Major news on Republicans CUTTING healthcare by Brian Tyler Cohen February 25, 2025
Transcript
[Brian Tyler Cohen] Some breaking news here. In a wholly heinous, albeit unsurprising development, Republicans in the House have just passed their budget blueprint by a vote of 217 to 215. What this means is that Medicaid and food stamps are virtually assured to be cut so that the Republicans can pay for tax cuts for millionaires and billionaires. Here's how this process works. The budget instructs the following committees to cut the following amounts: the Energy and Commerce Committee will cut $880 billion over 10 years, which is where Medicaid is funded; the Agriculture Committee will cut $230 billion, which is where food stamps are funded; the Education and Workforce committee will cut $330 billion, which is where student loans are funded. That alone is about $1.5 trillion in cuts.
And I want to be clear: if you are instructing those Committees to make those cuts, then that is a guarantee that Medicaid and Food Stamps will be the victims. The money is not available otherwise. What we've just witnessed is Republicans cutting funding to the last lifeline for 85 million Americans who rely on Medicaid, and 43 million Americans who rely on food stamps.
And look, Republicans are trying to be clever about this. They didn't put the cuts on themselves in the budget, they merely instructed the Committees to make these cuts, so that they can preserve some plausible deniability about what they're doing. Here's Republican Jason Smith for example playing that game on Fox:
[ Maria Bartiromo] What do you want to say to those people who are upset about these cuts to the Snap and Nutrition assistance? 230 billion in cuts to Snap and Nutrition assistance.
[Jason Smith] For one, you can't say that it's cuts to Snap. This resolution just says the Ag committee has to cut more than $200 billion. What you have is other people, like the Democrats, going out there, saying you're going to cut Medicaid; you're going to cut benefits. Nowhere, Maria, in the resolution, does it say what the cuts are. It just sets the goal and the target rate of how much we're going to cut.
[Brian Tyler Cohen] See, they're not cutting food stamps. They're merely ordering the Agriculture committee to cut $230 billion, which you cannot do unless you cut food stamps. They did this to add a layer of protection, so that they can pretend that the thing they're doing is somehow not what they're doing. They didn't want to cut Medicaid in the budget, because then no Republicans would want to vote for it. But instruct the Energy and Commerce Committee to make $880 billion in cuts? Well sure, that's opaque enough that no one will know what it means. Except I'm here to tell you exactly what it means. If you intend to cut $880 billion, that means Medicaid is on the the chopping block. The Republicans might feel fine playing make-believe, but what they're doing is beyond clear. In fact, here's an example of that very double speak from Mike Lawler who represents a very swingy seat in New York.
Q. Is Medicaid safe, or is Medicaid going down? Trump, or Johnson? Who's your daddy?
[Mike Lawler] Uh the budget resolution is what is being discussed has to pass in order to get to reconciliation. The final bill, the Reconciliation bill, will be what is negotiated. And there are many of us, myself included, who will not cut Medicaid benefits to our constituents. Period.
[Clapping]
Q. So when that bill comes to the floor, and there's even a dollar in Medicaid cuts, you vote --
[Mike Lawler] Well, we're not cutting Medicaid.
Q. Right, but when that bill comes to the floor, if there is even a dollar Medicaid cuts, you are a "No."
[Mike Lawler] On benefits. If you are eliminating any type of fraud or waste or abuse, that's fine. But benefits to beneficiaries, no.
Q. You understand that Elon and Trump are claiming waste Fraud and Abuse where there is none, so when the bill comes, and there's a dollar to cuts in Medicaid, you're a "No."
[Mike Lawler] I will not cut Medicaid benefits. No.
Q. Right, so you're a "No" if there's even a dollar in cuts to Medicaid. Very good.
Q. Damn, he was doing so good.
Q. Well, cuz you're giving you're giving me politician double-speak, and it's bullshit.
[Mike Lawler] I'm not giving you double-speak. It's way more complicated than you want to make.
Q. It's not complicated.
[Brian Tyler Cohen] See what he did there? He said "no" to cuts to Medicaid, but he knows that Medicaid itself isn't in the bill; it is a directive to the Committee to make cuts which they can only do if Medicaid is slashed. He knows that. He's banking on the notion that you don't. He thinks you're stupid. And then he's going to go back to his purple seat in New York. and pretend that he's not responsible for cutting Medicaid, which he just voted to ensure would get cut.
And just as bad, all of this is intended to offset spending for -- you guessed it -- a tax cut for millionaires and billionaires. Again, you can see here that all of these cuts to Medicaid, food stamps, student loans, stuff that impacts regular Americans, will occur in order to be able to fund $4.5 trillion in tax cuts that will overwhelmingly benefit the ultra rich.
Here's what I mean. The top 1% will see an average $70,000 decrease in their tax burden. Meanwhile, a middle class family will see an average $1,000 decrease in their tax burden. And working-class Americans? Well, they'll see their tax burden decreased by just a few hundred bucks. If you're a regular American, how do you feel about the crumbs that you would get relative to the giveaway that the top 1% are getting? Do you think it's fair that the most vulnerable Americans lose their last lifeline: Medicaid; food stamps, all so that the ultra Rich can enjoy a tax cut that is at least 70 times more than what you get?
Republicans want to hand you some crumbs in one hand, and expect you to be grateful, all the while taking away critical lifelines for Americans with the other hand, and hope you don't notice. But I can assure you, we are paying attention.
And the most insane part here? All of this is being done in the name of balancing the budget. But there would still be a $2.5 trillion deficit. That means roughly $20 trillion added to the debt over the course of a decade. 20 trillion. In other words, we gut essential programs like food stamps and Medicaid, and we continue exploding the debt, which is the very thing that the Republicans have spent the last month pretending to care about.
And don't take my word for it. Take that of Republican lawmaker Victoria Spartz, who tweeted:
Rep. Victoria Spartz @ RepSpartz
The situation is much worse than it sounds. @RepThomasMassie and @elon musk -- we are going to accumulate $24 trillion of additional debt in 10 years on top of the $36 trillion we already have ... reaching $60 trillion.
And guess what? She's right. And guess what else? She just voted for it, for the very bill that she herself admitted would explode the deficit and add ungodly amounts to the debt. Because for the umpteenth time, they do not care about fiscal responsibility, and they never have. Not now, not when they added $7.8 trillion to the debt during the first Trump term, that is branding to give coverage to the fact that their sole priority now, then, and forever, is giving rich people tax cuts paid for by shipping programs that the most vulnerable Americans need to survive. But hey, something something pro-life.
And mark my words, they've made a mistake. I'm old enough to remember what happened the last time Republicans stripped Healthcare away from Americans in order to fund tax cuts for billionaires. An 2018, they did the exact same thing: proposing deep cuts to the Affordable Care Act. And guess what happened in the midterm cycle? They lost the House by the largest margin in modern American history, allowing Democrats to flip a staggering 41 seats that cycle. That is the sleeping giant that they've just awoken. And it's already happening. Despite Republicans' best efforts to hide what they're doing, despite Republicans' hopes that Americans are stupid, despite Republicans' best efforts to obfuscate this budget so that their actions aren't so explicit, Americans are clearly smarter than the GOP is giving them credit for.
So my advice to Americans: do not forget this moment, February 25th, 2025. Republicans just fucked with our health care. They fucked with the last lifeline for over a 100 million Americans. They are hoping that you aren't paying attention. Remember this day, so that in November of 2026,they will know exactly why they lost hold of power.
This cabinet meeting photo makes it obvious who is actually in charge. Trump is asleep & Vance doesn't even get a seat at the table.
On Monday afternoon, a federal judge [Judge Colleen Kollar-Kotelly] had a simple question for the Trump administration's lawyers: Is tech billionaire Elon Musk the Department of Government Efficiency's administrator?
The agency more popularly known as "Doge" is Musk's brainchild, but the White House insists that he is not its leader - or even employed by it.
Justice department lawyer Bradley Humphreys told the judge that: "I don't have any information beyond he's a close adviser to the president."
White House Press Secretary Karoline Leavitt doubled down on this position at a Tuesday press briefing.
"The president tasked Elon Musk to oversee the Doge effort," she said, but she later added that "career officials" and appointees were helping Musk run Doge, and that people who have "onboarded" as federal employees were working at various agencies.
She declined to provide specific names, but she announced that Musk would attend President Donald Trump's first cabinet secretary meeting alongside the Secretary of Defense, the Attorney General and other top US political appointees who were vetted and confirmed by the Senate.
The White House later told the BBC that a person named Amy Gleason is the acting administrator. They did not provide additional details about her or when she was appointed.
Ms Gleason declined to comment, CBS News reported.
Musk has been leading an outside effort to aggressively curtail government spending through funding cuts and firings.
"They're playing a game," said Max Stier, president and CEO of the non-partisan Partnership for Public Service, an organisation that has provided past administrations with procedure and ethics guidance.
"If [Musk] were actually the administrator, then this issue about him needing Senate confirmation and his actually having to abide by the conflict of interest laws would be much clearer."
Experts said that Musk has given the impression of being in charge of Doge by staffing the government entity with employees and engineers from his various companies, posting constantly about its work on X, appearing alongside Trump in the Oval Office to promote the cuts it has made to the federal workforce, and representing it on stage at the Conservative Political Action Committee gathering last week while wielding a chainsaw.
"We're in Alice in Wonderland right now," Mr Stier said. "We're through the looking glass."
The order establishes Doge's leadership structure, saying that "there shall be a USDS Administrator" that reports up to the White House chief of staff.
It does not name a specific individual for the role. In fact, Musk's name never appears in the executive order, though Trump has credited his work with the team.
Doge's arrival has caused turbulence in the existing US Digital Service ranks. The administration fired several staffers there earlier this month, and the Associated Press reported that 21 employees resigned in protest on Tuesday.
In a letter to management, they alleged Doge employees were creating "significant security risks".
"We swore to serve the American people and uphold our oath to the Constitution across presidential administrations," their letter stated, according to the AP. "However, it has become clear that we can no longer honor those commitments."
BBC News has reviewed the letter but has not been able to verify its contents.
A series of lawsuits challenging Doge have slowed some of the administration's effort to cut the federal workforce, and they have forced the Trump White House to face the question of Musk's status in court.
Until the administration stated that Ms Gleason was the acting administrator late on Tuesday, it gave vague answers about Doge's leadership across multiple lawsuits.
Though she did not rule in the hearing on Monday, Judge Colleen Kollar-Kotelly expressed concern about Doge's constitutionality. She noted it might run afoul of the appointment clause of the US Constitution, which sets out nominating procedures for agency leaders.
"It does seem to me if you have people that are not authorised to carry out some of these functions that they're carrying out that does raise an issue," she said.
"I would hope that by now we would know who is the administrator, who is the acting administrator and what authority do they have?"
Experts say that Musk's work does not fit the traditional definition of "special government employee", which has specific rules.
The White House has previously said that Musk "is a special government employee and has abided by all applicable federal laws".
William Resh, a professor who studies the executive branch at the University of Southern California, said typically such employees have been hired as advisers for their relative expertise.
"But they do not hold distinct executive power the way that a Senate-confirmed appointee would, or even a unilateral permanent appointments that a president can make," he said.
While Musk appears to have made several moves regarding the federal workforce largely unencumbered, his recent demand that federal employees list five accomplishments in an email was met with pushback from some Trump-appointed agency leaders.
The directive was walked back as optional at some agencies, over concerns staff could reveal sensitive information and that the order violated federal policies.
