offices cannot draw down funds. As of February 5, that remained the case: the home rebate grants are held “for agency review” in ASAP. (Ex. 40 to Thomas-Jensen Aff. ¶¶ 8, 11, 37; Ex. 95 to Thomas-Jensen Aff. ¶¶ 23, 37-40, 55; Ex. 20 to Thomas-Jensen Aff. ¶¶ 6, 22 (as of Feb. 4); see also Ex. 108 to Thomas-Jensen Aff. ¶¶ 33, 35; Ex. 85 to Thomas-Jensen Aff., Ex. J).

• The Solar for All program, administered by the Environmental Protection Agency (“EPA”) and funded by the IRA’s Greenhouse Gas Reduction Fund, awarded $7 billion to 60 grantees to install rooftop and community solar energy projects in low-income and disadvantaged communities. These awards—all with final grant agreements in place— support the construction of cheap, resilient power in underserved neighborhoods, and provide particular protection to communities in which wildfire risk regularly causes utilities to de-energize transmission lines. As of February 5, numerous Plaintiff States were unable to access their Solar For All grant accounts in ASAP. (Ex. 108 to Thomas-Jensen Aff. ¶¶ 19–21 (Rhode Island); Ex. 44 to Thomas-Jensen Aff. ¶ 14 (Connecticut); Ex. 52 to Thomas-Jensen Aff. ¶ 12 (Hawai‘i); Ex. 73 to Thomas-Jensen Aff. ¶ 8 (Michigan); Ex. 71 to Thomas-Jensen Aff. ¶¶ 2, 7 (Maine); Ex. 85 to Thomas-Jensen Aff. ¶¶ 5, 10 (New Jersey); Ex. 95 to Thomas-Jensen Aff. ¶¶ 6, 55 (New York)). As of the time of filing, it appears that access in ASAP has at least begun to be restored in many of the Plaintiff States.

Other funds. Defendants have failed to follow the Court’s order with respect to other funds, too. On February 3, the National Institutes of Health abruptly cancelled an advisory committee review meeting with Brown University’s School of Public Health for a $71 million grant on dementia care research, saying “all federal advisory committee meetings had been cancelled.”2 Ex. February 5, still unable to access federal funds from the Department of Education. Ex. 111 to Thomas-Jensen Aff. ¶ 5; Ex. 76 to Thomas-Jensen Aff. ¶ 12. On February 5 and 6, the Centers for Disease Control and Prevention and the Health Resources and Services Administration renewed stop work orders to a University of Washington program doing global HIV prevention work. Decl. of Maya Beal (Feb. 7, 2025) ¶¶ 4, 10–11, 14–15, attached as Exhibit A. As Plaintiff States’ preliminary injunction motion details, since the entry of the Court’s Order, their agencies have received inconsistent guidance, cancelled and un-cancelled meetings, and inexplicably patchwork restorations of some grants but not others. Plaintiff’s Motion for Preliminary Injunction 18, 20, 21, 24, 32.

3. Attempts to Remedy

Plaintiff States attempted to remedy these issues on Wednesday, February 5, but were not successful. See Exhibits B and C. As part of that conferral process, Defendants have identified two grounds to excuse noncompliance.

First, in correspondence to Plaintiff State Oregon, Defendants explained that, in their view, certain IRA/IIJA funds lie outside the Order’s scope. Specifically, Defendants explained that such funding “was paused pursuant to OMB Memorandum M-25-11, which is not challenged in New York v. Trump and preceded issuance of the challenged OMB Memorandum M-25-13.” Exhibit B at 1.

As background, OMB Memorandum M-25-11 (“OMB Unleashing Guidance”), which predated the OMB Directive, instructed agencies that the “directive in section 7 of the Executive Order entitled Unleashing American Energy requires agencies to immediately pause disbursement of funds appropriated under the Inflation Reduction Act of 2022 (Public Law 117-169) [(IRA)] or the Infrastructure Investment and Jobs Act (Public Law 117-58) [(IIJA)],” but that pause applied only to “funds supporting the Green New Deal”—a term the OMB Unleashing Guidance defines as “supporting programs, projects, or activities that may be implicated by the policy established in Section 2 of the order.” Ex. 13 to Thomas-Jensen Aff. The Guidance provides no further explanation of how federal agencies are to make that determination.

Defendants thus appear to now take the position that the “freeze” set out in the Unleashing Guidance is distinct from the “freeze” set out days later in the OMB Directive, and that they remain free to freeze funds pursuant to the Unleashing Guidance. That position would appear to allow Defendants to continue to freeze any funds under either the IIJA or IRA that the federal grantor agency might characterize as “supporting the Green New Deal.”3

Second, Defendants have taken the position that, as a categorical matter, “the mere fact of a pause in funding does not inherently violate the Court’s Order,” and that the payment delays and blockages the Plaintiff States have endured for the past week despite the Order are excusable because there “are operational and administrative reasons for payments taking longer than normal.” As discussed below, certain federal funding streams have resumed, and others have not; consequently, key programs are at risk in the Plaintiff States because of Defendants’ failure to timely comply with this Court’s Order.

LEGAL STANDARD

Courts may issue further orders to obtain “compliance with a court order.” United States v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005) (citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). In the First Circuit, to remedy violations of court orders, there are four factors to satisfy: (1) notice of the court order; (2) clarity and unambiguity of the order; (3) ability to comply; and (4) violation of the order. Letourneau v. Aul, No. CV 14-421JJM, 2024 WL 1364340, at *2 (D.R.I. Apr. 1, 2024) (citing Hawkins v. Dep’t of Health & Hum. Servs., 665 F.3d 25, 31 (1st Cir. 2012)).

“[T]he ‘clear and unambiguous’ standard applies to the language of the relevant court order, not to its effectiveness.” Cashman Dredging & Marine Contracting Co., LLC v. Belesimo, No. CV 21-11398-DJC, 2022 WL 3227535, at *4 (D. Mass. May 17, 2022) (quoting Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 76 (1st Cir. 2002)). When evaluating whether a court order is “clear and unambiguous,” the question is “not whether the order is clearly worded as a general matter.” Saccoccia, 433 F.3d at 28. Instead, the “clear and unambiguous” prong “requires that the words of the court’s order have clearly and unambiguously forbidden the precise conduct” giving rise to the need for enforcement. Id. (emphasis omitted) (citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)).

ARGUMENT

I. The Court Should Order Defendants to Immediately Restore Frozen Funding Pursuant to the Court’s Temporary Restraining Order.

Clear and convincing evidence demonstrates that all four elements for further enforcement of the Order are met. Defendants had notice of the Order, the Order was clear and unambiguous, Defendants had the ability to comply with the Order, and Defendants have violated and continue to violate the Order. See Letourneau v. Aul, No. CV 14-421JJM, 2024 WL 1364340, at *2 (D.R.I. Apr. 1, 2024) (citing Hawkins v. Dep’t of Health & Hum. Servs., 665 F.3d 25, 31 (1st Cir. 2012)). There can be no dispute as to the first, third, and fourth elements. First, Defendants had notice of the Order, as they appeared at the hearing on the motion for a temporary restraining order, received the subsequent Order, filed the required Notice of the Order they intended to distribute to “all Defendants and agencies and their employees, contractors, and grantees,” Order 12, in fact distributed the Order, and have communicated with Plaintiffs about the Order.

Second, and as explained further below, the language applicable to Defendants’ assertions is plain and unambiguous and compels the result opposite from Defendants’ assertion. That is, the plain language of the Order sweeps in all incorporated articulations of the Federal Funding Freeze that are patent in the OMB Directive and the Order requires compliance without exception for administrative or operational difficulties, especially for any that extend a multiple of the length of time it took to implement the Federal Funding Freeze in the first instance.

Third, Defendants had the ability to comply with the Order. Simply put, because Defendants were able to cut off funding streams, they are equally able to turn those streams back on. Plaintiff States of course appreciate the need to allow Defendants a short period of time to operationalize the Order, but that time has long since passed. Defendants managed to implement widespread and disruptive funding freezes immediately after the OMB Directive was distributed, yet they have somehow now required a week or more to restore only some of the withheld funding. As described in Plaintiff States’ Motion for Preliminary Injunction 24–34, many of the programs for which funds were still frozen days after entry of the Order conspicuously mirror the President’s policy attacks on funding for environmental projects, foreign aid, university research, and services for low-income families. Defendants’ partial compliance demonstrates that they have the ability to fully comply, and the Order does not allow for selective compliance.

Fourth, Defendants have violated the Order. The evidence is overwhelming, as described supra Section B.2 and in the Motion for Preliminary Injunction 24–34, that Plaintiff States continue to experience widespread disruption in funds without notice or other procedural requirements of the relevant award, agreement, or other instrument. Defendants appear to contend that their conduct is permissible under the Order. Supra Section B.3. But Defendants are wrong. Under the plain and unambiguous text of the Order, which bars Defendants from “implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants,” Defendants’ conduct violates the Order. Order 12.

A. The Order Plainly Encompasses Categorical Funding Freezes Tied to Executive Orders (Including the Unleashing American Energy Executive Order)

Defendants apparently take the position that they can implement at least one of the funding freezes called for by the “series of Executive Orders” issued by the President “during the initial days of his Administration,” including “Unleashing American Energy (Jan. 20, 2025),” Ex. 9 to Thomas-Jensen Aff.. But the plain text of the Order does not allow for such an interpretation; “the words of the court’s order have clearly and unambiguously forbidden th[is] precise conduct.” United States v. Saccoccia, 433 F.3d 19, 28 (1st Cir. 2005) (emphasis omitted) (citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)).

The Order requires Defendants to cease “implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant).” Order 12 (emphasis added). The text of the Court’s Order must be read in conjunction with the substance of the OMB Directive, which required agencies to “implement” the Executive Orders issued by the President during the initial days of his administration by “temporarily paus[ing] all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.” OMB Directive, Compl. Ex. A. Any categorical pause of obligations or disbursements to implement the Executive Orders is exactly “implementing, or otherwise giving effect to the OMB Directive.” Order 12.

The OMB Directive acknowledges that it is the implementation of prior action. In the Unleashing American Energy Executive Order, the President announced a categorical, immediate, and indefinite pause on federal funds under the IRA and IIJA. Ex. 1 to Thomas-Jensen Aff. at 8353 Specifically, Section 7(a) of the Unleashing American Energy Executive Order, entitled “Terminating the Green New Deal,” ordered all federal agencies to “immediately pause the disbursement of funds appropriated through the [IRA] or the [IIJA].” Id. at 8357. The next day, OMB issued a memorandum clarifying that Section 7(a) of the Unleashing American Energy Executive Order only paused funding that the agencies identified as “Green New Deal” funding, i.e., “funds supporting programs, projects, or activities that may be implicated” by a set of Executive Branch priorities on energy and environmental regulation announced in Section 2 of that Executive Order. Ex. 13 to Thomas-Jensen Aff.. The OMB Directive used equivalent language, express referencing the Unleashing American Energy Executive Order and announcing a categorical pause on disbursing “financial assistance for ... the green new deal.” Compl. Ex. A.

Defendants’ apparent argument that they are permitted to continue to freeze federal funds by reference to the Unleashing Guidance, as long as they do not formally do so pursuant to the OMB Directive, is unavailing. That an earlier directive also directed a categorical funding freeze does not alter or amend the text of this Court’s Order, which restrains Defendants from categorically freezing duly appropriated and obligated funds. After that Order, the OMB Directive may not be given effect, “under any other name or title.” Order 12. That “title” includes the OMB Unleashing Guidance. Indeed, Defendants’ own prior statements reflect that they previously understood the Court’s Order to have that effect: The Notice that Defendants circulated to federal employees and filed with this Court instructed employees not to “pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Notice of Ct. Order 1, ECF No. 51-1 (emphasis added). Neither that Notice nor the document that accompanied it to this Court identified a carveout for other memoranda or guidance documents that implemented functionally the same policy and with functionally the same effect. Indeed, Defendants’ prior, broader understanding of the Court’s Order is, as discussed supra Section B.1, the only plausible one, given that the Court specifically enjoined Defendants from carrying out the same policy “under any other name or title.”

Defendants’ multiple actions to pause IRA/IIJA funds implement the OMB Directive, even if those actions also were also consistent with the OMB Unleashing Guidance. For example, in Rhode Island, the first denial of the Solar for All grant fund drawdown request occurred on January 27, 2025, the same day OMB 25-13 was published. Ex. 108 to Thomas-Jensen Aff. at 14. And the account in the grants administration system was entirely suspended January 28, 2025, at 5:44pm. Id. at 17. Even if the initial draw was rejected as a result of the OMB Unleashing Guidance (and it is not clear that it was), the account suspension was clearly undertaken pursuant to the OMB Directive, going into effect right on time to meet the deadline articulated there. That account suspension, or the act taken pursuant to the OMB Directive, persisted as of February 5. Ex. 108 to Thomas-Jensen Aff. ¶ 19. No explanation that the grant was out of compliance or authority for the suspension of the account was given. Similarly, EPA’s suspension of a Southern California air district’s $500 million award under the Climate Pollution Reduction Grant program went into effect on January 28th precisely—that is, the grant account was available for disbursement on the morning of the 28th, but it disappeared the same afternoon—the day after the OMB Directive was published, but an entire week after OMB’s Unleashing Guidance. Ex. 42 to Thomas-Jensen Aff. ¶¶ 18–19 & Exs. B, C.

In addition, the President continued to order new extensions of the Federal Funding Freeze simultaneous with the OMB Directive taking effect. These Executive Orders are also covered by the Order. In an Executive Order issued January 28, the President ordered federal agencies “that provide[] research or education grants to medical institutions” to “take appropriate steps to ensure” (or, in other words, cut off vital funding) that those institutions immediately discontinue ongoing gender affirming care to existing minor patients and cease to serve minor patients. Ex. 8 to Thomas-Jensen Aff. § 4. That edict issued without regard to the harm to minor patients that would be inflicted by such a cessation or delay of care, in violation of settled law. This continued effort to, in concert with OMB, pause vital funding first without establishing any basis in law is similarly conduct prohibited by the Order.

As these facts demonstrate, Defendants now seek to dress up their actions taken as a result of the OMB Directive and the blanket command contained therein in a new guise. But doing that is what the Court has prohibited: Defendants may not “implement or give effect to” the commands of “the OMB Directive” even if “under any other name or title.” Ascribing action to an Executive Order or a prior Guidance when the action is squarely within scope of OMB 25-13 is giving effect to the OMB Directive under a different name.

B. The Plain Text of the Order Made No Provision for Day After Day of Administrative Pauses and Delays

The Defendants have responded to Plaintiff States’ alerts that some essential federal financial assistance is still inexplicably paused with empty assurances. When Plaintiff States raised examples of the continued freeze of federal financial assistance in the face of the Court’s order, counsel for Defendants suggested “operational and administrative reasons for payments taking longer than normal” as an explanation for days-long delays. Ex. C, 1. “Operational and administrative reasons” is a phrase so vague as to not be helpful at all in understanding whether the Defendants understand and intend to comply with the plain text of this Court’s Order. This is an essential quandary, because from the Plaintiff States’ perspective, the only evidence available is evidence of nonpayment. Defendants were instructed not to leave Plaintiff States in the dark, and in those limited exceptions where some sort of pause or freeze could be supported by applicable legal authority, Defendants must give the appropriate notice and procedural safeguards meant to prevent the disruption here. Order 12.

Without explanation or substantiation, “operational and administrative reasons” for lengthy delays in restoring funding is incredible, particularly given the speed and efficiency with which hundreds of funding streams were frozen in the immediate wake of the OMB Directive. When OMB issued the Directive in the evening on January 27, 2025, it required the temporary pause to “become effective on January 28, 2025, at 5:00 PM.” Compl. Ex. A. Contemporaneous reporting and Plaintiffs’ evidence demonstrate that funding shutoffs began almost immediately after the OMB Directive issued. It is inexplicable why the federal government, which apparently determined it feasible to pause almost all federal funding within 24 hours, has not universally restored access to funds after nearly a week. As explained in the Plaintiff States’ Motion for Preliminary Injunction 34, even a momentary delay in the intricate accounting dance that underpins our cooperative federal system can result in failures to make payroll and the potential shuttering of programs and nonprofit entities that provide vital health and human services to the residents of the Plaintiff States.

Defendants’ assertion that “the mere fact of a pause in funding does not inherently violate the Court’s Order,” Ex. C, also cannot be squared with the plain text of the Order, which states that Defendants “shall not pause” federal financial assistance to the Plaintiff States. Order 11. Of course, as set forth in the Order, there could be an instance where a specific applicable statute, regulation or term of the grant allowed a pause—but in that case, the Defendants must “comply with all notice and procedural requirements in the award, agreement, or other instrument relating to decisions to stop, delay, or otherwise withhold federal financial assistance programs” before funding could be paused. Order 12. Across the Plaintiff States, there is no evidence that Defendants have made any attempt at this compliance as to the funding still paused.

CONCLUSION

For the reasons provided above, the Court should enforce the clear and unambiguous text of its temporary restraining order and order Defendants to immediately restore funds until the preliminary injunction motion can be heard and decided. Plaintiff States do not request any sanction at this time. The Court should further Order that Defendants immediately take every step necessary to effectuate the Order, including clearing any administrative, operational, or technical hurdles to implementation. In addition, the Court should Order compliance with the plain text of the existing Order not to pause any funds on the basis of pronouncements pausing funding incorporated into the OMB Directive, like Section 7(a) of the Unleashing Executive Order and the OMB Unleashing Guidance.

Respectfully submitted,

February 7, 2025

PETER F. NERONHA
Attorney General for the State of Rhode Island
By: /s/ Kathryn M. Sabatini
Kathryn M. Sabatini (RI Bar No. 8486)
Civil Division Chief
Special Assistant Attorney General
Sarah W. Rice (RI Bar No. 10465)
Deputy Chief, Public Protection Bureau
Assistant Attorney General
Leonard Giarrano IV (RI Bar No. 10731)
Special Assistant Attorney General
150 South Main Street
Providence, RI 02903
(401) 274-4400, Ext. 2054
[email protected]
[email protected]
[email protected]

LETITIA JAMES
Attorney General for the State of New York
By: /s/ Rabia Muqaddam
Rabia Muqaddam*
Special Counsel for Federal Initiatives
Michael J. Myers*
Senior Counsel
Molly Thomas-Jensen*
Special Counsel
Colleen Faherty*
Special Trial Counsel
Zoe Levine*
Special Counsel for Immigrant Justice
28 Liberty St.
New York, NY 10005
(929) 638-0447
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

ROB BONTA
Attorney General for the State of California
By: /s/ Laura L. Faer
Laura L. Faer*
Supervising Deputy Attorney General
Christine Chuang*
Supervising Deputy Attorneys General
Nicholas Green*
Carly Munson*
Kenneth Sugarman*
Christopher J. Kissel*
Lara Haddad*
Theodore McCombs*
Deputy Attorneys General
California Attorney General’s Office
1515 Clay St.
Oakland, CA 94612
(510) 879-3304

KWAME RAOUL
Attorney General for the State of Illinois
By: /s/ Alex Hemmer
Alex Hemmer*
Deputy Solicitor General
115 S. LaSalle St.
Chicago, Illinois 60603
(312) 814-5526
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

ANDREA JOY CAMPBELL
Attorney General for the Commonwealth of Massachusetts
By: /s/ Katherine B. Dirks
Katherine B. Dirks*
Deputy Chief, Government Bureau
Turner Smith*
Deputy Chief, Energy and Environment Bureau
Anna Lumelsky*
Deputy State Solicitor
1 Ashburton Pl.
Boston, MA 02108
(617.963.2277)
[email protected]
[email protected]
[email protected]

MATTHEW J. PLATKIN
Attorney General for the State of New Jersey
By: /s/ Angela Cai
Angela Cai*
Executive Assistant Attorney General
Jeremy M. Feigenbaum*
Solicitor General
Shankar Duraiswamy*
Deputy Solicitor General
25 Market St.
Trenton, NJ 08625
(609) 376-3377
[email protected]
[email protected]
[email protected]

KRISTEN K. MAYES
Attorney General for the State of Arizona
By: /s/ Joshua D. Bendor
Joshua D. Bendor*
Solicitor General
Nathan Arrowsmith*
2005 North Central Avenue
Phoenix, Arizona 85004
(602) 542-3333
[email protected]
[email protected]

WILLIAM TONG
Attorney General for the State of Connecticut
By: /s/ Michael K. Skold
Michael K. Skold*
Solicitor General
Jill Lacedonia
165 Capitol Ave
Hartford, CT 06106
(860) 808 5020
[email protected]
[email protected]

PHILIP J. WEISER
Attorney General for the State of Colorado
By: /s/ Shannon Stevenson
Shannon Stevenson*
Solicitor General
Ralph L. Carr Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
(720) 508-6000
[email protected]

KATHLEEN JENNINGS
Attorney General of Delaware
By: /s/ Vanessa L. Kassab
Vanessa L. Kassab*
Deputy Attorney General
Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801
(302) 577-8413
[email protected]

BRIAN L. SCHWALB
Attorney General for the District of Columbia
By: /s/ Andrew Mendrala
Andrew Mendrala*
Assistant Attorney General
Public Advocacy Division
Office of the Attorney General for the District of Columbia
400 Sixth Street, NW
Washington, DC 20001
(202) 724-9726
[email protected]

ANNE E. LOPEZ
Attorney General for the State of Hawaiʻi
By: /s/ Kalikoʻonālani D. Fernandes
David D. Day*
Special Assistant to the Attorney General
Kalikoʻonālani D. Fernandes*
Solicitor General
425 Queen Street
Honolulu, HI 96813
(808) 586-1360
[email protected]
[email protected]

AARON M. FREY
Attorney General for the State of Maine
By: /s/ Jason Anton
Jason Anton*
Assistant Attorney General
Maine Office of the Attorney General
6 State House Station
Augusta, ME 04333
207-626-8800
[email protected]

ANTHONY G. BROWN
Attorney General for the State of Maryland
By: /s/ Adam D. Kirschner
Adam D. Kirschner*
Senior Assistant Attorney General
Office of the Attorney General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
410-576-6424
[email protected]

DANA NESSEL
Attorney General of Michigan
By: /s/ Linus Banghart-Linn
Linus Banghart-Linn*
Chief Legal Counsel
Neil Giovanatti*
Assistant Attorney General
Michigan Department of Attorney General
525 W. Ottawa St.
Lansing, MI 48933
(517) 281-6677
[email protected]
[email protected]

KEITH ELLISON
Attorney General for the State of Minnesota
By: /s/ Liz Kramer
Liz Kramer*
Solicitor General
445 Minnesota Street, Suite 1400
St. Paul, Minnesota, 55101
(651) 757-1010
[email protected]

AARON D. FORD
Attorney General of Nevada
/s/ Heidi Parry Stern
Heidi Parry Stern*
Solicitor General
Office of the Nevada Attorney General
1 State of Nevada Way, Ste. 100
Las Vegas, NV 89119
(702) 486-5708
[email protected]

RAÚL TORREZ
Attorney General for the State of New Mexico
By: /s/ Anjana Samant
Anjana Samant*
Deputy Counsel
NM Department of Justice
408 Galisteo Street
Santa Fe, New Mexico 87501
505-270-4332
[email protected]

JEFF JACKSON
Attorney General for the State of North Carolina
By: /s/ Daniel P. Mosteller
Daniel P. Mosteller*
Associate Deputy Attorney General
PO Box 629
Raleigh, NC 27602
919-716-6026
[email protected]

DAN RAYFIELD
Attorney General for the State of Oregon
By: /s/ Christina Beatty-Walters
Christina Beatty-Walters*
Senior Assistant Attorney General
100 SW Market Street
Portland, OR 97201
(971) 673-1880
[email protected]

CHARITY R. CLARK
Attorney General for the State of Vermont
By: /s/ Jonathan T. Rose
Jonathan T. Rose*
Solicitor General
109 State Street
Montpelier, VT 05609
(802) 793-1646
[email protected]

NICHOLAS W. BROWN
Attorney General for the State of Washington
By: /s Andrew Hughes
Andrew Hughes*
Assistant Attorney General
Leah Brown*
Assistant Attorney General
Office of the Washington State Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
[email protected]
[email protected]

JOSHUA L. KAUL
Attorney General for the State of Wisconsin
By: /s Aaron J. Bibb
Aaron J. Bibb*
Assistant Attorney General
Wisconsin Department of Justice
17 West Main Street
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-0810
[email protected]
*Admitted Pro Hac Vice

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I filed the within via the ECF filing system and that a copy is available for viewing and downloading. I have also caused a copy to be sent via the ECF System to counsel of record on this 7th day of February, 2025.

/s/ Sarah W. Rice

*************************************

Exhibit A

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

STATE OF NEW YORK, et al.,

Plaintiffs,

v.

DONALD TRUMP, et al.,

Defendants.

Civil Action No. 1:25-cv-00039-JJM

DECLARATION OF MAYA BEAL

Declaration of Maya Beal

I, Maya Beal, declare as follows:

1. I am over the age of 18, competent to testify as to the matters herein, and make this declaration based on my personal knowledge.

2. I am the Director of Finance and Operations for the International Training and Education Center for Health (I-TECH) at the University of Washington. The Director of Finance and Operations provides direction and leadership for I-TECH’s worldwide financial reporting and accountability, operations and award management. This position ensures all I-TECH systems follow standards established by the State Office of Financial Management, the Financial Accounting Standards Board, the Office of Management and Budget, and various funding sources (federal and private).

3. I-TECH is a center in the University of Washington’s Department of Global Health within the School of Public Health and School of Medicine. I-TECH has activities in more than 25 countries and is committed to building long-term capacity through health systems strengthening; human resources for health; and targeted, data-driven interventions and research that are responsive to local needs. Our unique approach to sustainability and capacity building, through training and technical assistance, creates a strong foundation for contextually appropriate health programs. Our programs effectively tackle emerging health threats and address national health priorities to achieve high quality, compassionate, and equitable health care. I-TECH partners with country governments, universities, non-governmental organizations, civil society partners, and funders to design and implement locally relevant health programs within existing local systems and processes. I-TECH has led or supported programs in more than 30 countries in Africa, South America, Asia, Eastern Europe, and the Caribbean.

4. Since its founding in 2002, I-TECH’s accomplishments are numerous and vital to the communities it serves. Between 2017 and 2023, I-TECH supported over 1,000 health care facilities and 120 laboratories. During this period, I-TECH supported 250,000 people being initiated on ART, more than 660,000 men circumcised, 5.3 million people tested for HIV, and more than 340,000 women tested for cervical cancer.

5. Moreover, I-TECH has created more than 400 training programs and products that have been adopted by ministries of health in Africa, Asia, and the Caribbean Region. I-TECH has trained more than 400,000 health care workers. I-TECH has also led national pre-service curriculum reform in five countries and led faculty development efforts to strengthen delivery of competency-based courses.

6. As a long-time U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) implementing partner, I-TECH has administered projects sponsored by the U.S. Centers for Disease Control and Prevention (CDC), the U.S. Health Resources and Services Administration (HRSA), the U.S. Department of Defense, the National Institutes of Health (NIH), and U.S. Agency for International Development (USAID). The majority of I-TECH’s grants originate from PEPFAR and are awarded and administered by HRSA and CDC.

7. On September 9, 2024, HRSA awarded I-TECH a grant (FAIN # U9106801) that obligated $8,129,869 for “Capacity Building for Sustainable HIV Services.” The objective of this grant was to “[i]mprove health outcomes for PLHIV along the HIV care continuum by building sustainable health systems, including a global workforce with the right skills, mix and distribution to respond to HIV and other population health priorities.” A true and correct copy of this September 9, 2024, Notice of Award, with a budget period between September 30, 2024, and September 29, 2025, is attached hereto as Exhibit A. As of January 22, 2025, UW has spent approximately $2,442,036 of the $8,129,869 obligated under this grant.

8. On September 10, 2024, HRSA awarded I-TECH a grant (FAIN # U1N45176) that obligated $380,862 for “Quality Improvement Solutions for Sustained Epidemic Control Project.” The objective of this grant was to further “[q]uality [i]mprovement for improved HIV services” in the Democratic Republic of Congo, including “[d]elivery of training and mentoring services by quality improvement coaches” and “[n]ational level support to DRC Ministry of Health for an improved HIV services framework.” A true and correct copy of this September 10, 2024, Notice of Award, with a budget period between September 30, 2024, and September 29, 2025, is attached hereto as Exhibit B. As of January 22, 2025, UW has spent approximately $200,207 of the $380,862 obligated under this grant.

9. I-TECH also has received a significant number of grants from the CDC. The CDC has already awarded fourteen (14) PEPFAR grants to I-TECH as a prime recipient and subrecipient, running to 2026-2028, obligating approximately $12,733,706 in federal funds for various projects, including strengthening health services in clinics and other critical public health infrastructure in Namibia, Malawi, and Mozambique. As of January 22, 2025, I-TECH has spent at least $3,942,071 pursuant to these CDC grants.

10. On January 27, 2025, I-TECH received from HRSA two stop-work orders for both its “Capacity Building” and “Quality Improvement” grants. These stop-work orders, which both took the form of subsequent “Notice[s] of Award,” contained identical boilerplate language, stating that because of the “President’s Executive Order on Reevaluating and Realigning United States Foreign Aid,” UW and I-TECH must “immediately cease all activities on this award, which includes activities conducted under subawards and contracts.” They directed that “[a]ctivities are suspended until further notice” and “further activities” would be subject to “additional guidance and the future availability of funds.” Additionally, they directed that “[n]o additional costs may be incurred, however any costs incurred prior to January 24, 2025, may be allowable for payment.” Finally, the stop-work orders did not give any additional reason for their cessation of payment obligations, but did make clear that “[t]his action is not subject to appeal.” True and correct copies of these January 27, 2025, stop-work orders are attached hereto as Exhibits C and D.

11. On January 29, 2025, UW and I-TECH also received additional stop-work orders for its four prime awards funded by CDC grants under PEPFAR: (1) the $965,932 grant for “Advancing Sustainable Implementation of Comprehensive HIV/TB Services for Epidemic Control in the Republic of Mozambique” (FAIN # NU2GGH002374); (2) the $2,250,000 grant for “Human Resources for Health (HRH) to Achieve and Sustain HIV/TB Epidemic Control in Malawi” FAIN # NU2GGH002298); (3) the $2,899,149 grant for “HIV Surveillance for Epidemic Control in Malawi” (FAIN # NU2GGH002423); and (4) the $3,960,457 grant for “Namibia Mechanism for Public Health Assistance, Capacity, and Technical Support” (FAIN # NU2GGH002242). Each stop work order contained the same boilerplate language as the HRSA stop-work orders explaining that “in accordance with the President’s Executive Order on Reevaluating and Realigning United States Foreign Aid,” UW and I-TECH must “immediately cease all activities on this award, which includes activities under subawards and contracts. Activities are suspended until further notice. Further activities will be subject to additional guidance and the future availability of funds.” The CDC stop-work orders further repeated the same directive from the HRSA stop-work orders that “[t]he grant funds on this award are restricted until further notice. No additional costs may be incurred. Any costs incurred prior to January 24, 2025, may be allowable for payment.” True and correct copies of these four January 29, 2025, CDC stop-work orders are attached hereto as Exhibits E, F, G, and H.

12. On January 31, 2025, the Rhode Island District Court issued a temporary restraining order (TRO) prohibiting the federal financial assistance freeze against federal agencies, including CDC and HRSA.

13. On February 1, 2025, the CDC loaded a Notice of Court Order to our grant files in GrantSolutions. A true and correct copy of this Notice is attached hereto as Exhibit I. This Notice promised “federal agencies could not pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Based on this Notice, I-TECH resumed its award activities.

14. On February 5, 2025, all I-TECH CDC PEPFAR prime grantees received Notices of Award, continuing to partially implement the President’s Executive Order, Reevaluating and Realigning United States Foreign Aid. A true and correct copy of this notice is attached hereto as Exhibit J. It provided a “Limited Waiver to the Pause of U.S. Foreign Assistance for Life-Saving HIV Service Provision.” This limited waiver does not cover “non-life saving assistance” including prevention of HIV transmission, outside of mother-to-child. For activities that fall under the waiver, CDC requires the University of Washington to use the manual payment method. This method adds a burden not contemplated by the terms and conditions of the cooperative agreements entered by I-TECH. This waiver, although facially is meant to cover life-saving services, does not necessarily effectuate its intent. For example, for one CDC program, I-TECH will need to lay off and pay severance for the employees that provide non-covered services. These closeout costs will likely exceed the funds that have been obligated, thus negating I-TECH’s ability to continue to both provide life-saving care that falls under the waiver and adhere with labor regulations and the close out processes required under federal funding regulations.

15. On February 6, 2025, all HRSA I-TECH grantees received an email, continuing to partially implement the President’s Executive Order, Reevaluating and Realigning United States Foreign Aid, and notifying grantees of a “Limited Waiver to the Pause of U.S. Foreign Assistance for Life-Saving HIV Service Provision.” A true and correct copy of this email is attached hereto as Exhibit K. This limited waiver does not cover “non-life saving assistance” including prevention of HIV transmission, outside of mother-to-child. As a result, I-TECH will need to shut down one HRSA funded program entirely.

16. I-TECH staff and faculty were shocked and surprised to receive these stop-work orders, which appeared to conflict with the TRO.

I declare under penalty of perjury under the laws of the State of Washington and the United States of America that the foregoing is true and correct.

Executed this 7th day of February 2025, at Seattle, Washington.

MAYA BEAL
Director of Finance and Operations
I-TECH

SEE PDF FOR OTHER EXHIBITS

[admin]

Part 1 of 4

Clinton v. City of New York (97-1374)
985 F. Supp. 168, affirmed.

If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may “become a law” pursuant to Article I, §7. If there is to be a new procedure in which the President will play a different role, such change must come through the Article V amendment procedures. Pp. 29—31.

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

CLINTON, PRESIDENT OF THE UNITED STATES, et al. v. CITY OF NEW YORK et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

No. 97—1374. Argued April 27, 1998–Decided June 25, 1998

Last Term, this Court determined on expedited review that Members of Congress did not have standing to maintain a constitutional challenge to the Line Item Veto Act (Act), 2 U.S.C. § 691 et seq., because they had not alleged a sufficiently concrete injury. Raines v. Byrd, 521 U.S. ___. Within two months, the President exercised his authority under the Act by canceling §4722(c) of the Balanced Budget Act of 1997, which waived the Federal Government’s statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against Medicaid providers, and §968 of the Taxpayer Relief Act of 1997, which permitted the owners of certain food refiners and processors to defer recognition of capital gains if they sold their stock to eligible farmers’ cooperatives. Appellees, claiming they had been injured, filed separate actions against the President and other officials challenging the cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are the Snake River farmers’ cooperative and one of its individual members. The District Court consolidated the cases, determined that at least one of the plaintiffs in each had standing under Article III, and ruled, inter alia, that the Act’s cancellation procedures violate the Presentment Clause, Art. I, §7, cl. 2. This Court again expedited its review.

Held:

1. The appellees have standing to challenge the Act’s constitutionality. They invoked the District Court’s jurisdiction under a section entitled “Expedited Review,” which, among other things, expressly authorizes “any individual adversely affected” to bring a constitutional challenge. §692(a)(1). The Government’s argument that none of them except the individual Snake River member is an “individual” within §692(a)(1)’s meaning is rejected because, in the context of the entire section, it is clear that Congress meant that word to be construed broadly to include corporations and other entities. The Court is also unpersuaded by the Government’s argument that appellees’ challenge is nonjusticiable. These cases differ from Raines, not only because the President’s exercise of his cancellation authority has removed any concern about the dispute’s ripeness, but more importantly because the parties have alleged a “personal stake” in having an actual injury redressed, rather than an “institutional injury” that is “abstract and widely dispersed.” 521 U.S., at ___. There is no merit to the Government’s contention that, in both cases, the appellees have not suffered actual injury because their claims are too speculative and, in any event, are advanced by the wrong parties. Because New York State now has a multibillion dollar contingent liability that had been eliminated by §4722(c), the State, and the appellees, suffered an immediate, concrete injury the moment the President canceled the section and deprived them of its benefits. The argument that New York’s claim belongs to the State, not appellees, fails in light of New York statutes demonstrating that both New York City and the appellee providers will be assessed for substantial portions of any recoupment payments the State has to make. Similarly, the President’s cancellation of §968 inflicted a sufficient likelihood of economic injury on the Snake River appellees to establish standing under this Court’s precedents, cf. Bryant v. Yellen, 447 U.S. 352, 368. The assertion that, because processing facility sellers would have received the tax benefits, only they have standing to challenge the §968 cancellation not only ignores the fact that the cooperatives were the intended beneficiaries of §968, but also overlooks the fact that more than one party may be harmed by a defendant and therefore have standing. Pp. 9—17.

2. The Act’s cancellation procedures violate the Presentment Clause. Pp. 17—31.

(a) The Act empowers the President to cancel an “item of new direct spending” such as §4722(c) of the Balanced Budget Act and a “limited tax benefit” such as §968 of the Taxpayer Relief Act, §691(a), specifying that such cancellation prevents a provision “from having legal force or effect,” §§691e(4)(B)—(C). Thus, in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U.S. 919, 954, but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it,” i.e., “veto” it, if he does not. There are important differences between such a “return” and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Chadha, 462 U.S., at 951. What has emerged in the present cases, however, are not the product of the “finely wrought” procedure that the Framers designed, but truncated versions of two bills that passed both Houses. Pp. 17—24.

(b) The Court rejects two related Government arguments. First, the contention that the cancellations were merely exercises of the President’s discretionary authority under the Balanced Budget Act and the Taxpayer Relief Act, read in light of the previously enacted Line Item Veto Act, is unpersuasive. Field v. Clark, 143 U.S. 649, 693, on which the Government relies, suggests critical differences between this cancellation power and the President’s statutory power to suspend import duty exemptions that was there upheld: such suspension was contingent on a condition that did not predate its statute, the duty to suspend was absolute once the President determined the contingency had arisen, and the suspension executed congressional policy. In contrast, the Act at issue authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing Article I, §7, procedures. Second, the contention that the cancellation authority is no greater than the President’s traditional statutory authority to decline to spend appropriated funds or to implement specified tax measures fails because this Act, unlike the earlier laws, gives the President the unilateral power to change the text of duly enacted statutes. Pp. 23—29.

(c) The profound importance of these cases makes it appropriate to emphasize three points. First, the Court expresses no opinion about the wisdom of the Act’s procedures and does not lightly conclude that the actions of the Congress that passed it, and the President who signed it into law, were unconstitutional. The Court has, however, twice had full argument and briefing on the question and has concluded that its duty is clear. Second, having concluded that the Act’s cancellation provisions violate Article I, §7, the Court finds it unnecessary to consider the District Court’s alternative holding that the Act impermissibly disrupts the balance of powers among the three branches of Government. Third, this decision rests on the narrow ground that the Act’s procedures are not authorized by the Constitution. If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may “become a law” pursuant to Article I, §7. If there is to be a new procedure in which the President will play a different role, such change must come through the Article V amendment procedures. Pp. 29—31.

985 F. Supp. 168, affirmed.

Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, and in which Breyer, J., joined as to Part III. Breyer, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined as to Part III.

***

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 97—1374

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES, et al., APPELLANTS v. CITY OF NEW YORK et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

[June 25, 1998]

Justice Stevens delivered the opinion of the Court.

The Line Item Veto Act (Act), 110 Stat. 1200, 2 U.S.C. § 691 et seq. (1994 ed., Supp. II), was enacted in April 1996 and became effective on January 1, 1997. The following day, six Members of Congress who had voted against the Act brought suit in the District Court for the District of Columbia challenging its constitutionality. On April 10, 1997, the District Court entered an order holding that the Act is unconstitutional. Byrd v. Raines, 956 F. Supp. 25. In obedience to the statutory direction to allow a direct, expedited appeal to this Court, see §§692(b)—(c), we promptly noted probable jurisdiction and expedited review, 520 U.S. ___ (1997). We determined, however, that the Members of Congress did not have standing to sue because they had not “alleged a sufficiently concrete injury to have established Article III standing,” Raines v. Byrd, 521 U.S. ___, ___ (1997) (slip op., at 18); thus, “in … light of [the] overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,” id., at ___ (slip op., at 8), we remanded the case to the District Court with instructions to dismiss the complaint for lack of jurisdiction.

Less than two months after our decision in that case, the President exercised his authority to cancel one provision in the Balanced Budget Act of 1997, Pub. L. 105—33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub. L. 105—34, 111 Stat. 788, 895—896, 990—993. Appellees, claiming that they had been injured by two of those cancellations, filed these cases in the District Court. That Court again held the statute invalid, 985 F. Supp. 168, 177—182 (1998), and we again expedited our review, 522 U.S. ___ (1998). We now hold that these appellees have standing to challenge the constitutionality of the Act and, reaching the merits, we agree that the cancellation procedures set forth in the Act violate the Presentment Clause, Art. I, §7, cl. 2, of the Constitution.

I

We begin by reviewing the canceled items that are at issue in these cases.

Section 4722(c) of the Balanced Budget Act

Title XIX of the Social Security Act, 79 Stat. 343, as amended, authorizes the Federal Government to transfer huge sums of money to the States to help finance medical care for the indigent. See 42 U.S.C. § 1396d(b). In 1991, Congress directed that those federal subsidies be reduced by the amount of certain taxes levied by the States on health care providers.1 In 1994, the Department of Health and Human Services (HHS) notified the State of New York that 15 of its taxes were covered by the 1991 Act, and that as of June 30, 1994, the statute therefore required New York to return $955 million to the United States. The notice advised the State that it could apply for a waiver on certain statutory grounds. New York did request a waiver for those tax programs, as well as for a number of others, but HHS has not formally acted on any of those waiver requests. New York has estimated that the amount at issue for the period from October 1992 through March 1997 is as high as $2.6 billion.

Because HHS had not taken any action on the waiver requests, New York turned to Congress for relief. On August 5, 1997, Congress enacted a law that resolved the issue in New York’s favor. Section 4722(c) of the Balanced Budget Act of 1997 identifies the disputed taxes and provides that they “are deemed to be permissible health care related taxes and in compliance with the requirements” of the relevant provisions of the 1991 statute.2

On August 11, 1997, the President sent identical notices to the Senate and to the House of Representatives canceling “one item of new direct spending,” specifying §4722(c) as that item, and stating that he had determined that “this cancellation will reduce the Federal budget deficit.” He explained that §4722(c) would have permitted New York “to continue relying upon impermissible provider taxes to finance its Medicaid program” and that “[t]his preferential treatment would have increased Medicaid costs, would have treated New York differently from all other States, and would have established a costly precedent for other States to request comparable treatment.”3

Section 968 of the Taxpayer Relief Act

A person who realizes a profit from the sale of securities is generally subject to a capital gains tax. Under existing law, however, an ordinary business corporation can acquire a corporation, including a food processing or refining company, in a merger or stock-for-stock transaction in which no gain is recognized to the seller, see 26 U.S.C. § 354(a), 368(a); the seller’s tax payment, therefore, is deferred. If, however, the purchaser is a farmers’ cooperative, the parties cannot structure such a transaction because the stock of the cooperative may be held only by its members, see 26 U.S.C. § 521(b)(2); thus, a seller dealing with a farmers’ cooperative cannot obtain the benefits of tax deferral.

In §968 of the Taxpayer Relief Act of 1997, Congress amended §1042 of the Internal Revenue Code to permit owners of certain food refiners and processors to defer the recognition of gain if they sell their stock to eligible farmers’ cooperatives.4 The purpose of the amendment, as repeatedly explained by its sponsors, was “to facilitate the transfer of refiners and processors to farmers’ cooperatives.” 5 The amendment to §1042 was one of the 79 “limited tax benefits” authorized by the Taxpayer Relief Act of 1997 and specifically identified in Title XVII of that Act as “subject to [the] line item veto.” 6

On the same date that he canceled the “item of new direct spending” involving New York’s health care programs, the President also canceled this limited tax benefit. In his explanation of that action, the President endorsed the objective of encouraging “value-added farming through the purchase by farmers’ cooperatives of refiners or processors of agricultural goods,” 7 but concluded that the provision lacked safeguards and also “failed to target its benefits to small-and-medium-size cooperatives.” 8

II

Appellees filed two separate actions against the President 9 and other federal officials challenging these two cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are a farmers’ cooperative consisting of about 30 potato growers in Idaho and an individual farmer who is a member and officer of the cooperative. The District Court consolidated the two cases and determined that at least one of the plaintiffs in each had standing under Article III of the Constitution.

Appellee New York City Health and Hospitals Corporation (NYCHHC) is responsible for the operation of public health care facilities throughout the City of New York. If HHS ultimately denies the State’s waiver requests, New York law will automatically require 10 NYCHHC to make retroactive tax payments to the State of about $4 million for each of the years at issue. 985 F. Supp., at 172. This contingent liability for NYCHHC, and comparable potential liabilities for the other appellee health care providers, were eliminated by §4722(c) of the Balanced Budget Act of 1997 and revived by the President’s cancellation of that provision. The District Court held that the cancellation of the statutory protection against these liabilities constituted sufficient injury to give these providers Article III standing.

Appellee Snake River Potato Growers, Inc. (Snake River) was formed in May 1997 to assist Idaho potato farmers in marketing their crops and stabilizing prices, in part through a strategy of acquiring potato processing facilities that will allow the members of the cooperative to retain revenues otherwise payable to third-party processors. At that time, Congress was considering the amendment to the capital gains tax that was expressly intended to aid farmers’ cooperatives in the purchase of processing facilities, and Snake River had concrete plans to take advantage of the amendment if passed. Indeed, appellee Mike Cranney, acting on behalf of Snake River, was engaged in negotiations with the owner of an Idaho potato processor that would have qualified for the tax benefit under the pending legislation, but these negotiations terminated when the President canceled §968. Snake River is currently considering the possible purchase of other processing facilities in Idaho if the President’s cancellation is reversed. Based on these facts, the District Court concluded that the Snake River plaintiffs were injured by the President’s cancellation of §968, as they “lost the benefit of being on equal footing with their competitors and will likely have to pay more to purchase processing facilities now that the sellers will not [be] able to take advantage of section 968’s tax breaks.” Id., at 177.

On the merits, the District Court held that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws in two respects. First, the laws that resulted after the cancellations “were different from those consented to by both Houses of Congress.” Id., at 178.11 Moreover, the President violated Article I “when he unilaterally canceled provisions of duly enacted statutes.” Id., at 179.12 As a separate basis for its decision, the District Court also held that the Act “impermissibly disrupts the balance of powers among the three branches of government.” Ibid.

III

As in the prior challenge to the Line Item Veto Act, we initially confront jurisdictional questions. The appellees invoked the jurisdiction of the District Court under the section of the Act entitled “Expedited Review.” That section, 2 U.S.C. § 692(a)(1), expressly authorizes “[a]ny Member of Congress or any individual adversely affected” by the Act to bring an action for declaratory judgment or injunctive relief on the ground that any provision of the Act is unconstitutional. Although the Government did not question the applicability of that section in the District Court, it now argues that, with the exception of Mike Cranney, the appellees are not “individuals” within the meaning of §692(a)(1). Because the argument poses a jurisdictional question (although not one of constitutional magnitude), it is not waived by the failure to raise it in the District Court. The fact that the argument did not previously occur to the able lawyers for the Government does, however, confirm our view that in the context of the entire section Congress undoubtedly intended the word “individual” to be construed as synonymous with the word “person.”13

The special section authorizing expedited review evidences an unmistakable congressional interest in a prompt and authoritative judicial determination of the constitutionality of the Act. Subsection (a)(2) requires that copies of any complaint filed under subsection (a)(1) “shall be promptly delivered” to both Houses of Congress, and that each House shall have a right to intervene. Subsection (b) authorizes a direct appeal to this Court from any order of the District Court, and requires that the appeal be filed within 10 days. Subsection (c) imposes a duty on both the District Court and this Court “to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a).” There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons. Acceptance of the Government’s new-found reading of §692 “would produce an absurd and unjust result which Congress could not have intended.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982).14

We are also unpersuaded by the Government’s argument that appellees’ challenge to the constitutionality of the Act is nonjusticiable. We agree, of course, that Article III of the Constitution confines the jurisdiction of the federal courts to actual “Cases” and “Controversies,” and that “the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).15 Our disposition of the first challenge to the constitutionality of this Act demonstrates our recognition of the importance of respecting the constitutional limits on our jurisdiction, even when Congress has manifested an interest in obtaining our views as promptly as possible. But these cases differ from Raines, not only because the President’s exercise of his cancellation authority has removed any concern about the ripeness of the dispute, but more importantly because the parties have alleged a “personal stake” in having an actual injury redressed rather than an “institutional injury” that is “abstract and widely dispersed.” 521 U.S., at ___ (slip op., at 18).

In both the New York and the Snake River cases, the Government argues that the appellees are not actually injured because the claims are too speculative and, in any event, the claims are advanced by the wrong parties. We find no merit in the suggestion that New York’s injury is merely speculative because HHS has not yet acted on the State’s waiver requests. The State now has a multibillion dollar contingent liability that had been eliminated by §4722(c) of the Balanced Budget Act of 1997. The District Court correctly concluded that the State, and the appellees, “suffered an immediate, concrete injury the moment that the President used the Line Item Veto to cancel section 4722(c) and deprived them of the benefits of that law.” 985 F. Supp., at 174. The self-evident significance of the contingent liability is confirmed by the fact that New York lobbied Congress for this relief, that Congress decided that it warranted statutory attention, and that the President selected for cancellation only this one provision in an act that occupies 536 pages of the Statutes-at-Large. His action was comparable to the judgment of an appellate court setting aside a verdict for the defendant and remanding for a new trial of a multibillion dollar damages claim. Even if the outcome of the second trial is speculative, the reversal, like the President’s cancellation, causes a significant immediate injury by depriving the defendant of the benefit of a favorable final judgment. The revival of a substantial contingent liability immediately and directly affects the borrowing power, financial strength, and fiscal planning of the potential obligor.16

We also reject the Government’s argument that New York’s claim is advanced by the wrong parties because the claim belongs to the State of New York, and not appellees. Under New York statutes that are already in place, it is clear that both the City of New York 17 and the appellee health care providers 18 will be assessed by the State for substantial portions of any recoupment payments that the State may have to make to the Federal Government. To the extent of such assessments, they have the same potential liability as the State does.19

The Snake River farmers’ cooperative also suffered an immediate injury when the President canceled the limited tax benefit that Congress had enacted to facilitate the acquisition of processing plants. Three critical facts identify the specificity and the importance of that injury. First, Congress enacted §968 for the specific purpose of providing a benefit to a defined category of potential purchasers of a defined category of assets.20 The members of that statutorily defined class received the equivalent of a statutory “bargaining chip” to use in carrying out the congressional plan to facilitate their purchase of such assets. Second, the President selected §968 as one of only two tax benefits in the Taxpayer Relief Act of 1997 that should be canceled. The cancellation rested on his determination that the use of those bargaining chips would have a significant impact on the Federal budget deficit. Third, the Snake River cooperative was organized for the very purpose of acquiring processing facilities, it had concrete plans to utilize the benefits of §968, and it was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a tax-deferred sale when the President canceled §968. Moreover, it is actively searching for other processing facilities for possible future purchase if the President’s cancellation is reversed; and there are ample processing facilities in the State that Snake River may be able to purchase.21 By depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents. See, e.g., Investment Company Institute v. Camp, 401 U.S. 617, 620 (1971); 3 K. Davis & R. Pierce, Administrative Law Treatise 13—14 (3d ed. 1994) (“The Court routinely recognizes probable economic injury resulting from [governmental actions] that alter competitive conditions as sufficient to satisfy the [Article III ‘injury-in-fact’ requirement]… . It follows logically that any … petitioner who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies this part of the standing test”).

Appellees’ injury in this regard is at least as concrete as the injury suffered by the respondents in Bryant v. Yellen, 447 U.S. 352 (1980). In that case, we considered whether a rule that generally limited water deliveries from reclamation projects to 160 acres applied to the much larger tracts of the Imperial Irrigation District in southeastern California; application of that limitation would have given large landowners an incentive to sell excess lands at prices below the prevailing market price for irrigated land. The District Court had held that the 160-acre limitation did not apply, and farmers who had hoped to purchase the excess land sought to appeal. We acknowledged that the farmers had not presented “detailed information about [their] financial resources,” and noted that “the prospect of windfall profits could attract a large number of potential purchasers” besides the farmers. Id., at 367, n. 17. Nonetheless, “even though they could not with certainty establish that they would be able to purchase excess lands” if the judgment were reversed, id., at 367, we found standing because it was “likely that excess lands would become available at less than market prices,” id., at 368. The Snake River appellees have alleged an injury that is as specific and immediate as that in Yellen. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72—78 (1978).22

As with the New York case, the Government argues that the wrong parties are before the Court–that because the sellers of the processing facilities would have received the tax benefits, only they have standing to challenge the cancellation of §968. This argument not only ignores the fact that the cooperatives were the intended beneficiaries of §968, but also overlooks the self-evident proposition that more than one party may have standing to challenge a particular action or inaction.23 Once it is determined that a particular plaintiff is harmed by the defendant, and that the harm will likely be redressed by a favorable decision, that plaintiff has standing–regardless of whether there are others who would also have standing to sue. Thus, we are satisfied that both of these actions are Article III “Cases” that we have a duty to decide.

IV

The Line Item Veto Act gives the President the power to “cancel in whole” three types of provisions that have been signed into law: “(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.” 2 U.S.C. § 691(a) (1994 ed., Supp. II). It is undisputed that the New York case involves an “item of new direct spending” and that the Snake River case involves a “limited tax benefit” as those terms are defined in the Act. It is also undisputed that each of those provisions had been signed into law pursuant to Article I, §7, of the Constitution before it was canceled.

The Act requires the President to adhere to precise procedures whenever he exercises his cancellation authority. In identifying items for cancellation he must consider the legislative history, the purposes, and other relevant information about the items. See 2 U.S.C. § 691(b) (1994 ed., Supp. II). He must determine, with respect to each cancellation, that it will “(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest.” §691(a)(A). Moreover, he must transmit a special message to Congress notifying it of each cancellation within five calendar days (excluding Sundays) after the enactment of the canceled provision. See §691(a)(B). It is undisputed that the President meticulously followed these procedures in these cases.

A cancellation takes effect upon receipt by Congress of the special message from the President. See §691b(a). If, however, a “disapproval bill” pertaining to a special message is enacted into law, the cancellations set forth in that message become “null and void.” Ibid. The Act sets forth a detailed expedited procedure for the consideration of a “disapproval bill,” see §691d, but no such bill was passed for either of the cancellations involved in these cases.24 A majority vote of both Houses is sufficient to enact a disapproval bill. The Act does not grant the President the authority to cancel a disapproval bill, see §691(c), but he does, of course, retain his constitutional authority to veto such a bill.25

The effect of a cancellation is plainly stated in §691e, which defines the principal terms used in the Act. With respect to both an item of new direct spending and a limited tax benefit, the cancellation prevents the item “from having legal force or effect.” 2 U.S.C. § 691e(4)(B)—(C) (1994 ed., Supp. II).26 Thus, under the plain text of the statute, the two actions of the President that are challenged in these cases prevented one section of the Balanced Budget Act of 1997 and one section of the Taxpayer Relief Act of 1997 “from having legal force or effect.” The remaining provisions of those statutes, with the exception of the second canceled item in the latter, continue to have the same force and effect as they had when signed into law.

In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. “[R]epeal of statutes, no less than enactment, must conform with Art. I.” INS v. Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The President “shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient … .” Art. II, §3. Thus, he may initiate and influence legislative proposals.27 Moreover, after a bill has passed both Houses of Congress, but “before it become[s] a Law,” it must be presented to the President. If he approves it, “he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.” Art. I, §7, cl. 2.28 His “return” of a bill, which is usually described as a “veto,” 29 is subject to being overridden by a two-thirds vote in each House.

There are important differences between the President’s “return” of a bill pursuant to Article I, §7, and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Chadha, 462 U.S., at 951. Our first President understood the text of the Presentment Clause as requiring that he either “approve all the parts of a Bill, or reject it in toto.” 30 What has emerged in these cases from the President’s exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the “finely wrought” procedure that the Framers designed.

At oral argument, the Government suggested that the cancellations at issue in these cases do not effect a “repeal” of the canceled items because under the special “lockbox” provisions of the Act,31 a canceled item “retain[s] real, legal budgetary effect” insofar as it prevents Congress and the President from spending the savings that result from the cancellation. Tr. of Oral Arg. 10.32 The text of the Act expressly provides, however, that a cancellation prevents a direct spending or tax benefit provision “from having legal force or effect.” 2 U.S.C. § 691e(4)(B)—(C). That a canceled item may have “real, legal budgetary effect” as a result of the lockbox procedure does not change the fact that by canceling the items at issue in these cases, the President made them entirely inoperative as to appellees. Section 968 of the Taxpayer Relief Act no longer provides a tax benefit, and §4722(c) of the Balanced Budget Act of 1997 no longer relieves New York of its contingent liability.33 Such significant changes do not lose their character simply because the canceled provisions may have some continuing financial effect on the Government.34 The cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.

V

The Government advances two related arguments to support its position that despite the unambiguous provisions of the Act, cancellations do not amend or repeal properly enacted statutes in violation of the Presentment Clause. First, relying primarily on Field v. Clark, 143 U.S. 649 (1892), the Government contends that the cancellations were merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act. Second, the Government submits that the substance of the authority to cancel tax and spending items “is, in practical effect, no more and no less than the power to ‘decline to spend’ specified sums of money, or to ‘decline to implement’ specified tax measures.” Brief for Appellants 40. Neither argument is
persuasive.

In Field v. Clark, the Court upheld the constitutionality of the Tariff Act of 1890. Act of Oct. 1, 1890, 26 Stat. 567. That statute contained a “free list” of almost 300 specific articles that were exempted from import duties “unless otherwise specially provided for in this act.” 26 Stat. 602. Section 3 was a special provision that directed the President to suspend that exemption for sugar, molasses, coffee, tea, and hides “whenever, and so often” as he should be satisfied that any country producing and exporting those products imposed duties on the agricultural products of the United States that he deemed to be “reciprocally unequal and unreasonable… .” 26 Stat. 612, quoted in Field, 143 U.S., at 680. The section then specified the duties to be imposed on those products during any such suspension. The Court provided this explanation for its conclusion that §3 had not delegated legislative power to the President:

“Nothing involving the expediency or the just operation of such legislation was left to the determination of the President… . [W]hen he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws… . It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed.” Id., at 693.

This passage identifies three critical differences between the power to suspend the exemption from import duties and the power to cancel portions of a duly enacted statute. First, the exercise of the suspension power was contingent upon a condition that did not exist when the Tariff Act was passed: the imposition of “reciprocally unequal and unreasonable” import duties by other countries. In contrast, the exercise of the cancellation power within five days after the enactment of the Balanced Budget and Tax Reform Acts necessarily was based on the same conditions that Congress evaluated when it passed those statutes. Second, under the Tariff Act, when the President determined that the contingency had arisen, he had a duty to suspend; in contrast, while it is true that the President was required by the Act to make three determinations before he canceled a provision, see 2 U.S.C. § 691(a)(A) (1994 ed., Supp. II), those determinations did not qualify his discretion to cancel or not to cancel. Finally, whenever the President suspended an exemption under the Tariff Act, he was executing the policy that Congress had embodied in the statute. In contrast, whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment.35 Thus, the conclusion in Field v. Clark that the suspensions mandated by the Tariff Act were not exercises of legislative power does not undermine our opinion that cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, §7.

The Government’s reliance upon other tariff and import statutes, discussed in Field, that contain provisions similar to the one challenged in Field is unavailing for the same reasons.36 Some of those statutes authorized the President to “suspen[d] and discontinu[e]” statutory duties upon his determination that discriminatory duties imposed by other nations had been abolished. See 143 U.S., at 686—687 (discussing Act of Jan. 7, 1824, ch. 4, §4, 4 Stat. 3, and Act of May 24, 1828, ch. 111, 4 Stat. 308).37 A slightly different statute, Act of May 31, 1830, ch. 219, §2, 4 Stat. 425, provided that certain statutory provisions imposing duties on foreign ships “shall be repealed” upon the same no-discrimination determination by the President. See 143 U.S., at 687; see also id., at 686 (discussing similar tariff statute, Act of Mar. 3, 1815, ch. 77, 3 Stat. 224, which provided that duties “are hereby repealed,” “[s]uch repeal to take effect … whenever the President” makes the required determination).

The cited statutes all relate to foreign trade, and this Court has recognized that in the foreign affairs arena, the President has “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). “Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries.” Ibid.38 More important, when enacting the statutes discussed in Field, Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President.39 The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing the procedures set out in Article I, §7. The fact that Congress intended such a result is of no moment. Although Congress presumably anticipated that the President might cancel some of the items in the Balanced Budget Act and in the Taxpayer Relief Act, Congress cannot alter the procedures set out in Article I, §7, without amending the Constitution.40

Neither are we persuaded by the Government’s contention that the President’s authority to cancel new direct spending and tax benefit items is no greater than his traditional authority to decline to spend appropriated funds. The Government has reviewed in some detail the series of statutes in which Congress has given the Executive broad discretion over the expenditure of appropriated funds. For example, the First Congress appropriated “sum[s] not exceeding” specified amounts to be spent on various Government operations. See, e.g., Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. In those statutes, as in later years, the President was given wide discretion with respect to both the amounts to be spent and how the money would be allocated among different functions. It is argued that the Line Item Veto Act merely confers comparable discretionary authority over the expenditure of appropriated funds. The critical difference between this statute and all of its predecessors, however, is that unlike any of them, this Act gives the President the unilateral power to change the text of duly enacted statutes. None of the Act’s predecessors could even arguably have been construed to authorize such a change.

VI

Although they are implicit in what we have already written, the profound importance of these cases makes it appropriate to emphasize three points.

First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of “ensur[ing] greater fiscal accountability in Washington.” H. R. Conf. Rep. 104—491, p. 15 (1996).41 The text of the Act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution.42 We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear.

Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the “finely wrought” procedure commanded by the Constitution. Chadha, 462 U.S., at 951. We have been favored with extensive debate about the scope of Congress’ power to delegate law-making authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act’s cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.” 985 F. Supp., at 179.43

Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became “Public Law 105—33” after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may “become a law.” Art. I, §7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105—33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law–one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as “Public Law 105—33 as modified by the President” may or may not be desirable, but it is surely not a document that may “become a law” pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.

If there is to be a new procedure in which the President will play a different role in determining the final text of what may “become a law,” such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995).

The judgment of the District Court is affirmed.

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Part 2 of 4

Notes

1. Medicaid Voluntary Contribution and Provider-Specific Tax Amendments of 1991, Pub. L. 102—234, 105 Stat. 1793, 42 U.S.C. § 1396b(w).

2. Section 4722(c) provides: “(c) WAIVER OF CERTAIN PROVIDER TAX PROVISIONS.–Notwithstanding any other provision of law, taxes, fees, or assessments, as defined in section 1903(w)(3)(A) of the Social Security Act (42 U.S.C. 1396b(w)(3)(A)), that were collected by the State of New York from a health care provider before June 1, 1997, and for which a waiver of the provisions of subparagraph (B) or (C) of section 1903(w)(3) of such Act has been applied for, or that would, but for this subsection require that such a waiver be applied for, in accordance with subparagraph (E) of such section, and, (if so applied for) upon which action by the Secretary of Health and Human Services (including any judicial review of any such proceeding) has not been completed as of July 23, 1997, are deemed to be permissible health care related taxes and in compliance with the requirements of subparagraphs (B) and (C) of section 1903(w)(3) of such Act.” 111 Stat. 515.

3. App. to Juris. Statement 63a—64a (Cancellation No. 97—3). The quoted text is an excerpt from the statement of reasons for the cancellation, which is required by the Line Item Veto Act. See 2 U.S.C. § 691a (1994 ed., Supp. II).

4. Section 968 of the Taxpayer Relief Act of 1997 amended 26 U.S.C. § 1042 by adding a new subsection (g), which defined the sellers eligible for the exemption as follows: “(2) QUALIFIED REFINER OR PROCESSOR.–For purposes of this subsection, the term ‘qualified refiner or processor’ means a domestic corporation– “(A) substantially all of the activities of which consist of the active conduct of the trade or business of refining or processing agricultural or horticultural products, and “(B) which, during the 1-year period ending on the date of the sale, purchases more than one-half of such products to be refined or processed from– “(i) farmers who make up the eligible farmers’ cooperative which is purchasing stock in the corporation in a transaction to which this subsection is to apply, or “(ii) such cooperative.” 111 Stat. 896.

5. H. R. Rep. No. 105—148, p. 420 (1997); see also 141 Cong. Rec. S18739 (Dec. 15, 1995) (Senator Hatch, introducing a previous version of the bill, stating that it “would provide farmers who form farmers cooperatives the opportunity for an ownership interest in the processing and marketing of their products”); ibid. (Senator Craig, cosponsor of a previous bill, stating that “[c]urrently, farmers cannot compete with other business entities … in buying such [processing] businesses because of the advantages inherent in the tax deferrals available in transactions with these other purchases”; bill “would be helpful to farmers cooperatives”); App. 116—117 (Letter from Congresspersons Roberts and Stenholm (Dec. 1, 1995)) (congressional sponsors stating that a previous version of the bill was intended to “provide American farmers a more firm economic footing and more control over their economic destiny. We believe this proposal will help farmers, through their cooperatives, purchase facilities to refine and process their raw commodities into value-added products. … It will encourage farmers to help themselves in a more market-oriented environment by vertically integrating. If this legislation is passed, we are confident that, 10 years from now, we will look on this bill as one of the most beneficial actions Congress took for U.S. farmers”).

6. §1701, 111 Stat. 1101.

7. App. to Juris. Statement 71a (Cancellation No. 97—2). On the day the President canceled §968, he stated: “Because I strongly support family farmers, farm cooperatives, and the acquisition of production facilities by co-ops, this was a very difficult decision for me.” App. 125. He added that creating incentives so that farmers’ cooperatives can obtain processing facilities is a “very worthy goal.” Id., at 130.

8. App. to Juris. Statement 71a (Cancellation No. 97—2). Section 968 was one of the two limited tax benefits in the Taxpayer Relief Act of 1997 that the President canceled.

9. In both actions, the plaintiffs sought a declaratory judgment that the Line Item Veto Act is unconstitutional and that the particular cancellation was invalid; neither set of plaintiffs sought injunctive relief against the President.

10. See, e.g., N. Y. Pub. Health Law §2807—c(18)(e) (Supp. 1997—1998) (“In the event the secretary of the department of health and human services determines that the assessments do not … qualify based on any such exclusion, then the exclusion shall be deemed to have been null and void … and the commissioner shall collect any retroactive amount due as a result … . Interest and penalties shall be measured from the due date of ninety days following notice from the commissioner”); §2807—d(12) (1993) (same); §2807—j(11) (Supp. 1997—1998) (same); §2807—s(8) (same).

11. As the District Court explained: “These laws reflected the best judgment of both Houses. The laws that resulted after the President’s line item veto were different from those consented to by both Houses of Congress. There is no way of knowing whether these laws, in their truncated form, would have received the requisite support from both the House and the Senate. Because the laws that emerged after the Line Item Veto are not the same laws that proceeded through the legislative process, as required, the resulting laws are not valid.” 985 F. Supp., at 178—179.

12. “Unilateral action by any single participant in the law-making process is precisely what the Bicameralism and Presentment Clauses were designed to prevent. Once a bill becomes law, it can only be repealed or amended through another, independent legislative enactment, which itself must conform with the requirements of Article I. Any rescissions must be agreed upon by a majority of both Houses of Congress. The President cannot single-handedly revise the work of the other two participants in the lawmaking process, as he did here when he vetoed certain provisions of these statutes.” Ibid.

13. Although in ordinary usage both “individual” and “person” often refer to an individual human being, see, e.g., Webster’s Third New International Dictionary 1152, 1686 (1986) (“individual” defined as a “single human being”; “person” defined as “an individual human being”), “person” often has a broader meaning in the law, see, e.g., 1 U.S.C. § 1 (“person” includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”).

14. Justice Scalia objects to our conclusion that the Government’s reading of the statute would produce an absurd result. Post, at 2—3. Nonetheless, he states that “ ‘the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.’ ” Post, at 3—4 (quoting this Court’s Rule 11). Unlike Justice Scalia, however, we need not rely on our own sense of the importance of the issue involved; instead, the structure of §692 makes it clear that Congress believed the issue warranted expedited review and, therefore, that Congress did not
intend the result that the word “individual” would dictate in other contexts.