Asked whether this showed tension between Doge and Trump's other officials, Leavitt insisted that "everyone is working together as one unified team at the direction of President Trump".
NEW: Judge Issues National Injunction to Block Trump Administration’s Devastating Attempt to Halt Funding For Essential Services by Democracy Forward Press Release February 25, 2025 https://democracyforward.org/updates/ne ... -services/
Preliminary Injunction issued after Democracy Forward filed suit and secured a prior Temporary Restraining Order on behalf of the National Council of Nonprofits, the American Public Health Association, Main Street Alliance, and SAGE
Washington, DC — Today, the U.S. District Court for the District of Columbia granted a preliminary injunction of the OMB’s freeze on federal grant disbursements that has put essential services across the nation in jeopardy, in response to a suit filed by Democracy Forward on behalf of the National Council of Nonprofits, the American Public Health Association, Main Street Alliance, and SAGE.
The motion filed by Democracy Forward sought to continue to block the White House Office of Management and Budget from pausing disbursements from all open agency grants and loans, as revealed in a memo issued January 27, 2025.
In her decision, United States District Judge Loren L. AliKhan said, “Defendants cannot pretend that the nationwide chaos and paralysis from two weeks ago is some distant memory with no bearing on this case… Plaintiffs have marshalled significant evidence indicating that the funding freeze would be economically catastrophic—and in some circumstances, fatal— to their members.”
“The preliminary injunction is a tremendous relief for thousands of nonprofit organizations throughout the country that are struggling to continue their vital work in the midst of the chaos and confusion caused by the administration’s attempted federal funding freezes. These organizations have been left to wonder whether they’ll be reimbursed for their vital work, or if they’ll need to shut down essential programs. OMB’s reckless federal funding freeze would cause catastrophic and irreversible harm to nonprofits and the communities and people they serve. This preliminary injunction allows such nonprofits to continue with their important work of providing wildfire mitigation, disaster relief, services to survivors of domestic violence, support for our nation’s veterans, and so much more.” said Diane Yentel, President and CEO of the National Council of Nonprofits.
“The continued disbursement of these federal agency grants, previously authorized and funded by Congress, is imperative to the health of the nation,” said Georges C. Benjamin, MD, Executive Director of the American Public Health Association. “Today’s ruling is a major victory for the public’s health and the essential health services delivered by governmental and nongovernmental agencies.”
“We’ve been with small business owners on Capitol Hill all day today and a common refrain is the extent to which these freezes not only impact small business operations but also entire communities. This decision shows that organizing and targeted legal action are some of the most impactful ways to hold the Administration accountable for errant decision making that touches Main Street,” said Richard Trent, Main Street Alliance Executive Director.
“We are very pleased with the results of the preliminary injunction hearing,” said Michael Adams, SAGE CEO. “The suspension of the proposed federal funding freeze for the duration of our lawsuit allows SAGE to continue our mission to uplift and advocate for LGBTQ+ elders across the country. While we recognize this fight is far from over, we celebrate today’s important victory for our community’s elders, older Americans in general, and people who rely on essential government-funded services all across the country.”
“The Trump administration’s OMB grant freeze memo plunged people and communities across the country into chaos and uncertainty as they waited to see if critical programs would continue –from childcare, to eldercare, to food services, to health programs, to community initiatives,” said Skye Perryman, President and CEO of Democracy Forward. “This preliminary injunction will allow our clients to continue to provide services to people across this country. We are pleased that the court issued this ruling, halting the Trump administration’s lawless attempt to harm everyday Americans in service of a political goal.”
Within hours of the OMB memo, plaintiffs filed suit and sought a Temporary Restraining Order in the U.S. District Court for the District of Columbia. In response to the case, the Court issued an administrative stay, in one of the earliest moves to halt the Trump administration’s harmful policies. On January 29, the Administration purported to rescind its memo, with White House Press Secretary Karoline Leavitt citing the litigation as the administration’s reason. On February 3, a judge granted the Plaintiffs’ motion for a temporary restraining order.
– # # # –
Democracy Forward is a national legal organization that advances democracy and social progress through litigation, policy, public education, and regulatory engagement. For more information, please visit http://www.democracyforward.org.
Plaintiffs have demonstrated that “even a temporary pause in funding to their members . . . would destroy their ability to provide [critical] services.” … Many, if not all, of Plaintiffs’ members “need weekly injections of federal funds in order to continue operating.” … Some have employees who “live paycheck to paycheck, meaning that a single missed payment could prevent them from buying groceries or paying rent.” … Others had begun to feel the effects of the freeze even before it was supposed to go into effect: one tribal organization was forced to preemptively lay off two employees on January 28. … Plaintiffs also demonstrated constitutional injury because “Defendants [allegedly] singled out their funding programs (in other words, their economic lifelines) based on their exercise of speech and association.”….
Defendants cannot pretend that the nationwide chaos and paralysis from two weeks ago is some distant memory with no bearing on this case. The relief Plaintiffs now seek is a more durable version of the relief they sought then, when their members were on the brink of extinction. In sum, Plaintiffs have marshalled significant evidence indicating that the funding freeze would be economically catastrophic—and in some circumstances, fatal— to their members….
Rescinding the OMB Pause Memorandum did not moot the case because Defendants could not—and still cannot—show that they will not “resume the challenged activity.” As the court previously observed, the White House Press Secretary appeared to completely contradict the act of rescission by expressly stating that it was “NOT a rescission of the federal funding freeze.” … By any reading of the Press Secretary’s remarks, the memorandum’s retraction was an empty gesture. At best, it was meaningless. At worst, it was a brazen attempt to deprive the court of jurisdiction without actually altering course. See Pub. Citizen, Inc., 92 F.4th at 1128 (explaining that the voluntary-cessation doctrine applies with greater force when a party is suspected of “manipulating the judicial process through the false pretense of singlehandedly ending a dispute” … Because Plaintiffs’ members were still being frozen out of their funding in the wake of the purported “rescission,” … “it appears that OMB sought to overcome a judicially imposed obstacle without . . . ceasing the challenged conduct.”…
Defendants blithely suggest that if they were to revive or reissue the OMB Pause Memorandum at some future point in time, Plaintiffs could simply “file another motion for preliminary relief.” … This proposal completely disregards the mountain of evidence Plaintiffs presented showing that even the threat of a funding freeze was enough to send countless organizations into complete disarray. Hours before the original pause was scheduled to start, organizations were already laying off staff or shuttering programs. … In some cases, this was anticipatory; in others, it was because organizations were already being frozen out of funding portals. … Defendants’ assumption that Plaintiffs can easily rush back before the court for injunctive relief before catastrophe ensues is, quite simply, divorced from reality and the record. Indeed, while turning off funding streams appears to have been alarmingly easy, turning them back on has proven much more difficult…. it took three days to receive funding after entry of the TRO)…
the government is normally entitled to a presumption of good faith on voluntary cessation….But the court will not confer that presumption when the government says one thing while expressly doing another….And it will not reward parties who change appearances without changing conduct….
Under the most generous viewing of the case’s chronology, agencies had maybe four hours (but probably fewer) to actualize the OMB Guidance Document….despite the guidance’s attempt to carve out “program[s] that provide[] direct benefits to individuals,” …The guidance also exempted “[f]unds for small businesses” and “Head Start” payments, … but those fell victim to the freeze, too…Defendants cannot rely on the OMB Guidance Document as a saving grace when it had virtually no effect on the ground….
The touchstone of this inquiry is rationality, and Defendants’ actions flunk that test. Defendants still cannot provide a reasonable explanation for why they needed to freeze all federal financial assistance in less than a day to “safeguard valuable taxpayer resources.”… Evaluating funding priorities can be done without needing to starve citizens or deny critical health services….The potential $3 trillion in financial assistance implicated by the freeze is a “breathtakingly large sum of money to suspend practically overnight.”… “[r]ather than taking a measured approach to identify purportedly wasteful spending, Defendants cut the fuel supply to a vast, complicated, nationwide machine—seemingly without any consideration for the consequences of that decision.”… Doing so was not—and could never be—rational, especially when the decision was made without grappling with its catastrophic effects or the logistical nightmare of its implementation….
When an agency suddenly changes course, it must recognize “that longstanding policies may have engendered serious reliance interests that must be taken into account.”…
In the simplest terms, the freeze was ill-conceived from the beginning. Defendants either wanted to pause up to $3 trillion in federal spending practically overnight, or they expected each federal agency to review every single one of its grants, loans, and funds for compliance in less than twenty-four hours. The breadth of that command is almost unfathomable…. “[ i]t is unclear whether twenty-four hours is sufficient time for an agency to independently review a single grant, let alone hundreds of thousands of them.”). Either way, Defendants’ actions were irrational, imprudent, and precipitated a nationwide crisis. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim….
Plaintiffs’ second claim argues that Defendants dramatically overstepped the bounds of their legal authority in ordering a nationwide funding freeze. Agencies “are creatures of statute” and are therefore subject to the limits prescribed by Congress….they “‘literally ha[ve] no power to act’ except to the extent Congress [has] authorized.”…
When an agency seeks to “exercise powers of vast economic and political significance,” the “sheer scope of [an agency]’s claimed authority” can trigger heightened judicial scrutiny….
“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’” the court “typically greet[s] its announcement with a measure of skepticism.”… Defendants attempted to freeze as much as $3 trillion dollars—the sum total of “all activities related to [the] obligation or disbursement of all Federal financial assistance.” …That is “no everyday exercise of federal power.”…
The scope of power OMB seeks to claim is “breathtaking,” and its ramifications are massive… there is no clear statutory hook for this broad assertion of power …
Plaintiffs’ third claim alleges that Defendants are “threaten[ing] [the] continued receipt of federal financial assistance based explicitly on [the recipients’] exercise of their core First Amendment rights of speech and association.”… Defendants are correct that the government “is not required to subsidize First Amendment rights,”… or “assist others in funding the expression of particular ideas,”…
What is less clear, however, is whether the government may deliberately withhold funds that have already been earmarked for certain recipients based exclusively on the recipient’s viewpoints….‘Due Process Clauses generally confer no affirmative right to governmental aid.’”… But that calculus could change if individuals or organizations have already been awarded certain funds and grants—as is the case with Plaintiffs’ members here. If Defendants were to unfreeze promised funds only to organizations expressing one view, but not to organizations expressing the opposite view, that could raise First Amendment concerns….
The Supreme Court has held that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech[,] even if he has no entitlement to that benefit.”… the government cannot “leverage funding to regulate speech outside the contours of the [funding] program itself.”… when the government exerts First Amendment pressures that have nothing to do with the actual financial assistance program, that can be a constitutional violation….
The OMB Pause Memorandum made several policy statements that are hostile to concepts like “Marxist equity,” “transgenderism,” and “woke gender ideology.” … It also instructed federal agencies to pause all disbursements that could be connected to these ill-defined categories. There is no indication that expressing viewpoints on these issues (or being associated with them at all) is in any way tied to the “contours of the [funding] program[s] [themselves].”…
The government “may not ‘aim at the suppression of dangerous ideas’” or “manipulate[]” a subsidy “to have a coercive effect.”… By appearing to target specific recipients because they associate with certain ideas, Defendants may be crossing a constitutional line….