15. To meet the standing requirements of Article III, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).

16. Because the cancellation of the legislative equivalent of a favorable final judgment causes immediate injury, the Government’s reliance on Anderson v. Green, 513 U.S. 557 (1995) (per curiam), is misplaced. That case involved a challenge to a California statute that would have imposed limits on welfare payments to new residents during their first year of residence in California. The statute could not become effective without a waiver from HHS. Although such a waiver had been in effect when the action was filed, it had been vacated in a separate proceeding and HHS had not sought review of that judgment. Accordingly, at the time the Anderson case reached this Court, the plaintiffs were receiving the same benefits as long term residents; they had suffered no injury. We held that the case was not ripe because, unless and until HHS issued a new waiver, any future injury was purely conjectural. 513 U.S., at 559 (“The parties [i.e. the plaintiffs and California, but not HHS] have no live dispute now, and whether one will arise in the future is conjectural”). Unlike New York in this case, they were not contingently liable for anything.

17. App. 106—107.

18. See n. 10, supra.

19. The Government relies on Warth v. Seldin, 422 U.S. 490 (1975), to support its argument that the State, and not appellees, should be bringing this claim. In Warth we held, inter alia, that citizens of Rochester did not have standing to challenge the exclusionary zoning practices of another community because their claimed injury of increased taxation turned on the prospective actions of Rochester officials. Id., at 509. Appellees’ injury in this case, however, does not turn on the independent actions of third parties, as existing New York law will automatically require that appellees reimburse the State. Because both the City of New York and the health care appellees have standing, we need not consider whether the appellee unions also have standing to sue. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986).

20. See n. 5, supra.

21. App. 111—115 (Declaration of Mike Cranney).

22. The Government argues that there can be an Article III injury only if Snake River would have actually obtained a facility on favorable terms. We have held, however, that a denial of a benefit in the bargaining process can itself create an Article III injury, irrespective of the end result. See Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993). In that case an association of contractors challenged a city ordinance that accorded preferential treatment to certain minority-owned businesses in the award of city contracts. The Court of Appeals had held that the association lacked standing “because it failed to allege that one or more of its members would have been awarded a contract but for the challenged ordinance.” Id., at 664. We rejected the Court of Appeals’ position, stating that it “cannot be reconciled with our precedents.” Ibid. Even though the preference applied to only a small percentage of the city’s business, and even though there was no showing that any party would have received a contract absent the ordinance, we held that the prospective bidders had standing; the “injury in fact” was the harm to the contractors in the negotiation process, “not the ultimate inability to obtain the benefit.” Id., at 666. Having found that both the New York and Snake River appellees are actually injured, traceability and redressability are easily satisfied–each injury is traceable to the President’s cancellation of §4722(c) or §968, and would be redressed by a declaratory judgment that the cancellations are invalid.

23. Allen v. Wright, 468 U.S. 737 (1984), and Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), are distinguishable, as each of those cases involved a speculative chain of causation quite different from the situation here. In Allen, parents of black public school children alleged that, even though it was the policy of the Internal Revenue Service (IRS) to deny tax-exempt status to racially discriminatory schools, the IRS had “not adopted sufficient standards and procedures” to enforce this policy. Allen, 468 U.S., at 739. The parents alleged that the lax enforcement caused white students to attend discriminatory private schools and, therefore, interfered with their children’s opportunity to attend desegregated public schools. We held that the chain of causation between the challenged action and the alleged injury was too attenuated to confer standing: “It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. Moreover, it is entirely speculative … whether withdrawal of a tax exemption from any particular school would lead the school to change its policies… . It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status. It is also pure speculation whether, in a particular community, a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools.” Id., at 758 (footnote omitted). Similarly, in Simon, the respondents challenged an IRS Revenue Ruling that granted favorable tax treatment to nonprofit hospitals that offered only emergency-room services to the poor. The respondents argued that the Revenue Ruling “ ‘encouraged’ hospitals to deny services to indigents.” Simon, 426 U.S., at 42. As in Allen, we held that the chain of causation was too attenuated: “It is purely speculative whether the denials of service … fairly can be traced to [the IRS’s] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications. “It is equally speculative whether the desired exercise of the court’s remedial powers in this suit would result in the availability to respondents of such services. So far as the complaint sheds light, it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services.” 426 U.S., at 42—43. See also id., at 45 (“Speculative inferences are necessary to connect [respondents’] injury to the challenged actions of petitioners”). The injury in the present case is comparable to the repeal of a law granting a subsidy to sellers of processing plants if, and only if, they sell to farmers’ cooperatives. Every farmers’ cooperative seeking to buy a processing plant is harmed by that repeal.

24. Congress failed to act upon proposed legislation to disapprove these cancellations. See S. 1157, H. R. 2444, S. 1144, and H. R. 2436, 105th Cong., 1st Sess. (1997). Indeed, despite the fact that the President has canceled at least 82 items since the Act was passed, see Statement of June E. O’Neill, Director, Congressional Budget Office, Line Item Veto Act After One Year, The Process and Its Implementation, before the Subcommittee on Legislative and Budget Process of the House Committee on Rules, 105th Cong., 2d Sess. (Mar. 11—12, 1998), Congress has enacted only one law, over a Presidential veto, disapproving any cancellation, see Pub. L. 105—159, 112 Stat. 19 (1998) (disapproving the cancellation of 38 military construction spending items).

25. See n. 29, infra.

26. The term “cancel,” used in connection with any dollar amount of discretionary budget authority, means “to rescind.” 2 U.S.C. § 691e(4)(A). The entire definition reads as follows: “The term ‘cancel’ or ‘cancellation’ means– “(A) with respect to any dollar amount of discretionary budget authority, to rescind; “(B) with respect to any item of new direct spending– “(i) that is budget authority provided by law (other than an appropriation law), to prevent such budget authority from having legal force or effect; “(ii) that is entitlement authority, to prevent the specific legal obligation of the United States from having legal force or effect; or “(iii) through the food stamp program, to prevent the specific provision of law that results in an increase in budget authority or outlays for that program from having legal force or effect; and “(C) with respect to a limited tax benefit, to prevent the specific provision of law that provides such benefit from having legal force or effect.” 2 U.S.C. § 691e(4) (1994 ed., Supp. II).

27. See 3 J. Story, Commentaries on the Constitution of the United States §1555, p. 413 (1833) (Art. II, §3, enables the President “to point out the evil, and to suggest the remedy”).

28. The full text of the relevant paragraph of §7 provides: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

29. “In constitutional terms, ‘veto’ is used to describe the President’s power under Art. I, §7, of the Constitution.” INS v. Chadha, 462 U.S. 919, 925, n. 2 (1983) (citing Black’s Law Dictionary 1403 (5th ed. 1979)).

30. 33 Writings of George Washington 96 (J. Fitzpatrick ed., 1940); see also W. Taft, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations 11 (1916) (stating that the President “has no power to veto part of a bill and let the rest become a law”); cf. 1 W. Blackstone, Commentaries *154 (“The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses”).

31. The lockbox procedure ensures that savings resulting from cancellations are used to reduce the deficit, rather than to offset deficit increases arising from other laws. See 2 U.S.C. § 691c(a)—(b); see also H. R. Conf. Rep. No. 104—491, pp. 23—24 (1996). The Office of Management and Budget (OMB) estimates the deficit reduction resulting from each cancellation of new direct spending or limited tax benefit items and presents its estimate as a separate entry in the “pay-as-you-go” report submitted to Congress pursuant to §252(d) of the Balanced Budget and Emergency Deficit Control Act of 1985 (or “Gramm-Rudman-Hollings Act”), 2 U.S.C. § 902(d). See §691c(a)(2)(A) (1994 ed., Supp. II); see also H. R. Conf. Rep. No. 104—491, at 23. The “pay-as-you-go” requirement acts as a self-imposed limitation on Congress’ ability to increase spending and/or reduce revenue: if spending increases are not offset by revenue increases (or if revenue reductions are not offset by spending reductions), then a “sequester” of the excess budgeted funds is required. See 2 U.S.C. § 900(b), 901(a)(1), 902(b), 906(l). OMB does not include the estimated savings resulting from a cancellation in the report it must submit under §§252(b) and 254 of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 902(b), 904. See §691c(a)(2)(B). By providing in this way that such savings “shall not be included in the pay-as-you-go balances,” Congress ensures that “savings from the cancellation of new direct spending or limited tax benefits are devoted to deficit reduction and are not available to offset a deficit increase in another law.” H. R. Conf. Rep. No. 104—491, at 23. Thus, the “pay-as-you-go” cap does not change upon cancellation because the canceled item is not treated as canceled. Moreover, if Congress enacts a disapproval bill, “OMB will not score this legislation as increasing the deficit under pay as you go.” Ibid.

32. The Snake River appellees have argued that the lockbox provisions have no such effect with respect to the canceled tax benefits at issue. Because we reject the Government’s suggestion that the lockbox provisions alter our constitutional analysis, however, we find it unnecessary to resolve the dispute over the details of the lockbox procedure’s applicability.

33. Thus, although “Congress’s use of infelicitous terminology cannot transform the cancellation into an unconstitutional amendment or repeal of an enacted law,” Brief for Appellants 40—41 (citations omitted), the actual effect of a cancellation is entirely consistent with the language of the Act.

34. Moreover, Congress always retains the option of statutorily amending or repealing the lockbox provisions and/or the Gramm-Rudman-Hollings Act, so as to eliminate any lingering financial effect of canceled items.

35. For example, one reason that the President gave for canceling §968 of the Taxpayer Relief Act was his conclusion that “this provision failed to target its benefits to small-and-medium size cooperatives.” App. to Juris. Statement 71a (Cancellation No. 97—2); see n. 8, supra. Because the Line Item Veto Act requires the President to act within five days, every exercise of the cancellation power will necessarily be based on the same facts and circumstances that Congress considered, and therefore constitute a rejection of the policy choice made by Congress.

36. The Court did not, of course, expressly consider in Field whether those statutes comported with the requirements of the Presentment Clause.

37. Cf. 143 U.S., at 688 (discussing Act of Mar. 6, 1866, ch. 12, §2, 14 Stat. 4, which permitted the President to “declare the provisions of this act to be inoperative” and lift import restrictions on foreign cattle and hides upon a showing that such importation would not endanger U.S. cattle).

38. Indeed, the Court in Field v. Clark, 143 U.S. 649 (1892), so limited its reasoning: “in the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, … to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations.” Id., at 691.

39. See also J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928) (“Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive”).

40. The Government argues that the Rules Enabling Act, 28 U.S.C. § 2072(b), permits this Court to “repeal” prior laws without violating Article I, §7. Section 2072(b) provides that this Court may promulgate rules of procedure for the lower federal courts and that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” See Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941) (stating that the procedural rules that this Court promulgates, “if they are within the authority granted by Congress, repeal” a prior inconsistent procedural statute); see also Henderson v. United States, 517 U.S. 654, 664 (1996) (citing §2072(b)). In enacting §2072(b), however, Congress expressly provided that laws inconsistent with the procedural rules promulgated by this Court would automatically be repealed upon the enactment of new rules in order to create a uniform system of rules for Article III courts. As in the tariff statutes, Congress itself made the decision to repeal prior rules upon the occurrence of a particular event–here, the promulgation of procedural rules by this Court.

41. Cf. Taft, The Presidency, supra n. 30, at 21 (“A President with the power to veto items in appropriation bills might exercise a good restraining influence in cutting down the total annual expenses of the government. But this is not the right way”).

42. See Bowsher, 478 U.S., at 736 (Stevens, J., concurring in judgment) (“When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons”).

43. We also find it unnecessary to consider whether the provisions of the Act relating to discretionary budget authority are severable from the Act’s tax benefit and direct spending provisions. We note, however, that the Act contains no severability clause; a severability provision that had appeared in the Senate bill was dropped in conference without explanation. H. R. Conf. Rep. No. 104—491, at 17, 41.

***

Kennedy, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 97—1374

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]

Justice Kennedy, concurring.

A nation cannot plunder its own treasury without putting its Constitution and its survival in peril. The statute before us, then, is of first importance, for it seems undeniable the Act will tend to restrain persistent excessive spending. Nevertheless, for the reasons given by Justice Stevens in the opinion for the Court, the statute must be found invalid. Failure of political will does not justify unconstitutional remedies.

I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. See post, at 29. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. Post, at 4, 14—15. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution’s structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276—277 (1991); Bowsher v. Synar, 478 U.S. 714, 736 (1986); INS v. Chadha, 462 U.S. 919, 944—945, 958—959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73—74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 301 (C. Rossiter ed., 1961). So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84, pp. 513, 515; G. Wood, The Creation of the American Republic 1776—1787, pp. 536—543 (1969). It was at Madison’s insistence that the First Congress enacted the Bill of Rights. R. Goldwin, From Parchment to Power 75—153 (1997). It would be a grave mistake, however, to think a Bill of Rights in Madison’s scheme then or in sound constitutional theory now renders separation of powers of lesser importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1132 (1991).

In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions. Quoting Montesquieu, the Federalist Papers made the point in the following manner:

“ ‘When the legislative and executive powers are united in the same person or body,’ says he, ‘there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’ Again: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’ ” The Federalist No. 47, supra, at 303.

It follows that if a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened. Money is the instrument of policy and policy affects the lives of citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints.

The principal object of the statute, it is true, was not to enhance the President’s power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress. The law is the functional equivalent of a line item veto and enhances the President’s powers beyond what the Framers would have endorsed.

It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U.S. 868, 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design.

Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. If this point was not clear before Chadha, it should have been so afterwards. Though Chadha involved the deportation of a person, while the case before us involves the expenditure of money or the grant of a tax exemption, this circumstance does not mean that the vertical operation of the separation of powers is irrelevant here. By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.

The Constitution is not bereft of controls over improvident spending. Federalism is one safeguard, for political accountability is easier to enforce within the States than nationwide. The other principal mechanism, of course, is control of the political branches by an informed and responsible electorate. Whether or not federalism and control by the electorate are adequate for the problem at hand, they are two of the structures the Framers designed for the problem the statute strives to confront. The Framers of the Constitution could not command statesmanship. They could simply provide structures from which it might emerge. The fact that these mechanisms, plus the proper functioning of the separation of powers itself, are not employed, or that they prove insufficient, cannot validate an otherwise unconstitutional device. With these observations, I join the opinion of the Court.

***

[admin]

Part 3 of 4

Breyer, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 97—1374

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]

Justice Breyer, with whom Justice O’Connor and Justice Scalia join as to Part III, dissenting.

I

I agree with the Court that the parties have standing, but I do not agree with its ultimate conclusion. In my view the Line Item Veto Act does not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle. Consequently, I believe that the Act is constitutional.

II

I approach the constitutional question before us with three general considerations in mind. First, the Act represents a legislative effort to provide the President with the power to give effect to some, but not to all, of the expenditure and revenue-diminishing provisions contained in a single massive appropriations bill. And this objective is constitutionally proper.

When our Nation was founded, Congress could easily have provided the President with this kind of power. In that time period, our population was less than four million, see U.S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975), federal employees numbered fewer than 5,000, see id., pt. 2, at 1103, annual federal budget outlays totaled approximately $4 million, see id., pt. 2, at 1104, and the entire operative text of Congress’s first general appropriations law read as follows:

“Be it enacted . . . [t]hat there be appropriated for the service of the present year, to be paid out of the monies which arise, either from the requisitions heretofore made upon the several states, or from the duties on import and tonnage, the following sums, viz. A sum not exceeding two hundred and sixteen thousand dollars for defraying the expenses of the civil list, under the late and present government; a sum not exceeding one hundred and thirty-seven thousand dollars for defraying the expenses of the department of war; a sum not exceeding one hundred and ninety thousand dollars for discharging the warrants issued by the late board of treasury, and remaining unsatisfied; and a sum not exceeding ninety-six thousand dollars for paying the pensions to invalids.” Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95.

At that time, a Congress, wishing to give a President the power to select among appropriations, could simply have embodied each appropriation in a separate bill, each bill subject to a separate Presidential veto.

Today, however, our population is about 250 million, see U.S. Dept. of Commerce, Census Bureau, 1990 Census, the Federal Government employs more than four million people, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Analytical Perspectives 207 (1997) (hereinafter Analytical Perspectives), the annual federal budget is $1.5 trillion, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Budget 303 (1997) (hereinafter Budget), and a typical budget appropriations bill may have a dozen titles, hundreds of sections, and spread across more than 500 pages of the Statutes at Large. See, e.g., Balanced Budget Act of 1997, Pub. L. 105—33, 111 Stat. 251. Congress cannot divide such a bill into thousands, or tens of thousands, of separate appropriations bills, each one of which the President would have to sign, or to veto, separately. Thus, the question is whether the Constitution permits Congress to choose a particular novel means to achieve this same, constitutionally legitimate, end.

Second, the case in part requires us to focus upon the Constitution’s generally phrased structural provisions, provisions that delegate all “legislative” power to Congress and vest all “executive” power in the President. See Part IV, infra. The Court, when applying these provisions, has interpreted them generously in terms of the institutional arrangements that they permit. See, e.g., Mistretta v. United States, 488 U.S. 361, 412 (1989) (upholding delegation of authority to Sentencing Commission to promulgate Sentencing Guidelines); Crowell v. Benson, 285 U.S. 22, 53—54 (1932) (permitting non-Article III commission to adjudicate factual disputes arising under federal dock workers’ compensation statute). See generally, e.g., OPP Cotton Mills, Inc. v. Administrator of Wage and Hour Div., Dept. of Labor, 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress obviously could not perform its functions” without delegating details of regulatory scheme to executive agency); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (Constitution permits “interdependence” and flexible relations between branches in order to secure “workable government”); J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (Taft, C. J.) (“[T]he extent and character of . . . assistance [between the different branches] must be fixed according to common sense and the inherent necessities of the governmental co-ordination”); Crowell v. Benson, supra, at 53 (“[R]egard must be had” in cases “where constitutional limits are invoked, not to mere matters of form but to the substance of what is required”).

Indeed, Chief Justice Marshall, in a well-known passage, explained,

“To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).

This passage, like the cases I have just mentioned, calls attention to the genius of the Framers’ pragmatic vision, which this Court has long recognized in cases that find constitutional room for necessary institutional innovation.

Third, we need not here referee a dispute among the other two branches. And, as the majority points out,

“ ‘When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons.’ ” Ante, at 29, n. 42 (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986) (Stevens, J., concurring in judgment)).

Cf. Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring) (“Presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress . . . [and when] the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum”).

These three background circumstances mean that, when one measures the literal words of the Act against the Constitution’s literal commands, the fact that the Act may closely resemble a different, literally unconstitutional, arrangement is beside the point. To drive exactly 65 miles per hour on an interstate highway closely resembles an act that violates the speed limit. But it does not violate that limit, for small differences matter when the question is one of literal violation of law. No more does this Act literally violate the Constitution’s words. See Part III, infra.

The background circumstances also mean that we are to interpret nonliteral Separation of Powers principles in light of the need for “workable government.” Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring). If we apply those principles in light of that objective, as this Court has applied them in the past, the Act is constitutional. See Part IV, infra.

III

The Court believes that the Act violates the literal text of the Constitution. A simple syllogism captures its basic reasoning:

Major Premise: The Constitution sets forth an exclusive method for enacting, repealing, or amending laws. See ante, at 19—21.

Minor Premise: The Act authorizes the President to “repea[l] or amen[d]” laws in a different way, namely by announcing a cancellation of a portion of a previously enacted law. See ante, at 18—19.

Conclusion: The Act is inconsistent with the Constitution. See ante, at 30—31.

I find this syllogism unconvincing, however, because its Minor Premise is faulty. When the President “canceled” the two appropriation measures now before us, he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.

To understand why one cannot say, literally speaking, that the President has repealed or amended any law, imagine how the provisions of law before us might have been, but were not, written. Imagine that the canceled New York health care tax provision at issue here, Pub. L. 105—33, §4722(c), 111 Stat. 515 (quoted in full ante, at 3, n. 2), had instead said the following:

Section One. Taxes . . . that were collected by the State of New York from a health care provider before June 1, 1997 and for which a waiver of provisions [requiring payment] have been sought . . . are deemed to be permissible health care related taxes . . . provided however that the President may prevent the just-mentioned provision from having legal force or effect if he determines x, y and z. (Assume x, y and z to be the same determinations required by the Line Item Veto Act).

Whatever a person might say, or think, about the constitutionality of this imaginary law, there is one thing the English language would prevent one from saying. One could not say that a President who “prevent[s]” the deeming language from “having legal force or effect,” see 2 U.S.C. § 691e(4)(B) (1994 ed., Supp. II), has either repealed or amended this particular hypothetical statute. Rather, the President has followed that law to the letter. He has exercised the power it explicitly delegates to him. He has executed the law, not repealed it.

It could make no significant difference to this linguistic point were the italicized proviso to appear, not as part of what I have called Section One, but, instead, at the bottom of the statute page, say referenced by an asterisk, with a statement that it applies to every spending provision in the act next to which a similar asterisk appears. And that being so, it could make no difference if that proviso appeared, instead, in a different, earlier-enacted law, along with legal language that makes it applicable to every future spending provision picked out according to a specified formula. See, e.g., Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act), Pub. L. 99—177, 99 Stat. 1063, 2 U.S.C. § 901 et seq. (enforcing strict spending and deficit-neutrality limits on future appropriations statutes); see also 1 U.S.C. § 1 (in “any Act of Congress” singular words include plural, and vice versa) (emphasis added).

But, of course, this last-mentioned possibility is this very case. The earlier law, namely, the Line Item Veto Act, says that “the President may . . . prevent such [future] budget authority from having legal force or effect.” 2 U.S.C. § 691(a), 691e(4)(B) (1994 ed., Supp. II). Its definitional sections make clear that it applies to the 1997 New York health care provision, see 2 U.S.C. § 691e(8), just as they give a special legal meaning to the word “cancel,” 2 U.S.C. § 691e(4). For that reason, one cannot dispose of this case through a purely literal analysis as the majority does. Literally speaking, the President has not “repealed” or “amended” anything. He has simply executed a power conferred upon him by Congress, which power is contained in laws that were enacted in compliance with the exclusive method set forth in the Constitution. See Field v. Clark, 143 U.S. 649, 693 (1892) (President’s power to raise tariff rates “was a part of the law itself, as it left the hands of Congress” (emphasis added)).

Nor can one dismiss this literal compliance as some kind of formal quibble, as if it were somehow “obvious” that what the President has done “amounts to,” “comes close to,” or is “analogous to” the repeal or amendment of a previously enacted law. That is because the power the Act grants the President (to render designated appropriations items without “legal force or effect”) also “amounts to,” “comes close to,” or is “analogous to” a different legal animal, the delegation of a power to choose one legal path as opposed to another, such as a power to appoint.

To take a simple example, a legal document, say a will or a trust instrument, might grant a beneficiary the power (a) to appoint property “to Jones for his life, remainder to Smith for 10 years so long as Smith . . . etc., and then to Brown,” or (b) to appoint the same property “to Black and the heirs of his body,” or (c) not to exercise the power of appointment at all. See, e.g., 5 W. Bowe & D. Parker, Page on Law of Wills §45.8 (rev. 3d ed. 1962) (describing power of appointment). To choose the second or third of these alternatives prevents from taking effect the legal consequences that flow from the first alternative, which the legal instrument describes in detail. Any such choice, made in the exercise of a delegated power, renders that first alternative language without “legal force or effect.” But such a choice does not “repeal” or “amend” either that language or the document itself. The will or trust instrument, in delegating the power of appointment, has not delegated a power to amend or to repeal the instrument; to the contrary, it requires the delegated power to be exercised in accordance with the instrument’s terms. Id., §45.9, at 516—518.

The trust example is useful not merely because of its simplicity, but also because it illustrates the logic that must apply when a power to execute is conferred, not by a private trust document, but by a federal statute. This is not the first time that Congress has delegated to the President or to others this kind of power–a contingent power to deny effect to certain statutory language. See, e.g., Pub. L. 95—384, §13(a), 92 Stat. 737 (“Section 620(x) of the Foreign Assistance Act of 1961 shall be of no further force and effect upon the President’s determination and certification to the Congress that the resumption of full military cooperation with Turkey is in the national interest of the United States and [other criteria]”) (emphasis added); 28 U.S.C. § 2072 (Supreme Court is authorized to promulgate rules of practice and procedure in federal courts, and “[a]ll laws in conflict with such rules shall be of no further force and effect”) (emphasis added); 41 U.S.C. § 405b (subsection (a) requires the Office of Federal Procurement Policy to issue “[g]overnment-wide regulations” setting forth a variety of conflict of interest standards, but subsection (e) says that “if the President determine[s]” that the regulations “would have a significantly adverse effect on the accomplishment of the mission” of government agencies, “the requirement [to promulgate] the regulations . . . shall be null and void”) (emphasis added); Gramm-Rudman-Hollings Act, §252(a)(4), 99 Stat. 1074 (authorizing the President to issue a “final order” that has the effect of “permanently cancell[ing]” sequestered amounts in spending statutes in order to achieve budget compliance) (emphasis added); Pub. L. 104—208, 110 Stat. 3009-695 (“Public Law 89—732 [dealing with immigration from Cuba] is repealed . . . upon a determination by the President . . . that a democratically elected government in Cuba is in power”) (emphasis added); Pub. L. 99—498, §701, 100 Stat. 1532 (amending §758 of the Higher Education Act of 1965) (Secretary of Education “may” sell common stock in an educational loan corporation; if the Secretary decides to sell stock, and “if the Student Loan Marketing Association acquires from the Secretary” over 50 percent of the voting stock, “section 754 [governing composition of the Board of Directors] shall be of no further force or effect”) (emphasis added); Pub. L. 104—134, §2901(c), 110 Stat. 1321—160 (President is “authorized to suspend the provisions of the [preceding] proviso” which suspension may last for entire effective period of proviso, if he determines suspension is “appropriate based upon the public interest in sound environmental management . . . [or] the protection of national or locally-affected interests, or protection of any cultural, biological or historic resources”).

All of these examples, like the Act, delegate a power to take action that will render statutory provisions “without force or effect.” Every one of these examples, like the present Act, delegates the power to choose between alternatives, each of which the statute spells out in some detail. None of these examples delegates a power to “repeal” or “amend” a statute, or to “make” a new law. Nor does the Act. Rather, the delegated power to nullify statutory language was itself created and defined by Congress, and included in the statute books on an equal footing with (indeed, as a component part of) the sections that are potentially subject to nullification. As a Pennsylvania court put the matter more than a century ago: “The legislature cannot delegate its power to make a law; but it can make a law to delegate a power.” Locke’s Appeal, 72 Pa. 491, 498 (1873).

In fact, a power to appoint property offers a closer analogy to the power delegated here than one might at first suspect. That is because the Act contains a “lockbox” feature, which gives legal significance to the enactment of a particular appropriations item even if, and even after, the President has rendered it without “force or effect.” See 2 U.S.C. § 691c; see also ante, at 22, n. 31 (describing lockbox); but cf. Letter from Counsel for Snake River Cooperative, dated Apr. 29, 1998 (available in Clerk of Court’s case file) (arguing “lockbox” feature inapplicable here due to special provision in Balanced Budget Act of 1997, the constitutionality and severability of which have not been argued). In essence, the “lockbox” feature: (1) points to a Gramm-Rudman-Hollings Act requirement that, when Congress enacts a “budget-busting” appropriation bill, automatically reduces authorized spending for a host of federal programs in a pro rata way; (2) notes that cancellation of an item (say, a $2 billion item) would, absent the lockbox provision, neutralize (by up to $2 billion) the potential “budget busting” effects of other bills (and therefore potentially the President could cancel items in order to “save” the other programs from the mandatory cuts, resulting no net deficit reduction); and (3) says that this “neutralization” will not occur (i.e., the pro rata reductions will take place just as if the $2 billion item had not been canceled), so that the canceled items truly provide additional budget savings over and above the Gramm-Rudman-Hollings regime. See generally H. R. Conf. Rep. No. 104—491, pp. 23—24 (1996) (lockbox provision included “to ensure that the savings from the cancellation of [items] are devoted to deficit reduction and are not available to offset a deficit increase in another law”). That is why the Government says that the Act provides a “lockbox,” and why it seems fair to say that, despite the Act’s use of the word “cancel,” the Act does not delegate to the President the power truly to cancel a line item expenditure (returning the legal status quo to one in which the item had never been enacted). Rather, it delegates to the President the power to decide how to spend the money to which the line item refers–either for the specific purpose mentioned
the item, or for general deficit reduction via the “lockbox” feature.

These features of the law do not mean that the delegated power is, or is just like, a power to appoint property. But they do mean that it is not, and it is not just like, the repeal or amendment of a law, or, for that matter, a true line item veto (despite the Act’s title). Because one cannot say that the President’s exercise of the power the Act grants is, literally speaking, a “repeal” or “amendment,” the fact that the Act’s procedures differ from the Constitution’s exclusive procedures for enacting (or repealing) legislation is beside the point. The Act itself was enacted in accordance with these procedures, and its failure to require the President to satisfy those procedures does not make the Act unconstitutional.

IV

Because I disagree with the Court’s holding of literal violation, I must consider whether the Act nonetheless violates Separation of Powers principles–principles that arise out of the Constitution’s vesting of the “executive Power” in “a President,” U.S. Const., Art. II, §1, and “[a]ll legislative Powers” in “a Congress,” Art. I, §1. There are three relevant Separation of Powers questions here: (1) Has Congress given the President the wrong kind of power, i.e., “non-Executive” power? (2) Has Congress given the President the power to “encroach” upon Congress’ own constitutionally reserved territory? (3) Has Congress given the President too much power, violating the doctrine of “nondelegation?” These three limitations help assure “adequate control by the citizen’s representatives in Congress,” upon which Justice Kennedy properly insists. See ante, at 3 (concurring opinion). And with respect to this Act, the answer to all these questions is “no.”

A

Viewed conceptually, the power the Act conveys is the right kind of power. It is “executive.” As explained above, an exercise of that power “executes” the Act. Conceptually speaking, it closely resembles the kind of delegated authority–to spend or not to spend appropriations, to change or not to change tariff rates–that Congress has frequently granted the President, any differences being differences in degree, not kind. See Part IV—C, infra.

The fact that one could also characterize this kind of power as “legislative,” say, if Congress itself (by amending the appropriations bill) prevented a provision from taking effect, is beside the point. This Court has frequently found that the exercise of a particular power, such as the power to make rules of broad applicability, American Trucking Assns., Inc. v. United States, 344 U.S. 298, 310—313 (1953), or to adjudicate claims, Crowell v. Benson, 285 U.S., at 50—51, 54; Wiener v. United States, 357 U.S. 349, 354—356 (1958), can fall within the constitutional purview of more than one branch of Government. See Wayman v. Southard, 10 Wheat. 1, 43 (1825) (Marshall, C. J.) (“Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself”). The Court does not “carry out the distinction between legislative and executive action with mathematical precision” or “divide the branches into watertight compartments,” Springer v. Philippine Islands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting), for, as others have said, the Constitution “blend[s]” as well as “separat[es]” powers in order to create a workable government. 1 K. Davis, Administrative Law §1.09, p. 68 (1958).

The Court has upheld congressional delegation of rulemaking power and adjudicatory power to federal agencies, American Trucking Assns. v. United States, supra, at 310—313; Wiener v. United States, supra, at 354—356, guideline-writing power to a Sentencing Commission, Mistretta v. United States, 488 U.S., at 412, and prosecutor-appointment power to judges, Morrison v. Olson, 487 U.S. 654, 696—697 (1988). It is far easier conceptually to reconcile the power at issue here with the relevant constitutional description (“executive”) than in many of these cases. And cases in which the Court may have found a delegated power and the basic constitutional function of another branch conceptually irreconcilable are yet more distant. See, e.g., Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930) (power to award radio licenses not a “judicial” power).

If there is a Separation of Powers violation, then, it must rest, not upon purely conceptual grounds, but upon some important conflict between the Act and a significant Separation of Powers objective.

B

The Act does not undermine what this Court has often described as the principal function of the Separation of Powers, which is to maintain the tripartite structure of the Federal Government–and thereby protect individual liberty–by providing a “safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam); Mistretta v. United States, supra, at 380—382. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison) (separation of powers confers on each branch the means “to resist encroachments of the others”); 1 Davis, supra, §1.09, at 68 (“The danger is not blended power . . . [t]he danger is unchecked power”); see also, e.g., Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating congressional intrusion on Executive Branch); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (Congress may not give away Article III “judicial” power to an Article I judge); Myers v. United States, 272 U.S. 52 (1926) (Congress cannot limit President’s power to remove Executive Branch official).

In contrast to these cases, one cannot say that the Act “encroaches” upon Congress’ power, when Congress retained the power to insert, by simple majority, into any future appropriations bill, into any section of any such bill, or into any phrase of any section, a provision that says the Act will not apply. See 2 U.S.C. § 691f(c)(1) (1994 ed., Supp. II); Raines v. Byrd, 521 U.S. ___, ___, (1997) (slip op., at 13) (Congress can “exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act”). Congress also retained the power to “disapprov[e],” and thereby reinstate, any of the President’s cancellations. See 2 U.S. C. §691b(a). And it is Congress that drafts and enacts the appropriations statutes that are subject to the Act in the first place–and thereby defines the outer limits of the President’s cancellation authority. Thus this Act is not the sort of delegation “without . . . sufficient check” that concerns Justice Kennedy. See ante, at 3 (concurring opinion). Indeed, the President acts only in response to, and on the terms set by, the Congress.

Nor can one say that the Act’s basic substantive objective is constitutionally improper, for the earliest Congresses could have, see Part II, supra, and often did, confer on the President this sort of discretionary authority over spending, see ante, at 15 (Scalia, J., concurring in part and dissenting in part). Cf. J. W. Hampton, 276 U.S., at 412 (Taft, C. J.) (“contemporaneous legislative exposition of the Constitution when the founders of our Government and the framers of our Constitution were actively participating in public affairs . . . fixes the construction to be given to its provisions”). And, if an individual Member of Congress, who say, favors aid to Country A but not to Country B, objects to the Act on the ground that the President may “rewrite” an appropriations law to do the opposite, one can respond, “But a majority of Congress voted that he have that power; you may vote to exempt the relevant appropriations provision from the Act; and if you command a majority, your appropriation is safe.” Where the burden of overcoming legislative inertia lies is within the power of Congress to determine by rule. Where is the encroachment?

Nor can one say the Act’s grant of power “aggrandizes” the Presidential office. The grant is limited to the context of the budget. It is limited to the power to spend, or not to spend, particular appropriated items, and the power to permit, or not to permit, specific limited exemptions from generally applicable tax law from taking effect. These powers, as I will explain in detail, resemble those the President has exercised in the past on other occasions. See Part IV—C, infra. The delegation of those powers to the President may strengthen the Presidency, but any such change in Executive Branch authority seems minute when compared with the changes worked by delegations of other kinds of authority that the Court in the past has upheld. See, e.g., American Trucking Assns., Inc. v. United States, 344 U.S. 298 (1953) (delegation of rulemaking authority); Lichter v. United States, 334 U.S. 742 (1948) (delegation to determine and regulate “excessive” profits); Crowell v. Benson, 285 U.S. 22 (1932) (delegation of adjudicatory authority); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986) (same).

C

The “nondelegation” doctrine represents an added constitutional check upon Congress’ authority to delegate power to the Executive Branch. And it raises a more serious constitutional obstacle here. The Constitution permits Congress to “see[k] assistance from another branch” of Government, the “extent and character” of that assistance to be fixed “according to common sense and the inherent necessities of the governmental co-ordination.” J. W. Hampton, Jr., & Co. v. United States, 276 U.S., at 406. But there are limits on the way in which Congress can obtain such assistance; it “cannot delegate any part of its legislative power except under the limitation of a prescribed standard.” United States v. Chicago, M., St. P. & P. R. Co., 282 U.S. 311, 324 (1931). Or, in Chief Justice Taft’s more familiar words, the Constitution permits only those delegations where Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J. W. Hampton, supra, at 409 (emphasis added).

The Act before us seeks to create such a principle in three ways. The first is procedural. The Act tells the President that, in “identifying dollar amounts [or] . . . items. . . for cancellation” (which I take to refer to his selection of the amounts or items he will “prevent from having legal force or effect”), he is to “consider,” among other things,

“the legislative history, construction, and purposes of the law which contains [those amounts or items, and] . . . any specific sources of information referenced in such law or . . . the best available information . . . .” 2 U.S.C. § 691(b) (1994 ed., Supp. II).

The second is purposive. The clear purpose behind the Act, confirmed by its legislative history, is to promote “greater fiscal accountability” and to “eliminate wasteful federal spending and . . . special tax breaks.” H. R. Conf. Rep. No. 104—491, p. 15 (1996).

The third is substantive. The President must determine that, to “prevent” the item or amount “from having legal force or effect” will “reduce the Federal budget deficit; . . . not impair any essential Government functions; and . . . not harm the national interest.” 2 U.S.C. § 691(a)(A) (1994 ed., Supp. II).

The resulting standards are broad. But this Court has upheld standards that are equally broad, or broader. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 225—226 (1943) (upholding delegation to Federal Communications Commission to regulate broadcast licensing as “public interest, convenience, or necessity” require) (internal quotation marks omitted); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600—603 (1944) (upholding delegation to Federal Power Commission to determine “just and reasonable” rates); United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 577 (1939) (if milk prices were “unreasonable,” Secretary could “fi[x]” prices to a level that was “in the public interest”). See also Lichter v. United States, 334 U.S. 742, 785—786 (1948) (delegation of authority to determine “excessive” profits); American Power & Light Co. v. SEC, 329 U.S. 90, 104—105 (1946) (delegation of authority to SEC to prevent “unfairly or inequitably” distributing voting power among security holders); Yakus v. United States, 321 U.S. 414, 427 (1944) (upholding delegation to Price Administrator to fix commodity prices that would be “fair” and “equitable”).

Indeed, the Court has only twice in its history found that a congressional delegation of power violated the “nondelegation” doctrine. One such case, Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), was in a sense a special case, for it was discovered in the midst of the case that the particular exercise of the power at issue, the promulgation of a Petroleum Code under the National Industrial Recovery Act, did not contain any legally operative sentence. Id., at 412—413. The other case, A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), involved a delegation through the National Industrial Recovery Act, 48 Stat. 195, that contained not simply a broad standard (“fair competition”), but also the conferral of power on private parties to promulgate rules applying that standard to virtually all of American industry. Id., at 521—525. As Justice Cardozo put it, the legislation exemplified “delegation running riot,” which created a “roving commission to inquire into evils and upon discovery correct them.” Id., at 553, 551 (concurring opinion).

The case before us does not involve any such “roving commission,” nor does it involve delegation to private parties, nor does it bring all of American industry within its scope. It is limited to one area of government, the budget, and it seeks to give the President the power, in one portion of that budget, to tailor spending and special tax relief to what he concludes are the demands of fiscal responsibility. Nor is the standard that governs his judgment, though broad, any broader than the standard that currently governs the award of television licenses, namely “public convenience, interest, or necessity.” 47 U.S. C. §303 (emphasis added). To the contrary, (a) the broadly phrased limitations in the Act, together with (b) its evident deficit reduction purpose, and (c) a procedure that guarantees Presidential awareness of the reasons for including a particular provision in a budget bill, taken together, guide the President’s exercise of his discretionary powers.

1

The relevant similarities and differences among and between this case and other “nondelegation” cases can be listed more systematically as follows: First, as I have just said, like statutes delegating power to award broadcast television licenses, or to regulate the securities industry, or to develop and enforce workplace safety rules, the Act is aimed at a discrete problem: namely, a particular set of expenditures within the federal budget. The Act concerns, not the entire economy, cf. Schecter Poultry Corp., supra, but the annual federal budget. Within the budget it applies only to discretionary budget authority and new direct spending items, that together amount to approximately a third of the current annual budget outlays, see Tr. of Oral Arg. 18; see also Budget 303, and to “limited tax benefits” that (because each can affect no more than 100 people, see 2 U.S.C. § 691e(9)(A) (1994 ed., Supp. II)), amount to a tiny fraction of federal revenues and appropriations. Compare Analytical Perspectives 73—75 (1997) (listing over $500 billion in overall “tax expenditures” that OMB estimated were contained in federal law in 1997) and Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President’s cancellation message for Snake River appellees’ limited tax benefit, estimating annual “value” of benefit, in terms of revenue loss, at about $20 million).

Second, like the award of television licenses, the particular problem involved–determining whether or not a particular amount of money should be spent or whether a particular dispensation from tax law should be granted a few individuals–does not readily lend itself to a significantly more specific standard. The Act makes clear that the President should consider the reasons for the expenditure, measure those reasons against the desirability of avoiding a deficit (or building a surplus) and make up his mind about the comparative weight of these conflicting goals. Congress might have expressed this matter in other language, but could it have done so in a significantly more specific way? See National Broadcasting Co. v. United States, 319 U.S., at 216 (“[P]ublic interest, convenience, or necessity” standard is “ ‘as concrete as the complicated factors for judgment in such a field of delegated authority permit’ ”) (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940)). The statute’s language, I believe, is sufficient to provide the President, and the public, with a fairly clear idea as to what Congress had in mind. And the public can judge the merits of the President’s choices accordingly. Cf. Yakus v. United States, supra, 321 U.S., at 426 (standards were “sufficiently definite and precise to enable . . . the public to ascertain . . . conform[ity]”).

Third, in insofar as monetary expenditure (but not “tax expenditure”) is at issue, the President acts in an area where history helps to justify the discretionary power that Congress has delegated, and where history may inform his exercise of the Act’s delegated authority. Congress has frequently delegated the President the authority to spend, or not to spend, particular sums of money. See, e.g., Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190; Emergency Relief Appropriation Act of 1935, 49 Stat. 115 (appropriating over $4 billion to be spent “in the discretion and under the direction of the President” for economic relief measures); see also ante, at 15—16 (Scalia, J., concurring in part and dissenting in part) (listing numerous examples).

Fourth, the Constitution permits Congress to rely upon context and history as providing the necessary standard for the exercise of the delegated power. See, e.g., Federal Radio Comm’n v. Nelson Brothers Bond & Mortgage Co. (Station WIBO), 289 U.S. 266, 285 (1933) (“public interest, convenience, or necessity [standard] . . . is to be interpreted by its context”); Fahey v. Mallonee, 332 U.S. 245, 253 (1947) (otherwise vague delegation to regulate banks was “sufficiently explicit, against the background of custom, to be adequate”). Relying upon context, Congress has sometimes granted the President broad discretionary authority over spending in laws that mention no standard at all. See, e.g., Act of Mar. 3, 1809, ch. 28, §1, 2 Stat. 535—536 (granting the President recess authority to transfer money “appropriated for a particular branch of expenditure in [a] department” to be “applied [instead] to another branch of expenditure in the same department”); Revenue and Expenditure Control Act of 1968, Pub. L. 90—364, §§202(b), 203(b), 82 Stat. 271—272; (authorizing the President annually to reserve up to $6 billion in outlays and $10 billion in new obligation authority); Second Supplemental Appropriations Act, 1969, Pub. L. 91—47, §401, 83 Stat. 82; Second Supplemental Appropriations Act, 1970, Pub. L. 91—305, §§401, 501, 84 Stat. 405—407. In this case, too, context and purpose can give meaning to highly general language. See Federal Radio Commn. v. Nelson Bros., supra, at 285; Fahey v. Malonee, supra, at 250—253; cf. Lichter v. United States, 334 U.S., at 777 (Congress has “at least expressed . . . satisfaction with the existing specificity of the Act”); Train v. City of New York, 420 U.S. 35, 44—47 (1975) (disallowing President Nixon’s efforts to impound funds because Court found Congress did not intend him to exercise the power in that instance).

On the other hand, I must recognize that there are important differences between the delegation before us and other broad, constitutionally-acceptable delegations to Executive Branch agencies–differences that argue against my conclusion. In particular, a broad delegation of authority to an administrative agency differs from the delegation at issue here in that agencies often develop subsidiary rules under the statute, rules that explain the general “public interest” language. Doing so diminishes the risk that the agency will use the breadth of a grant of authority as a cloak for unreasonable or unfair implementation. See 1 K. Davis, Administrative Law §3:15, pp. 207—208 (2d ed. 1978). Moreover, agencies are typically subject to judicial review, which review provides an additional check against arbitrary implementation. See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 40—42 (1983). The President has not so narrowed his discretionary power through rule, nor is his implementation subject to judicial review under the terms of the Administrative Procedure Act. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (APA does not apply to President absent express statement by Congress).

While I believe that these last-mentioned considerations are important, they are not determinative. The President, unlike most agency decisionmakers, is an elected official. He is responsible to the voters, who, in principle, will judge the manner in which he exercises his delegated authority. Whether the President’s expenditure decisions, for example, are arbitrary is a matter that in the past has been left primarily to those voters to consider. And this Court has made clear that judicial review is less appropriate when the President’s own discretion, rather than that of an agency, is at stake. See Dalton v. Specter, 511 U.S. 462, 476 (1994) (Presidential decision on military base closure recommendations not reviewable; President could “approv[e] or disapprov[e] the recommendations for whatever reason he sees fit”); Franklin, 505 U.S., at 801 (President’s decision whether or not to transmit census report to Congress was unreviewable by courts for abuse of discretion); cf. id., at 799—800 (it was “important to the integrity of the process” that the decision was made by the President, a “constitutional officer” as opposed to the unelected Secretary of Commerce). These matters reflect in part the Constitution’s own delegation of “executive Power” to “a President,” U.S. Const., Art. II, §1, cf. Clinton v. Jones, 520 U.S. ___, ___, (1997) (slip op., at 1—2) (Breyer, J., concurring in judgment) (discussing unitary executive), and we must take this into account when applying the Constitution’s nondelegation doctrine to questions of Presidential authority.

Consequently I believe that the power the Act grants the President to prevent spending items from taking effect does not violate the “nondelegation” doctrine.

2

Most, but not all, of the considerations mentioned in the previous subsection apply to the Act’s delegation to the President of the authority to prevent “from having legal force or effect” a “limited tax benefit,” which term the Act defines in terms of special tax relief for fewer than 100 (or in some instances 10) beneficiaries, which tax relief is not available to others who are somewhat similarly situated. 2 U.S.C. § 691e(9) (1994 ed., Supp. II). There are, however, two related significant differences between the “limited tax benefit” and the spending items considered above, which make the “limited tax benefit” question more difficult. First, the history is different. The history of Presidential authority to pick and to choose is less voluminous. Second, the subject matter (increasing or decreasing an individual’s taxes) makes the considerations discussed at the end of the last section (i.e., the danger of an arbitrary exercise of delegated power) of greater concern. But these differences, in my view, are not sufficient to change the “nondelegation” result.

For one thing, this Court has made clear that the standard we must use to judge whether a law violates the “nondelegation” doctrine is the same in the tax area as in any other. In Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989), the Court considered whether Congress, in the exercise of its taxing power, could delegate to the Secretary of Transportation the authority to establish a system of pipeline user fees. In rejecting the argument that the “fees” were actually a “tax,” and that the law amounted to an unconstitutional delegation of Congress’ own power to tax, the unanimous Court said that:

“From its earliest days to the present, Congress, when enacting tax legislation, has varied the degree of specificity and the consequent degree of discretionary authority delegated to the Executive . . . . We find no support … for [the] contention that the text of the Constitution or the practices of Congress require the application of a different and stricter nondelegation doctrine in cases where Congress delegates discretionary authority to the Executive under its taxing power. . . . Even if the user fees are a form of taxation, we hold that the delegation of discretionary authority under Congress’ taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges. Congress may wisely choose to be more circumspect in delegating authority under the Taxing Clause than under other of its enumerated powers, but this is not a heightened degree of prudence required by the Constitution.” Id., at 221—223.

For another thing, this Court has upheld tax statutes that delegate to the President the power to change taxes under very broad standards. In 1890, for example, Congress authorized the President to “suspend” the provisions of the tariff statute, thereby raising tariff rates, if the President determined that other nations were imposing “reciprocally unequal and unreasonable” tariff rates on specialized commodities. Act of Oct. 1, 1890, ch. 1244, §3, 26 Stat. 612. And the Court upheld the statute against constitutional attack. Field v. Clark, 143 U.S., at 693—694 (“no valid objection can be made” to such statutes “conferring authority or discretion” on the President) (internal quotation marks omitted); see also Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President “authorized” to “suspend the operation of” a customs law “if in his judgment the public interest should require it”); Act of June 4, 1794, ch. 41, §1, 1 Stat. 372 (empowering President to lay an embargo on ships in ports “whenever, in his opinion, the public safety shall so require” and to revoke related regulations “whenever he shall think proper”). In 1922 Congress gave the President the authority to adjust tariff rates to “equalize” the differences in costs of production at home and abroad, see Tariff Act of 1922, ch. 356, §315(a), 42 Stat. 941—942. The Court also upheld this delegation against constitutional attack. See J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).

These statutory delegations resemble today’s Act more closely than one might at first suspect. They involve a duty on imports, which is a tax. That tax in the last century was as important then as the income tax is now, for it provided most of the Federal Government’s revenues. See U.S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 2, at 1106 (in 1890, when Congress passed the statute at issue in Field, tariff revenues were 57% of the total receipts of the Federal Government). And the delegation then thus affected a far higher percentage of federal revenues than the tax-related delegation over extremely “limited” tax benefits here. See supra, at 18—19.

The standards at issue in these earlier laws, such as “unreasonable,” were frequently vague and without precise meaning. See, e.g., Act of Oct. 1, 1890, §3, 26 Stat. 612. Indeed, the word “equalize” in the 1922 statute, 42 Stat. 942, could not have been administered as if it offered the precision it seems to promise, for a tariff that literally “equalized” domestic and foreign production costs would, because of transport costs, have virtually ended foreign trade.

Nor can I accept the majority’s effort to distinguish these examples. The majority says that these statutes imposed a specific “duty” upon the President to act upon the occurrence of a specified event. See ante, at 25. But, in fact, some of the statutes imposed no duty upon the President at all. See, e.g., Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President “authorized” to “suspend the operation of” a customs law “if in his judgment the public interest should require it”). Others imposed a “duty” in terms so vague as to leave substantial discretion in the President’s hands. See Act of Oct. 1, 1890, 26 Stat. 612 (President’s “duty” to suspend tariff law was triggered “whenever” and “so often as” he was “satisfied” that “unequal and unreasonable” rates were imposed); see also Field v. Clark, supra, at 691 (historically in the flexible tariff statutes Congress has “invest[ed] the President with large discretion”).

The majority also tries to distinguish these examples on the ground that the President there executed congressional policy while here he rejects that policy. See ante, at 24—29. The President here, however, in exercising his delegated authority does not reject congressional policy. Rather, he executes a law in which Congress has specified its desire that the President have the very authority he has exercised. See Part III, supra.

The majority further points out that these cases concern imports, an area that, it says, implicates foreign policy and therefore justifies an unusual degree of discretion by the President. See ante, at 27. Congress, however, has not limited its delegations of taxation authority to the “foreign policy” arena. The first Congress gave the Secretary of the Treasury the “power to mitigate or remit” statutory penalties for nonpayment of liquor taxes “upon such terms and conditions as shall appear to him reasonable.” Act of Mar. 3, 1791, ch. 15, §43, 1 Stat. 209. A few years later, the Secretary was authorized, in lieu of collecting the stamp duty enacted by Congress, “to agree to an annual composition for the amount of such stamp duty, with any of the said banks, of one per centum on the amount of the annual dividend made by such banks.” Act of July 6, 1797, ch. 11, §2, 1 Stat. 528. More recently, Congress has given to the Executive Branch the authority to “prescribe all needful rules and regulations for the enforcement of [the Internal Revenue Code], including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.” 26 U.S.C. § 7805(a). And the Court has held that such rules and regulations, “which undoubtedly affect individual taxpayer liability, are . . . without doubt the result of entirely appropriate delegations of discretionary authority by Congress.” Skinner v. Mid-America Pipeline Co., 490 U.S., at 222. I do not believe the Court would hold the same delegations at issue in J. W. Hampton and Field unconstitutional were they to arise in a more obviously domestic area.

Finally, the tax-related delegation is limited in ways that tend to diminish any widespread risk of arbitrary Presidential decisionmaking:

(1) The Act does not give the President authority to change general tax policy. That is because the limited tax benefits are defined in terms of deviations from tax policy, i.e., special benefits to fewer than 100 individuals. See 2 U.S.C. § 691e(9)(A)(i) (1994 ed., Supp. II); see also Analytical Perpectives 84 (defining “tax expenditure” as “a preferential exception to the baseline provisions of the tax structure”).

(2) The Act requires the President to make the same kind of policy judgment with respect to these special benefits as with respect to items of spending. He is to consider the budget as a whole, he is to consider the particular history of the tax benefit provision, and he is to consider whether the provision is worth the loss of revenue it causes in the same way that he must decide whether a particular expenditure item is worth the added revenue that it requires. See supra, at 16.

(3) The delegated authority does not destroy any individual’s expectation of receiving a particular benefit, for the Act is written to say to the small group of taxpayers who may receive the benefit, “Taxpayers, you will receive an exemption from ordinary tax laws, but only if the President decides the budgetary loss is not too great.”

(4) The “limited tax benefit” provisions involve only a small part of the federal budget, probably less than one percent of total annual outlays and revenues. Compare Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President’s cancellation message for Snake River appellees’ limited tax benefit, estimating annual “value” of benefit, in terms of revenue loss, at about $20 million) and Taxpayer Relief Act of 1997, §1701, 111 Stat. 1099 (identifying only 79 “limited tax benefits” subject to cancellation in the entire tax statute).

(5) Because the “tax benefit” provisions are part and parcel of the budget provisions, and because the Act in defining them, focuses upon “revenue-losing” tax provisions, 2 U.S.C. § 691e(9)(A)(i) (1994 ed., Supp. II), it regards “tax benefits” as if they were a special kind of spending, namely spending that puts back into the pockets of a small group of taxpayers, money that “baseline” tax policy would otherwise take from them. There is, therefore, no need to consider this provision as if it represented a delegation of authority to the President, outside the budget expenditure context, to set major policy under the federal tax laws. But cf. Skinner v. Mid-America Pipeline, supra, at 222—223 (no “different and stricter” nondelegation doctrine in the taxation context). Still less does approval of the delegation in this case, given the long history of Presidential discretion in the budgetary context, automatically justify the delegation to the President of the authority to alter the effect of other laws outside that context.

The upshot is that, in my view, the “limited tax benefit” provisions do not differ enough from the “spending” provisions to warrant a different “nondelegation” result.

V

In sum, I recognize that the Act before us is novel. In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law. Nor, for that matter, do they amount literally to the “line item veto” that the Act’s title announces. Those means do not violate any basic Separation of Powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the President. Nor, since they comply with Separation of Powers principles, do they threaten the liberties of individual citizens. They represent an experiment that may, or may not, help representative government work better. The Constitution, in my view, authorizes Congress and the President to try novel methods in this way. Consequently, with respect, I dissent.

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Part 4 of 4

Opinion of Scalia, J.

SUPREME COURT OF THE UNITED STATES

No. 97—1374

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]

Justice Scalia, with whom Justice O’Connor joins, and with whom Justice Breyer joins as to Part III, concurring in part and dissenting in part.

Today the Court acknowledges the “ ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,’ ” ante, at 1—2, quoting Raines v. Byrd, 521 U.S. ___, ___ (1997) (slip op., at 8). It proceeds, however, to ignore the prescribed statutory limits of our jurisdiction by permitting the expedited-review provisions of the Line Item Veto Act to be invoked by persons who are not “individual[s],” 2 U.S.C. § 692 (1994 ed., Supp. II); and to ignore the constitutional limits of our jurisdiction by permitting one party to challenge the Government’s denial to another party of favorable tax treatment from which the first party might, but just as likely might not, gain a concrete benefit. In my view, the Snake River appellees lack standing to challenge the President’s cancellation of the “limited tax benefit,” and the constitutionality of that action should not be addressed. I think the New York appellees have standing to challenge the President’s cancellation of an “item of new direct spending”; I believe we have statutory authority (other than the expedited-review provision) to address that challenge; but unlike the Court I find the President’s cancellation of spending items to be entirely in accord with the Constitution.

I

The Court's unrestrained zeal to reach the merits of this case is evident in its disregard of the statute’s expedited-review provision, which extends that special procedure to “[a]ny Member of Congress or any individual adversely affected by [the Act],” §692. With the exception of Mike Cranney, a natural person, the appellees–corporations, cooperatives, and governmental entities–are not “individuals” under any accepted usage of that term. Worse still, the first provision of the United States Code confirms that insofar as this word is concerned, Congress speaks English like the rest of us: “In determining the meaning of any Act of Congress, unless the context indicates otherwise … the wor[d] ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1 (emphasis added). And doubly worse, one of the definitional provisions of this very Act expressly distinguishes “individuals” from “persons.” A tax law does not create a “limited tax benefit,” it says, so long as

“any difference in the treatment of persons is based solely on–

“(I) in the case of businesses and associations, the size or form of the business or association involved;

“(II) in the case of individuals, general demographic conditions, such as income, marital status, number of dependents, or tax return filing status … .” 2 U.S.C. § 691e(9)(B)(iii) (1994 ed., Supp. II) (emphasis added).

The Court majestically sweeps the plain language of the statute aside, declaring that “[t]here is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons.” Ante, at 10. Indeed, the Court says, it would be “absurd” for Congress to have done so. Ibid. But Congress treats individuals more favorably than corporations and other associations all the time. There is nothing whatever extraordinary–and surely nothing so bizarre as to permit this Court to declare a “scrivener’s error”–in believing that individuals will suffer more seriously from delay in the receipt of “vetoed” benefits or tax savings than corporations will, and therefore according individuals (but not corporations) expedited review. It may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law.

The only individual who has sued, and thus the only appellee who qualifies for expedited review under §692, is Mike Cranney. Since §692 does not confer jurisdiction over the claims of the other appellees, we must dismiss them, unless we have jurisdiction under another statute. In their complaints, appellees sought declaratory relief not only under §692(a), but also under the Declaratory Judgment Act, 28 U.S.C. § 2201 invoking the District Court’s jurisdiction under 28 U.S.C. § 1331. After the District Court ruled, the Government appealed directly to this Court, but it also filed a notice of appeal to the Court of Appeals for the District of Columbia. In light of the Government’s representation that it desires “[t]o eliminate any possibility that the district court’s decision might escape review,” Reply Brief for Appellants 2, n. 1, I would deem its appeal to this Court a petition for writ of certiorari before judgment, see 28 U.S.C. § 2101(e), and grant it. Under this Court’s Rule 11, “[a] petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” In light of the public importance of the issues involved, and the little sense it would make for the Government to pursue its appeal against one appellee in this Court and against the others in the Court of Appeals, the entire case, in my view, qualifies for certiorari review before judgment.

II

Not only must we be satisfied that we have statutory jurisdiction to hear this case; we must be satisfied that we have jurisdiction under Article III. “To meet the standing requirements of Article III, ‘[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’ ” Raines, 521 U.S., at ___ (slip op., at 6), quoting Allen v. Wright, 468 U.S. 737, 751 (1984).

In the first action before us, appellees Snake River Potato Growers, Inc. (Snake River) and Mike Cranney, Snake River’s Director and Vice-Chairman, challenge the constitutionality of the President’s cancellation of §968 of the Taxpayer Relief Act of 1997. The Snake River appellees have standing, in the Court’s view, because §968 gave them “the equivalent of a statutory ‘bargaining chip,’ ” and “[b]y depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents.” Ante, at 13, 14. It is unclear whether the Court means that deprivation of a “bargaining chip” itself suffices for standing, or that such deprivation suffices in the present case because it creates a likelihood of economic injury. The former is wrong as a matter of law, and the latter is wrong as a matter of fact, on the facts alleged.

For the proposition that “a denial of a benefit in the bargaining process” can suffice for standing the Court relies in a footnote, see ante, at 15, n. 22, on Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993). There, an association of contractors alleged that a city ordinance according racial preferences in the award of city contracts denied its members equal protection of the laws. Id., at 658—659. The association’s members had regularly bid on and performed city contracts, and would have bid on designated set-aside contracts but for the ordinance. Id., at 659. We held that the association had standing even without proof that its members would have been awarded contracts absent the challenged discrimination. The reason, we explained, is that “[t]he ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id., at 666, citing two earlier equal protection cases, Turner v. Fouche, 396 U.S. 346, 362 (1970), and Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989). In other words, Northeastern Florida did not hold, as the Court suggests, that harm to one’s bargaining position is an “injury in fact,” but rather that, in an equal protection case, the denial of equal treatment is. Inasmuch as Snake River does not challenge the Line Item Veto Act on equal-protection grounds, Northeastern Florida is inapposite. And I know of no case outside the equal-protection field in which the mere detriment to one’s “bargaining position,” as opposed to a demonstrated loss of some bargain, has been held to confer standing. The proposition that standing is established by the mere reduction in one’s chances of receiving a financial benefit is contradicted by Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), which held that low-income persons who had been denied treatment at local hospitals lacked standing to challenge an Internal Revenue Service (IRS) ruling that reduced the amount of charitable care necessary for the hospitals to qualify for tax-exempt status. The situation in that case was strikingly similar to the one before us here: the denial of a tax benefit to a third party was alleged to reduce the chances of a financial benefit to the plaintiffs. And standing was
denied.

But even if harm to one’s bargaining position were a legally cognizable injury, Snake River has not alleged, as it must, facts sufficient to demonstrate that it personally has suffered that injury. See Warth v. Seldin, 422 U.S. 490, 502 (1975). In Eastern Ky. Welfare Rights, supra, the plaintiffs at least had applied for the financial benefit which had allegedly been rendered less likely of receipt; the present suit, by contrast, resembles a complaint asserting that the plaintiff’s chances of winning the lottery were reduced, filed by a plaintiff who never bought a lottery ticket, or who tore it up before the winner was announced. Snake River has presented no evidence to show that it was engaged in bargaining, and that that bargaining was impaired by the President’s cancellation of §968. The Court says that Snake River “was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a tax-deferred sale when the President canceled §968,” ante, at 13. There is, however, no evidence of “negotiations,” only of two “discussions.” According to the affidavit of Mike Cranney:

“On or about May 1997, I spoke with Howard Phillips, the principal owner of Idaho Potato Packers, concerning the possibility that, if the Cooperative Tax Act were passed, Snake River Potato Growers might purchase a Blackfoot, Idaho processing facility in a transaction that would allow the deferral of gain. Mr. Phillips expressed an interest in such a transaction if the Cooperative Tax Act were to pass. Mr. Phillips also acknowledged to me that Jim Chapman, our General Manager, had engaged him in a previous discussion concerning this matter.” App. 112.

This affidavit would have set forth something of significance if it had said that Phillips had expressed an interest in the transaction “if and only if the Cooperative Tax Act were to pass.” But of course it is most unlikely he said that; Idaho Potato Packers (IPP) could get just as much from the sale without the Act as with the Act, so long as the price was right. The affidavit would also have set forth something of significance if it had said that Phillips had expressed an interest in the sale “at a particular price if the Cooperative Tax Act were to pass.” But it does not say that either. Nor does it even say that the President's action caused IPP to reconsider. Moreover, it was Snake River, not IPP, that terminated the discussions. According to Cranney, “[t]he President’s cancellation of the Cooperative Tax Act caused me to terminate discussions with Phillips about the possibility of Snake River Potato Growers buying the Idaho Potato Packers facility,” App. 114. So all we know from the record is that Snake River had two discussions with IPP concerning the sale of its processing facility on the tax deferred basis the Act would allow; that IPP was interested; and that Snake River ended the discussions after the President’s action. We do not know that Snake River was prepared to offer a price–tax deferral or no–that would cross IPP’s laugh threshold. We do not even know for certain that the tax deferral was a significant attraction to IPP; we know only that Cranney thought it was. On these facts–which never even bring things to the point of bargaining–it is pure conjecture to say that Snake River suffered an impaired bargaining position. As we have said many times, conjectural or hypothetical injuries do not suffice for Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Nor has Snake River demonstrated, as the Court finds, that “the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents.” Ante, at 14. Presumably the economic injury the Court has in mind is Snake River’s loss of a bargain purchase of a processing plant. But there is no evidence, and indeed not even an allegation, that before the President’s action such a purchase was likely. The most that Snake River alleges is that the President's action rendered it “more difficult for plaintiffs to purchase qualified processors,” App. 12. And even if that abstract “increased difficulty” sufficed for injury-in-fact (which it does not), the existence of even that is pure speculation. For all that appears, no owner of a processing plant would have been willing to sell to Snake River at any price that Snake River could afford–and the impossible cannot be made “more difficult.” All we know is that a potential seller was “interested” in talking about the subject before the President’s action, and that after the President’s action Snake River itself decided to proceed no further. If this establishes a “likelihood” that Snake River would have made a bargain purchase but for the President’s action, or even a “likelihood” that the President’s action rendered “more difficult” a purchase that was realistically within Snake River’s grasp, then we must adopt for our standing jurisprudence a new definition of likely: “plausible.”

Twice before have we addressed whether plaintiffs had standing to challenge the Government’s tax treatment of a third party, and twice before have we held that the speculative nature of a third party’s response to changes in federal tax laws defeats standing. In Eastern Ky. Welfare Rights, 426 U.S. 26 (1976), we found it “purely speculative whether the denials of service … fairly can be traced to [the IRS’s] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.” Id., at 42—43. We found it “equally speculative whether the desired exercise of the court’s remedial powers in this suit would result in the availability to respondents of such services.” Id., at 43. In Allen v. Wright, 468 U.S. 737 (1984), we held that parents of black children attending public schools lacked standing to challenge IRS policies concerning tax exemptions for private schools. The parents alleged, inter alia, that “federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated.” Id., at 752—753. We concluded that “the injury alleged is not fairly traceable to the Government conduct … challenge[d] as unlawful,” id., at 757, and that “it is entirely speculative … whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.” Id., at 758. Likewise, here, it is purely speculative whether a tax-deferral would have prompted any sale, let alone one that reflected the tax benefit in the sale price.

The closest case the Court can appeal to as precedent for its finding of standing is Bryant v. Yellen, 447 U.S. 352 (1980). Even on its own terms, Bryant is distinguishable. As that case came to us, it involved a dispute between a class of some 800 landowners in the Imperial Valley, each of whom owned more than 160 acres, and a group of Imperial Valley residents who wished to purchase lands owned by that class. The point at issue was the application to those lands of a statutory provision that forbade delivery of water from a federal reclamation project to irrigable land held by a single owner in excess of 160 acres, and that limited the sale price of any lands so held in excess of 160 acres to a maximum amount, fixed the Secretary of the Interior, based on fair market value in 1929, before the Valley was irrigated by water from the Boulder Canyon Project. Id., at 366—367. That price would of course be “far below [the lands’] current market values,” id., at 367, n. 17. The Court concluded that the would-be purchasers “had a sufficient stake in the outcome of the controversy to afford them standing,” id., at 368. It is true, as the Court today emphasizes, that the purchasers had not presented “detailed information about [their] financial resources,” but the Court thought that unnecessary only because “purchasers of such land would stand to reap significant gains on resale.” Id., at 367, n. 17. Financing, in other words, would be easy to come by. Here, by contrast, not only do we have no notion whether Snake River has the cash in hand to afford IPP’s bottom-line price, but we also have no reason to believe that financing of the purchase will be readily available. Potato processing plants, unlike agricultural land in the Imperial Valley, do not have a readily available resale market. On the other side of the equation, it was also much clearer in Bryant that if the suit came out in the would-be purchasers’ favor, many of the landowners would be willing to sell. The alternative would be withdrawing the land from agricultural production, whereas sale–even at bargain-basement prices for the land–would at least enable recoupment of the cost of improvements, such as drainage systems. Ibid. In the present case, by contrast, we have no reason to believe that IPP is not operating its processing plant at a profit, and will not continue to do so in the future; Snake River has proffered no evidence that IPP or any other processor would surely have sold if only the President had not cancelled the tax deferral. The only uncertainty in Bryant was whether any of the respondents would wind up as buyers of any of the excess land; that seemed probable enough, since “respondents are residents of the Imperial Valley who desire to purchase the excess land for purposes of farming.” Ibid. We have no basis to say that it is “likely” that Snake River would have purchased a processing facility if §968 had not been cancelled.

More fundamentally, however, the reasoning of Bryant should not govern the present case because it represents a crabbed view of the standing doctrine that has been superseded. Bryant was decided at the tail-end of “an era in which it was thought that the only function of the constitutional requirement of standing was ‘to assure that concrete adverseness which sharpens the presentation of issues,’ ” Spencer v. Kemna, 523 U.S. ___, ___ (1998) (slip op., at 9), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). Thus, the Bryant Court ultimately afforded the respondents standing simply because they “had a sufficient stake in the outcome of the controversy,” 447 U.S., at 368, not because they had demonstrated injury in fact, causation and redressability. “That parsimonious view of the function of Article III standing has since yielded to the acknowledgement that the constitutional requirement is a ‘means of “defin[ing] the role assigned to the judiciary in a tripartite allocation of power,” ’ and ‘a part of the basic charter … provid[ing] for the interaction between [the federal] government and the governments of the several States,’ ” Spencer, supra, at ___ (slip op., at 10), quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474, 476 (1982). While Snake River in the present case may indeed have enough of a “stake” to assure adverseness, the matter it brings before us is inappropriate for our resolution because its allegations do not establish an injury in fact, attributable to the Presidential action it challenges, and remediable by this Court’s invalidation of that Presidential action.