The fact that organizations have been able to draw down funds in the immediate aftermath of the court’s TRO means nothing if the spigot is shut off again. The injunctive relief that Defendants fought so hard to deny is the only thing in this case holding potentially catastrophic harm at bay. The court’s previous order may have bought Plaintiffs a few additional weeks of funding, but they remain just as vulnerable as they were in the first week of February. A single disbursement does not protect a recipient when the next disbursement is equally as vital. …
“Plaintiffs paint[ed] a stark picture of nationwide panic in the wake of the funding freeze.”… Nonprofits and organizations across the country were left adrift as they scrambled to make sense of the memorandum and its effects…. Entire funding portals were taken offline with no rhyme or reason, generating significant confusion and fear….Many organizations had to resort to desperate measures just to stay operational. The pause placed critical programs for children, the elderly, and everyone in between in serious jeopardy. Because the public’s interest in not having trillions of dollars arbitrarily frozen cannot be overstated, Plaintiffs have more than met their burden here….
Amicus American Center for Law and Justice echoes Defendants’ mootness argument, claiming that “none of [Plaintiffs’] desired terms of the Prayer for Relief can be implemented [because] there is no OMB Memo that can be enjoined, restrained, or vacated.”…
If Amicus were correct, a government agency could order illegal activity, retract that order in name only while continuing to implement its substance, and escape legal liability. The court refuses to ratify such behavior….
Both Defendants and Amicus argue that “[t]emporary funding pauses are not an unusual exercise of executive authority.”… For support, they rely on President Biden’s pause of funding to the southern border wall … and President Obama’s thirty-day delay of Recovery Act funds,…
The court is unpersuaded that targeted pauses of funding for specific projects through an executive order are at all comparable OMB’s nationwide suspension of all federal financial assistance. Again, the court disagrees with Defendants’ and Amicus’s characterization of the pause in this case as “targeted” and “discrete” when the language of the memorandum applied to the “disbursement of all Federal funds under all open awards.”…
Defendants repeatedly reference the memorandum’s limitation that agencies only act “to the extent permissible under applicable law,”… But this does not save them. First, the incantation of magic language cannot justify otherwise-illegal action. Plaintiffs’ entire complaint alleges that Defendants’ instruction was unlawful to begin with. Second, even assuming that this language applies does not change the arbitrary-and-capricious analysis. Just because an agency can do something does not make it rational to do so.
Plaintiffs have demonstrated that “even a temporary pause in funding to their members . . . would destroy their ability to provide [critical] services.” … Many, if not all, of Plaintiffs’ members “need weekly injections of federal funds in order to continue operating.” … Some have employees who “live paycheck to paycheck, meaning that a single missed payment could prevent them from buying groceries or paying rent.” … Others had begun to feel the effects of the freeze even before it was supposed to go into effect: one tribal organization was forced to preemptively lay off two employees on January 28. … Plaintiffs also demonstrated constitutional injury because “Defendants [allegedly] singled out their funding programs (in other words, their economic lifelines) based on their exercise of speech and association.”….
Defendants cannot pretend that the nationwide chaos and paralysis from two weeks ago is some distant memory with no bearing on this case. The relief Plaintiffs now seek is a more durable version of the relief they sought then, when their members were on the brink of extinction. In sum, Plaintiffs have marshalled significant evidence indicating that the funding freeze would be economically catastrophic—and in some circumstances, fatal— to their members….
Rescinding the OMB Pause Memorandum did not moot the case because Defendants could not—and still cannot—show that they will not “resume the challenged activity.” As the court previously observed, the White House Press Secretary appeared to completely contradict the act of rescission by expressly stating that it was “NOT a rescission of the federal funding freeze.” … By any reading of the Press Secretary’s remarks, the memorandum’s retraction was an empty gesture. At best, it was meaningless. At worst, it was a brazen attempt to deprive the court of jurisdiction without actually altering course. ... the voluntary-cessation doctrine applies with greater force when a party is suspected of “manipulating the judicial process through the false pretense of singlehandedly ending a dispute” … Because Plaintiffs’ members were still being frozen out of their funding in the wake of the purported “rescission,” … “it appears that OMB sought to overcome a judicially imposed obstacle without . . . ceasing the challenged conduct.”…
Defendants blithely suggest that if they were to revive or reissue the OMB Pause Memorandum at some future point in time, Plaintiffs could simply “file another motion for preliminary relief.” … This proposal completely disregards the mountain of evidence Plaintiffs presented showing that even the threat of a funding freeze was enough to send countless organizations into complete disarray. Hours before the original pause was scheduled to start, organizations were already laying off staff or shuttering programs. … In some cases, this was anticipatory; in others, it was because organizations were already being frozen out of funding portals. … Defendants’ assumption that Plaintiffs can easily rush back before the court for injunctive relief before catastrophe ensues is, quite simply, divorced from reality and the record. Indeed, while turning off funding streams appears to have been alarmingly easy, turning them back on has proven much more difficult…. it took three days to receive funding after entry of the TRO)…
the government is normally entitled to a presumption of good faith on voluntary cessation….But the court will not confer that presumption when the government says one thing while expressly doing another….And it will not reward parties who change appearances without changing conduct….
Under the most generous viewing of the case’s chronology, agencies had maybe four hours (but probably fewer) to actualize the OMB Guidance Document….despite the guidance’s attempt to carve out “program[s] that provide[] direct benefits to individuals,” …The guidance also exempted “[f]unds for small businesses” and “Head Start” payments, … but those fell victim to the freeze, too…Defendants cannot rely on the OMB Guidance Document as a saving grace when it had virtually no effect on the ground….
The touchstone of this inquiry is rationality, and Defendants’ actions flunk that test. Defendants still cannot provide a reasonable explanation for why they needed to freeze all federal financial assistance in less than a day to “safeguard valuable taxpayer resources.”… Evaluating funding priorities can be done without needing to starve citizens or deny critical health services….The potential $3 trillion in financial assistance implicated by the freeze is a “breathtakingly large sum of money to suspend practically overnight.”… “[r]ather than taking a measured approach to identify purportedly wasteful spending, Defendants cut the fuel supply to a vast, complicated, nationwide machine—seemingly without any consideration for the consequences of that decision.”… Doing so was not—and could never be—rational, especially when the decision was made without grappling with its catastrophic effects or the logistical nightmare of its implementation….
When an agency suddenly changes course, it must recognize “that longstanding policies may have engendered serious reliance interests that must be taken into account.”…
In the simplest terms, the freeze was ill-conceived from the beginning. Defendants either wanted to pause up to $3 trillion in federal spending practically overnight, or they expected each federal agency to review every single one of its grants, loans, and funds for compliance in less than twenty-four hours. The breadth of that command is almost unfathomable…. “[ i]t is unclear whether twenty-four hours is sufficient time for an agency to independently review a single grant, let alone hundreds of thousands of them.”). Either way, Defendants’ actions were irrational, imprudent, and precipitated a nationwide crisis. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim….
Plaintiffs’ second claim argues that Defendants dramatically overstepped the bounds of their legal authority in ordering a nationwide funding freeze. Agencies “are creatures of statute” and are therefore subject to the limits prescribed by Congress….they “‘literally ha[ve] no power to act’ except to the extent Congress [has] authorized.”…
When an agency seeks to “exercise powers of vast economic and political significance,” the “sheer scope of [an agency]’s claimed authority” can trigger heightened judicial scrutiny….
“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’” the court “typically greet[s] its announcement with a measure of skepticism.”… Defendants attempted to freeze as much as $3 trillion dollars—the sum total of “all activities related to [the] obligation or disbursement of all Federal financial assistance.” …That is “no everyday exercise of federal power.”…
The scope of power OMB seeks to claim is “breathtaking,” and its ramifications are massive… there is no clear statutory hook for this broad assertion of power …
Plaintiffs’ third claim alleges that Defendants are “threaten[ing] [the] continued receipt of federal financial assistance based explicitly on [the recipients’] exercise of their core First Amendment rights of speech and association.”… Defendants are correct that the government “is not required to subsidize First Amendment rights,”… or “assist others in funding the expression of particular ideas,”…
What is less clear, however, is whether the government may deliberately withhold funds that have already been earmarked for certain recipients based exclusively on the recipient’s viewpoints….‘Due Process Clauses generally confer no affirmative right to governmental aid.’”… But that calculus could change if individuals or organizations have already been awarded certain funds and grants—as is the case with Plaintiffs’ members here. If Defendants were to unfreeze promised funds only to organizations expressing one view, but not to organizations expressing the opposite view, that could raise First Amendment concerns….
The Supreme Court has held that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech[,] even if he has no entitlement to that benefit.”… the government cannot “leverage funding to regulate speech outside the contours of the [funding] program itself.”… when the government exerts First Amendment pressures that have nothing to do with the actual financial assistance program, that can be a constitutional violation….
The OMB Pause Memorandum made several policy statements that are hostile to concepts like “Marxist equity,” “transgenderism,” and “woke gender ideology.” … It also instructed federal agencies to pause all disbursements that could be connected to these ill-defined categories. There is no indication that expressing viewpoints on these issues (or being associated with them at all) is in any way tied to the “contours of the [funding] program[s] [themselves].”…
The government “may not ‘aim at the suppression of dangerous ideas’” or “manipulate[]” a subsidy “to have a coercive effect.”… By appearing to target specific recipients because they associate with certain ideas, Defendants may be crossing a constitutional line….
The fact that organizations have been able to draw down funds in the immediate aftermath of the court’s TRO means nothing if the spigot is shut off again. The injunctive relief that Defendants fought so hard to deny is the only thing in this case holding potentially catastrophic harm at bay. The court’s previous order may have bought Plaintiffs a few additional weeks of funding, but they remain just as vulnerable as they were in the first week of February. A single disbursement does not protect a recipient when the next disbursement is equally as vital. …
“Plaintiffs paint[ed] a stark picture of nationwide panic in the wake of the funding freeze.”… Nonprofits and organizations across the country were left adrift as they scrambled to make sense of the memorandum and its effects…. Entire funding portals were taken offline with no rhyme or reason, generating significant confusion and fear….Many organizations had to resort to desperate measures just to stay operational. The pause placed critical programs for children, the elderly, and everyone in between in serious jeopardy. Because the public’s interest in not having trillions of dollars arbitrarily frozen cannot be overstated, Plaintiffs have more than met their burden here….
Amicus American Center for Law and Justice echoes Defendants’ mootness argument, claiming that “none of [Plaintiffs’] desired terms of the Prayer for Relief can be implemented [because] there is no OMB Memo that can be enjoined, restrained, or vacated.”…
If Amicus were correct, a government agency could order illegal activity, retract that order in name only while continuing to implement its substance, and escape legal liability. The court refuses to ratify such behavior….
Both Defendants and Amicus argue that “[t]emporary funding pauses are not an unusual exercise of executive authority.”… For support, they rely on President Biden’s pause of funding to the southern border wall … and President Obama’s thirty-day delay of Recovery Act funds,…
The court is unpersuaded that targeted pauses of funding for specific projects through an executive order are at all comparable OMB’s nationwide suspension of all federal financial assistance. Again, the court disagrees with Defendants’ and Amicus’s characterization of the pause in this case as “targeted” and “discrete” when the language of the memorandum applied to the “disbursement of all Federal funds under all open awards.”…
Defendants repeatedly reference the memorandum’s limitation that agencies only act “to the extent permissible under applicable law,”… But this does not save them. First, the incantation of magic language cannot justify otherwise-illegal action. Plaintiffs’ entire complaint alleges that Defendants’ instruction was unlawful to begin with. Second, even assuming that this language applies does not change the arbitrary-and-capricious analysis. Just because an agency can do something does not make it rational to do so.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL COUNCIL OF NONPROFITS, et al.,
Plaintiffs,
v.