Because, in my view, Snake River has no standing to bring this suit, we have no jurisdiction to resolve its challenge to the President’s authority to cancel a “limited tax benefit.”

III

I agree with the Court that the New York appellees have standing to challenge the President’s cancellation of §4722(c) of the Balanced Budget Act of 1997 as an “item of new direct spending.” See ante, at 11—12. The tax liability they will incur under New York law is a concrete and particularized injury, fairly traceable to the President’s action, and avoided if that action is undone. Unlike the Court, however, I do not believe that Executive cancellation of this item of direct spending violates the Presentment Clause.

The Presentment Clause requires, in relevant part, that “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it,” U.S. Const., Art. I, §7, cl. 2. There is no question that enactment of the Balanced Budget Act complied with these requirements: the House and Senate passed the bill, and the President signed it into law. It was only after the requirements of the Presentment Clause had been satisfied that the President exercised his authority under the Line Item Veto Act to cancel the spending item. Thus, the Court’s problem with the Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes him to “cancel”–prevent from “having legal force or effect”–certain parts of duly enacted statutes.

Article I, §7 of the Constitution obviously prevents the President from cancelling a law that Congress has not authorized him to cancel. Such action cannot possibly be considered part of his execution of the law, and if it is legislative action, as the Court observes, “ ‘repeal of statutes, no less than enactment, must conform with Art. I.’ ” Ante, at 19, quoting from INS v. Chadha, 462 U.S. 919, 954 (1983). But that is not this case. It was certainly arguable, as an original matter, that Art. I, §7 also prevents the President from cancelling a law which itself authorizes the President to cancel it. But as the Court acknowledges, that argument has long since been made and rejected. In 1809, Congress passed a law authorizing the President to cancel trade restrictions against Great Britain and France if either revoked edicts directed at the United States. Act of Mar. 1, 1809, §11, 2 Stat. 528. Joseph Story regarded the conferral of that authority as entirely unremarkable in The Orono, 18 F. Cas. 830 (No. 10,585) (CCD Mass. 1812). The Tariff Act of 1890 authorized the President to “suspend, by proclamation to that effect” certain of its provisions if he determined that other countries were imposing “reciprocally unequal and unreasonable” duties. Act of Oct. 1, 1890, §3, 26 Stat. 612. This Court upheld the constitutionality of that Act in Field v. Clark, 143 U.S. 649 (1892), reciting the history since 1798 of statutes conferring upon the President the power to, inter alia, “discontinue the prohibitions and restraints hereby enacted and declared,” id., at 684, “suspend the operation of the aforesaid act,” id., at 685, and “declare the provisions of this act to be inoperative,” id., at 688.

As much as the Court goes on about Art. I, §7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation–generally known as substantive rulemaking. There are, to be sure, limits upon the former just as there are limits upon the latter–and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, §7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers.

It is this doctrine, and not the Presentment Clause, that was discussed in the Field opinion, and it is this doctrine, and not the Presentment Clause, that is the issue presented by the statute before us here. That is why the Court is correct to distinguish prior authorizations of Executive cancellation, such as the one involved in Field, on the ground that they were contingent upon an Executive finding of fact, and on the ground that they related to the field of foreign affairs, an area where the President has a special “degree of discretion and freedom,” ante, at 27 (citation omitted). These distinctions have nothing to do with whether the details of Art. I, §7 have been complied with, but everything to do with whether the authorizations went too far by transferring to the Executive a degree of political, law-making power that our traditions demand be retained by the Legislative Branch.

I turn, then, to the crux of the matter: whether Congress’s authorizing the President to cancel an item of spending gives him a power that our history and traditions show must reside exclusively in the Legislative Branch. I may note, to begin with, that the Line Item Veto Act is not the first statute to authorize the President to “cancel” spending items. In Bowsher v. Synar, 478 U.S. 714 (1986), we addressed the constitutionality of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 901 et seq. (1982 ed., Supp. III), which required the President, if the federal budget deficit exceeded a certain amount, to issue a “sequestration” order mandating spending reductions specified by the Comptroller General. §902. The effect of sequestration was that “amounts sequestered … shall be permanently cancelled,” §902(a)(4) (emphasis added). We held that the Act was unconstitutional, not because it impermissibly gave the Executive legislative power, but because it gave the Comptroller General, an officer of the Legislative Branch over whom Congress retained removal power, “the ultimate authority to determine the budget cuts to be made,” 478 U.S., at 733, “functions … plainly entailing execution of the law in constitutional terms.” Id., at 732—733 (emphasis added). The President’s discretion under the Line Item Veto Act is certainly broader than the Comptroller General’s discretion was under the 1985 Act, but it is no broader than the discretion traditionally granted the President in his execution of spending laws.

Insofar as the degree of political, “law-making” power conferred upon the Executive is concerned, there is not a dime’s worth of difference between Congress’s authorizing the President to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the President's discretion. And the latter has been done since the Founding of the Nation. From 1789—1791, the First Congress made lump-sum appropriations for the entire Government–“sum[s] not exceeding” specified amounts for broad purposes. Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. From a very early date Congress also made permissive individual appropriations, leaving the decision whether to spend the money to the President’s unfettered discretion. In 1803, it appropriated $50,000 for the President to build “not exceeding fifteen gun boats, to be armed, manned and fitted out, and employed for such purposes as in his opinion the public service may require,” Act of Feb. 28, 1803, ch. 11, §3, 2 Stat. 206. President Jefferson reported that “[t]he sum of fifty thousand dollars appropriated by Congress for providing gun boats remains unexpended. The favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary,” 13 Annals of Cong. 14 (1803). Examples of appropriations committed to the discretion of the President abound in our history. During the Civil War, an Act appropriated over $76 million to be divided among various items “as the exigencies of the service may require,” Act of Feb. 25, 1862, ch. 32, 12 Stat. 344—345. During the Great Depression, Congress appropriated $950 million “for such projects and/or purposes and under such rules and regulations as the President in his discretion may prescribe,” Act of Feb. 15, 1934, ch. 13, 48 Stat. 351, and $4 billion for general classes of projects, the money to be spent “in the discretion and under the direction of the President,” Emergency Relief Appropriation Act of 1935, 49 Stat. 115. The constitutionality of such appropriations has never seriously been questioned. Rather, “[t]hat Congress has wide discretion in the matter of prescribing details of expenditures for which it appropriates must, of course, be plain. Appropriations and other acts of Congress are replete with instances of general appropriations of large amounts, to be allotted and expended as directed by designated government agencies.” Cincinnati Soap Co. v. United States, 301 U.S. 308, 321—322 (1937).

Certain Presidents have claimed Executive authority to withhold appropriated funds even absent an express conferral of discretion to do so. In 1876, for example, President Grant reported to Congress that he would not spend money appropriated for certain harbor and river improvements, see Act of Aug. 14, 1876, ch. 267, 19 Stat. 132, because “[u]nder no circumstances [would he] allow expenditures upon works not clearly national,” and in his view, the appropriations were for “works of purely private or local interest, in no sense national,” 4 Cong. Rec. 5628. President Franklin D. Roosevelt impounded funds appropriated for a flood control reservoir and levee in Oklahoma. See Act of Aug. 18, 1941, ch. 377, 55 Stat. 638, 645; Hearings on S. 373 before the Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations and the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 848—849 (1973). President Truman ordered the impoundment of hundreds of millions of dollars that had been appropriated for military aircraft. See Act of Oct. 29, 1949, ch. 787, 63 Stat. 987, 1013; Public Papers of the Presidents of the United States, Harry S. Truman, 1949, pp. 538—539 (W. Reid ed. 1964). President Nixon, the Mahatma Ghandi of all impounders, asserted at a press conference in 1973 that his “constitutional right” to impound appropriated funds was “absolutely clear.” The President’s News Conference of Jan. 31, 1973, 9 Weekly Comp. of Pres. Doc. 109—110 (1973). Our decision two years later in Train v. City of New York, 420 U.S. 35 (1975), proved him wrong, but it implicitly confirmed that Congress may confer discretion upon the executive to withhold appropriated funds, even funds appropriated for a specific purpose. The statute at issue in Train authorized spending “not to exceed” specified sums for certain projects, and directed that such “[s]ums authorized to be appropriated … shall be allotted” by the Administrator of the Environmental Protection Agency, 33 U.S.C. § 1285 1287 (1970 ed., Supp. III). Upon enactment of this statute, the President directed the Administrator to allot no more than a certain part of the amount authorized. 420 U.S., at 40. This Court held, as a matter of statutory interpretation, that the statute did not grant the Executive discretion to withhold the funds, but required allotment of the full amount authorized. Id., at 44—47.

The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead–authorizing the President to “cancel” an item of spending–is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President’s action it authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union.

IV

I would hold that the President’s cancellation of §4722(c) of the Balanced Budget Act as an item of direct spending does not violate the Constitution. Because I find no party before us who has standing to challenge the President’s cancellation of §968 of the Taxpayer Relief Act, I do not reach the question whether that violates the Constitution.

For the foregoing reasons, I respectfully dissent.

[admin]

'ZERO EMPATHY, ZERO SHAME': How Trump’s ideologues and profiteers are wrecking the US government
by Seymour Hersh
Feb 17, 2025

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Elon Musk, joined by his son X Musk, stands next to President Donald Trump as he speaks during an executive order signing in the Oval Office on February 11. / Photo by Andrew Harnik/Getty Images.

Consider three premises about the current American leadership crisis.

One: there are many reasonable ways to trim the federal budget, and the most logical way to cut the budget is to start where it is most bloated—the Pentagon. Why not begin with the F-35 Lightning II Joint Strike Fighter, which went into use in 2015 after two decades of cost overruns that totaled more than two trillion dollars. Shutting up Washington’s Consumer Financial Protection Bureau will give solace to the nation’s banking and finance world, but not much else. (Its annual budget is $823 million.)

Two: President Donald Trump believes or wants to believe—not sure there is a difference—that Article 2 of the Constitution, which says that executive power is vested in the presidency, gives him what he has called “the right to do whatever I want.” Hence his constant talk now of running for yet another term in office.

Three: I have been told by those who know the US hacking community that the young members of Elon Musk’s Department of Government Efficiency computing team now running amok inside the Treasury Department, where America’s checks are drawn up, would not have been granted a clearance had they sought computer jobs with the federal government. But there is little doubt about the skills of Musk’s young Turks and their ability to get proprietary information that would enrich their boss. Musk does billions of dollars in business with the federal government, and analyzing and evaluating the way various bureaucrats evaluate his firms’ contract proposals—and those of their competitors—would be of prime interest.

The other key players along with Musk are Russell Vought, recently confirmed as a director of the White House’s Office and Management and Budget, which is as important as it sounds, especially to the Musk operatives, and Stephen Miller, the White House deputy chief of staff. Both are political extremists. Vought was one of the principal drafters of Project 2025, a radical proposal for the current reshaping of the government that emerged from the conservative Heritage Foundation. The proposals terrified Democrats—though not enough—during last year’s presidential race. The more outspoken and pugnacious Miller, once a close ally of Steve Bannon, worked on immigrant issues during Trump’s first term in office from 2017 to 2021. He was known for his harsh views on immigration that included the separation of migrant children from their parents when they crossed the US border. Such action, Miller said, would deter parents from attempting to cross the border illegally. Miller, too, was on the advisory board for Project 2025.

-- On Tyranny, by Leo Strauss

There is a history of this kind of right-wing madness. Two decades ago, I wrote a series of articles about the Office of Special Plans in the Pentagon, a secret intelligence unit that reported directly to Donald Rumsfeld, the secretary of defense. It was staffed by a group of political zealots who were followers of Leo Strauss, a philosopher at the University of Chicago who believed that the work of ancient philosophers contained deliberately concealed esoteric meanings whose truth could be comprehended by only a very few and would be misunderstood by the masses.

Strauss’s intellectual followers included Paul Wolfowitz, the deputy secretary of defense, and many members of the Office of Special Plans. They chose not to rely on intelligence that had been analyzed and vetted by professionals in the Central Intelligence Agency and National Security Agency, and instead were sending their deranged and fabricated intelligence about the nuclear threat from Iraq to Rumsfeld and Vice President Dick Cheney. The result was an unnecessary American war in Iraq in search of a nuclear arsenal that did not exist.

Some survivors of those years remain closely linked to the philosophies of Vought and Miller and they have insight and knowledge to the current goals of those who are now collaborating with Musk to turn America into an intolerant right-wing state controlled by billionaires like Musk and a president who dreams of being king.

Here is an interpretation of what is going on, supported in my other discussions with computer experts, from someone who has a great deal of insight about the people and political philosophies involved:

“Trump was led to believe that most of those working with Musk’s team have been granted ‘Read Only’ access” to Treasury and other vital government computer systems, “but in many cases the youngsters have been able to embed code in the system they were monitoring. The kids are not downloading every single database of the US government but rather focusing on areas within the government that either relate to Musk’s various businesses, or the implementation of Trump’s broader ideological goals—for example, the Treasury payment system.

“Musk has tens of billions of dollars in contracts with the US government. All six of his companies, which include X (formerly Twitter); xAI, a rival to OpenAI; Neuralink, a brain implant startup; SpaceX, which includes Starlink, a satellite internet service; and the Boring company, a tunnel drilling firm); and Tesla, have netted a combined $20 billion in US contracts and subsidies, according to the Financial Times.

“Musk, either with or without the president’s approval, has the authority to review procedures and findings of the key personnel in those federal agencies that have the responsibility to reject or approve his contract bids, and then monitor the implementation of his federal contracts.

“Musk already has forced out several top managers in agencies responsible for monitoring his contracts and replaced them with people who have been with Musk, working in his different companies, for more than a decade.

“He is also getting into all the payout systems in the US government—that pay out $6.75 trillion annually.”

One expert I spoke to was especially critical of Treasury Secretary Scott Bessent, who has stated that he has only given Musk’s people “Read Only” access to the payout systems, which would bar downloading of files and the like.

Bessent either was not informed or not telling the truth, according to the person who initially told me about the easy access the Musk teams have had to the most complex and protected Treasury Department financial transactions. He told me that Musk’s people “have the capacity to see, download, and manipulate all of the government payments, including Medicare and Medicaid payments.” Theoretically, he said, members of Musk’s team, without any security or background checks, would be able to “overwrite authorized funds from the Treasury. Simply choke them off.”

The expert provided an example: Suppose Congress passes a bill authorizing a $100,000 payment to a unit of Planned Parenthood in Chicago. The Treasury Department, acting on Congressional instruction, is getting ready to write a $100,000 check and send it. If Vought or Miller is unhappy about the allocation, they can instruct Musk’s team to block the payment that was authorized by the Treasury. In that action, the expert explained, Vought and Miller had the capacity to override the Constitution, which delegates control of the federal budget to the Congress.

At this point, the expert said, Trump, Vought and Miller have “total control. Congress has approved all of their generally unqualified Cabinet posts and, now that they’ve had their way with Congress, they believe the judiciary cannot stop them.

“Vought and Miller are true Straussians in the sense that they believe, as did Strauss, that America must have an elite who would rule the country. All others are merely subjects. I don’t see the two of them looking to enrich themselves.

“Why aren’t the Democrats raising hell about it? Because they are in total shock.”

-- Eichmann in Jerusalem: A Report on the Banality of Evil, by Hannah Arendt

I shared the specifics that I had been told in a subsequent conversation with a prominent East Coast professor of computer science who did not wish to be named. He expressed alarm at the extent of Musk’s increasing penetration of America’s government payment system. Musk, he told me, was already benefiting from the chaos but not Miller or Vought. “Those two,” the professor said, “are not looking to benefit themselves. They are administrators—‘banality of evil’ ideologues and fundamentalist types—the hatchet people who carry out the plans of their lords and masters. Musk, on the other hand, is already benefiting from the chaos.

“I would argue there is a fourth level of control: culture. Starting with Trump and Musk, they have zero empathy, zero shame, and a longtime sense of entitlement that laws, norms, and standards do not apply to them. In turn they appoint folks with similar thinking—Vought, Miller, nearly all in the Cabinet—who will enable the more informed worker bees to run wild since nobody—not their boss, not the White House the Congress—unless it’s blatantly obvious or politically embarrassing. And then ‘something has to be done.’

“The only security culture in this regime,” he concluded, “is to protect itself from outside scrutiny.”

[admin]

Part 1 of 2

https://www.justsecurity.org/107087/tra ... istration/

Litigation Tracker: Legal Challenges to Trump Administration Actions
by Just Security
Accessed: 2/19/25
https://www.justsecurity.org/107087/tra ... istration/

This public resource tracks legal challenges to Trump administration actions. If you think we are missing anything, you can email us at [email protected]. Special thanks to Just Security Student Staff Editors Anna Braverman, Isaac Buck, Rick Da, Charlotte Kahan, and Jeremy Venook, and to Matthew Fouracre and Nour Soubani.

The Tracker is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions. Readers may also be interested in signing up for our free Early Edition roundup of news and our end-of-day newsletter with Just Security articles from the day (We respect your privacy. We do not use your email address for any other purpose except to automatically send you the requested email.)

The Tracker was first published on Jan. 29, 2025 and is continually updated. Last updated Feb. 18, 2025.

Case Name / Complaint / Date Filed / Case Summary / Last Update

Immigration and Citizenship

Executive Action: Birthright Citizenship (Executive Order 14160)

New Hampshire Indonesian Community Support v. Donald J. Trump (D.N.H.); Case No. 1:25-cv-38 / Complaint / Jan. 20, 2025 / Trump’s executive order seeks to revoke birthright citizenship for the children of undocumented immigrants on the basis that people in the United States illegally are not “subject to the jurisdiction thereof.” The ACLU sued the Trump administration on behalf of individuals in New Hampshire who would have their childrens’ citizenship revoked. The ACLU argues that the plain text of the 14th Amendment, as confirmed in U.S. v. Wong Kim Ark (1898), explicitly grants birthright citizenship for all people born in the United States. Update 1: On Feb. 10, 2025, Judge Joseph N. Laplante issued a preliminary injunction. / 2025-02-10

O. Doe; Brazilian Worker Center, Inc; La Colaborativa v. Donald J. Trump et al (D. Mass.); Case No. 1:25-cv-10135-LTS / Complaint / Jan. 20, 2025 / Trump’s executive order seeks to revoke birthright citizenship for the children of undocumented immigrants on the basis that people in the United States illegally are not “subject to the jurisdiction thereof.” A group of pregnant women whose children would not receive citizenship sued; the plaintiff identified as “O. Doe” lives in Massachusetts and has temporary protected status in the United States. The suit argues that the plain text of the 14th Amendment, as confirmed in U.S. v. Wong Kim Ark (1898), explicitly grants birthright citizenship for all people born in the United States. Update 1: On Feb. 13, Judge Leo T. Sorokin issued an opinion granting a preliminary injunction enjoining the government from implementing and enforcing Executive Order No. 14,160, “Protecting the Meaning and Value of American Citizenship,” against plaintiff O. Doe, or any member of La Colaborativa or Brazilian Worker Center. / 025-02-13

State of New Jersey et al v. Donald J. Trump et al (D. Mass.); Case No. 1:25-cv-10139 / Complaint / Jan. 21, 2025 / Trump’s executive order seeks to revoke birthright citizenship for the children of undocumented immigrants on the basis that people in the United States illegally are not “subject to the jurisdiction thereof.” The attorneys general of 22 states, the District of Columbia, and the City of San Francisco sued to protect residents who would lose their citizenship under the executive order. The suit argues that the plain text of the 14th Amendment, as confirmed in U.S. v. Wong Kim Ark (1898), explicitly grants birthright citizenship for all people born in the United States. Update 1: On Feb. 13, Judge Leo T. Sorokin issued an opinion granting a preliminary injunction enjoining the government from implementing and enforcing Executive Order No. 14,160, “Protecting the Meaning and Value of American Citizenship.” / 2025-02-13

Casa v. Donald Trump (D. Md.); Case No. 8:25-cv-00201-DLB / Complaint / Jan. 21, 2025 / Trump’s executive order seeks to revoke birthright citizenship for the children of undocumented immigrants on the basis that people in the United States illegally are not “subject to the jurisdiction thereof.” The plaintiffs, including immigrant rights organizations CASA and ASAP, as well as individual immigrant parents, argue that the Executive Order violates the Fourteenth Amendment and federal statute 8 U.S.C. § 1401(a), both of which guarantee citizenship to all persons born in the U.S. The complaint asserts that the executive order exceeds presidential authority and causes irreparable harm by stripping constitutionally protected rights from children born to immigrants​ (e.g., the right to remain in the United States, access public benefits, and participate fully in civic life) and destabilizes their families, potentially leaving children stateless and separating them from their parents​. Update 1: On Feb. 5, 2025, Judge Deborah Boardman issued an opinion granting the plaintiffs’ motion for a preliminary nationwide injunction blocking implementation of the birthright citizenship Executive Order. / 2025-02-05

Franco Aleman et al. v. Trump et al. (W.D. Wash.); Case No. 2:25-cv-00163-JCC / Complaint / Jan. 24, 2025 / Plaintiffs are non-citizen pregnant women whose due dates are after the implementation date of the Executive Order eliminating birthright citizenship. Plaintiffs bring this suit as a class action on behalf of all others similarly situated. They allege that the EO is a violation of the Fourteenth Amendment and seek an injunction to enjoin Defendants from enforcing the EO. Update 1: On Jan. 27, State of Washington et al v. Donald J. Trump (complaint) was consolidated with this case. / 2025-01-27

State of Washington et al v. Donald J. Trump et al (W.D. Wash.); Case No. 2:25-cv-00127-JCC / Complaint / Jan. 21, 2025 / Trump’s executive order seeks to revoke birthright citizenship for the children of undocumented immigrants on the basis that people in the United States illegally are not “subject to the jurisdiction thereof.” Four states sued to protect residents who would lose their citizenship under the executive order. The suit argues that the plain text of the 14th Amendment, as confirmed in U.S. v. Wong Kim Ark (1898), explicitly grants birthright citizenship for all people born in the United States.
Update 1: On Jan. 23, 2025, Judge John Coughenour of the Western District of Washington issued a temporary restraining order against the Executive Order. Update 2: On Jan. 27, Franco Aleman v. Trump (complaint) was consolidated with this case. Update 3: On Feb. 6, Judge Coughenour issued an opinion granting the plaintiffs’ motion for a preliminary injunction enjoining implementation of the Executive Order. Update 4: On Feb. 6, defendants appealed to the Ninth Circuit Court (case no. 25-807). Update 5: On Feb. 12, defendants made an emergency motion to stay the district court’s injunction. / 2025-02-12

OCA–Asian Pacific American Advocates v. Marco Rubio et al (D.D.C.); Case No. 1:25-cv-00287 / Complaint / Jan. 30, 2025 / Trump’s executive order seeks to revoke birthright citizenship for the children of undocumented immigrants and for the children of parents on lawful temporary visas on the basis that they are not “subject to the jurisdiction” of the United States. OCA sued Marco Rubio and the heads of other departments and agencies on behalf of at least two pregnant women expected to give birth to children denied citizenship by the order. Both women reside in the United States on lawful, temporary, nonimmigrant visas. OCA argues that the order violates the plain text of the Fourteenth Amendment, statutes (8 U.S.C. § 1401 et seq.), and the Administrative Procedure Act, 5 U.S.C. § 706(2). The suit identifies an injured “subclass” of “Targeted Children” denied the privileges and public benefits afforded to U.S. citizens, seeking declaratory and injunctive relief. / 2025-01-31

County of Santa Clara v. Trump, et al (N.D. Cal.); Case No. 5:25-cv-00981 / Complaint / Jan. 30, 2025 / Trump’s executive order seeks to revoke birthright citizenship for the children of undocumented immigrants and for the children of parents on lawful temporary visas on the basis that they are not “subject to the jurisdiction” of the United States. The County of Santa Clara sued to protect residents who would lose their citizenship or whose U.S.-born children will not receive citizenship and to prevent administrative burdens and loss of tax revenues associated with that prospective loss of citizenship. Santa Clara argues that the order violates the plain text of the Fourteenth Amendment, statutes (8 U.S.C. § 1401 et seq.), and the Administrative Procedure Act, 5 U.S.C. § 706(2), and seeks declaratory and injunctive relief. / 2025-01-31

Le v. Trump (C.D. Cal.); Case No. 8:25-cv-00104 / Complaint (under seal per Privacy Act) / Jan. 20, 2025 / A birthright citizenship case under seal. On Jan. 24, 2025, Judge Maame Ewusi-Mensah Frimpong, upon joint agreement by the parties, held briefing in abeyance pending the TRO and preliminary injunction litigation in Washington v. Trump. / 2025-01-24

New York Immigration Coalition v. Trump et al. (S.D.N.Y.); Case No. 1:25-cv-01309 / Complaint / Feb. 13, 2025 / Plaintiffs are a nonprofit organization as well as a Venezuelan national, J.V., who has Temporary Protected Status and a pending asylum petition. She is five months pregnant. Plaintiffs allege that the EO violates 8 U.S.C. § 1401(a) and the Citizenship and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs also seek a permanent injunction against enforcement of the EO. / 2025-02-13

Executive Action: Immigration policy — punishment of sanctuary cities and states (Executive Order 14159) (DOJ “Sanctuary Jurisdiction Directives” (Feb. 5, 2025))

Organized Communities Against Deportations et al v. Benjamine Huffman (Acting Secretary of Homeland Security) et al (N.D. Ill.); Case No. 25-cv-868 / Complaint / Jan. 25, 2025 / Acting Attorney General Benjamine Huffman issued policy guidance that, among other immigration-related policies, instructs the Civil Division of the Department of Justice “to identify state and local laws, policies, and activities that are inconsistent with Executive Branch immigration initiatives and, where appropriate, to take legal action to challenge such laws.” The plaintiffs, Chicago-based immigrant-advocacy organizations, allege that the guidance, and subsequent raids “specifically for the purpose of ending the Plaintiffs’ Sanctuary City advocacy and movement building,” violate the Administrative Procedure Act and the First Amendment. The lawsuit seeks an injunction against the Department of Justice’s guidance. / 2025-01-31

City and County of San Francisco v. Donald J. Trump, et al (N.D. Cal.); Case No. 3:25-cv-01350 / Complaint / Feb. 7, 2025 / Trump’s executive order directed the Departments of Justice and Homeland Security to withhold federal funds from sanctuary cities, which the Department of Justice implemented through a Feb. 5, 2025 “Sanctuary Jurisdiction Directives” memorandum. The plaintiffs include various cities and counties. They sued on the grounds that the executive order and DOJ memo violate the Tenth Amendment’s reservation of unenumerated power to the states, separation of powers, the spending clause, the Fifth Amendment’s due process clause, and the Administrative Procedure Act. The lawsuit seeks a declaration that the executive order is unconstitutional and a permanent injunction on any effort to enforce the provisions withholding funding. / 2025-02-07

Executive Action: Immigration Policy – “Expedited Removal” (Executive Order 14159)

Make the Road New York v. Benjamine Huffman (Acting Secretary of Homeland Security) et al (D.D.C.); Case No. 1:25-cv-00190 / Complaint / Jan. 22, 2025 / Trump’s executive order directed the Department of Homeland Security to expand the use of expedited removal under the Immigration and Nationality Act (INA) to include noncitizens located anywhere in the U.S. who cannot prove they have been continuously present for more than two years​. The plaintiff, Make the Road New York (MRNY), argues the rule violates the Fifth Amendment’s Due Process Clause, the INA, and the Administrative Procedure Act (APA) by subjecting individuals to summary deportation without adequate procedural safeguards. The suit claims the rule is arbitrary, exceeds statutory authority, and disregards legal and constitutional protections against wrongful removal​. / 2025-01-31

Executive Action: Immigration Policy – Discontinuation of CBP One app (Executive Order 14165)

Las Americas Immigrant Advocacy Center et al v. U.S. Department of Homeland Security (D.D.C.); Case No. 1:24-cv-01702; Motion for TRO: 1:24-cv-01702-RC - Dkt. No. 71 / Complaint Motion for TRO (underlying case filed June 12, 2024) / Jan. 23, 2025 / The Trump administration executive order directs the Department of Homeland Security to cease operation of the CBP One app, which was created by the Biden administration to enable asylum seekers to schedule appointments to request asylum. The Las Americas Immigrant Advocacy Center and the ACLU had previously sued to challenge a Biden administration rule that limited asylum access to those presenting at a port of entry or falling under another narrow exception. In response, the government argued that the CBP One app remained as a pathway by which asylum-seekers could request appointments. In light of the discontinuation of the CBP One app, Las Americas, et al, filed a motion for a temporary restraining order and requested an immediate status conference and leave to file supplemental briefings to address the government’s position. / 2025-01-31

Executive Action: Access of Lawyers to Immigrants in Detention (Executive Order 14159)

Amica Center for Immigrant Rights et al. v. U.S. Department of Justice (D.D.C.); Case No. 1:25-cv-00298 / Complaint / Jan. 31, 2025 / In 2024, Congress appropriated funds for two immigration programs, the Legal Orientation Program (LOP) and Immigration Court Helpdesk (ICH). On Jan. 22, 2025, the Department of Justice Executive Office for Immigration Review (EOIR) issued a stop-work order that halted funding for four programs providing legal resources to unrepresented people facing deportation. The EOIR action was taken purportedly to “audit” the programs pursuant to the Trump administration executive order. Nine advocacy and immigrant legal services organizations sued, arguing that terminating funding for the programs is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law under the Administrative Procedure Act (APA); violates the Appropriations Clause in the case of the LOP and ICH; and violates the First Amendment by denying the plaintiffs access to courthouses and immigration detention centers. The suit seeks a temporary restraining order and preliminary injunction and to enjoin the government from stopping the programs, refusing to spend appropriated funds, preventing the plaintiffs from accessing immigration courts houses and detention centers, and removing materials and posters the plaintiffs have posted in those locations. / 2025-01-31

Executive Action: Proclamation Prohibiting Non-Citizens from Invoking Asylum Provisions” (Proclamation 10888)

Refugee and Immigrant Center for Education and Legal Services v. Noem (D.D.C.); Case No. 1:25-cv-00306 / Complaint / Feb. 3, 2025 / Trump’s proclamation bars immigrants who arrive after the date of the proclamation from invoking provisions of the Immigration and Nationality Act that would permit them to remain in the United States while pursuing asylum claims. The plaintiffs, three nonprofit organizations in Texas and Arizona providing legal services and assistance to undocumented individuals or asylum seekers, argue that the order violates the following statutory and constitutional provisions: 1. the Asylum Statute in the INA, 8 U.S.C. § 1158(a)(1) (by barring noncitizens from applying for asylum in direct contradiction to congressional protections); 2. the Withholding of Removal Statute, 8 U.S.C. § 1231(b)(3) (by preventing noncitizens from seeking protection from persecution based on race, religion, nationality, membership in a particular social group, or political opinion); 3. the Foreign Affairs Reform and Restructuring Act (FARRA), 8 U.S.C. § 1231, and the Convention Against Torture (CAT) (by depriving noncitizens of a meaningful opportunity to present CAT claims and shielding them from potential torture); 4. the Trafficking Victims Protection Reauthorization Act (TVPRA), 8 U.S.C. § 1232(a)(5)(D) (by denying unaccompanied children from non-contiguous countries their statutory right to regular removal proceedings); 5. the INA’s procedural protections for removal, 8 U.S.C. §§ 1101, 1229a, 1225(b) (by overriding mandated removal proceedings and eliminating procedural protections, including credible fear screenings); 6. the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (by implementing policies that are arbitrary, capricious, and contrary to law) and § 706(2)(D) (by failing to follow the required rulemaking process before enacting sweeping changes to statutory protections); and 7. the constitutional separation of powers (by exceeding presidential authority and unlawfully overriding congressionally enacted immigration protections). The Plaintiffs seek a declaratory judgment that the proclamation is unlawful and an injunction stopping its implementation. / 2025-02-04

Executive Action: Migrant Transfers to Guantanamo (Presidential Memorandum)

Perez Parra v. Castro (D. N.M.); Case No. 1:24-cv-00912-KG-KRS; Dkt. No. 43 / Complaint / Feb. 9, 2025 / Trump’s Presidential Memorandum orders the Secretary of Defense and the Secretary of Homeland Security to prepare the Migrant Operations Center at Naval Station Guantanamo Bay to function at full capacity as a detention center for undocumented migrants. Three Venezuelan men, already part of an existing habeas lawsuit from September 2024 in the District Court of New Mexico, sought to block the administration from transferring them to the Guantanamo facility. Based on their similarities to those previously relocated, the men anticipated being moved as well. The challenge is specific to three specific individuals, under the All Writs Act to preserve the ongoing jurisdiction of the court, and does not seek to block other transfers. On Feb. 9, Chief District Judge Kenneth J. Gonzales granted a temporary restraining order, barring the U.S. government from transferring the three men. Update 1: On Feb. 13, Judge Gonzales issued a 1-page Memorandum Opinion and Order noting that the Defendants had filed a Notice that all three petitioners were removed to Venezuela on Feb. 10; and vacated the upcoming status conference. Update 2: On Feb. 14, the docket reflected a Notice of voluntary dismissal of the case by the three petitioners. / 2025-02-14

Las Americas Immigrant Advocacy Center v. Noem (D.D.C.); Case No. 1:25-cv-00418 / Complaint / Feb. 12, 2025 / Trump’s Presidential Memorandum orders the Secretary of Defense and the Secretary of Homeland Security to prepare the Migrant Operations Center at Naval Station Guantánamo Bay to function at full capacity as a detention center for undocumented migrants. Plaintiffs are suing on behalf of the families of four Venezuelan nationals who are believed to have been transferred to Guantánamo. Plaintiffs allege the government’s action violates habeas corpus rights, Fifth Amendment Due Process rights, and the Immigration and Naturalization Act’s guarantee of the right to counsel. Plaintiffs further allege that the government’s alleged restriction of information in and out of Guantánamo violates both the plaintiffs’ and the detainees’ First Amendment rights. They seek court orders declaring that the government’s actions violate those rights, permitting access to lawyers, requiring the government to identify the location of detainees held at Guantánamo, requiring the government to provide 72-hours notice prior to any transfer to a foreign jurisdiction, and requiring the government to provide 72-hours notice prior to any transfer of additional noncitizens to Guantánamo. / 2025-02-12

Executive Action: Suspension of the U.S. Refugee Admissions Program (Executive Order No. 14163) and Refugee Funding Suspension (Dept of State Notice)