OFFICE OF MANAGEMENT AND BUDGET, et al.,
Defendants.
Civil Action No. 25 - 239 (LLA)
MEMORANDUM OPINION
On February 3, 2025, the court issued a temporary restraining order (“TRO”) prohibiting Defendants Russell Vought1 and the Office of Management and Budget (“OMB”) (collectively, “Defendants”) from implementing, giving effect to, or reinstating under a different name OMB memorandum M-25-13 freezing all federal financial assistance under open awards. ECF No. 30, at 29-30. The court found good cause to extend the TRO under Rule 65(b)(2) on February 6, 2025. Feb. 6, 2025 Minute Order. Plaintiffs, several coalitions of nonprofit organizations, have moved for a preliminary injunction granting similar relief as the TRO. ECF No. 40. Upon consideration of the parties’ briefs, ECF Nos. 40, 47, 49, an amicus brief from the American Center for Law and Justice, ECF No. 48, the oral argument held on February 20, 2025, Feb. 20, 2025 Minute Entry, and for the reasons explained below, the court will enter a preliminary injunction.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
While most of the following factual background and procedural history was explained in the court’s opinion granting the TRO, ECF No. 30, the court recounts the details here for completeness and adds developments since the court’s February 3, 2025 hearing, TRO Hr’g, Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. 25-CV-239 (D.D.C. Feb. 3, 2025).
A. Office of Management and Budget Memorandum M-25-13
On January 27, 2025, Matthew J. Vaeth, Acting Director of OMB, issued a memorandum directing federal agencies to “complete a comprehensive analysis of all of their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” Off. of Mgmt. & Budget, Exec. Off. of the President, Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs (Jan. 27, 2025), https://perma.cc/69QB-VFG8 (“OMB Pause Memorandum,” or “M-25-13”), at 2. The memorandum stated that, “[ i]n the interim, to the extent permissible under applicable law, Federal agencies must temporarily pause all activities related to [the] 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.” Id. Additionally, the memorandum directed that “[e]ach agency must pause: (i) issuance of new awards; (ii) disbursement of Federal funds under all open awards; and (iii) other relevant agency actions that may be implicated by the executive orders, to the extent permissible by law.” Id.
The memorandum defined “Federal financial assistance” as: “(i) all forms of assistance listed in paragraphs (1) and (2) of the definition of this term at 2 [C.F.R. §] 200.1; and (ii) assistance received or administered by recipients or subrecipients of any type except for assistance received directly by individuals.” Id. ¶ 17. This includes all federal assistance in the form of grants, loans, loan guarantees, and insurance. Id. ¶ 18; see 2 C.F.R. § 200.1.2 As relevant executive orders, it listed:
• Protecting the American People Against Invasion (Jan. 20, 2025); • Reevaluating and Realigning United States Foreign Aid (Jan. 20, 2025); • Putting America First in International Environmental Agreements (Jan. 20, 2025); • Unleashing American Energy (Jan. 20, 2025); • Ending Radical and Wasteful Government DEI Programs and Preferencing (Jan. 20, 2025); • Defending Women from Gender Ideology Extremism and Restoring Biological Truth • to the Federal Government (Jan. 20, 2025); and • Enforcing the Hyde Amendment (Jan. 24, 2025). • OMB Pause Memorandum, at 1-2.
The memorandum stated that “[t]he temporary pause [would] become effective on January 28, 2025 at 5:00 PM.” Id. at 2. During the pause, agencies were directed to “submit to OMB detailed information on any programs, projects[,] or activities subject to [the] pause” on or before February 10, 2025. Id. at 2.
B. Complaint, Emergency Hearing, and Administrative Stay
Shortly after noon on January 28, Plaintiffs brought this suit against OMB and Acting Director Vaeth arguing that OMB’s action violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. ECF No. 1. Plaintiffs alleged that the implicated federal grants and funding “are the lifeblood of operations and programs for many . . . nonprofits, and [that] even a short pause in funding . . . could deprive people and communities of their life-saving services.” Id. ¶ 32. They argued that Defendants’ action was arbitrary and capricious, violated the First Amendment of the United States Constitution, and exceeded OMB’s statutory authority. Id. ¶¶ 43-61.
Along with their complaint, Plaintiffs sought a temporary restraining order “barring the OMB and all of its officers, employees, and agents from taking any steps to implement, apply, or enforce Memo M-25-13.” ECF No. 5, at 18. Defendants entered an appearance, ECF No. 9, and the court held an emergency hearing at 4:00 p.m. on January 28 to discern the parties’ positions with respect to the issuance of a brief administrative stay pending the resolution of Plaintiffs’ request for a TRO, Jan. 28, 2025 Minute Entry.
Given the extreme time constraints of the litigation and the magnitude of the legal issues, the court entered a brief administrative stay to permit the parties to fully brief the TRO motion and “buy[] the court time to deliberate.”3 ECF No. 13, at 3 (quoting United States v. Texas, 144 S. Ct. 797, 798 (2024) (Barrett, J., concurring)). The administrative stay was limited in scope and only prohibited Defendants “from implementing OMB Memorandum M-25-13 with respect to the disbursement of Federal funds under all open awards” until 5:00 p.m. on February 3, 2025. Id. at 4-5. The court also set a hearing on Plaintiffs’ TRO motion for 11:00 a.m. on February 3, 2025. Id. at 5.
C. Rescission of Memorandum M-25-13 and Aftermath
On January 29, the day after the court entered its administrative stay, OMB issued a new memorandum (“M-25-14”) that purported to rescind M-25-13. See ECF Nos. 18, 18-1. The new memorandum consisted of two sentences: “OMB Memorandum M-25-13 is rescinded. If you have questions about implementing the President’s Executive Orders, please contact your agency General Counsel.” ECF No. 18-1.
Shortly after this “rescission” was issued, White House Press Secretary Karoline Leavitt announced from her official social media account that the new memorandum was “NOT a rescission of the federal funding freeze.” Karoline Leavitt, X (formerly Twitter) (Jan. 29, 2025), https://perma.cc/99C4-5V6G. Instead, she stated that “[ c i]t [was] simply a rescission of [OMB memorandum M-25-13].” Id. She further explained that the purpose of the rescission was “[t]o end any confusion created by the court’s injunction.” Id. The entire post may be viewed below:
Karoline Leavitt @PressSec 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. 1:40 PM · Jan 29, 2025
Id.4
D. Temporary Restraining Order Phase
On January 30, Defendants filed their opposition to Plaintiffs’ TRO motion and concurrently moved to dismiss the complaint for lack of subject matter jurisdiction. ECF Nos. 20, 21. Both motions were fully briefed by February 1. ECF Nos. 24, 25, 26.
On the morning of February 3, 2025, the court held a hearing on Plaintiffs’ motion for a TRO. Feb. 3, 2025 Minute Entry. At the conclusion of the hearing, the court explained that it was inclined to grant a TRO and deny Defendants’ motion to dismiss. Tr. of TRO Hr’g, Nat’l Council of Nonprofits, at 58:17-59:15, No. 25-CV-239 (D.D.C. Feb. 3, 2025). Pursuant to the court’s request, Plaintiffs submitted a proposed TRO order shortly after the hearing concluded, and Defendants responded to the proposed order by mid-afternoon.
Before the administrative stay expired at 5:00 p.m., the court issued a memorandum opinion and order granting Plaintiffs’ motion for a temporary restraining order. ECF No. 30. The court concluded that it had jurisdiction over Plaintiffs’ motion, that the case was not moot following the purported “rescission” of the OMB Pause Memorandum, and that Plaintiffs had met the heavy burden of showing that they were entitled to a temporary restraining order. Id. at 6-29. Specifically, the court found that Plaintiffs had demonstrated that they were likely to succeed on their arbitrary and capricious claim because “Defendants . . . offered no rational explanation for why they needed to freeze all federal financial assistance—with less than twenty-four-hours’ notice—to ‘safeguard valuable taxpayer resources.’” Id. at 23 (quoting OMB Pause Memorandum, at 1).5 The court further determined that Plaintiffs had produced evidence that they would suffer irreparable injury in the absence of emergency relief because “the funding freeze threaten[ed] the lifeline that keeps countless organizations operational.” Id. at 28. Finally, the court concluded that the “nationwide panic” and widespread chaos caused by the impending freeze tipped the public interest heavily in favor of a temporary restraining order. Id. at 28-29.
The order prohibited Defendants “from implementing, giving effect to, or reinstating under a different name the directives in OMB Memorandum M-25-13 with respect to the disbursement of Federal funds under all open awards.” ECF No. 30, at 29. Pursuant to the order, Defendants sent written notice “to all agencies to which OMB Memorandum M-25-13 was addressed” informing them of the temporary restraining order later that evening. ECF No. 39, at 1.
On February 6, the court set an expedited preliminary injunction briefing schedule and ordered the parties to appear for a hearing on February 20 at 11:00 a.m. Feb. 6, 2025 Minute Order. The court also extended the TRO for good cause until it could resolve Plaintiffs’ forthcoming preliminary injunction motion. Id.
E. Preliminary Injunction Phase
On February 11, Plaintiffs filed their motion for a preliminary injunction. ECF No. 40. Defendants filed their opposition on February 15, ECF No. 47, and Plaintiffs filed their reply on February 18, ECF No. 49.6
Some of Plaintiffs’ members submitted new declarations explaining that they have been able to access their previously allocated federal funds since the court’s entry of the TRO. See ECF Nos. 40-1 ¶ 3; 40-2 ¶ 6; 40-3 ¶ 4. Those declarants still maintain, however, that any additional pause in funding will have catastrophic or fatal consequences for their organizations. See ECF Nos. 40-1 ¶¶ 4-5; 40-2 ¶¶ 7-8; 40-3 ¶ 5.
On the morning of February 20, the court held a hearing on Plaintiffs’ motion for a preliminary injunction. Feb. 20, 2025 Minute Entry.
F. Parallel Litigation in the District of Rhode Island
On the same day Plaintiffs filed this suit, and several hours before memorandum M-25-13’s pause was to go into effect, twenty-two states and the District of Columbia filed suit in the U.S. District Court for the District of Rhode Island and sought a TRO to halt implementation of the memorandum. See Compl., New York v. Trump, No. 25-CV-39 (D.R.I. Jan. 28, 2025), ECF No. 1.
The district court held a hearing on January 29 at 3:00 p.m., after OMB had “rescinded” memorandum M-25-13. The court granted the States’ request and issued a TRO on January 31, 2025. TRO, New York, No. 25-CV-39 (D.R.I. Jan. 31, 2025), ECF No. 50. The restraining order prohibited the defendants (President Trump, OMB, and eleven federal agencies) from “paus[ing], freez[ing], imped[ing], block[ing], cancel[ing], or terminat[ing] [their] compliance with awards and obligations to provide federal financial assistance to the [plaintiff] States.” Id. at 11. The order also prohibited the defendants “from reissuing, adopting, implementing, or otherwise giving effect to the [OMB memorandum M-25-13] under any other name or title, . . . such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025.” Id. at 12. Finally, the court directed the States to file their forthcoming motion for a preliminary injunction expeditiously. Id. at 11.
On the morning of February 3, the defendants filed a notice of compliance with the District of Rhode Island’s TRO. Notice of Compliance with Court’s TRO, New York, No. 25-CV-39 (D.R.I. Feb. 3, 2025), ECF No. 51. In it, the defendants explained that they had provided written notice to all defendant agencies on January 31 to inform them of the TRO and instruct them to comply with its restrictions. Id. ¶ 1. The defendants also notified the court that they believed certain terms of the TRO “constitute[d] significant intrusions on the Executive Branch’s lawful authorities and the separation of powers.” Id. ¶ 2.
The court subsequently set a briefing schedule on the States’ motion for a preliminary injunction. Text Order, New York, No. 25-CV-39 (D.R.I. Feb. 3, 2025). On February 6, the court held a status conference and extended the duration of its TRO until it could rule on the preliminary injunction motion. Text Order, New York, No. 25-CV-39 (D.R.I. Feb. 6, 2025). The next day, the States filed an emergency motion to enforce the TRO, citing evidence that they “continue[d] to be denied access to federal funds.” Mot. for Enforcement of the TRO, New York, No. 25-CV-39 (D.R.I. Feb. 7, 2025), ECF No. 66. The defendants opposed, arguing that their actions “d[id] not run afoul of the Court’s injunction, or at least not a ‘clear and unambiguous command’ in the Court’s injunction.” Opp’n to Pls.’ Mot. to Enforce TRO, New York, No. 25-CV-39 (D.R.I. Feb. 9, 2025), ECF No. 70. On February 10, the court granted the States’ motion and ordered the defendants to “immediately restore frozen funding,” “end any federal funding pause,” and “take every step necessary to effectuate the TRO” during its pendency. Order, New York, No. 25-CV-39 (D.R.I. Feb. 10, 2025), ECF No. 96.
Even though the court had not ruled on the still-pending motion for a preliminary injunction, the defendants appealed later that day. Notice of Appeal, New York, No. 25-CV-39 (D.R.I. Feb. 10, 2025), ECF No. 98. They sought (1) review of the district court’s TRO order and enforcement orders, and (2) an administrative stay of the district court’s rulings pending the appeal. Emergency Mot. for Immediate Administrative Stay, New York v. Trump, No. 23-1138 (1st Cir. Feb. 10, 2025). The First Circuit assumed that it had jurisdiction over the appeal and unanimously denied the request for an administrative stay without prejudice. Order, New York, No. 23-1138 (1st Cir. Feb. 11, 2025). It expressed uncertainty as to whether such an administrative stay could issue and noted that “the defendants d[id] not cite any authority in support of their administrative stay request or identify any harm related to a specific funding action or actions that they w[ould] face without their requested administrative stay.” Id. The appellate court did not address the merits of the appeal. Id. The defendants then moved to voluntarily dismiss their appeal, Mot. to Voluntarily Dismiss Appeal, New York, No. 23-1138 (1st Cir. Feb. 13, 2025), which the court granted on February 13. Judgment, New York, No. 23-1138 (1st Cir. Feb. 13, 2025).
On February 21, the District of Rhode Island held a preliminary injunction hearing. The court took the States’ motion under advisement but “reiterate[d] that the previously entered TRO [remained] in full force and effect.” Minute Entry, New York, No. 25-CV-39 (D.R.I. Feb. 21, 2025). Litigation remains ongoing.
II. DISCUSSION
A. Jurisdiction
The factual situation has shifted somewhat since the court entered its TRO, and Defendants again press their jurisdictional arguments. While the initial funding freeze has begun to thaw, the court concludes that it still retains jurisdiction.
1. Standing
As an initial matter, there is no question that Plaintiffs had standing when they initially brought their complaint. ECF No. 30, at 6-13; see Garcia v. U.S. Citizenship & Immgr. Servs., 168 F. Supp. 3d 50, 65 (D.D.C. 2016) (explaining that standing “is concerned with the presence of injury, causation, and redressability at the time a complaint is filed”). As the court explained in its TRO opinion, Plaintiffs had satisfied each of the three standing requirements: (1) a concrete and particularized injury in fact; (2) a causal connection linking the injury and the challenged conduct; and (3) a likelihood that a favorable court decision will redress the injury. ECF No. 30, at 6-7 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). While that alone is sufficient to confer standing, the court pauses to note that standing persists.
a. Injury in fact
Plaintiffs have demonstrated that “even a temporary pause in funding to their members . . . would destroy their ability to provide [critical] services.” ECF No. 30, at 7; see ECF No. 1 ¶¶ 33-34, 36-40. Many, if not all, of Plaintiffs’ members “need weekly injections of federal funds in order to continue operating.” ECF No. 30, at 8; see, e.g., ECF No. 24-7 ¶¶ 20-21. Some have employees who “live paycheck to paycheck, meaning that a single missed payment could prevent them from buying groceries or paying rent.” ECF No. 30, at 9 (internal quotation marks omitted); see ECF No. 24-4 ¶ 7. Others had begun to feel the effects of the freeze even before it was supposed to go into effect: one tribal organization was forced to preemptively lay off two employees on January 28. ECF No. 30, at 9; see ECF No. 24-5 ¶ 13. Plaintiffs also demonstrated constitutional injury because “Defendants [allegedly] singled out their funding programs (in other words, their economic lifelines) based on their exercise of speech and association.” ECF No. 30, at 8.
Defendants now try to frame the issue as one of Plaintiffs’ “standing to seek prospective relief.” ECF No. 47, at 11. The court reminds Defendants that the injunctive relief currently in place was issued to temporarily stave off imminent, irreparable harm. Facts have certainly evolved since then, see infra Part II.A.2, but Defendants cannot pretend that the nationwide chaos and paralysis from two weeks ago is some distant memory with no bearing on this case. The relief Plaintiffs now seek is a more durable version of the relief they sought then, when their members were on the brink of extinction. In sum, Plaintiffs have marshalled significant evidence indicating that the funding freeze would be economically catastrophic—and in some circumstances, fatal— to their members. That is sufficient to show an injury-in-fact.
b. Causation
The court previously rejected Defendants’ attempts to break the causal chain between the funding freeze and the OMB Pause Memorandum. ECF No. 30, at 9-12. Plaintiffs convincingly demonstrated that the memorandum—not some other cause—triggered the shutting down of federal funding portals and the suspension of assistance payments. Id. While Defendants have tried to attribute the pauses to individual agency discretion, those pauses did not occur until after the memorandum was issued.
In opposing the TRO, Defendants cited two cases, ECF No. 21-1, at 10-11, but the court was not persuaded then, and it remains unpersuaded. The first featured an executive order that “d[id] not require any action from federal agencies.” Louisiana ex rel. Landry v. Biden, 64 F.4th 674, 681 (5th Cir. 2023). Instead, the order allowed agencies to individually determine whether the guidance applied to their activities. Id. For that reason, causation in Louisiana “hinge[d] on the independent choices of [a] regulated third party” and was not traceable to the defendant. Center for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005) (quoting Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004), abrogated on other grounds by Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) (en banc)). In contrast, the OMB Pause Memorandum was a clear command. It emphatically stated that all federal agencies “must temporarily pause all activities related to [the] obligation or disbursement of all Federal financial assistance.” OMB Pause Memorandum, at 2. That was a directive, not a suggestion. Just two paragraphs later, it reiterated that agencies “must pause . . . disbursement of Federal funds under all open awards.” Id. And in the penultimate paragraph, it stated that “OMB may grant exceptions allowing Federal agencies to issue new awards or take other actions on a case-by-case basis.” Id. (emphasis added). On its face, the memorandum does not read like a guidance that leaves funding decisions solely in the hands of independent, third-party agencies.
The second case, on which Defendants no longer rely, was also inapposite. In Jacobson v. Florida Secretary of State, 974 F.3d 1236 (11th Cir. 2020), the plaintiffs sought to change the way elections officials were listing gubernatorial candidates, but they had sued a government actor with no actual control over those officials. Id. at 1253. The elections officials were answerable only to voters, not the defendant. Id. Here, however, Defendants try to build their case on the exact opposite premise: that OMB does exercise control over federal financial policies. See ECF No. 21-1, at 16-20. Both Louisiana and Jacobson are therefore inapplicable.
Further undermining Defendants’ position, federal agencies clearly behaved as if the memorandum caused the freeze. In the immediate aftermath of the court’s administrative stay on January 28, the Environmental Protection Agency continued to pause funding disbursements explicitly based on the memorandum. See ECF No. 24-1, at 7 (explaining that the agency was still “working diligently to implement [OMB]’s memorandum” and was therefore “temporarily pausing all activities related to the obligation or disbursement of EPA Federal financial assistance” and working closely “with OMB” to do so).
Undeterred, Defendants vigorously challenge causation again at the preliminary-injunction stage. They start by rehashing the independent-agency theory, claiming that the memorandum “did not itself temporarily pause any federal financial assistance.” ECF No. 47, at 13. For that to be true, Defendants would have the court believe that countless federal agencies, none of which had acted to cut off financial assistance before January 28, suddenly began exercising their own discretion to suspend funding across the board at the exact same time. That would be a remarkable—and unfathomable—coincidence. That this uniform freeze occurred just hours after the memorandum’s issuance would be quite the happenstance, too. Indeed, the record belies Defendants’ assertions. It reflects that after OMB issued its memorandum on January 27, agencies immediately began freezing funds, and after this court entered its TRO, some of those funds were released. See, e.g., ECF Nos. 40-3 ¶ 4 (organization able to draw down funds on February 4, one day after entry of the TRO); 40-1 ¶ 3 (organization able to draw down funds on February 5, two days after entry of the TRO); 40-2 ¶ 6 (organization received funds on February 6, three days after entry of the TRO).
Defendants try to downplay the fact that the freeze began to thaw after the court entered its TRO. They claim that this “could equally be because such funds were not intended to be paused under the OMB Memo and OMB Guidance, or because of a broader court order entered by the district court in Rhode Island.” ECF No. 47, at 13. But this argument requires the exact same coincidental assumptions as above, just in reverse. And it contradicts the record, which indicates that agencies explicitly relied on the memorandum when responding to funding inquiries. See ECF No. 24-1, at 7. Adopting Defendants’ view would require reading the memorandum differently than how it was written. Its directive was broad and mandatory, and that is exactly how the agencies interpreted it. See infra Part II.A.2.a.
Defendants also argue that the memorandum “d[id] not determine which funds or grants should be paused” and instead “require[d] that agencies make that determination, consistent with their own authorities.” ECF No. 47, at 13. In a manner of speaking, Defendants are right that the memorandum did not identify specific funds to be paused. Instead, it simply paused them all. OMB Pause Memorandum, at 2. Defendants cannot show that this directive left any room for agency discretion, especially on the nearly nonexistent timetable it provided. Agencies were not given an option on whether to continue honoring their payment obligations; they simply had to stop. And even if the agencies thought they had discretion to act, they were given roughly half a day to evaluate up to $3 trillion in grants, loans, and other programs. That is not discretion.
When Plaintiffs filed suit, they alleged that Defendants had illegally ordered all federal agencies to suspend payments on open awards. Plaintiffs provided evidence that those agencies only started freezing funds after the memorandum was issued and—in some cases—expressly relied on the memorandum to do so. Within days of this court’s TRO (and Defendants’ written notice to all federal agencies), payments began to resume. Defendants ask the court to overlook the simplest, most logical explanation for that sequence of events. The court declines to do so.
c. Redressability
Redressability is closely related to causation, and Plaintiffs have satisfied it. Defendants claim that “[Plaintiffs’] funding is not administered by OMB” and that an injunction against it “would not give [them] legally enforceable protection from the allegedly imminent harm.” ECF No. 47, at 14 (quoting Haalend v. Brackeen, 599 U.S. 255, 293 (2023)).