Pacito v. Trump (W.D. Wash); (2:25-cv-255) / Complaint / Feb. 10, 2025 / On Jan. 20, 2025, President Trump issued an executive order indefinitely suspending refugee admissions and processing. The State Department issued a Jan. 24 notice suspending federal funding for resettlement programs. Ten plaintiffs — individual refugees, U.S. citizens, and resettlement organizations (HIAS, Church World Service, and Lutheran Community Services Northwest) — filed a proposed class action seeking injunctions to block implementation of the orders, declaratory judgments that the actions are unlawful, maintenance of refugee processing and resettlement services consistent with the status quo, and confirmation of compliance with such remedies if granted. The lawsuit alleges that the orders have left approved refugees stranded internationally, denied recent arrivals statutorily-mandated support services, and forced layoffs at resettlement institutions. The complaint asserts that the executive orders violate the Refugee Act’s comprehensive statutory scheme for refugee policy, are arbitrary and capricious under the Administrative Procedure Act for circumventing notice-and-comment requirements and failing to establish a reasoned basis for the change in policy, and breach agency regulations at 8 C.F.R. § 207.7 governing the Follow-to-Join process in violation of the Accardi doctrine requiring government officials to follow the agency’s own rules and procedures. The lawsuit further argues that the orders violate the Fifth Amendment due process rights of U.S. citizens petitioning for family reunification, and violate fundamental separation of powers principles by attempting to redistribute or withhold congressionally appropriated funds to achieve policy objectives. / 2025-02-10

United States Conference of Catholic Bishops v. Department of State et al. (D.D.C.); Case No. 1:25-cv-00465 / Complaint / Feb. 18, 2025 / On Jan. 20, 2025, President Trump issued an executive order indefinitely suspending refugee admissions and processing. The State Department issued a Jan. 24 notice suspending federal funding for resettlement programs. Plaintiff, the United States Conference of Catholic Bishops (USCCB), is part of a public-private partnership with the federal government through the U.S. Refugee Admissions Program, and was providing transitionary resettlement services to more than 6,700 refugees when the State Department suspended funding. USCCB brought suit, arguing the government policy suspending funds for the Refugee Admissions Program is unlawful under the Administrative Procedure Act because it (1) violates the Immigration and Naturalization Act, the Refugee Act of 1980, and the Impoundment Control Act; (2) is an arbitrary and capricious abuse of discretion; and (3) is a substantive role promulgated without required notice-and-comment rulemaking. They seek a declaratory judgment that the suspension is unlawful, and temporary, preliminary, and permanent injunctions prohibiting the government from implementing the suspension and requiring the government to make reimbursements pursuant to the terms of its cooperative agreements. / 2025-02-18

Structure of Government/Personnel

Executive Action: Reinstatement of Schedule F for Policy/Career Employees (Executive Order 14171)

National Treasury Employees Union v. Donald J. Trump et al (D.D.C.); Case No. 1:25-cv-00170 / Complaint / Jan. 20, 2025 / Trump’s executive order authorizes the Director of the Office of Personnel Management to reclassify thousands of members of the civil service and strip them of their civil-service protections, enabling the president or heads of agencies to fire them at will. The National Treasury Employees Union sued to block implementation of the order on behalf of the union’s members. The lawsuit argues that the executive order violates laws Congress passed to provide civil-service protections to the vast majority of civil servants, with only limited exceptions for Senate-confirmed political appointees. / 2025-01-31

Government Accountability Project v. Office of Personnel Management (D.D.C.); Case No. 1:25-cv-00347 / Complaint (Feb. 6, 2025) / Feb. 6, 2025 / On Jan. 27, Director of the Office of Personnel Management (OPM) Charles Ezell issued Guidance implementing the president’s executive order, which aims to reclassify thousands of members of the civil service and strip them of their civil-service protections, enabling the president or heads of agencies to fire them at will. Plaintiffs—independent nonprofits representing whistleblowers, federal employees, retirees and their survivors—allege that the OPM Guidance did not go through proper procedure under the Administrative Procedure Act, violates the Civil Service Reform Act’s protections for career employees, and violates civil servants’ Fifth Amendment Due Process rights. They seek a declaratory judgment that the executive order and the OPM Guidance are unlawful and an injunction enjoining the administration from implementing the executive order and the OPM Guidance. / 2025-02-06

Public Employees for Environmental Responsibility v. Donald Trump et al (D. Md.); Case No. 8:25-cv-00260-PX / Complaint / Jan. 28, 2025 / Trump’s executive order authorizes the Director of the Office of Personnel Management to reclassify thousands of members of the civil service and strip them of their civil-service protections, enabling the president or heads of agencies to fire them at will. PEER, represented by Citizens for Responsibility and Ethics in Washington and Democracy Forward, sued to enjoin implementation of the executive order. The lawsuit argues that the executive order violates the Administrative Procedure Act and deprives civil servants of due process by stripping them of protections guaranteed under the Civil Service Reform Act of 1978. / 2025-01-31

American Federation of Government Employees, AFL-CIO and American Federation of State, County And Municipal Employees, AFL-CIO v. Donald Trump et al (D.D.C.); Case No. 1:25-cv-00264 / Complaint / Jan. 29, 2025 / On Jan. 27, Director of the Office of Personnel Management (OPM) Charles Ezell issued guidance implementing the president’s executive order, which aims to reclassify thousands of members of the civil service and strip them of their civil-service protections, enabling the president or heads of agencies to fire them at will. The AFGE and AFSCME – labor organizations representing federal, state and local employees – assert that the Trump administration failed to follow proper notice-and-comment procedures under the Administrative Procedural Act in issuing the order, which renders “inoperative or without effect” existing regulations, 5 C.F.R. 210.102(b)(3), 5 C.F.R. 210.102(b)(4), and 5 C.F.R. § 302.601-603. The plaintiffs sued, seeking a declaratory judgment to that effect, as well as an injunction enjoining the Defendants from enforcing the order without first complying with the APA’s notice-and-comment requirements. / 2025-01-31

Executive Action: Establishment of “Department of Government Efficiency” (DOGE) (Executive Order 14158)

Public Citizen Inc et al v. Donald J. Trump and Office of Management and Budget (D.D.C.); Case No. 1:25-cv-00164 / Complaint / Jan. 20, 2025 / Trump’s executive order renames the U.S. Digital Service as the U.S. DOGE Service (Department of Government Efficiency) and reestablishes the office under the Executive Office of the President. Two advocacy organizations and the American Federation of Government Employees sued, arguing that the order violates the Federal Advisory Committee Act, which bars the delegation of decision-making authority to private citizens without public access. The suit asks the court to enjoin the operation of DOGE unless and until it complies with the FACA’s requirements. Update 1: On Feb. 18, 2025, Judge Jia M. Cobb (D.D.C.) granted defendants’ motion to consolidate two cases with this case. Parties in Lentini v. Department of Government Efficiency (complaint), and American Public Health Association v. Office of Budget and Management (complaint) must make all future filings in this case. / 2025-02-18

Jerald Lentini, Joshua Erlich, and National Security Counselors v. Department of Government Efficiency, Office of Management and Budget, Office of Personnel Management, Executive Office of the President, Elon Musk, Vivek Ramaswamy, Russell Vought, Scott Kupor, and Donald Trump (D.D.C.); Case No. 1:25-cv-00166 / Complain / Jan. 20, 2025 / Trump’s executive order renames the U.S. Digital Service as the U.S. DOGE Service (Department of Government Efficiency) and reestablishes the office under the Executive Office of the President. The advocacy organization National Security Counselors, Inc., sued, arguing that the order violates the Federal Advisory Committee Act, which bars the delegation of decision-making authority to private citizens without public access. The suit asks the court to enjoin the operation of DOGE unless and until it complies with the FACA’s requirements. Update 1: On Feb. 18, 2025, Judge Jia M. Cobb (D.D.C) granted defendants’ motion in Public Citizen, Inc. v. Trump to consolidate three cases. Parties in Lentini v. Department of Government Efficiency and American Public Health Association v. Office of Budget and Management must make all future filings in Public Citizen. / 2025-02-18

American Public Health Association et al v. Office of Management and Budget, Acting Director of the Office of Management and Budget, and the Department of Government Efficiency (D.D.C.); Case No. 1:25-cv-00167 / Complaint / Jan. 20, 2025 / Trump’s executive order renames the U.S. Digital Service as the U.S. DOGE Service (Department of Government Efficiency) and reestablishes the office under the Executive Office of the President. Several advocacy organizations sued, arguing that the order violates the Federal Advisory Committee Act, which bars the delegation of decision-making authority to private citizens without public access. The suit asks the court to enjoin the operation of DOGE unless and until it complies with the FACA’s requirements. Update 1: On Feb. 18, 2025, Judge Jia M. Cobb (D.D.C) granted defendants’ motion in Public Citizen, Inc. v. Trump to consolidate three cases. Parties in Lentini v. Department of Government Efficiency and American Public Health Association v. Office of Budget and Management must make all future filings in Public Citizen. / 2025-02-18

Center for Biological Diversity v. Office of Management and Budget (D.D.C.); Case No. 1:25-cv-00165 / Complaint / Jan. 20, 2025 / Trump’s executive order renames the U.S. Digital Service as the U.S. DOGE Service (Department of Government Efficiency) and reestablishes the office under the Executive Office of the President. The Center for Biological Diversity sued the Office of Management and Budget under the Freedom of Information Act, demanding records related to communications between OMB and DOGE’s leadership or those acting on its behalf. / 2025-01-31

J. Doe 1-26 v. Musk (D. Md); Case 8:25-cv-00462-TDC / Complaint / Feb. 13, 2025 / Trump’s executive order renames the U.S. Digital Service as the U.S. DOGE Service (Department of Government Efficiency) and reestablishes the office under the Executive Office of the President. Twenty-six current and former USAID employees or contractors filed a lawsuit claiming that Elon Musk’s constitutional authority to exercise significant government powers as the head of DOGE without Senate confirmation violates the Appointments Clause. The complaint alleges that Musk and the DOGE staff are exercising “significant authority” by controlling agency operations, making personnel decisions, and directing federal spending, all powers the plaintiffs claim can be wielded only by properly appointed officers of the United States. The lawsuit argues that Musk is functioning as a principal officer while evading the constitutional requirement for Senate confirmation. The plaintiffs also claim that Musk’s actions would be unconstitutional even if he were considered merely an inferior officer, as Congress has not authorized the President to directly appoint anyone to his position. The plaintiffs also argue that DOGE’s structure violates separation of powers by creating a “shadow chain of command” that undermines Congress’s power to create agencies and their authorities through statute, confirm appointed officers, and conduct oversight. The suit asks the court to declare Musk and DOGE to be acting unlawfully, enjoin Musk and DOGE from exercising government authority unless appointed by proper process, and set aside their actions taken to date. / 2025-02-13

New Mexico et al. v. Musk (D.D.C.); Case No. 1.25-cv-00429 / Complaint / Feb. 13, 2025 / Trump’s executive order renames the U.S. Digital Service as the U.S. DOGE Service (Department of Government Efficiency) and reestablishes the office under the Executive Office of the President. Fourteen states filed a lawsuit claiming that Elon Musk’s constitutional authority to exercise significant government powers as the head of DOGE without Senate confirmation violates the Appointments Clause. The complaint alleges that Musk and the DOGE staff are exercising “significant authority” by controlling agency operations, making personnel decisions, and directing federal spending, all powers they claim can only be wielded by properly appointed officers of the United States. The suit asks the court to declare Musk and DOGE to be acting unlawfully, impose a temporary restraining order barring Musk and DOGE from exercising government authority (including a specific list of official actions) while awaiting preliminary and permanent injunctions to the same effect, and set aside their actions taken to date. Update 1: On Feb. 17, the government submitted a declaration by Joshua Fisher, Director of the Office of Administration, stating that Musk is not the head of DOGE nor an employee of DOGE. Update 2: On Feb 18, Judge Tanya Chutkan denied the Plaintiffs’ request for a temporary restraining order but also indicated a potentially favorable view of the Plaintiffs’ argument on the merits (pp. 8-9). / 2025-02-18

Executive Action: Solicitation of information from career employees

Jane Does 1-2 v. Office of Personnel Management (D.D.C.); Case No. 1:25-cv-00234 / Complaint / Jan. 27, 2025 / The Office of Personnel Management announced it was testing a new system to email all civilian federal employees from a single email address, [email protected]. Individuals claiming to be OPM employees subsequently posted online that the emails were being stored on an unsecure server at OPM. Plaintiffs, employees of executive-branch agencies who received “test” emails from [email protected] requesting information, sued. The lawsuit alleges that the new procedure violates the E-Government Act of 2002 and asks the court to require the Office of Personnel Management to conduct a Privacy Impact Assessment before collecting any data from employees, as required under the law. Update 1 and 2: On Feb. 4, 2025, the plaintiffs requested a temporary restraining order. On Feb. 6, Judge Randolph D. Moss denied the TRO request and said an opinion will follow. Update 3: On Feb. 11, OPM moved to dismiss the Complaint on the grounds that Plaintiffs lack Article III standing and failed to state a claim upon which relief can be granted. Update 4: On Feb. 17, 2025, in a Memorandum Opinion and Order, Judge Moss denied plaintiffs’ most recent motion for a TRO on the ground that they had not shown they were likely to have standing or face irreparable injury without emergency relief. / 2025-02-17

Executive Action: Disclosure of personal and financial records to DOGE

Alliance for Retired Americans v. Scott Bessent et al (D.D.C.); Case No. 1:25-cv-00313 / Complaint / Feb. 3, 2025 / The complaint alleges that the Treasury Department granted DOGE-affiliated individuals access to sensitive personal and financial information maintained by the Treasury Department. The plaintiffs sued on behalf of members whose records may have been transmitted from the Treasury Department to DOGE employees, thus allegedly depriving the members of privacy. The lawsuit seeks an injunction and declaratory relief, as well as a temporary restraining order, for alleged violations of the Administrative Procedure Act and actions in excess of legal authority under the Privacy Act. Update 1: On Feb. 6, 2025, the parties in the suit mutually proposed an order that Judge Colleen Kollar-Kotelly adopted. It limits access to Treasury Department payment records and systems to two (Musk-affiliated) Special Government Employees in the Department (“read-only” access), other employees who need to access the record to perform their duties, or individuals who are already entitled to access the records under statute. / 2025-02-11

New York et al v. Donald J. Trump (S.D.N.Y.); Case No. 1:25-cv-01144-JAV / Complaint / Feb. 7, 2025 / The complaint alleges that the Treasury Department granted DOGE-affiliated individuals access to sensitive personal and financial information maintained by the Treasury Department. The plaintiffs, attorneys general of 19 states, sued on the ground that the policy of giving expanded access to political appointees and “special government employees” to Treasury’s Bureau of Fiscal Services violated the Administrative Procedure Act (APA). The plaintiffs claim the policy violates the APA by exceeding authority conferred by statute for the unauthorized purpose of impeding payments and accessing private information; for failure to conduct a privacy impact statement; for violation of the Privacy Act; and for violating ethics statutes on conflicts of interest. The plaintiffs also assert the policy usurps congressional authority and is ultra virus. The plaintiffs requested an emergency temporary restraining order, as well as preliminary and permanent injunction to bar access to political appointees, special government employees, and government employees detailed from other agencies as well as to any person who has not received a background check, security clearance, and information security training. Update 1: The case is before Judge Jeannette A. Vargas. On Feb. 8, 2025, after midnight, Judge Paul A. Engelmayer issued an emergency temporary restraining order until Judge Vargas holds a hearing on Feb. 14. Judge Engelmayer’s order prohibits access to the Treasury Department’s systems and also requires prohibited persons to immediately destroy any material already downloaded from the Treasury Department’s systems. / 2025-02-11

AFL-CIO v. Dep’t of Labor (D.D.C.); Case No. 1:25-cv-00339 / Complaint / Feb. 5, 2025 / On Feb. 5, 2025, DOGE sought access to internal information systems at the Department of Labor. Plaintiffs sued, arguing DOGE’s attempt to direct the agency and access internal information systems are an unlawful exercise of power beyond its authority; and unlawful under the Administrative Procedure Act as a prohibited personnel practice, violation of the Confidential Information Protection and Statistical Efficiency Act, violation of the Privacy Act, rulemaking without proper procedure, and arbitrary and capricious abuse of discretion. They seek temporary, preliminary, and permanent injunctive relief to prevent the Department of Labor from granting access to DOGE, from taking adverse action against employees who refuse to cooperate with DOGE, and from providing any person with non-public Department of Labor information regarding that person’s business interests or direct competitors. On the same day as the complaint was filed, judge John Bates issued an Order which stated, “Defendants represented to the Court that DOL [Department of Labor] will not allow DOGE access to any DOL data until after this Court rules on the TRO motion on Friday.” Update 1: On Feb. 7, Judge Bates denied the petition for a temporary restraining order on the ground that the plaintiffs lacked standing. Update 2: On Feb. 12, Plaintiffs submitted a renewed request for a TRO enjoining agency defendants from granting members of DOGE access to their systems of records, except as consistent with applicable federal law. Update 3: On Feb. 14, Judge Bates denied the renewed request for a TRO, but added, “On the Economy Act question, which is the most important for this denial of a TRO, the Court will benefit from further briefing and analysis on a motion for preliminary injunction."/ 2025-02-14

University of California Student Ass’n v. Carter et al; Case No. 1:25-cv-00354 / Complaint / Feb. 7, 2025 / On Feb. 3, 2025, reportedly 20 people affiliated with DOGE were working with the Department of Education, some of whom obtained access to sensitive internal information systems, including systems related to federal student aid. Plaintiffs sued, arguing DOGE’s access is unlawful under the Administrative Procedure Act in that it is contrary to law in violation of the Privacy Act and Internal Revenue Code; arbitrary and capricious; and in excess of statutory authority. They seek a declaratory judgment that DOGE officials are not authorized to access Department of Education records that contain personal information, and temporary, preliminary, or permanent injunctive relief preventing the Department of Education from continuing to provide access to DOGE, ensuring there is no further dissemination of data, and requiring recovery of unlawfully transferred information. Update 1: On Feb. 10, Plaintiff moved for a TRO, requesting Defendants be enjoined from disclosing information about individuals to individuals affiliated with DOGE, and required to retrieve and safeguard any such information that has already been obtained by and shared or transferred by DOGE or individuals associated with it. Update 2: On Feb. 17, Judge Randolph Moss denied the TRO on the grounds that mere “access” to data by government employees who are not formally authorized to view it, without more, does not create an irreparable injury. He wrote that courts find dissemination of information to be an irreparable injury where highly sensitive information will be made public or is given to someone with no obligation to keep it confidential. He also wrote that irreparable harm was not present because plaintiffs would have a private right of action and money damages for certain unauthorized disclosures. / 2025-02-17

National Treasury Employees Union v. Russell Vought (D.D.C.); Case No. 1:25-cv-00380 / Complaint / Feb. 9, 2025 / DOGE “special government employee” entered CFPB. On February 7, 2025, Chris Young, Nikhil Rajpul, and Gavin Kliger—none of whom is or has been a CFPB employee—were added to CFPB’s staff and email directories as “senior advisers.” Russell Vought, as Acting Director of CFPB, instructed CFPB staffers to grant this DOGE team access to all non-classified systems. Plaintiffs maintain that CFPB has a statutory obligation to protect its employee information under both the Privacy Act and CFPB regulations (5 C.F.R. Part 1070). Plaintiffs claim that CFPB violated that obligation by granting DOGE access to employee information without satisfying an exception in the Privacy Act. Plaintiffs seek a judgment declaring that CFPB violated the law by granting DOGE access to CFPB systems, that CFPB’s disclosure of employee information to DOGE is unlawful, and request an injunction to prevent CFPB from disclosing employee records to DOGE. / 2025-02-09

American Federation of Teachers et al v. Bessent et al (D. Md.); Case No. 8:25-cv-00430 / Complaint / Feb. 10, 2025 / The complaint alleges that the Treasury Department, Office of Personnel Management, and Department of Education have provided DOGE “special government employees” with access to information systems that contain records of private citizens' sensitive personal information (including Social Security numbers, financial records, and more). Plaintiffs sued, arguing DOGE access is unlawful under the Administrative Procedure Act as (1) not in accordance with the Privacy Act; (2) an arbitrary and capricious abuse of discretion; and (3) in excess of statutory authority. They seek a declaratory judgment that disclosing records to DOGE is unlawful and temporary, preliminary, or permanent injunctive relief to bar defendants from allowing DOGE to access sensitive information; ensure there is no further unauthorized disclosure; ensure records improperly disseminated are retrieved or destroyed; and ensure future disclosures will only occur in accordance with the Privacy Act. Update 1: On Feb. 12, Plaintiffs moved for a TRO enjoining Defendants from providing DOGE access to their records systems and ordering any records housed outside government information systems be retrieved or destroyed. / 2025-02-12

Electronic Privacy Information Center v. U.S. Office of Personnel Management (E.D.V.A.); Case No. 1:25-cv-00255 / Complaint / Feb. 10, 2025 / The complaint alleges that the Treasury Department granted DOGE-affiliated individuals access to sensitive personal and financial information maintained by the Treasury Department. The plaintiffs, Electronic Privacy Information Center (EPIC) and Doe 1 (a federal employee), sued, claiming that the transmission of these records violated the plaintiffs’ right to privacy and puts plaintiffs at risk of identity theft and financial crimes. Plaintiffs also argue that the transmission of these records was not compliant with the Federal Information Security Modernization Act (FISMA) and other privacy and security requirements. The lawsuit seeks injunctive and declaratory relief curing the release of information and halting further sharing by OPM and Treasury, alleging violations of the Administrative Procedure Act, Privacy Act, the Fifth Amendment, 26 U.S.C. § 6103, and actions beyond the scope of authority—primarily by the DOGE defendants. Doe 1 also seeks an award of statutory and punitive damages.
Update 1: On Feb. 12, Plaintiffs moved for a TRO to enjoin Treasury and OPM defendants from providing DOGE access to information systems, to enjoin DOGE defendants from accessing information systems, and to require status reports. / 2025-02-12

American Federation of Government Employees, et al. v. Office of Personnel Management et al (S.D.N.Y); Case No. 1:25-cv-01237 / Complaint / Feb. 11, 2025 / Plaintiffs allege the Office of Personnel Management (OPM) has given DOGE access to OPM information systems that contain sensitive personal and employment records of government employees (including Social Security numbers, demographic information, job performance information, health records, and more). Plaintiffs, current and former federal employees and unions representing them, sued, arguing OPM’s disclosure of this information to DOGE violates the Privacy Act and the Administrative Procedure Act; and that DOGE’s actions are ultra vires. They seek a declaratory judgment that the government’s actions are unlawful; temporary, preliminary, or permanent injunctive relief; and an order for the impoundment and destruction of copies of improperly disclosed personal information. / 2025-02-11

Nemeth-Greenleaf, et al. v. Office of Personnel Management, et al. (D.D.C.); Case No. 1:25-cv-00407 / Complaint / Feb. 11, 2025 / Plaintiffs are federal employees from various government departments who filed suit as a proposed class action. They allege that DOGE workers unlawfully accessed their private information from OPM and the Treasury Department. They argue that Defendants are engaged in an “unlawful ongoing, systemic, and continuous disclosure of personal, health, and financial information” to Elon Musk and DOGE in violation of the Privacy Act, 5 U.S.C. § 552a. They seek injunctive relief and damages. / 2025-02-11

Gribbon et al. v. Musk (D.D.C.); Case No. 1:25-cv-00407 / Complaint / Feb. 12, 2025 / Plaintiffs filed a proposed class action lawsuit. They are recipients of federal benefits, student loans, or have filed tax return information with the federal government. The complaint alleges that “Defendants [are] liable for their willful failure to ensure the security of Plaintiffs’ and Class members’” private information. Plaintiffs allege Defendant Elon Musk violated the Computer Fraud and Abuse Act and that Defendants OPM and Treasury violated the Privacy Act of 1974. Plaintiffs are suing for injunctive relief and monetary damages “resulting from Defendants’ unlawful ongoing, systematic, and continuous disclosure of personal and financial information.” / 2025-02-12

Center for Taxpayer Rights v. IRS (D.D.C); Case 1:25-cv-00457 / Complaint / Feb. 17, 2025 / Plaintiffs filed a lawsuit challenging the U.S. Department of Government Efficiency’s access to information from the Internal Revenue Service. Plaintiffs are organizations that represent low-income taxpayers, immigrants, domestic abuse survivors, small businesses, and public and private sector employees. They allege that by allowing DOGE to access private citizens’ tax information, the IRS has violated the Federal Information Security Act, the Privacy Act, and the Administrative Procedure Act. Plaintiffs also allege that DOGE has engaged in “ultra vires” actions by “directing and controlling the use and administration of Defendant IRS’ systems.” They seek declaratory and injunctive relief to stop allegedly “wrongful provision of access, inspection, and disclosure of return information and other personal information in the IRS system to members of DOGE.” They also seek other forms of relief such as ordering Defendants to disgorge all unlawfully obtained information. / 2025-02-17

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Part 2 of 2

https://www.justsecurity.org/107087/tra ... istration/

Case Name / Complaint / Date Filed / Case Summary / Last Update

Executive Action: “Fork Directive” deferred resignation offer to federal employees (OPM Directive)

American Federation of Gov’t Employees, AFL-CIO v. Ezell (D. Mass) / Case No. 1:25-cv-10276 / Complaint / Feb. 4, 2025 / On January 28, 2025, the Office of Personnel Management sent an email to career federal employees presenting what it described as a deferred resignation program, an offer to receive compensation until September 30, 2025 if they resign now (“Fork Directive” email). A deadline for the offer was set for February 6, 2025. Plaintiffs filed suit, arguing the directive violates the Administrative Procedure Act (APA) because it is “arbitrary and capricious” and not in accordance with the Antideficiency Act. They seek a declaratory judgment that the directive violates the APA and that the directive be vacated; they also seek an preliminary and permanent injunction of the February 6, 2025 deadline and an order that OPM submit for court approval a corrected communication for all employees who received the directive. Update 1: On Feb. 5, 2025, the plaintiffs requested a temporary restraining order and that within 24 hours of the TRO, the Government provide written notice of the TRO to all federal employees who have received the directive. Update 2: On Feb. 6, 2025, Judge George O’Toole issued an order to pause the program and extend the deadline until Monday when a hearing is scheduled. Update 3: On Feb. 10, 2025, Judge O’Toole ordered that the stay of the Feb. 6 deadline will remain in effect “pending the completion of briefing and oral argument on the issues.” Defendants notified the Court of their compliance with the order. Update 4: On Feb. 12, 2025, Judge O’Toole dissolved the TRO and denied further preliminary injunctive relief, finding that the plaintiffs lacked Article III standing and that the court lacked subject matter jurisdiction over the claims asserted. / 2025-02-12

Executive Action: Removal of independent agency leaders

Gwynne A. Wilcox v. Donald J. Trump et al (D.D.C.); Case No. 1:25-cv-00334 / Complaint / Feb. 5, 2025 / This case challenges President Trump’s removal of Gwynne A. Wilcox from her position on the National Labor Relations Board. The suit alleges the removal is in violation of the National Labor Relations Act (29 U.S.C. § 151 et seq.), which allows the president to remove Board members only in cases of neglect of duty or malfeasance and only after notice and hearing. The Plaintiff is seeking relief under the Declaratory Judgement Act, 28 U.S.C. §§ 2201 and 2202, to establish that she remains a rightful member of the Board and that the President lacks authority to remove her. She also seeks an injunction against the Chairman of the National Labor Relations Board, who oversaw the termination. Update 1: On Feb. 10, Plaintiff moved for expedited summary judgment. 2025-02-10

Cathy A. Harris v. Bessent et al (D.D.C.); Case No. 1:25-cv-00412 / Complaint / Feb. 11, 2025 / Plaintiff Cathy A. Harris challenges her removal from the Merit Systems Protection Board (MSPB), an independent federal agency. Plaintiff alleges that she received a one-sentence email from Trent Morse, Deputy Assistant to the President and Deputy Director of the White House Presidential Personnel Office, stating that Plaintiff had been terminated, effective immediately. Plaintiff, whose term on the MSPB was set to expire in 2028, alleges that she was unlawfully removed from her position without justification, despite the statutory requirement that MSPB members may only be removed for “inefficiency, neglect of duty, or malfeasance in office.” She alleges the action was ultra vires and violated the Administrative Procedure Act. She seeks a declaratory judgment and injunction as well as an emergency temporary restraining order to reinstate her position on the MSPB. Update 1: On Feb. 11, Plaintiff moved for a temporary restraining order declaring that her removal is unlawful and that she is a member of the MSPB, and enjoining obstructing her access to the office. Update 2: On Feb. 18, Judge Rudolph Contreras granted the temporary restraining order and ordered that Harris continue to serve as Chair of the MSPB until the court rules on a preliminary injunction. / 2025-02-18

Executive Action: Dismantling of USAID (Executive Order 14169)

American Foreign Service Association v. Trump (D.D.C.); Case No. 1:25-cv-00352 / Complaint / Feb. 6, 2025 / On Jan. 20, 2025, the Trump administration issued an executive order including a 90-day pause in “foreign development assistance,” and the Secretary of State then issued stop-work orders for United States Agency for International Development (USAID) foreign assistance grants. Later, Secretary of State Rubio was named as acting USAID Administrator and USAID contractors were laid off or furloughed. On Feb. 3, Elon Musk posted that he had spent the previous weekend “feeding USAID to the woodchipper,” and USAID headquarters in Washington, D.C. was closed. On Feb. 4, a message was posted on the USAID website that all directly-hired USAID staff would be placed on administrative leave as of 11:59pm EST on Friday, Feb. 7, 2025. Plaintiffs sued, arguing executive actions either to dissolve USAID or merge it with the State Department are unconstitutional violations of the separation of powers and the Take Care Clause; and unlawful under of the Administrative Procedure Act by exceeding statutory authority, violating the Further Consolidated Appropriations Act, and involving arbitrary and capricious abuses of discretion. Plaintiffs seek a declaratory judgment that the administration’s actions are unlawful and unconstitutional; a temporary restraining order and preliminary injunction directing the administration to halt efforts to shut down the agency, including by appointing an independent administrator, restoring grant funding, recalling furloughs, and halting efforts to place more employees on administrative leave, among other actions. Plaintiffs also seek court supervision, and a permanent injunction barring the administration from taking action to dissolve USAID absent congressional authorization. Update 1: On Feb. 7, 2025, Judge Carl J. Nichols issued a temporary restraining order preventing USAID from placing employees on administrative leave or evacuating them. He rejected the plaintiffs’ request for a restraining order on the funding freeze on the ground that the plaintiffs (USAID employees) could not show sufficient harm to themselves. Update 2: On Feb. 13, the court extended the TRO until Friday, Feb. 21, at 11:59 PM. Judge Nichols also amended the TRO’s statement to clarify that no USAID employees can be involuntarily evacuated from their host countries while the TRO remains in place. Update 3: On Feb. 14, the Government submitted a declaration by Pete Marocco, who performs the duties and functions of both Deputy Administrators of USAID; the declaration responds to the court’s questions about government actions to protect USAID employees abroad subject to administrative leave or in the event of employees staying voluntarily beyond the time of an evacuation. / 2025-02-18

AIDS Vaccine Advocacy Coalition v. United States Department of State(D.D.C.); Case No. 1:25-cv-00400 / Complaint / Feb. 10, 2025 / On Jan. 20, 2025, the Trump administration issued an executive order including a 90-day pause in “foreign development assistance,” and the Secretary of State then issued stop-work orders for United States Agency for International Development (USAID) foreign assistance grants. Plaintiffs, AIDS Vaccine Advocacy Coalition (AVAC) and Journalism Development Network (JDN), sued for declaratory and injunctive relief to stop the implementation of the Executive Order and the stop-work order. Plaintiffs are two nonprofit organizations that receive federal grants from USAID to support their work. Both AVAC’s and JDN’s funding was appropriated by Congress through the Further Consolidated Appropriations Act. Plaintiffs allege the Executive Order and stop-work order have been detrimental to their work, forcing them to lay off staff, slashing their budgets, and impacting their ability to carry out their missions. They allege the President acted ultra vires and usurped legislative authority. They also allege the President has violated the Take Care Clause. Plaintiffs’ claims against the State Department, USAID, Secretary of State Marc Rubio, Office of Management and Budget (OMB), and OMB Director Vought are that the stop-work orders are arbitrary and capricious in violation of the Administrative Procedure Act, the Anti-Deficiency Act (as an “unlawful reserve”), and the Impoundment Control Act. Plaintiffs seek a declaration from the court that the suspension of foreign aid is unlawful, an injunction stopping defendants from enforcing the Executive Order, and an order to immediately reinstate foreign assistance funding. Update 1: On Feb. 12, Plaintiffs moved for a TRO enjoining Defendants from enforcing the Executive Order and State Department policy, enjoining stop-work orders, and reinstating foreign assistance funding and administration. Update 2: On Feb. 13, the court granted a TRO in this case and Global Health Council v. Trump on narrower terms than originally requested. The order enjoins implementation on the blanket suspension of foreign aid funding, but does not enjoin enforcement or implementation of Executive Order 14169, individual personnel decisions, or termination of individual contracts. / 2025-02-13

Global Health Council v. Trump (D.D.C.); Case No. ​​1:25-cv-00402 / Complaint / Feb. 11, 2025 / A group of for-profit and nonprofit organizations that contract with USAID sued the Trump administration over its recent actions to defund USAID, lay off or furlough employees, and transfer the Agency to be under the State Department. Plaintiffs provide a detailed chronology of the actions, memoranda, and statements that the Administration has issued. In addition to imperiling future projects by freezing future funds, plaintiffs also allege that there is money unpaid for services already performed. ($3,376,832 for Democracy International, approximately $120 million for DAI, $103.6 million for Chemonics, and tens of millions for SBAIC’s members.) Plaintiffs allege that neither the President, nor the Secretary of State, nor the USAID Administrator have the authority to unilaterally withhold already-appropriated funds, citing the Constitution and statutory law prohibiting the unilateral withholding: the Impoundment Control Act and the Anti-Deficiency Act. Plaintiffs also claim violations of the Administrative Procedure Act; that the Executive’s actions were arbitrary and capricious, and contrary to statutory and constitutional law. Plaintiffs ask the court to vacate and set aside all of the defendants’ actions to implement Executive Order 14169 and seek injunctions to prevent defendants from continuing to implement EO 14169 and from “dismantling USAID.” Update 1: On Feb. 11, Plaintiffs moved for a TRO enjoining implementation of the Executive Order and State Department Memorandum. Update 2: On Feb. 13, the court granted a TRO in this case and AIDS Vaccine Advocacy Coalition v. United States Department of State on narrower terms than originally requested. The order enjoins implementation on the blanket suspension of foreign aid funding, but does not enjoin enforcement or implementation of Executive Order 14169, individual personnel decisions, or termination of individual contracts. / 2025-02-13