But Plaintiffs seek an injunction barring Defendants from directing agencies to freeze federal funding nationwide in a blanket fashion. Prelim. Inj. Hr’g, Nat’l Council of Nonprofits, No. 25-CV-239 (Feb. 20, 2025). As the court previously explained, a ruling in Plaintiffs’ favor would force agencies “to behave as if the memorandum were never issued.” ECF No. 30, at 13. Any pauses premised on the memorandum would cease, thus granting Plaintiffs significant relief. Whether individual agencies later exercise their individual discretion to stop funding on another basis does not defeat redressability as it pertains to the OMB Pause Memorandum.
2. Mootness
Mootness, sometimes defined as “standing set in a time frame,” asks whether a case continues to present a live controversy as it progresses. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). As the court explained in its earlier opinion, despite the purported “recission” of the OMB Pause Memorandum, the case was not moot at the time the court entered its TRO. ECF No. 30, at 13-19. While Defendants continue to argue mootness in light of recent factual developments, the court’s previous analysis still applies today.
a. Rescission of the memorandum
Defendants begin by again relying on the rescission of the OMB Pause Memorandum, which occurred on January 29. ECF No. 47, at 8. That “rescission,” however, had already taken place when Defendants last made this same argument. The court rejected the claim then, and it rejects the claim now.
First, the doctrine of voluntary cessation still applies. A party’s decision to stop “a challenged practice does not deprive a federal court of its power to determine [its] legality.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). This doctrine exists to protect plaintiffs and prevent a defendant from “return[ing] to [its] old ways” as soon as a case gets dismissed. Id. (quoting City of Mesquite, 455 U.S. at 289). To overcome it, a defendant must meet a heavy burden: it must show that it is “absolutely clear [that] the allegedly wrongful behavior [cannot] reasonably be expected to recur.” Pub. Citizen, Inc. v. Fed. Energy Reg. Comm’n, 92 F.4th 1124, 1128 (D.C. Cir. 2024) (emphasis added) (quoting Friends of the Earth, Inc., 528 U.S. at 189).
Rescinding the OMB Pause Memorandum did not moot the case because Defendants could not—and still cannot—show that they will not “resume the challenged activity.” Id. As the court previously observed, the White House Press Secretary appeared to completely contradict the act of rescission by expressly stating that it was “NOT a rescission of the federal funding freeze.” Karoline Leavitt, X (formerly Twitter) (Jan. 29, 2025), https://perma.cc/99C4-5V6G. By any reading of the Press Secretary’s remarks, the memorandum’s retraction was an empty gesture. At best, it was meaningless. At worst, it was a brazen attempt to deprive the court of jurisdiction without actually altering course. See Pub. Citizen, Inc., 92 F.4th at 1128 (explaining that the voluntary-cessation doctrine applies with greater force when a party is suspected of “manipulating the judicial process through the false pretense of singlehandedly ending a dispute” (internal quotation marks omitted) (quoting Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 15 (D.C. Cir. 2019) (per curiam))). Because Plaintiffs’ members were still being frozen out of their funding in the wake of the purported “rescission,” see ECF Nos. 24-4 ¶ 12; 24-5 ¶ 24; 24-11 ¶ 19, “it appears that OMB sought to overcome a judicially imposed obstacle without . . . ceasing the challenged conduct.” ECF No. 30, at 16.7
Defendants and Amicus now say that factual developments have made the voluntary-cessation doctrine inapplicable. ECF No. 47, at 9-10. Specifically, they say that “there is no reason to think OMB [will] reissue the challenged Memo” because the President’s executive orders— which Plaintiffs do not challenge—remain in place. Id. at 10; see ECF No. 48, at 4 (Amicus arguing that the “executive orders related to federal funding” independently “order[ed] federal agencies to engage in certain specified pauses”). In other words, the memorandum would have no added benefit. But this argument ignores the fact that the effects of the OMB Pause Memorandum and the President’s executive orders were not coextensive. At the TRO hearing, Defendants could not explain all the frozen funding by relying on the executive orders alone. See ECF No. 30, at 18 (“Plaintiffs have provided evidence that the scope of frozen funds appears to extend far beyond the reach of the executive orders[.]”), 19 (“At oral argument, when asked about another declarant who was receiving a grant from the National Science Foundation, Defendants could not give a clear answer as to why that recipient would be denied funds pursuant to the executive orders.” (citation omitted)). Defendants insist that this overreach may have been because agencies overzealously implemented the freeze. But that is a problem of Defendants’ own creation. Their memo was written, interpreted, and executed as a blanket pause. See, e.g., Tr. of TRO Hr’g, at 16:1-5, Nat’l Council of Nonprofits, No. 25-CV-239 (D.D.C. Feb. 3, 2025) (“[T]he way that the OMB order has been implemented in many cases . . . is [not by] pausing individual grants but by freezing the platforms, the online portals[.]”). Defendants cannot shift the blame onto federal agencies because those agencies followed Defendants’ own orders.
Attempting to put the agencies’ real-world interpretations aside, Defendants assert that the memorandum’s language was clearly limited only to activities covered by the seven executive orders referenced in the memorandum. See Tr. of Prelim. Inj. Hr’g, at 26:25-29:17, Nat’l Council of Nonprofits, No. 25-CV-239 (D.D.C. Feb. 20, 2025). The court is unconvinced for several reasons. The memorandum’s primary directive (“must temporarily pause”) targeted “all activities related to [the] 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 Pause Memorandum, at 2. OMB’s decision to separate the first and second clauses indicated that they were to be treated as distinct categories for the pause. If both clauses were meant to be limited to the executive orders, it is not clear why OMB would distinguish “all activities related to obligation or disbursement” from “other relevant agency activities.” Id. Conceivably, OMB would have simply instructed agencies to pause all funding activities related to the executive orders and leave it at that.
Furthermore, the whole purpose of the pause was to give agencies time “to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” Id. (emphasis added). The pause was to apply “[ i]n the interim”—in other words, while that identification took place. It would make little sense for agencies to only pause activities associated with the executive orders while evaluating what activities are even associated with the executive orders in the first place. The narrower reading that Defendants endorse would require agencies to already know what activities “may be implicated” by the executive orders. For the memorandum’s order of operations to be logical, then, the court would need to read it the way Plaintiffs do: OMB told agencies to assess funding for consistency with the President’s executive orders and, “[ i]n the interim,” “temporarily pause all activities related to [the] obligation or disbursement of Federal financial assistance” while that assessment was underway. Id.
Additionally, if the memorandum’s language were obviously limited to the executive orders, the court does not understand why OMB included a footnote carving out Social Security and Medicare, see id. at 1 n.2, or subsequently issued an entirely new document clarifying the original directive, ECF No. 11-1. None of the executive orders addresses Social Security or Medicare at all. If it were apparent that the pause did not extend beyond the executive orders, the footnote is entirely unnecessary. And as for the subsequent guidance, it does not make sense for Defendants to claim that an initial instruction is unambiguous but then feel a need to clarify it only hours later.
In sum, the doctrine of voluntary cessation still applies. Defendants have not made it “absolutely clear” that they will refrain from resuming the challenged activity given their postcomplaint actions and overly restrictive reading of the memorandum’s language. Pub. Citizen, Inc., 92 F.4th at 1128.
b. Resumption of funding
Second, Defendants try to argue that the gradual thawing of the freeze indicates mootness. ECF No. 47, at 9-11. The court disagrees. It is true that some of Plaintiffs’ members are now receiving federal funds again, but that does not render their case, or their request for injunctive relief, moot.
At the preliminary injunction stage, Defendants cannot simply “claim that the need for an injunction is now moot because [they have] ‘ceased [their] wrongful conduct.’” Costa v. Bazron, 464 F. Supp. 3d 132, 141 (D.D.C. 2020) (quoting Taylor v. Resol. Tr. Corp., 56 F.3d 1497, (D.C. Cir. 1995)). This rings especially true when the cessation “follow[s] the entry of a TRO.” Id. The “court’s power to grant injunctive relief survives discontinuance of the illegal conduct” because the “purpose . . . is to prevent future violations.” Dep’t of Just. v. Daniel Chapter One, 89 F. Supp. 3d 132, 143 (D.D.C. 2015) (alteration in original) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)).
Defendants instructed agencies to disregard the directives of the memorandum, as they were required to do so by two different courts’ orders. See ECF No. 30, at 29 (directing Defendants to issue written notice to all agencies); ECF No. 39-1 (Defendants’ written notice); TRO, New York, No. 25-CV-39 (D.R.I. Jan. 31, 2025), ECF No. 50. But Defendants cannot now rely on this court-ordered compliance to argue that a court order is unnecessary. As Plaintiffs point out, and as other judges of this court have recognized, adopting Defendants’ position would mean that no TRO could ever become a preliminary injunction. See Costa, 464 F. Supp. 3d at 142 (“If compliance with the terms of a TRO were sufficient to defeat entry of a preliminary injunction, few—if any—cases would make it past the TRO stage.”).
Defendants blithely suggest that if they were to revive or reissue the OMB Pause Memorandum at some future point in time, Plaintiffs could simply “file another motion for preliminary relief.” ECF No. 47, at 11. This proposal completely disregards the mountain of evidence Plaintiffs presented showing that even the threat of a funding freeze was enough to send countless organizations into complete disarray. Hours before the original pause was scheduled to start, organizations were already laying off staff or shuttering programs. See, e.g., ECF Nos. 24-5 ¶ 13; 24-7 ¶¶ 20-21. In some cases, this was anticipatory; in others, it was because organizations were already being frozen out of funding portals. See ECF Nos. 24-8 ¶¶ 8-9; 24-6 ¶ 15; 24-7 ¶ 13; 24-8 ¶ 9. Defendants’ assumption that Plaintiffs can easily rush back before the court for injunctive relief before catastrophe ensues is, quite simply, divorced from reality and the record. Indeed, while turning off funding streams appears to have been alarmingly easy, turning them back on has proven much more difficult. See ECF No. 40-2 ¶ 6 (explaining that it took three days to receive funding after entry of the TRO); Prelim. Inj. Hr’g, at 3:9-10, Nat’l Council of Nonprofits, No. 25-CV-239 (Feb. 20, 2025) (“Unfreezing of funds in response to that order has not always been smooth; in some cases, we think maybe imperfect and incomplete.”).
For all these reasons, the court remains unpersuaded by Defendants’ mootness arguments. To be sure, the government is normally entitled to a presumption of good faith on voluntary cessation. Pub. Citizen, Inc., 92 F.4th at 1128-29 (quoting Clarke v. United States, 915 F.2d 699, 705 (D.C. Cir. 1990) (en banc)). But the court will not confer that presumption when the government says one thing while expressly doing another. Karoline Leavitt, X (formerly Twitter) (Jan. 29, 2025), https://perma.cc/99C4-5V6G. And it will not reward parties who change appearances without changing conduct.
3. Ripeness
At the preliminary injunction stage, Defendants raise a new jurisdictional argument based on ripeness. They claim that Plaintiffs’ claims are currently “too amorphous” for judicial review, and that the court should delay adjudication until further factual developments. ECF No. 47, at 14.8
Under the ripeness doctrine, courts conduct a two-pronged inquiry that evaluates (1) “the fitness of the issues for judicial decision,” and (2) “the hardship to the parties of withholding court consideration.” Andrade v. Lauer, 729 F.2d 1475, 1480 (D.C. Cir. 1984) (quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). But when “a threatened injury is sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ripeness doctrine will necessarily be satisfied.” Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1428 (D.C. Cir. 1996).
Plaintiffs have already established concrete, particularized, and non-speculative injuries— injuries that had devastating effects, persisted after the OMB Pause Memorandum was stayed, and loom over Plaintiffs to this day. In arguing to the contrary, Defendants ask the court to ignore the fact that agencies continued implementing OMB’s freeze or that the District of Rhode Island had to enforce its TRO mere days after it was entered. In the instant litigation, the only reason that harm stopped was because of injunctive relief issued by this court—relief that Defendants insist is unnecessary. Defendants’ ripeness arguments, like their mootness arguments, wholly disregard the factual circumstances of this case and its context.
While they differ in duration, temporary restraining orders and preliminary injunctions are subject to the same substantive legal standards. See, e.g., Singh v. Carter, 168 F. Supp. 3d 216, 223 (D.D.C. 2016). Courts may either grant a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(c) or, in APA cases, may “issue all necessary and appropriate process to . . . preserve status or rights pending conclusion of the review proceedings” when doing so is “necessary to prevent irreparable injury.” 5 U.S.C. § 705. Both provisions provide a mechanism for issuing injunctive relief and operate under the same four-factor test. District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 15 (D.D.C. 2020).
To obtain a preliminary injunction, “the moving party must show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
These four considerations are factors, not elements. “A district court must ‘balance the strengths of the requesting party’s arguments in each of the four required areas.’” Id. (quoting CityFed Fin. Corp. v. Off. of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)). When a government entity is a party to the case, the third and fourth factors merge. Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016).
Prior to the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), courts in this Circuit tended to employ a “sliding scale” method in which “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). While the D.C. Circuit has considered abandoning the sliding-scale method for one that treats the substantial likelihood prong as “an independent, free-standing requirement,” id. at 393, it has yet to decide one way or the other, see Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022). At the very least, however, the plaintiff must present a “serious legal question on the merits.” Raimondo, 40 F.4th at 726 (quoting Sherley, 644 F.3d at 398). Given the ambiguity with respect to the sliding-scale approach, the court will consider all factors and delve into their relative weight only if it would affect the outcome. See Costa, 456 F. Supp. 3d at 133.
1. Likelihood of Success on the Merits
On the merits, Defendants largely repeat the same arguments they made at the TRO stage. See ECF No. 47, at 14-16 (final agency action), 25-31 (arbitrary and capricious), 31-34 (statutory authority), 34-36 (First Amendment). The court begins by addressing OMB’s guidance document, which the parties discussed at length in their preliminary injunction briefing and at oral argument. See ECF No. 47, at 20-25; ECF No. 49, at 4-6; Prelim. Inj. Hr’g, at 6:19-9:14, 29:21-32:24, Nat’l Council of Nonprofits, No. 25-CV-239 (D.D.C. Feb. 20, 2025). It then turns to final agency action, followed by the substantive merits of Plaintiffs’ three claims.
a. The role of the OMB Guidance
Defendants spill considerable ink about OMB’s issuance of a guidance document, ECF No. 11-1 (“OMB Guidance Document”), which supposedly limited the scope of the OMB Pause Memorandum, see ECF No. 47, at 20-25. They assert that the original memorandum, when read in tandem with the OMB Guidance Document, stops short of unlawful agency action. Id. at 21 (noting the OMB Guidance Document’s statement that “the pause does not apply across-the-board” and “is expressly limited to programs, projects, and activities implicated by the President’s Executive Orders”). This argument sounds persuasive in theory but clashes with how Defendants’ directives were actually written and implemented.
As an initial matter, the language of the OMB Guidance Document appears to contradict that of the original memorandum. The guidance document sought to carve out numerous programs and portray the initial command as much more limited, but the original memorandum mandated (in bold typeface, no less) that all federal agencies “must temporarily pause all activities related to [the] obligation or disbursement of all Federal financial assistance.” OMB Pause Memorandum. It also required agencies to stop the “disbursement of Federal funds under all open awards.” Id. 26 (emphasis added). As the court explained previously, supra Part II.A.2.a, this language conveyed a clear directive to implement a blanket pause of federal financial assistance. That flatly contravenes the OMB Guidance Document’s pronouncement that the pause “d[id] not apply across-the-board.” OMB Guidance Document, at 1.
Furthermore, regardless of how Defendants would have liked their guidance to apply, that is a far cry from how it was administered in practice. As far as the parties and this court are aware, the guidance was issued at some point on January 28 (the same day the funding freeze was to take effect). Plaintiffs only received a copy of the guidance around 1:30 p.m., see ECF No. 11, at 2, and even Defendants did not know exactly when it was originally issued or distributed to federal agencies, Tr. of Prelim. Inj. Hr’g, at 25:5-9, Nat’l Council of Nonprofits, No. 25-CV-239 (Feb. 20, 2025). Under the most generous viewing of the case’s chronology, agencies had maybe four hours (but probably fewer) to actualize the OMB Guidance Document. Clearly, that was not enough time.9 Agencies still implemented the original memorandum as written. For example, despite the guidance’s attempt to carve out “program[s] that provide[] direct benefits to individuals,” OMB Guidance Document, at 1, financial assistance for such programs was still suspended, see ECF Nos. 24-5 ¶¶ 14-16; 27-1 ¶¶ 4-5. The guidance also exempted “[f]unds for small businesses” and “Head Start” payments, OMB Guidance Document, at 2, but those fell victim to the freeze, too, see ECF Nos. 24-3, at 74; 24-6. Defendants cannot rely on the OMB Guidance Document as a saving grace when it had virtually no effect on the ground.
This theme—that Plaintiffs are trying to enjoin a far-reaching version of the OMB Pause Memorandum that never existed—pervades all of Defendants’ briefing and argument. See ECF No. 47, at 10 (mootness), 13 (causation), 20-25 (role of the OMB Guidance Document); 27 (arbitrary and capricious). But Defendants cannot take a memorandum that was drafted broadly, interpreted expansively, and implemented categorically and fault Plaintiffs for “overreading” that directive.
b. Final agency action
Defendants, now joined by Amicus, again dispute whether the OMB Pause Memorandum was final agency action. Like before, the court is unpersuaded.
Finality is a prerequisite to the judicial review of an APA claim. See 5 U.S.C. § 704. Agency actions, as a general matter, must be “circumscribed [and] discrete.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004). Final agency action, in particular, “must mark the consummation of the agency’s decisionmaking process” and determine “rights or obligations . . . from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks omitted) (first quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948), then quoting Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). The APA does not, for example, allow a court to review an agency’s “day-to-day operations.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 899 (1990).
Echoing points from their causation argument, Defendants claim that any instruction from OMB could not have been final because it was the individual agencies that carried out the funding freeze. To the extent this repeats the causation analysis, the court has already addressed it. See supra Part II.A.1.b.
Defendants and Amicus further accuse Plaintiffs of improperly advancing a “‘broad programmatic attack’ on an agency’s operations” by targeting a policy “consisting [principally] of . . . many individual actions.” ECF No. 48, at 5 (second alteration in original) (first quoting Norton, 542 U.S. at 64, then quoting Nat’l Wildlife Fed’n, 497 U.S. at 892-93); see ECF No. 47, at 15-16. But Plaintiffs only challenge one specific act by OMB: ordering a nationwide pause on federal financial assistance. And, as explained, supra Part II.B.1.a, Defendants and Amicus cannot rely on a theoretical version or application of OMB’s directives. The initial memorandum was drafted and interpreted broadly in accordance with its text, and what little clarity the guidance offered—if any—came far too late. As the court explained in its earlier opinion, the OMB Pause Memorandum issued a mandatory command to other federal agencies that produced legal consequences for Plaintiffs and others. See ECF No. 30, at 21-23.
c. Arbitrary and capricious
Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). To pass muster, the agency “must examine the relevant data and articulate a satisfactory explanation for its action[,] including a ‘rational connection between the facts found and the choice made.’” Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Agency action is generally deemed unlawful if it “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id.
The arbitrary-and-capricious review at this stage of the litigation remains largely unchanged from the court’s earlier opinion. The touchstone of this inquiry is rationality, and Defendants’ actions flunk that test. Defendants still cannot provide a reasonable explanation for why they needed to freeze all federal financial assistance in less than a day to “safeguard valuable taxpayer resources.” OMB Pause Memorandum, at 1. Evaluating funding priorities can be done without needing to starve citizens or deny critical health services. See, e.g., ECF Nos. 24-4 ¶ 6; 24-11 ¶¶ 6-7. The potential $3 trillion in financial assistance implicated by the freeze is a “breathtakingly large sum of money to suspend practically overnight.” ECF No. 30, at 24. And “[r]ather than taking a measured approach to identify purportedly wasteful spending, Defendants cut the fuel supply to a vast, complicated, nationwide machine—seemingly without any consideration for the consequences of that decision.” Id. Doing so was not—and could never be—rational, especially when the decision was made without grappling with its catastrophic effects or the logistical nightmare of its implementation.10 See Bus. Roundtable v. Sec. & Exch. Comm’n, 647 F.3d 1144, 1148 (D.C. Cir. 2011) (explaining that an agency’s failure to “apprise itself . . . of the economic consequences” of potential action is “arbitrary and capricious and not in accordance with law” (quoting Chamber of Com. of the U.S. v. Sec. & Exch. Comm’n, 412 F.3d 133, 144 (D.C. Cir. 2005))). Defendants essentially adopted a “freeze first, ask questions later” approach that “entirely failed to consider [multiple] important aspect[s] of the problem.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.11
Defendants also ignored significant reliance interests. Plaintiffs—who only challenge the pausing of already allocated funds—produced substantial evidence that numerous organizations need consistent disbursements of funds to even operate. Missing a single payment could require immediate firings or the discontinuation of entire programs. See ECF Nos. 24-4 ¶¶ 4, 6; 24-5 ¶ 13. When an agency suddenly changes course, it must recognize “that longstanding policies may have engendered serious reliance interests that must be taken into account.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020) (internal quotation marks omitted) (quoting Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221-22 (2016)). Defendants entirely failed to do so.
In the simplest terms, the freeze was ill-conceived from the beginning. Defendants either wanted to pause up to $3 trillion in federal spending practically overnight, or they expected each federal agency to review every single one of its grants, loans, and funds for compliance in less than twenty-four hours. The breadth of that command is almost unfathomable. See ECF No. 30, at 17 (“[ i]t is unclear whether twenty-four hours is sufficient time for an agency to independently review a single grant, let alone hundreds of thousands of them.”). Either way, Defendants’ actions were irrational, imprudent, and precipitated a nationwide crisis. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim.
d. Excess of statutory authority
Plaintiffs’ second claim argues that Defendants dramatically overstepped the bounds of their legal authority in ordering a nationwide funding freeze.12 Agencies “are creatures of statute” and are therefore subject to the limits prescribed by Congress. Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 595 U.S. 109, 117 (2022) (“OSHA”). In other words, they “‘literally ha[ve] no power to act’ except to the extent Congress [has] authorized.” Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902, 912 (D.C. Cir. 2024) (first alteration in original) (quoting Fed. Election Comm’n v. Ted Cruz for Senate, 596 U.S. 289, 301 (2022)). If an agency exceeds that power, the court must set aside its action under the APA. See 5 U.S.C. § 706(2)(C).