Executive Action: Dismantling of Consumer Financial Protection Bureau

National Treasury Employees Union v. Russell Vought (D.D.C.); Case No. 1:25-cv-00381 / Complaint (Feb. 6, 2025); Amended Complaint (Feb. 13, 2025) / Feb. 9, 2025 / The Consumer Financial Protection Bureau (CFPB) was created by Congress in the aftermath of the 2007–2008 great recession, to support and protect American consumers in the financial marketplace. On Feb. 7, 2025, Elon Musk posted “CFPB RIP” with a tombstone emoji on his X account. On Feb. 8, Russell Vought, the Acting Director of the CFPB, posted on X that he had notified the Federal Reserve that CFPB would not take “its next draw of unappropriated funding because it is not ‘reasonably necessary’ to carry out its duties.” In an email to CFPB employees, Vought directed the CFPB workforce to “cease all supervision and examination activity,” “cease all stakeholder engagement,” pause all pending investigations, not issue any public communications, and pause “enforcement actions.” He also notified the CFPB workforce that the Washington headquarters would be closed for the coming week. Plaintiffs allege that preventing CFPB from drawing down more funding and ordering a halt on enforcement activities constitutes an unlawful attempt to thwart Congress’s decision to create CFPB, which would be a violation of the separation of powers. They seek a declaratory judgment that Vought’s directives are unlawful and an injunction that prevents him from further attempts to dismantle CFPB’s supervision and enforcement work. Update 1: On Feb. 13, Plaintiffs moved for an administrative stay and TRO enjoining defendants from taking action to terminate CFPB staff, requiring that cease work directives be lifted, and enjoining further efforts to suspend operations at CFPB. Update 2: On Feb. 14, 2025, the court ordered that the defendants not delete, destroy, remove, or impair records; terminate any employee other than for cause or issue any notice of reduction-in-force to any CFPB employee; or disburse any funds, except to satisfy CFPB’s operating obligations, pending the resolution of plaintiffs’ motion for a TRO. The order also reclassified plaintiffs’ motion for a TRO as a motion for a preliminary injunction. / 025-02-14

Mayor and City Council of Baltimore et al. v. CFPB (D. Md.); Case No. 1:25-cv-00458-ABA / Complaint / Feb. 12, 2025 / On Feb.7, 2025, President Trump named OMB Director Russell Vought as the Acting Director of the Consumer Financial Protection Bureau (CFPB). On Feb. 8, Vought instructed CFPB employees to stop performing any work tasks and notified the Federal Reserve Board of Governors that he was requesting $0 for the third quarter of fiscal year 2025. Plaintiffs allege that these and other statements and actions by Vought, President Trump, and Elon Musk indicate that the CFPB will be deprived of operating funds and will be unable to perform its statutorily mandated functions. Plaintiffs allege that the Baltimore City Law Department has an active account with the CFPB and uses the CFPB customer complaint database and attends trainings put on by the CFPB. Plaintiffs also claim injury because their constituents will be deprived of the CFPB’s enforcement actions against predatory business practices. The second plaintiff, Economic Action Maryland Fund, is a direct services nonprofit that operates in Maryland. For part of its work, the organization relies on the CFPB complaint databases and other resources CFPB publishes under the Home Mortgage Disclosure Act. Plaintiffs claim that defendants’ actions violate the Administrative Procedure Act (including that Vought’s actions allegedly violate the statutory requirement for the Director to request transfer of an amount “reasonably necessary to carry out the authorities of the Bureau under Federal consumer financial law.” Plaintiffs seek a declaratory judgment saying as much, as well as an injunction that would prevent defendants from defunding CFPB. Update 1: On Feb. 12, Plaintiffs moved for a TRO enjoining defendants from defunding the CFPB. / 2025-02-12

Executive Action: Termination of the Special Counsel of the Office of Special Counsel

Dellinger v. Bessent (D.D.C.); Case No. 1:25-cv-00385-ABJ / Complaint / Feb. 10, 2025 / Plaintiff Hampton Dellinger has been the Special Counsel in the Office of the Special Counsel (OSC) since Mar. 6, 2024, when he was nominated by the President and confirmed by the Senate for a five-year term. The OSC is an independent federal agency founded by Congress as part of the Civil Service Reform Act of 1978. Its primary function is to protect federal employees and others who come forward as whistleblowers. Once confirmed, the Special Counsel serves a five-year term and “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” On Feb. 7, 2025, Dellinger received a two-sentence email from Sergio Gor, informing Dellinger that he was terminated, effective immediately, and stating no cause for such termination. Dellinger is suing under six different counts and seeks a declaratory judgment that President Trump’s decision to fire him was unlawful, that the Special Counsel may only be removed for cause; and seeks an order that Dellinger may not be removed and is entitled to backpay. As precedent for the constitutionality of the statutory for-cause protection, Dellinger cites to Humphrey’s Executor. Update 1: On Feb. 10, 2025, Judge Amy Berman Jackson issued an administrative stay on Dellinger’s termination through midnight on February 13, 2025, while the parties submit their briefs. Update 2: On Feb. 11, 2025, defendants appealed to the D.C. Circuit (case no. 25-5025), making an emergency motion to stay the district court’s administrative stay. Update 3: On Feb. 12, 2025, the D.C. Circuit dismissed the appeal for lack of jurisdiction. Update 4: On Feb. 12, 2025, Judge Amy Berman Jackson of the D.C. District Court granted a temporary restraining order, ordering that Dellinger shall continue to serve as Special Counsel and prohibiting defendants from denying him the resources and materials of his office. Update 5: On Feb. 13, Defendants filed an appeal to the D.C. Circuit (case no. 25-5028). In the District Court, their motion for a stay pending appeal was denied. Update 6: On Feb. 15, the D.C. Circuit rejected the Defendant’s appeal in a 2-1 opinion. Update 7: The Government petitioned the U.S. Supreme Court asking the Justices to freeze and vacate the district court order that had temporarily reinstated Dellinger. / 2025-02-15

Executive Action: Termination of Inspectors General

Storch et al. v. Hegseth et al. (D.D.C.); Case No. 1:25-cv-00415 / Complaint / Feb. 12, 2025 / On Jan. 24, 2025, the White House sent two-sentence emails to several Inspectors General (IGs) of federal departments and agencies informing them that they had been terminated from their positions. Plaintiffs, eight IGs, subsequently lost access to their government email accounts and computer systems, and were barred from entering their offices, among other actions. They filed suit, arguing their removal violates the Inspector General Act, which requires Congressional notification 30 days before an IG is removed and substantive, case-specific rationale for removal. The suit also argues defendants’ actions are ultra vires; and that plaintiffs are entitled to a writ of mandamus compelling defendants not to obstruct them in the exercise of their duties. They seek a declaratory judgment that the termination emails are legally ineffective and that plaintiffs remain lawful IGs in their agencies; and an injunction to prevent defendants from taking action to prevent plaintiffs from carrying out their duties as IGs. Update 1: On Feb. 14, the judge reportedly told lawyers representing the fired inspectors general to withdraw their motion for a temporary restraining order. / 2025-02-14

American Oversight v. Department of Government Efficiency (D.D.C.); Case No. 1:25-cv-00409 / Complaint / Feb. 11, 2025 / The complaint seeks declaratory and injunctive relief compelling DOGE and OMB to comply with FOIA requests pertaining to communications by Elon Musk and other staff concerning the dismissal of Inspectors General. American Oversight submitted a FOIA request to DOGE and OMB for records from Jan. 20, 2025 to Jan. 28, 2025 for all email, text, and messaging communications from Elon Musk, key staff at DOGE, and a number of external parties in the Senate, related to the removal of inspectors general from 17 federal agencies on Jan. 24, 2025. American Oversight submits that “Defendant U.S. DOGE Service is a department or agency subject to FOIA.” The Plaintiff alleges that DOGE and OMB have failed to notify them of a final determination regarding their FOIA request and asks the court for expedited review, attorneys fees, and other proper relief. / 2025-02-11

Executive Action: Large-scale reductions in force (Executive Order 14210)

National Treasury Employees Union v. Donald Trump (D.D.C.); Case No. 1:25-cv-00420 / Complaint / Feb. 12, 2025 / On Feb. 11, 2025, President Trump issued an executive order instructing agency heads to “undertake preparations to initiate large-scale reductions in force (RIFs).” Plaintiffs allege that the executive order, along with the Office of Personnel Management’s “deferred resignation program,” violates separation of powers principles by undermining Congress’s authority, and the Administrative Procedure Act by imposing RIFs contrary to regulations. They seek a declaration that mass firings and the deferred resignation program are unlawful, along with injunctions to prevent agency heads from implementing RIFs and OPM from extending, expanding, or replicating its deferred resignation program. / 2025-02-12

Government Grants, Loans and Assistance

Executive Action: “Temporary Pause” of grants, loans, and assistance programs

National Council of Nonprofits v. Office of Management and Budget (D.D.C.); Case No. 1:25-cv-00239-LLA / Complaint / Jan. 28, 2025 / The Acting Director of the Office of Management and Budget issued a memorandum purported to “require every federal agency to temporarily pause” any agency activities “that may be implicated by [President Trump’s] executive orders.” The plaintiff organizations, represented by Democracy Forward, are small businesses and nonprofits that receive federal funds. The suit sought a temporary restraining order to allow the Court “an opportunity to more fully consider the illegality of OMB’s actions,” alleging violations of the Administrative Procedure Act and the First Amendment. Update 1: On Jan. 28, 2025, Judge Loren AliKhan of the District Court for the District of Columbia issued a temporary restraining order against the OMB policy to allow arguments from the plaintiffs and the government. Update 2: On Jan. 29, 2025, the Government submitted a Notice that the OMB had rescinded the challenged memo. On the same day, the White House Press Secretary stated, “This is not a rescission of the federal funding freeze. It is simply a rescission of the OMB memo. Why? To end any confusion created by the court's injunction. The President's EO's on federal funding remain in full force and effect, and will be rigorously implemented.” Update 3: On Feb. 3, 2025, Judge Alikhan issued a temporary restraining order blocking the OMB from implementing its funding freeze, finding that the Plaintiffs are likely to succeed in their claim that the directive was arbitrary and capricious under the APA, and that the post-complaint rescission of the memorandum was “disingenuous” and still causing irreparable injury. The order directed the OMB to release the frozen funds, notify agencies of this TRO, and file a status report on compliance by Feb. 7, 2025. / 2025-02-04

New York et al v. Donald J. Trump et al (D.R.I.); Case No. 1:25-cv-00039 / Complaint / Jan. 28, 2025 / The Acting Director of the Office of Management and Budget issued a memorandum purported to “require every federal agency to temporarily pause” any agency activities “that may be implicated by [President Trump’s] executive orders.” The attorneys general of 22 states and the District of Columbia filed a lawsuit seeking preliminary and permanent injunctions against enforcement of the policy. The suit alleges that the policy violates the Administrative Procedure Act and the First Amendment. Update 1: On Jan. 28, responding to National Council of Nonprofits v. Office of Management and Budget, Judge Loren AliKhan of the District Court for the District of Columbia issued a temporary restraining order against the OMB policy to allow arguments from the plaintiffs and the government. Update 2: On Jan. 29, the Government submitted a Notice that the OMB had rescinded the challenged memo. On the same day, the White House Press Secretary stated, “This is not a rescission of the federal funding freeze. It is simply a rescission of the OMB memo. Why? To end any confusion created by the court's injunction. The President's EO's on federal funding remain in full force and effect, and will be rigorously implemented.” Update 3: On January 31, Judge McConnell issued a temporary restraining order against the OMB policy to allow the states to file their motion for a preliminary injunction. Judge McConnell’s order notes that the case is not moot because “the alleged rescission of the OMB Directive was in name only and may have been issued simply to defeat the jurisdiction of the courts.” The judge also wrote, "the States are likely to succeed on the merits of some, if not all, their claims." Update 4: On Feb. 10, Judge McConnell granted Plaintiffs’ motion to enforce the temporary restraining order. Judge McConnell noted the Plaintiff States presented evidence suggesting that Defendants “have continued to improperly freeze federal funds and refused to resume disbursement of appropriated federal funds” (citing three exhibits). Judge McConnell emphasized that this is a violation of the TRO and ordered Defendants to immediately restore frozen funding. Update 5: On Feb. 14, the First Circuit issued a voluntary dismissal of defendants’ motion to appeal the decision. / 2025-02-14

Shapiro et al. v. Department of Interior et al. (E.D. Pa.); Case No. 2:25-cv-00763 / Complaint / Feb. 13, 2025 / The Plaintiffs—Governor Josh Shapiro of Pennsylvania and four Pennsylvania governmental departments—allege that five Executive Orders and a subsequent OMB Directive froze funds already appropriated to various departments and projects in Pennsylvania. The complaint describes five different communications from EPA, HHS, and DOE after the Jan. 27 OMB Directive. None of these communications identified specific programs or funds that would be terminated, and none cited any legal authority. Much of this funding was appropriated under either the Infrastructure Investment and Jobs Act (IIJA) or the Inflation Reduction Act (IRA). The plaintiffs allege that, in total, the funding freeze jeopardizes at least $5.5 billion that had been committed to Pennsylvania, and over $1 billion of which had already been obligated. The plaintiffs note the ongoing litigation on the funding freeze, but they claim that, despite the court action – Jan. 31 TRO (D.R.I.), the Feb. 3 TRO (D.D.C.), the Feb. 7 motion to enforce the TRO (D.R.I.), and the Feb. 11 denial of the defendants’ motion for an administrative stay (1st Cir.) – as of Feb. 13, over $1.2 billion in grant funding is suspended and more than $900 million is marked as requiring further federal review before being approved. Plaintiffs claim that defendants’ actions violate the Administrative Procedure Act because they are contrary to law (contrary to the IRA and the IIJA) and are arbitrary and capricious. Plaintiffs also claim that defendants’ actions are unconstitutional, violating both the Take Care Clause and the Spending Clause. Plaintiffs seek a declaratory judgment that defendants’ actions are illegal and seek an injunction to prevent defendants from freezing or interfering with congressionally appropriated funds. / 2025-02-13

Government Grants, Loans and Assistance

Executive Action: Reduction of indirect cost reimbursement rate for research institutions (NIH Guidance)

Commonwealth of Massachusetts v. National Institutes of Health (D. Mass.); Case No. 1:25-cv-10338 / Complaint / Feb. 10, 2025 / The National Institutes of Health’s guidance imposes an across-the-board 15 percent reimbursement rate for “indirect costs” of medical research, which research institutions have historically negotiated on an individual basis. Plaintiffs, 22 state governments whose public research institutions will face hardship under the policy, allege that the policy violates the Administrative Procedure Act – including as an “arbitrary and capricious” change that failed to weigh reliance interests and that involves a reversal of fact-finding and as an action in excess the NIH’s statutory authority and in violation of Congress’s express directives in appropriating NIH funding. They seek declaratory judgment and a temporary restraining order and preliminary and permanent injunctions against implementing the policy in the plaintiff states.
On Feb. 10, 2025, Judge Angel Kelley granted the plaintiffs emergency motion for a temporary restraining order and imposed a regular reporting requirement on the part of the administration to confirm compliance. / 2025-02-10

Association of American Universities, et al. v. Department of Health and Human Services, et al. (D. Mass.); Case No. 1:25-cv-10346 / Complaint / Feb. 10, 2025 / National Institutes of Health (NIH) guidance imposes an across-the-board 15 percent reimbursement rate for “indirect costs” of medical research, which research institutions have historically negotiated on an individual basis. Plaintiffs, including associations representing universities and college and individual universities, allege the reduction in indirect cost rate to 15% will have immediate destructive effects on NIH-funded research. They sued, arguing the policy is unlawful under of the Administrative Procedure Act in that it (1) is contrary to law in that it departs from the Continuing Appropriations Act of 2024; (2) is contrary to law as it violates the Constitution’s Appropriation Clause; (3) is contrary to law as it departs from negotiated cost rates provided by 45 C.F.R. 75.414 and NIH Grants Policy Statement; (4) is an arbitrary and capricious abuse of discretion; (5) is contrary to law as it departs from HHS cost recovery regulations and policy guidance; (6) fails to observe required notice-and-comment procedures; (7) is contrary to law violates the Public Health Service Act; and (8) is in excess of statutory authority as a retroactive action. Plaintiffs seek a declaratory judgment that the policy is unlawful and preliminary and permanent injunctive relief. Later on Feb. 10, Plaintiffs filed a motion for a Temporary Restraining Order to prohibit Defendants from implementing the policy. / 2025-02-10

Association of American Medical Colleges v. National Institutes of Health (D. Mass.); Case No. 1:25-cv-10340 / Complaint / Feb. 10, 2025 / The National Institutes of Health’s guidance imposes an across-the-board 15 percent reimbursement rate for “indirect costs” of medical research, which research institutions have historically negotiated on an individual basis. Plaintiffs, including associations representing universities, hospitals, and health systems across the country, allege that the Rate Change Notice is invalid under the Administrative Procedure Act (“APA”) and seek to enjoin any actions taken to implement its directives. They argue that the Rate Change Notice is contrary to Health and Human Services’s (HHS) existing regulations and the 2024 Further Consolidated Appropriations Act. Moreover, they contend that it is arbitrary and capricious and failed to undergo required notice and comment rulemaking. Update 1: On February 10, 2025, Judge Angel Kelley issued a nationwide temporary restraining order against the NIH policy. / 2025-02-10

Civil Liberties and Rights

Executive Action: Housing of transgender inmates (Executive Order 14168)

Maria Moe v. Donald Trump, et al (D. Mass.); Case No. 1:25-cv-10195-GAO / Complaint / Jan. 26, 2025 / Trump’s Executive Order mandates that federal inmates be housed according to sex defined as “immutable biological classification,” regardless of gender identity, and directs the Bureau of Prisons not to expend federal funds on gender-affirming care. The plaintiff, Maria Moe, is a transgender female federal inmate who was placed in a Special Housing Unit to await transfer to a men’s facility. The suit seeks to enjoin the Executive Order on the basis that it violates the 5th Amendment by discriminating against transgender individuals on the basis of sex and gender identity; the 8th Amendment by subjecting Moe to risk to life and dignity; the Rehabilitation Act by failing to accommodate Moe’s gender dysphoria; and the Administrative Procedure Act by doing so in an arbitrary and capricious manner. Update 1: On Jan. 26, the judge reportedly issued a temporary restraining order requiring prison officials to maintain Moe's medical care and not to transfer her from the general population of the women's facility. Update 2: On Feb. 7, the judge issued an order transferring the case “to the United States District Court for the district in which [Moe] is currently confined” and terminating proceedings in the District of Massachusetts. The order does not identify the District, noting that “[t]he parties are familiar with the proper district based on the sealed documents previously filed in this matter.” / 2025-02-07

Doe v. McHenry (D.D.C.); Case No. 1:25-cv-00286-RCL / Complaint / Jan. 30, 2025 / Trump’s Executive Order mandates that federal inmates be housed according to sex defined as “immutable biological classification,” regardless of gender identity, and directs the Bureau of Prisons not to expend federal funds on gender-affirming care. The plaintiffs are three transgender women federal inmates, have been diagnosed with gender dysphoria, and are housed in female facilities. All have been informed that they will be transferred imminently to men’s facilities. The suit seeks a declaratory judgement that the executive order violates the plaintiffs’ rights under the 5th Amendment by discriminating on the basis of sex; the 8th Amendment by failure to protect through exposing plaintiffs to risk of serious harm and by cruel and unusual punishment by refusing necessary medical care; the Rehabilitation Act by failing to accommodate plaintiffs’ gender dysphoria and disability discrimination; and the Administrative Procedure Act by doing so in an arbitrary and capricious manner. The complaint seeks a preliminary and permanent injunction prohibiting the government from carrying out the executive order and requiring it to maintain the plaintiffs’ housing and medical treatment consistent with the status quo prior to the order. Update 1: On Feb. 4, 2025, Judge Royce Lamberth issued a temporary restraining order and enjoined the government blocking it from transferring the plaintiffs or from discontinuing the plaintiffs’ medical care. / 2025-02-04

Jones v. Trump (D.D.C); Case No. 1:25-cv-00401 / Complaint / Feb. 10, 2025 / Trump’s Executive Order mandates that federal inmates be housed according to sex defined as “immutable biological classification,” regardless of gender identity, and directs the Bureau of Prisons not to expend federal funds on gender-affirming care. Plaintiff is a transgender woman who had previously been transferred from a women’s to a men’s unit of a BOP facility. She has since been transferred back, but she “now fears at any moment she will again be transferred to a men’s prison pursuant to Executive Order 14166[sic].” Plaintiff alleges that she is unsafe in any men’s prison, and she is also at imminent risk of losing access to medical care to treat her gender dysphoria. She brings claims alleging violations of the Fifth Amendment, Eighth Amendment, Rehabilitation Act, and Administrative Procedure Act, and she seeks declaratory and injunctive relief to enjoin enforcement of the EO. / 2025-02-10

Executive Action: Ban on transgender individuals serving in the military (Executive Order 14183)

Nicolas Talbott, et al. v. Donald Trump, et al. (D.D.C.); Case No. 1:25-cv-00240 / Complaint / Jan. 28, 2025 / On January 27, 2025, the Trump administration issued an executive order banning transgender individuals from serving in the military. The order rescinds prior policy allowing transgender individuals to serve openly if they meet military standards. This order categorically prohibits both enlistment and continued service, deeming transgender individuals incompatible with military standards of “troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.” The plaintiffs are a group of active duty transgender service members and prospective or current enlistees. They argue that the categorical exclusion of this class of individuals from military service violates equal protection under the Fifth Amendment’s Due Process Clause because the policy is arbitrary and lacks a legitimate government interest. Update 1: On Feb. 3, Plaintiffs moved for a preliminary injunction against implementation of the Executive Order. Update 2: On Feb. 4, Plaintiffs moved for a TRO against implementation of the Executive Order. Update 3: On Feb, 5, the court ordered the Government to notify plaintiffs and the court of any Department of Defense policy or guidance implementing the Executive Order. If any such action is taken, the court will entertain Plaintiffs’ motion for a TRO. / 2025-02-05

Shilling v. Trump (W.D. Wash.); Case No. 2:25-cv-00241 / Complaint / Feb. 6, 2025 / On Jan. 27, 2025, the Trump administration issued an executive order banning transgender individuals from serving in the military. The order rescinds prior policy allowing transgender individuals to serve openly if they meet military standards. Plaintiffs, including active and prospective trans service members and an organization representing transgender military members, argue that the ban violates the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment. They seek declaratory judgment and a permanent injunction against enforcement of the executive order. / 2025-01-27

Executive Action: Ban on gender affirming care for individuals under the age of 19 ( Executive Order 14168; Executive Order 14187)

PFLAG, Inc. v. Trump (D. Md.); Case No. 1:25-cv-00337-BAH / Complaint / Feb. 4, 2025 / On January 20, 2025, the Trump administration issued an executive order prohibiting the federal government from expending federal funds to promote “gender ideology,” the idea that gender identity can differ from biological sex. On January 28, 2025, the Trump administration issued an executive order directing the federal government to bar medical institutes that receive research and education grants, including medical schools and hospitals, from administering gender affirming care to individuals under the age of 19. The order also ended coverage for gender affirming care in government-provided medical benefits, and ordered the Office of Management and Budget to instruct private health insurers that government employee plans were barred from covering such care. Finally, the order directs the Department of Justice to prioritize enforcement against female genital mutilation and develop legislation for a private right of action against medical professionals performing gender-affirming procedures, pursuant to an older statute against female genital mutilation. PFLAG and other plaintiffs filed suit, arguing the orders constitute unconstitutional presidential action in excess of Article II authority; discriminate on the basis of sex and disability in violation of statutes; violate the Fifth Amendment’s equal protection and substantive due process guarantees; and abridge the First Amendment’s free speech clause. Plaintiffs seek to have the orders declared unconstitutional and unlawful, and asking for temporary, preliminary, and permanent injunctive relief. Update 1: On Feb. 5, Plaintiffs moved for a TRO against implementation of the Executive Order. Update 2: On Feb 13, Judge Brendan Abell Hurson issued a two-week TRO, blocking enforcement of the Executive Order. / 2025-02-13

State of Washington et al. v. Donald J. Trump et al. (W.D. Wash); Case No. 2:25-cv-00244 / Complaint / Feb. 7, 2025 / On Jan. 28, 2025, the Trump administration issued an executive order directing the federal government to bar medical institutes that receive research and education grants, including medical schools and hospitals, from administering gender affirming care to individuals under the age of 19. The order also ended coverage for gender affirming care in government-provided medical benefits, and ordered the Office of Management and Budget to instruct private health insurers that government employee plans were barred from covering such care. Finally, the order directs the Department of Justice to prioritize enforcement against female genital mutilation and develop legislation for a private right of action against medical professionals performing gender-affirming procedures, pursuant to an older statute against female genital mutilation. Three states and three physicians filed suit, arguing that Executive Order 14187 violates Fifth Amendment equal protection by creating classifications and facially discriminating on the basis of transgender status and sex without sufficient government interest. Plaintiffs also allege that the order violates separation of powers by imposing conditions on the receipt of funding by the plaintiff states’ medical institutions, whereas Congress never authorized such a provision and explicitly barred medical institutions from denying individuals access to federally funded services based on gender dysphoria under 29 U.S.C. § 794. Finally, the plaintiffs allege that the order violates the Tenth Amendment by regulating and threatening criminal prosecution against certain consensual medical practices, thus unlawfully intruding on the states’ traditional police powers over local public health. Update 1: On Feb. 7, Plaintiffs moved for a TRO against implementation of the Executive Order. Update 2: On Feb. 14, Judge Lauren King issued a two-week TRO, blocking enforcement of Section 4 and Section 8(a) of Executive Order 14187 within Plaintiff States; on Feb. 16, the court issued an Opinion in the matter. / 2025-02-16

Executive Action: Passport policy targeting transgender people (Executive Order 14168)

Orr v. Trump (D. Mass); Case No. 1:25-cv-10313 / Complaint / Feb. 7, 2025 / On Jan. 20, 2025, the Trump administration issued an executive order stating that there are only two sexes, male and female, and that they are determined by immutable biological factors at conception. The order directed the Secretary of State to change policies related to documents like passports to align with the order’s definition of sex. The State Department subsequently stopped processing passport applications of individuals seeking to change their sex designation, or who selected an “X” designation. Plaintiffs, represented by the ACLU, sued, arguing the policy is unconstitutional and violates the 5th Amendment’s equal protection guarantee by discriminating on the basis of sex and transgender status; violates the Fifth Amendment by restricting the right of free movement and travel; violates the Fifth Amendment by forcing disclosure of private and intimate information; and violates the First Amendment by compelling the speech of transgender applicants through their passports. Plaintiffs also argue the policy is unlawful under the Administrative Procedure Act, as contrary to constitutional rights, powers, and immunities; as an arbitrary and capricious abuse of discretion; and by failing to observe procedures as required by law in instituting the policy without a comment period. They seek a declaratory judgment that the policy is unconstitutional and unlawful; preliminary and permanent injunctions stopping the policy from being implemented; and an order vacating agency actions already taken under the policy. / 2025-02-07

Executive Action: Ban on transgender athletes in women’s sports (Executive Order 14168; Executive Order 14201)

Tirrell v. Edelblut (D.N.H.); Case No. 1:24-cv-00251 / Complaint; Amended Complaint (underlying case filed Aug. 16, 2024) / Feb. 12, 2025 / On Jan. 20, 2025, the Trump administration issued Executive Order 14168, stating that there are only two sexes, male and female, and that they are determined by immutable biological factors at conception. On Feb. 5, the administration issued Executive Order 14201, directing the federal government to interpret and enforce Title IX under the sex definitions provided in Executive Order 14168, which would bar transgender women and girls from competing in women’s sports. Plaintiffs, two transgender teenage athletes in New Hampshire, previously filed suit against the state, arguing a state law banning transgender women from competing in school sports was unconstitutional under the 14th Amendment and a violation of Title IX. On Sept. 10, 2024, the court ordered a preliminary injunction against the state law. Following the Trump administration’s executive order, Plaintiffs filed a motion for leave to file a second amended complaint, seeking to add federal defendants to the suit. The amended complaint argues the executive order (1) unconstitutionally violates Fifth Amendment equal protection rights; (2) is an ultra vires action in conflict with Title IX; and (3) is an ultra vires action to withhold Congressionally appropriated funds. They seek a declaratory judgment that the executive order is unconstitutional and unlawful; and a permanent injunction enjoining its enforcement. / 2025-02-12

Executive Action: Immigration enforcement against places of worship and schools (Policy Memo)

Philadelphia Yearly Meeting of the Religious Society of Friends, et al. v. U.S. Department of Homeland Security (D. Md.); Case No. 8:25-cv-00243-TDC / Complaint (Jan. 27, 2025)
Amended Complaint (Feb. 5, 2025) / Jan. 27, 2025 / On January 20, 2025 the Department of Homeland Security (DHS) issued a directive rescinding the Biden Administration’s guidelines for ICE and CBP enforcement actions that restricted agents from conducting immigration enforcement in or near “sensitive” areas, such as places of worship, schools, and hospitals. Under the new policy guidance, immigration enforcement in such areas would only be subject to the enforcement officers’ “common sense.” The plaintiffs, a coalition of Quaker congregations, seek to enjoin enforcement of this policy change and request a court declaration that any government policy permitting immigration enforcement based solely on subjective common sense is an unconstitutional violation of the freedom of expressive association under the First Amendment. Their complaint also claims that the new policy violates the Religious Freedom and Restoration Act and the Administrative Procedure Act. Update 1: On Feb. 4, Plaintiffs moved for a TRO and preliminary injunction against implementation of the Executive Order. / 2025-02-05

Mennonite Church USA et al. v. United States Department of Homeland Security et al (D.D.C.); Case No. 1:25-cv-00403 / Complaint / Feb. 11, 2025 / On January 20, 2025 the Department of Homeland Security (DHS) issued a directive rescinding the Biden Administration’s guidelines for ICE and CBP enforcement actions that restricted agents from conducting immigration enforcement in or near “sensitive” areas, such as places of worship, schools, and hospitals. Over two dozen Christian and Jewish religious denominations and associations sued for a preliminary and permanent injunction prohibiting DHS from effectuating the directive. The complaint asserts that DHS’s authorization of immigration enforcement action at plaintiffs’ places of worship in the absence of exigent circumstances or a judicial warrant violates their rights under the Religious Freedom Restoration Act (RFRA) and the First Amendment. In addition, the complaint alleges that DHS’s manner of recission of the “sensitive locations policy” violates legal constraints on agency action. / 2025-02-11

Denver Public Schools v. Noem (D. Colo); Case No. 1:25-cv-00474 / Complaint / Feb. 12, 2025 / On January 20, 2025 the Department of Homeland Security (DHS) issued a directive rescinding the Biden Administration’s guidelines for ICE and CBP enforcement actions that restricted agents from conducting immigration enforcement in or near “sensitive” areas, such as places of worship, schools, and hospitals. Denver Public Schools filed a suit challenging the recission of the policy, alleging that DHS implemented this major policy change through internal memoranda that have never been publicly released, with the shift announced only through a press release. According to the complaint, the new policy allegedly replaces three decades of formal protections with vague guidance that agents should use "common sense" in deciding whether to conduct enforcement actions at sensitive locations. The Plaintiff argues that this reversal of a decades-old policy constitutes final agency action subject to review under the Administrative Procedure Act, and that DHS failed to meet the basic requirements for changing established policy — including the need to provide reasoned explanation for the change, consider reliance interests, and examine alternatives. The Plaintiff further alleges that DHS’s failure to publish the policy memoranda violates FOIA disclosure requirements. The suit asks the court to enjoin and vacate the new policy and require the 2025 policy to be made public. Update 1: On Feb. 12, Plaintiffs moved for a TRO and preliminary injunction against enforcement of the Executive Order. / 2025-02-12

Diversity, Equity, Inclusion, and Accessibility

Executive Action: Ban on DEIA initiatives in the executive branch and by contractors (Executive Order 14151; Executive Order 14173)

Nat’l Association of Diversity Officers in Higher Ed. v. Trump (D. Md.); Case No. 1:25-cv-00333-ABA / Complaint / Feb. 3, 2025 / On January 20, 2025, the Trump administration issued an executive order directing the OMB Director, assisted by the Attorney General and OPM, to terminate DEI programs, offices and positions, and “equity-related” grants and contracts. On January 21, 2025, the administration issued another executive order revoking an Equal Employment Opportunity executive order in place since 1965; requiring federal grant recipients and contractors to certify that they do not operate DEI programs that violate anti-discrimination laws; and requiring each executive agency to identify up to nine corporations or nonprofit entities or associations to target with civil investigations to deter DEI programs. Plaintiffs argue the first order is an unconstitutional violation of the Spending Clause and the 5th Amendment’s due process guarantee for vagueness. They argue the second order unconstitutionally violates 5th Amendment due process for vagueness; the 1st Amendment’s free speech clause; and the separation of powers. They seek declaratory judgments that both orders are unlawful and unconstitutional, and preliminary and permanent injunctions against both. / 2025-02-04

Doe 1 v. Office of the Director of National Intelligence (E.D.Va.); Case No. 1:25-cv-00300-AJT-LRV / Complaint / Feb. 17, 2025 / On Jan. 20, 2025, the Trump administration issued an executive order directing the OMB Director, assisted by the Attorney General and OPM, to terminate DEI programs, offices and positions, and “equity-related” grants and contracts. Plaintiffs are U.S. intelligence officers who were assigned to diversity, equity, inclusion and accessibility (DEIA) initiatives at ODNI and CIA. The complaint alleges that Defendants placed Plaintiffs on administrative leave “apparently only because of [Plaintiffs’] temporary assignments to personnel functions involving DEIA.” Plaintiffs bring several causes of action. First, they claim that Defendants violated the Administrative Leave Act by placing Plaintiffs on leave for more than ten work days, despite the fact that no worker misconduct had been alleged. Second, Plaintiffs maintain that Defendants violated the Administrative Procedure Act, because Plaintiffs’ “imminent termination” is “arbitrary, capricious, an abuse of discretion, not in accordance with [Intelligence Community] regulations, and unsupported by any evidentiary record whatsoever.” Third, Plaintiffs allege that Defendants violated the First and Fifth Amendments by firing Plaintiffs on the basis of “their assumed beliefs about a domestic political issue [DEIA]” and causing them to lose “their property interest in their employment without due process of law.” The plaintiffs seek injunctive relief. The plaintiffs also submitted a request for a temporary restraining order. Update 1: On Feb 18, the court issued an administrative stay blocking the termination of plaintiffs’ employment or placing plaintiffs on leave without pay. / 2025-02-18

Removal of Information from Government Websites

Executive Action: Removal of information from HHS websites under Executive Order on “Gender Ideology Extremism” (Executive Order 14168; Policy Memo)

Doctors for America v. Office of Personnel Management et al (D.D.C.); Case No. 1:25-cv-00322 / Complaint / Feb. 4, 2025 / On January 31, 2025, agencies within the Department of Health and Human Services, including the Centers for Disease Control and Prevention (CDC) and Food and Drug Administration (FDA) removed health-related data and other information from publicly-accessible websites in response to an Office of Personnel Management memorandum enforcing Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Plaintiffs, suing on behalf of doctors and scientists who rely on the data, allege that the removal constitutes an arbitrary and capricious act, thus violating the Administrative Procedure Act, and fails to comply with notice requirements under the Paperwork Reduction Act. They seek declaratory judgments that the OPM memorandum is unlawful and that the relevant agencies have violated the law; injunctions on further removal of information from agency websites; notice of any further modifications to webpages; and restoration of previously publicly-available datasets. Update 1: On Feb. 11, 2025, Judge John D. Bates issued a temporary restraining order and memorandum opinion. The TRO includes a requirement that Defendants restore webpages and datasets identified by the Plaintiffs. / 2025-02-11

Actions Against FBI/DOJ Employees

Executive Action: Department of Justice review of FBI personnel involved in January 6 investigations (Executive Order 14147)

John and Jane Does 1-9 v. Department of Justice (D.D.C.); Case No. 1:25-cv-00325 / Complaint / Feb. 4, 2025 / After President Donald Trump’s second inauguration, the Department of Justice terminated employees who were involved in investigations into the January 6, 2021 attack on the U.S. Capitol and President Donald Trump’s alleged mishandling of classified documents. On February 2, FBI leadership, pursuant to a directive from the acting deputy attorney general, instructed agents to fill out a survey identifying their specific roles in those investigations. Plaintiffs in this class action suit, employees or agents of the FBI who participated in the investigations and expect to be terminated for their roles, allege that such termination would violate protections against political retaliation under the Civil Service Reform Act, First Amendment protections for political expression, and Fifth Amendment Due Process protections. Plaintiffs also allege that publication or dissemination of the surveys regarding their roles in the investigations would violate the Privacy Act and place them at risk of serious harm. They seek an injunction against “the aggregation, storage, reporting, publication or dissemination” of information identifying FBI personnel involved in the relevant investigations. The plaintiffs also requested a temporary restraining order to stop the defendants from “aggregating and disseminating information” to any person not subject to the Privacy Act, including the President, Vice President, and members of their staff. Update 1: On Feb. 6, 2025, Judge Jia Cobb ordered consolidation of this case and Federal Bureau of Investigation Agents Association v. Department of Justice. Update 2: On Feb. 7, 2025, Judge Jia Cobb issued a temporary restraining order, which had been mutually proposed by the parties. The TRO prohibits the government from publicly releasing any list before the court rules on whether to grant a preliminary injunction. The briefings for a preliminary injunction will be filed by March 21, 2025. / 2025-02-07

Federal Bureau of Investigation Agents Association; John Does 1-4; Jane Does 1-3 v. Department of Justice (D.D.C.); Case No. 1:25-cv-00328 / Complaint / Feb. 4, 2025 / On January 31, 2025, Acting Deputy Attorney General Emil Bove issued a memo ordering the resignation or firing of FBI agents who had participated in the investigations into the January 6, 2021, insurrection at the U.S. Capitol. On February 2, 2025, FBI leadership, pursuant to a directive from Bove, instructed agents to fill out a survey identifying their specific roles in those investigations. Plaintiffs, the union that represents FBI agents and several agents who worked on investigations related to January 6, allege that the Department of Justice intends to use this survey for public disseminate identifying information about the FBI personnel and/or for firing and demoting agents who participated in the investigations, violating the Privacy Act, the Administrative Procedure Act, First Amendment protections, and Fifth Amendment Due Process protections. They seek injunctive relief against “any further collection or dissemination” of personally identifiable information and a writ of mandamus as necessary to compel rescission of any unlawful termination orders. The plaintiffs also requested a temporary restraining order to prevent the public disclosure of the identities of the FBI agents. Update 1: On Feb. 6, 2025, Judge Jia Cobb ordered consolidation of this case and John and Jane Does 1-9 v. Department of Justice. Update 2: On Feb. 7, 2025, Judge Jia Cobb issued a temporary restraining order, which had been mutually proposed by the parties. The TRO prohibits the government from publicly releasing any list before the court rules on whether to grant a preliminary injunction. The briefings for a preliminary injunction will be filed by March 21, 2025. / 2025-02-07

[admin]

Cypherpunk
by Wikipedia
Accessed: 2/19/25
https://en.wikipedia.org/wiki/Cypherpunk

A cypherpunk is one who advocates the widespread use of strong cryptography and privacy-enhancing technologies as a means of effecting social and political change. The cypherpunk movement originated in the late 1980s and gained traction with the establishment of the "Cypherpunks" electronic mailing list in 1992, where informal groups of activists, technologists, and cryptographers discussed strategies to enhance individual privacy and resist state or corporate surveillance. Deeply libertarian in philosophy, the movement is rooted in principles of decentralization, individual autonomy, and freedom from centralized authority.[1][2] Its influence on society extends to the development of technologies that have reshaped global finance, communication, and privacy practices, such as the creation of Bitcoin and other cryptocurrencies, which embody cypherpunk ideals of decentralized and censorship-resistant money. The movement has also contributed to the mainstreaming of encryption in everyday technologies, such as secure messaging apps and privacy-focused web browsers. The cypherpunk ethos has had a lasting impact on debates around digital rights, surveillance, and personal freedoms in the 21st century. The movement has been active since at least 1990 and continues to inspire initiatives aimed at fostering a more private and secure digital world.[3][4]

History

Before the mailing list

Until about the 1970s, cryptography was mainly practiced in secret by military or spy agencies. However, that changed when two publications brought it into public awareness: the first publicly available work on public-key cryptography, by Whitfield Diffie and Martin Hellman,[5] and the US government publication of the Data Encryption Standard (DES), a block cipher which became very widely used.

The technical roots of Cypherpunk ideas have been traced back to work by cryptographer David Chaum on topics such as anonymous digital cash and pseudonymous reputation systems, described in his paper "Security without Identification: Transaction Systems to Make Big Brother Obsolete" (1985).[6]

In the late 1980s, these ideas coalesced into something like a movement.[6]

Etymology and the Cypherpunks mailing list

In late 1992, Eric Hughes, Timothy C. May, and John Gilmore founded a small group that met monthly at Gilmore's company Cygnus Solutions in the San Francisco Bay Area and was humorously termed cypherpunks by Jude Milhon at one of the first meetings—derived from cipher and cyberpunk.[7] In November 2006, the word was added to the Oxford English Dictionary.[8]

The Cypherpunks mailing list was started in 1992, and by 1994 had 700 subscribers.[7] At its peak, it was a very active forum with technical discussions ranging over mathematics, cryptography, computer science, political and philosophical discussion, personal arguments and attacks, etc., with some spam thrown in. An email from John Gilmore reports an average of 30 messages a day from December 1, 1996, to March 1, 1999, and suggests that the number was probably higher earlier.[9] The number of subscribers is estimated to have reached 2,000 in the year 1997.[7]

In early 1997, Jim Choate and Igor Chudov set up the Cypherpunks Distributed Remailer,[10] a network of independent mailing list nodes intended to eliminate the single point of failure inherent in a centralized list architecture. At its peak, the Cypherpunks Distributed Remailer included at least seven nodes.[11] By mid-2005, al-qaeda.net ran the only remaining node.[12] In mid-2013, following a brief outage, the al-qaeda.net node's list software was changed from Majordomo to GNU Mailman,[13] and subsequently the node was renamed to cpunks.org.[14] The CDR architecture is now defunct, though the list administrator stated in 2013 that he was exploring a way to integrate this functionality with the new mailing list software.[13]

For a time, the cypherpunks mailing list was a popular tool with mailbombers,[15] who would subscribe a victim to the mailing list in order to cause a deluge of messages to be sent to him or her. (This was usually done as a prank, in contrast to the style of terrorist referred to as a mailbomber.) This precipitated the mailing list sysop(s) to institute a reply-to-subscribe system. Approximately two hundred messages a day was typical for the mailing list, divided between personal arguments and attacks, political discussion, technical discussion, and early spam.[16][17]

The cypherpunks mailing list had extensive discussions of the public policy issues related to cryptography and on the politics and philosophy of concepts such as anonymity, pseudonyms, reputation, and privacy. These discussions continue both on the remaining node and elsewhere as the list has become increasingly moribund.[citation needed]

Events such as the GURPS Cyberpunk raid[18] lent weight to the idea that private individuals needed to take steps to protect their privacy. In its heyday, the list discussed public policy issues related to cryptography, as well as more practical nuts-and-bolts mathematical, computational, technological, and cryptographic matters. The list had a range of viewpoints and there was probably no completely unanimous agreement on anything. The general attitude, though, definitely put personal privacy and personal liberty above all other considerations.[19]

Early discussion of online privacy

The list was discussing questions about privacy, government monitoring, corporate control of information, and related issues in the early 1990s that did not become major topics for broader discussion until at least ten years later. Some list participants were highly radical on these issues.[citation needed]

Those wishing to understand the context of the list might refer to the history of cryptography; in the early 1990s, the US government considered cryptography software a munition for export purposes. (PGP source code was published as a paper book to bypass these regulations and demonstrate their futility.) In 1992, a deal between NSA and SPA allowed export of cryptography based on 40-bit RC2 and RC4 which was considered relatively weak (and especially after SSL was created, there were many contests to break it). The US government had also tried to subvert cryptography through schemes such as Skipjack and key escrow. It was also not widely known that all communications were logged by government agencies (which would later be revealed during the NSA and AT&T scandals) though this was taken as an obvious axiom by list members[citation needed].[20]

The original cypherpunk mailing list, and the first list spin-off, coderpunks, were originally hosted on John Gilmore's toad.com, but after a falling out with the sysop over moderation, the list was migrated to several cross-linked mail-servers in what was called the "distributed mailing list."[21][22] The coderpunks list, open by invitation only, existed for a time. Coderpunks took up more technical matters and had less discussion of public policy implications. There are several lists today that can trace their lineage directly to the original Cypherpunks list: the cryptography list ([email protected]), the financial cryptography list ([email protected]), and a small group of closed (invitation-only) lists as well.[citation needed]

Toad.com continued to run with the existing subscriber list, those that didn't unsubscribe, and was mirrored on the new distributed mailing list, but messages from the distributed list didn't appear on toad.com.[23] As the list faded in popularity, so too did it fade in the number of cross-linked subscription nodes.[citation needed]

To some extent, the cryptography list[24] acts as a successor to cypherpunks; it has many of the people and continues some of the same discussions. However, it is a moderated list, considerably less zany and somewhat more technical. A number of current systems in use trace to the mailing list, including Pretty Good Privacy, /dev/random in the Linux kernel (the actual code has been completely reimplemented several times since then) and today's anonymous remailers.[citation needed]

Main principles

The basic ideas can be found in A Cypherpunk's Manifesto (Eric Hughes, 1993): "Privacy is necessary for an open society in the electronic age. ... We cannot expect governments, corporations, or other large, faceless organizations to grant us privacy ... We must defend our own privacy if we expect to have any. ... Cypherpunks write code. We know that someone has to write software to defend privacy, and ... we're going to write it."[25]

Some are or were senior people at major hi-tech companies and others are well-known researchers (see list with affiliations below).

The first mass media discussion of cypherpunks was in a 1993 Wired article by Steven Levy titled Crypto Rebels:

The people in this room hope for a world where an individual's informational footprints—everything from an opinion on abortion to the medical record of an actual abortion—can be traced only if the individual involved chooses to reveal them; a world where coherent messages shoot around the globe by network and microwave, but intruders and feds trying to pluck them out of the vapor find only gibberish; a world where the tools of prying are transformed into the instruments of privacy. There is only one way this vision will materialize, and that is by widespread use of cryptography. Is this technologically possible? Definitely. The obstacles are political—some of the most powerful forces in government are devoted to the control of these tools. In short, there is a war going on between those who would liberate crypto and those who would suppress it. The seemingly innocuous bunch strewn around this conference room represents the vanguard of the pro-crypto forces. Though the battleground seems remote, the stakes are not: The outcome of this struggle may determine the amount of freedom our society will grant us in the 21st century. To the Cypherpunks, freedom is an issue worth some risk.[26]

The three masked men on the cover of that edition of Wired were prominent cypherpunks Tim May, Eric Hughes and John Gilmore.

Later, Levy wrote a book, Crypto: How the Code Rebels Beat the Government – Saving Privacy in the Digital Age,[27] covering the crypto wars of the 1990s in detail. "Code Rebels" in the title is almost synonymous with cypherpunks.

The term cypherpunk is mildly ambiguous. In most contexts it means anyone advocating cryptography as a tool for social change, social impact and expression. However, it can also be used to mean a participant in the Cypherpunks electronic mailing list described below. The two meanings obviously overlap, but they are by no means synonymous.

Documents exemplifying cypherpunk ideas include Timothy C. May's The Crypto Anarchist Manifesto (1992)[28] and The Cyphernomicon (1994),[29] A Cypherpunk's Manifesto.[25]

Privacy of communications

A very basic cypherpunk issue is privacy in communications and data retention. John Gilmore said he wanted "a guarantee -- with physics and mathematics, not with laws -- that we can give ourselves real privacy of personal communications."[30]

Such guarantees require strong cryptography, so cypherpunks are fundamentally opposed to government policies attempting to control the usage or export of cryptography, which remained an issue throughout the late 1990s. The Cypherpunk Manifesto stated "Cypherpunks deplore regulations on cryptography, for encryption is fundamentally a private act."[25]

This was a central issue for many cypherpunks. Most were passionately opposed to various government attempts to limit cryptography—export laws, promotion of limited key length ciphers, and especially escrowed encryption.

Anonymity and pseudonyms

The questions of anonymity, pseudonymity and reputation were also extensively discussed.

Arguably, the possibility of anonymous speech, and publication is vital for an open society and genuine freedom of speech—this is the position of most cypherpunks.[31]

Censorship and monitoring

In general, cypherpunks opposed the censorship and monitoring from government and police.

In particular, the US government's Clipper chip scheme for escrowed encryption of telephone conversations (encryption supposedly secure against most attackers, but breakable by government) was seen as anathema by many on the list. This was an issue that provoked strong opposition and brought many new recruits to the cypherpunk ranks. List participant Matt Blaze found a serious flaw[32] in the scheme, helping to hasten its demise.

Steven Schear first suggested the warrant canary in 2002 to thwart the secrecy provisions of court orders and national security letters.[33] As of 2013, warrant canaries are gaining commercial acceptance.[34]

Hiding the act of hiding

An important set of discussions concerns the use of cryptography in the presence of oppressive authorities. As a result, Cypherpunks have discussed and improved steganographic methods that hide the use of crypto itself, or that allow interrogators to believe that they have forcibly extracted hidden information from a subject. For instance, Rubberhose was a tool that partitioned and intermixed secret data on a drive with fake secret data, each of which accessed via a different password. Interrogators, having extracted a password, are led to believe that they have indeed unlocked the desired secrets, whereas in reality the actual data is still hidden. In other words, even its presence is hidden. Likewise, cypherpunks have also discussed under what conditions encryption may be used without being noticed by network monitoring systems installed by oppressive regimes.

Activities

As the Manifesto says, "Cypherpunks write code";[25] the notion that good ideas need to be implemented, not just discussed, is very much part of the culture of the mailing list. John Gilmore, whose site hosted the original cypherpunks mailing list, wrote: "We are literally in a race between our ability to build and deploy technology, and their ability to build and deploy laws and treaties. Neither side is likely to back down or wise up until it has definitively lost the race."[35]

Software projects

Anonymous remailers such as the Mixmaster Remailer were almost entirely a cypherpunk development.[36] Other cypherpunk-related projects include PGP for email privacy,[37] FreeS/WAN for opportunistic encryption of the whole net, Off-the-record messaging for privacy in Internet chat, and the Tor project for anonymous web surfing.

Hardware

In 1998, the Electronic Frontier Foundation, with assistance from the mailing list, built a $200,000 machine that could brute-force a Data Encryption Standard key in a few days.[38] The project demonstrated that DES was, without question, insecure and obsolete, in sharp contrast to the US government's recommendation of the algorithm.

Expert panels

Cypherpunks also participated, along with other experts, in several reports on cryptographic matters.

One such paper was "Minimal Key Lengths for Symmetric Ciphers to Provide Adequate Commercial Security".[39] It suggested 75 bits was the minimum key size to allow an existing cipher to be considered secure and kept in service. At the time, the Data Encryption Standard with 56-bit keys was still a US government standard, mandatory for some applications.

Other papers were critical analysis of government schemes. "The Risks of Key Recovery, Key Escrow, and Trusted Third-Party Encryption",[40] evaluated escrowed encryption proposals. Comments on the Carnivore System Technical Review.[41] looked at an FBI scheme for monitoring email.

Cypherpunks provided significant input to the 1996 National Research Council report on encryption policy, Cryptography's Role In Securing the Information Society (CRISIS).[42] This report, commissioned by the U.S. Congress in 1993, was developed via extensive hearings across the nation from all interested stakeholders, by a committee of talented people. It recommended a gradual relaxation of the existing U.S. government restrictions on encryption. Like many such study reports, its conclusions were largely ignored by policy-makers. Later events such as the final rulings in the cypherpunks lawsuits forced a more complete relaxation of the unconstitutional controls on encryption software.

Lawsuits

Cypherpunks have filed a number of lawsuits, mostly suits against the US government alleging that some government action is unconstitutional.

Phil Karn sued the State Department in 1994 over cryptography export controls[43] after they ruled that, while the book Applied Cryptography[44] could legally be exported, a floppy disk containing a verbatim copy of code printed in the book was legally a munition and required an export permit, which they refused to grant. Karn also appeared before both House and Senate committees looking at cryptography issues.

Daniel J. Bernstein, supported by the EFF, also sued over the export restrictions, arguing that preventing publication of cryptographic source code is an unconstitutional restriction on freedom of speech. He won, effectively overturning the export law. See Bernstein v. United States for details.

Peter Junger also sued on similar grounds, and won.[citation needed][45]

Civil disobedience

Cypherpunks encouraged civil disobedience, in particular, US law on the export of cryptography.[citation needed] Until 1997, cryptographic code was legally a munition and fell under ITAR, and the key length restrictions in the EAR was not removed until 2000.[46]

In 1995 Adam Back wrote a version of the RSA algorithm for public-key cryptography in three lines of Perl[47][48] and suggested people use it as an email signature file:

# !/bin/perl -sp0777i<X+d*lMLa^*lN%0]dsXx++lMlN/dsM0<j]dsj
$/=unpack('H*',$_);$_=`echo 16dio\U$k"SK$/SM$n\EsN0p[lN*1
lK[d2%Sa2/d0$^Ixp"|dc`;s/\W//g;$_=pack('H*',/((..)*)$/)

Vince Cate put up a web page that invited anyone to become an international arms trafficker; every time someone clicked on the form, an export-restricted item—originally PGP, later a copy of Back's program—would be mailed from a US server to one in Anguilla.[49][50][51]

Cypherpunk fiction

In Neal Stephenson's novel Cryptonomicon many characters are on the "Secret Admirers" mailing list. This is fairly obviously based on the cypherpunks list, and several well-known cypherpunks are mentioned in the acknowledgements. Much of the plot revolves around cypherpunk ideas; the leading characters are building a data haven which will allow anonymous financial transactions, and the book is full of cryptography. But, according to the author[52] the book's title is—in spite of its similarity—not based on the Cyphernomicon,[29] an online cypherpunk FAQ document.

Legacy

Cypherpunk achievements would later also be used on the Canadian e-wallet, the MintChip, and the creation of bitcoin. It was an inspiration for CryptoParty decades later to such an extent that A Cypherpunk's Manifesto is quoted at the header of its Wiki,[53] and Eric Hughes delivered the keynote address at the Amsterdam CryptoParty on 27 August 2012.

Notable cypherpunks


John Gilmore is one of the founders of the Cypherpunks mailing list, the Electronic Frontier Foundation, and Cygnus Solutions. He created the alt.* hierarchy in Usenet and is a major contributor to the GNU Project.


Julian Assange, a well-known cypherpunk who advocates for the use of cryptography to ensure privacy on the Internet

Cypherpunks list participants included many notable computer industry figures. Most were list regulars, although not all would call themselves "cypherpunks".[54] The following is a list of noteworthy cypherpunks and their achievements:

• Marc Andreessen: co-founder of Netscape which invented SSL
• Jacob Appelbaum: Former Tor Project employee, political advocate
• Julian Assange: WikiLeaks founder, deniable cryptography inventor, journalist; co-author of Underground; author of Cypherpunks: Freedom and the Future of the Internet; member of the International Subversives. Assange has stated that he joined the list in late 1993 or early 1994.[7] An archive of his cypherpunks mailing list posts[55] is at the Mailing List Archives.
• Derek Atkins: computer scientist, computer security expert, and one of the people who factored RSA-129
• Adam Back: inventor of Hashcash and of NNTP-based Eternity networks; co-founder of Blockstream
• Jim Bell: author of "Assassination Politics"
• Steven Bellovin: Bell Labs researcher; later Columbia professor; Chief Technologist for the US Federal Trade Commission in 2012
• Matt Blaze: Bell Labs researcher; later professor at University of Pennsylvania; found flaws in the Clipper Chip[56]
• Eric Blossom: designer of the Starium cryptographically secured mobile phone; founder of the GNU Radio project
• Jon Callas: technical lead on OpenPGP specification; co-founder and Chief Technical Officer of PGP Corporation; co-founder with Philip Zimmermann of Silent Circle
• Bram Cohen: creator of BitTorrent
• Matt Curtin: founder of Interhack Corporation; first faculty advisor of the Ohio State University Open Source Club;[57] lecturer at Ohio State University
• Hugh Daniel (deceased): former Sun Microsystems employee; manager of the FreeS/WAN project (an early and important freeware IPsec implementation)
• Suelette Dreyfus: deniable cryptography co-inventor, journalist, co-author of Underground
• Hal Finney (deceased): cryptographer; main author of PGP 2.0 and the core crypto libraries of later versions of PGP; designer of RPOW
• Eva Galperin: malware researcher and security advocate; Electronic Frontier Foundation activist[58]
• John Gilmore*: Sun Microsystems' fifth employee; co-founder of the Cypherpunks and the Electronic Frontier Foundation; project leader for FreeS/WAN
• Mike Godwin: Electronic Frontier Foundation lawyer; electronic rights advocate
• Ian Goldberg*: professor at University of Waterloo; co-designer of the off-the-record messaging protocol
• Rop Gonggrijp: founder of XS4ALL; co-creator of the Cryptophone
• Matthew D. Green, influential in the development of the Zcash system[59]
• Sean Hastings: founding CEO of Havenco; co-author of the book God Wants You Dead[60]
• Johan Helsingius: creator and operator of Penet remailer
• Nadia Heninger: assistant professor at University of Pennsylvania; security researcher[61]
• Robert Hettinga: founder of the International Conference on Financial Cryptography; originator of the idea of Financial cryptography as an applied subset of cryptography[62]
• Mark Horowitz: author of the first PGP key server
• Tim Hudson: co-author of SSLeay, the precursor to OpenSSL
• Eric Hughes: founding member of Cypherpunks; author of A Cypherpunk's Manifesto
• Peter Junger (deceased): law professor at Case Western Reserve University
• Paul Kocher: president of Cryptography Research, Inc.; co-author of the SSL 3.0 protocol
• Ryan Lackey: co-founder of HavenCo, the world's first data haven
• Brian LaMacchia: designer of XKMS; research head at Microsoft Research
• Ben Laurie: founder of The Bunker, core OpenSSL team member, Google engineer.
• Jameson Lopp: software engineer, CTO of Casa
• Morgan Marquis-Boire: researcher, security engineer, and privacy activist
• Matt Thomlinson (phantom): security engineer, leader of Microsoft's security efforts on Windows, Azure and Trustworthy Computing, CISO at Electronic Arts
• Timothy C. May (deceased): former Assistant Chief Scientist at Intel; author of A Crypto Anarchist Manifesto and the Cyphernomicon; a founding member of the Cypherpunks mailing list
• Jude Milhon (deceased; aka "St. Jude"): a founding member of the Cypherpunks mailing list, credited with naming the group; co-creator of Mondo 2000 magazine
• Satoshi Nakamoto: Pseudonym for the inventor(s) of Bitcoin.
• Sameer Parekh: former CEO of C2Net and co-founder of the CryptoRights Foundation human rights non-profit
• Vipul Ved Prakash: co-founder of Sense/Net; author of Vipul's Razor; founder of Cloudmark
• Runa Sandvik: Tor developer, political advocate
• Len Sassaman (deceased): maintainer of the Mixmaster Remailer software; researcher at Katholieke Universiteit Leuven; biopunk
• Steven Schear: creator of the warrant canary; street performer protocol; founding member of the International Financial Cryptographer's Association[63] and GNURadio; team member at Counterpane; former Director at data security company Cylink and MojoNation
• Bruce Schneier*: well-known security author; founder of Counterpane
• Richard Stallman: founder of Free Software Foundation, privacy advocate
• Nick Szabo: inventor of smart contracts; designer of bit gold, a precursor to Bitcoin
• Wei Dai: Created b-money; cryptocurrency system and co-proposed the VMAC message authentication algorithm. The smallest subunit of Ether, the wei, is named after him.
• Zooko Wilcox-O'Hearn: DigiCash and MojoNation developer; founder of Zcash; co-designer of Tahoe-LAFS
• Jillian C. York: Director of International Freedom of Expression at the Electronic Frontier Foundation (EFF)[64]
• John Young: anti-secrecy activist and co-founder of Cryptome
• Philip Zimmermann: original creator of PGP v1.0 (1991); co-founder of PGP Inc. (1996); co-founder with Jon Callas of Silent Circle
• Edward Snowden: NSA whistleblower (2013); President of The Freedom of the Press Foundation
* indicates someone mentioned in the acknowledgements of Stephenson's Cryptonomicon.

See also

• Anti-computer forensics

References

This article incorporates material from the Citizendium article "Cypherpunk", which is licensed under the Creative Commons Attribution-ShareAlike 3.0 Unported License but not under the GFDL.

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31. Emphasis on the word possibility; as Sarah Smith notes, even cypherpunks recognize the impossibility of absolute anonymity. For a range of discussion on the complexities of defending anonymity within maintaining security (against terrorism e.g.), see Sarah E. Smith, "Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington's Cyberstalking Statute", Washington Law Review 93/3 (Oct. 2018): 1563-1608; Julian Assange, Jacob Appelbaum, Andy Muller-Maguhn, and Jérémie Zimmermann, Cypherpunks: Freedom and the Future of the Internet (OR Books, 2012/2016). ISBN 978-1-939293-00-8, Ebook ISBN 978-1-939293-01-5; Dennis Bailey, The Open Society Paradox : Why the 21st Century Calls for More Openness — Not Less (Dulles VA: Potomac, 2004), 28-29; and Eric Hughes <[email protected]>, "A Cypherpunk's Manifesto" (9 March 1993): https://www.activism.net/cypherpunk/manifesto.html Archived 2021-03-24 at the Wayback Machine
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Further reading

• Greenberg, Andy (2012). This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World's Information. New York: Dutton Adult. ISBN 978-0525953203.
• Assange, Julian (2012). Cypherpunks: Freedom and the Future of the Internet. OR Books. ISBN 978-1-939293-00-8.
• Anderson, Patrick D. (2022). Cypherpunk ethics: Radical Ethics for the Digital Age (1st ed.). London: Routledge. ISBN 9781003220534.

[admin]

Musk’s data takeover: A weapon for dictatorship and social plunder
by Joseph Kishore@jkishore
wsws.org
February 18, 2025
https://www.wsws.org/en/articles/2025/0 ... a-f19.html


President Donald Trump listens as Elon Musk speaks in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington. [AP Photo/Alex Brandon]

Over the past several days, the Trump administration and Elon Musk’s Department of Government Efficiency (DOGE) have escalated their efforts to gain unprecedented access to a vast trove of data on every individual and organization in the United States.

The latest targets are the Social Security Administration (SSA) and the Internal Revenue Service (IRS), both of which hold detailed financial and personal information on nearly every American. On Sunday, the acting head of the SSA, Michelle King, resigned, reportedly due to clashes with Musk over DOGE’s demand for direct access to the agency’s records.

On Monday, numerous media outlets reported on Musk’s attempt to seize control over the millions of tax records collected by the IRS, which include Social Security numbers, employment records, political donations and other information on every taxpayer, business and nonprofit organization in the country.

To execute this plan, Musk’s DOGE has installed 25-year-old Gavin Kliger as a special adviser to the acting IRS commissioner. Kliger exemplifies the cabal that Musk has assembled. He has publicly praised white supremacist Nick Fuentes and called for the execution, by military tribunal, of undocumented immigrants convicted of crimes. He has cited Holocaust denier Ron Unz as a key political influence.

This was followed by two major court rulings that pave the way for DOGE’s data takeover. A federal judge in the US District Court in D.C. declined to block Musk and DOGE from accessing data across multiple executive branch agencies, including the Office of Personnel Management and the departments of Education, Labor, Health and Human Services, Energy, Transportation and Commerce. A previous ruling by a separate judge in the same court on Monday night granted DOGE access to student records at the Department of Education.

Tomorrow, February 20, marks one month since the second inauguration of Donald Trump. The initial weeks of the new regime were focused on a series of executive orders that, under the pretense of a non-existent “invasion” at the border, arrogate to the president the power to violate free speech rights, deport immigrants, and create the framework for deploying the military against domestic opposition within the United States.

The essential class content of these actions—in a government of, by and for the oligarchy—has been revealed over the past two weeks. The mass firing of federal workers and the transfer of extraordinary powers to Musk and DOGE is part of a broader assault on the entire working class.

An immediate objective of DOGE’s data acquisition is the dismantling of any federal department that provides social services or regulatory oversight. Musk is leading an operation to slash $2 trillion in spending on programs like Social Security, Medicare and Medicaid, while accelerating mass firings of federal workers. Over the weekend, thousands of employees at the Department of Health and Human Services were terminated in what workers have referred to as the “Valentine’s Day Massacre.”

But the broader aim is to create an all-encompassing AI-driven database that can be used to track, monitor and suppress political opposition. By integrating financial data, medical records, employment histories and law enforcement databases, Musk and Trump are constructing a system that will enable them to identify and target their opponents with surgical precision.

Trump and Musk outlined their theory in a joint interview with Fox’s Sean Hannity Tuesday night. Musk’s DOGE agency is seen not simply or even primarily as a mechanism for implementing cuts, but as an instrument of executive dictatorship.

“These executive orders,” Trump said, “I sign them, and now they get passed on to [Musk] and his group... and they get it done.” DOGE needs direct control of the data and systems of all federal agencies to implement Trump’s dictatorial actions.

All of this is blatantly illegal and unconstitutional. The administration is operating on the principle that the president has unlimited powers that cannot be constrained by the law or the courts. Over the weekend, Trump made this explicit, declaring in a post that remained pinned at the top of the White House X account for several days: “He who saves his Country does not violate any Law.” In other words, Trump operates on the basis of the Führerprinzip—the principle that the “leader” alone determines what is legal and what is not.

In one of the few commentaries appearing in the media, the New York Times’ Thomas Edsall cited on Tuesday constitutional law professor Rogers Smith, who called Musk’s power grab “unprecedented in US history.” Smith warned that it violates the appointments clause of the Constitution, which requires Senate approval for principal officers. If Trump claims Musk is merely a consultant, he is still illegally delegating government power to a private individual.

Smith added that if the Supreme Court rules in Trump’s favor or if the administration ignores an unfavorable court ruling, “constitutional democracy in America will be in serious, perhaps fatal jeopardy.”

The response of the Democratic Party to the actions of the Trump administration in its first weeks has combined complicity and cowardice. While the Republicans, when in the minority, take every possible measure to paralyze the government, the Democrats have allowed nearly every one of Trump’s cabinet nominees to sail through confirmation hearings.

The Democrats have proposed no strategy beyond appealing to the courts, which are stacked with Trump appointees and which the administration has vowed to defy. Last week, Vice President Vance declared on X that “Judges aren’t allowed to control the executive’s legitimate power,” while Musk threatened, on February 12, that “there needs to be an immediate wave of judicial impeachments” targeting anyone who rules against the actions of the administration.

Far from mobilizing mass opposition, leading Democratic figures are urging inaction. Longtime Democratic strategist James Carville advised on Monday that the party should “play possum” as opposition develops and simply “let this germinate.” “Let’s just get out of the way,” he said.

Axios reported that top Democrats suspect Trump will “ignore one of the many major court rulings that’ll be coming his way,” but are only “gaming out legal and political responses behind the scenes.” House Democratic Caucus Chair Pete Aguilar issued a meaningless statement: “Nobody is above the law, no matter how many times Donald Trump thinks he is. We’ll let this process go through the courts, and we’ll be prepared to talk about it and react.” In other words, the Democrats plan to do nothing.

The Democrats are unwilling and incapable of mounting a serious fight against the drive toward dictatorship because they, along with the Republicans, represent the interests of the financial oligarchy. They agree with the essential program of the Trump administration in terms of social policy. Their primary concern is the growth of opposition from below, which could escape the control of the ruling class state apparatus.

The only force capable of stopping the transformation of the US into a dictatorship is the working class.

The Socialist Equality Party is spearheading the fight to mobilize the working class against the Trump administration’s drive toward dictatorship. The SEP calls for the formation of independent rank-and-file and neighborhood committees in every workplace and city across the country. These committees must become centers of resistance, organizing workers and youth against Trump’s authoritarian rule, the complicity of the Democratic Party and the destruction of social programs and public services.

The working class must take up the fight through strikes, protests and mass actions to oppose the dictatorship of the financial oligarchy and defend its social and democratic rights.

The struggle against dictatorship cannot be separated from the struggle against capitalism. The SEP calls for the seizure of the ill-gotten wealth of the billionaires, the dismantling of the imperialist war machine, and the establishment of a workers’ government to reorganize society on the basis of social need, not private profit. We urge all those who want to take up this fight to join and build the Socialist Equality Party.