OMB’s organic statute is 31 U.S.C. § 503. Within it, Defendants primarily rely on subsections (a)(2) and (a)(5), but neither appears to grant the expansive authority that OMB tried to exercise here. Under subsection (a)(2), OMB may “[p]rovide overall direction and leadership to the executive branch on financial management matters by establishing financial management policies and requirements.” Id. § 503(a)(2). But providing overall direction and establishing financial management policies do not clearly confer the power to halt all finances, full-stop, on a moment’s notice. Indeed, the structure and provisions of Section 503 strongly suggest that OMB occupies an oversight role. Defendants have not pointed to specific authority that allows it to unilaterally pull the plug on nearly all federal monetary flows.
Subsection (a)(5) further indicates that OMB’s role is mainly supervisory, rather than directly active. That subsection permits OMB to “monitor the financial execution of the budget in relation to actual expenditures.” Id. § 503(a)(5). Such language falls well short of actively deciding whether agencies “must temporarily pause” all federal financial assistance. Defendants cannot convincingly argue that “monitor” rises to that level of affirmative control. See Monitor, The Oxford English Dictionary (2d ed. 1989) (defining “monitor” as “to observe, supervise, or keep under review”).
When an agency seeks to “exercise powers of vast economic and political significance,” the “sheer scope of [an agency]’s claimed authority” can trigger heightened judicial scrutiny. Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 764 (2021) (per curiam) (internal quotation marks omitted) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). In such situations, the court “expect[s] Congress to speak clearly” when conferring such authority. OSHA, 595 U.S. at 117 (quoting Ala. Ass’n of Realtors, 594 U.S. at 764). The Supreme Court has referred to this principle as the “major questions doctrine.” Id. at 122 (Gorsuch, J., concurring). Based on the cases in which the Supreme Court has invoked the doctrine, this case easily qualifies. See Ala. Ass’n of Realtors, 594 U.S. at 764 (applying the doctrine where the Centers for Disease Control and Prevention implemented a nationwide eviction moratorium affecting up to 17 million tenants); OSHA, 595 U.S. at 117-18 (applying the doctrine where OSHA required all federal employees to obtain COVID-19 vaccinations).
“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’” the court “typically greet[s] its announcement with a measure of skepticism.” Util. Air Regul. Auth. Grp., 573 U.S. at 324 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). Here, Defendants attempted to freeze as much as $3 trillion dollars—the sum total of “all activities related to [the] obligation or disbursement of all Federal financial assistance.” OMB Pause Memorandum, at 2. That is “no everyday exercise of federal power.” OSHA, 595 U.S. at 117 (internal quotation marks omitted) (quoting In re MCP No. 165, Occupational Safety & Health Admin., 20 F.4th 264, 272 (6th Cir. 2021) (Sutton, C.J., dissenting)).
The scope of power OMB seeks to claim is “breathtaking,” and its ramifications are massive. Ala. Ass’n of Realtors, 594 U.S. at 764. Because there is no clear statutory hook for this broad assertion of power, Plaintiffs are likely to succeed on the merits of this claim.
e. First Amendment
Plaintiffs’ third claim alleges that Defendants are “threaten[ing] [the] continued receipt of federal financial assistance based explicitly on [the recipients’] exercise of their core First Amendment rights of speech and association.” ECF No. 40, at 26. Defendants counter that the government may “selectively fund a program to encourage certain activities” without simultaneously “funding an alternative program [that] deal[s] with the problem in another way.” ECF No. 47, at 34 (quoting Rust v. Sullivan, 500 U.S. 173, 193 (1991)). Defendants are correct that the government “is not required to subsidize First Amendment rights,” Leathers v. Medlock, 499 U.S. 439, 450 (1991), or “assist others in funding the expression of particular ideas,” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009). And refusing to pay for certain speech generally does not inflict a First Amendment harm. See Rust, 500 U.S. at 193.
What is less clear, however, is whether the government may deliberately withhold funds that have already been earmarked for certain recipients based exclusively on the recipient’s viewpoints. Rust and similar decisions by the Supreme Court “are grounded in the notion that the ‘Due Process Clauses generally confer no affirmative right to governmental aid.’” J.D. v. Azar, 925 F.3d 1291, 1327 (D.C. Cir. 2019) (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 507 (1989)). But that calculus could change if individuals or organizations have already been awarded certain funds and grants—as is the case with Plaintiffs’ members here. If Defendants were to unfreeze promised funds only to organizations expressing one view, but not to organizations expressing the opposite view, that could raise First Amendment concerns.
Additionally, the Supreme Court has held that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech[,] even if he has no entitlement to that benefit.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214 (2013) (“USAID”) (emphasis added) (quoting Rumsfeld v. F. for Acad. & Institutional Rights, 547 U.S. 47, 59 (2006)). It has also made clear that the government cannot “leverage funding to regulate speech outside the contours of the [funding] program itself.” Id. at 214-15 (emphasis added). In other words, when the government exerts First Amendment pressures that have nothing to do with the actual financial assistance program, that can be a constitutional violation. Plaintiffs rely on that principle here. Defendants respond by arguing that the OMB Pause Memorandum is solely framed around “focusing taxpayer dollars” and “[t]he use of federal resources,” rather than governing speech beyond the scope of federal financial assistance. ECF No. 47, at 34-35 (alteration in original) (citing OMB Pause Memorandum, at 1).
While the answer is not obvious at this early stage, Plaintiffs have shown some likelihood of success on their First Amendment claim. The Supreme Court has remarked that the line between proper subsidization and improper coercion “is hardly clear . . . because the definition of a particular program can always be manipulated to subsume the challenged condition.” USAID, 570 U.S. at 215. That said, the government “cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.” Id. (quoting Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001)). The OMB Pause Memorandum made several policy statements that are hostile to concepts like “Marxist equity,” “transgenderism,” and “woke gender ideology.” OMB Memorandum, at 2. It also instructed federal agencies to pause all disbursements that could be connected to these ill-defined categories. Id. There is no indication that expressing viewpoints on these issues (or being associated with them at all) is in any way tied to the “contours of the [funding] program[s] [themselves].” USAID, 570 U.S. at 214-15.
The government “may not ‘aim at the suppression of dangerous ideas’” or “manipulate[]” a subsidy “to have a coercive effect.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) (brackets omitted) (first quoting Regan v. Tax’n Without Representation of Wash., 461 U.S. 540, 550 (1983), then quoting Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 237 (1987) (Scalia, J., dissenting)). By appearing to target specific recipients because they associate with certain ideas, Defendants may be crossing a constitutional line.
2. Irreparable Harm
While irreparable injury is “a high standard,” England, 454 F.3d at 297, the court’s analysis of this factor remains unchanged from the TRO stage. Defendants have not introduced arguments or evidence sufficient to undercut Plaintiffs’ strong showing of irreparable harm.
To qualify for injunctive relief, the alleged injury “must be both certain and great,” “actual and not theoretical,” and “of such imminence that there is a ‘clear and present’ need for equitable relief.” Id. (quoting Wis. Gas Co. v. Fed. Energy Regul. Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). It must also “be beyond remediation,” meaning that “[t]he possibility [of] adequate compensatory or other corrective relief . . . at a later date . . . weighs heavily against a claim of irreparable harm.” Id. at 297-98 (quoting Wis. Gas Co., 758 F.2d at 674).
Here, Plaintiffs have produced significant evidence that a pause on federal funding will “threaten[] the very existence of [their members’] business.” Wis. Gas Co., 758 F.2d at 674. A freeze will not simply inconvenience them, it will devastate them. The court recounts its findings from before, which still hold true today:
If the freeze were to remain in effect [or recur], Plaintiffs’ members will suffer “existential injuries” and some programs may “simply disappear.” ECF No. 5-1, at 12. Their workers may be unable to pay for housing or food. ECF No. 24-4 ¶ 7 (“A lot of our staff live paycheck to paycheck, and if they can’t get paid, then they are unable to pay rent or buy groceries.”). Some have already been forced to “shutter [their] programs” just to make payroll. ECF No. 24-7 ¶¶ 20-21. And patients or customers that rely on their services may be denied care when it is most needed. ECF Nos. 24-4 ¶ 16; 24-5 ¶ 21. For some, these are harms for which “there can be no do over and no redress.” Newby, 838 F.3d at 9 (quoting League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014)); see ECF No. 24-4 ¶ 7 (“[ I]f my Health Center loses physicians, dentist, or nurse practitioners, then it will be virtually impossible to recruit replacements to a rural Health System that is suddenly an unreliable source of income.”).
ECF No. 30, at 27.
While funds have resumed flowing to some recipients, that does not erase the imminence or irreparability of what another pause would entail. As at least one declarant explained, the resumption of funding “came in under the wire: had it been one day later, we would not have been able to make payroll on Friday, February 7.” ECF No. 40-3 ¶ 4. As discussed previously, all of these organizations rely on continued funding in order to keep their doors open.
The fact that organizations have been able to draw down funds in the immediate aftermath of the court’s TRO means nothing if the spigot is shut off again. The injunctive relief that Defendants fought so hard to deny is the only thing in this case holding potentially catastrophic harm at bay.13 The court’s previous order may have bought Plaintiffs a few additional weeks of funding, but they remain just as vulnerable as they were in the first week of February. A single disbursement does not protect a recipient when the next disbursement is equally as vital. Plaintiffs have easily shown irreparable harm.
3. Balance of the Equities and the Public Interest
As is the case with irreparable harm, the balance of the equities and the public interest continue to weigh heavily in favor of injunctive relief. “Plaintiffs paint[ed] a stark picture of nationwide panic in the wake of the funding freeze.” ECF No. 30, at 28. Nonprofits and organizations across the country were left adrift as they scrambled to make sense of the memorandum and its effects. See ECF Nos. 24-4, 24-5, 24-6, 24-7, 24-8, 24-9, 24-10, 24-11. Entire funding portals were taken offline with no rhyme or reason, generating significant confusion and fear. See ECF Nos. 24-8 ¶¶ 8-9; 24-6 ¶ 15; 24-7 ¶ 13; 24-8 ¶ 9. Many organizations had to resort to desperate measures just to stay operational. The pause placed critical programs for children, the elderly, and everyone in between in serious jeopardy.Because the public’s interest in not having trillions of dollars arbitrarily frozen cannot be overstated, Plaintiffs have more than met their burden here.
4. Bond
Federal Rule of Civil Procedure 65(c) states that the court may issue a TRO or preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Here, Defendants ask the court to require Plaintiffs to “post a bond commensurate with the scope of the relief ordered.” ECF No. 47, at 44-45. The court declines. Rule 65(c) “has been read to vest broad discretion in the district court to determine the appropriate amount of an injunction bond,” DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999), “including the discretion to require no bond at all,” P.J.E.S. ex rel. Escobar Francisco v. Wolf, 502 F. Supp. 3d 492, 520 (D.D.C. 2020) (quoting Simms v. District of Columbia, 872 F. Supp. 2d 90, 107 (D.D.C. 2012)). A bond “is not necessary where requiring [one] would have the effect of denying the plaintiffs their right to judicial review of administrative action.” Nat. Res. Def. Council, Inc. v. Morton, 337 F. Supp. 167, 168 (D.D.C. 1971) (collecting cases); cf. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-CV-333, 2025 WL 573764, at *29 (D. Md. Feb. 21, 2025) (setting a nominal bond of zero dollars because granting the defendants’ request “would essentially forestall [the] [p]laintiffs’ access to judicial review”). In a case where the government is alleged to have unlawfully withheld trillions of dollars of previously committed funds to countless recipients, it would defy logic—and contravene the very basis of this opinion—to hold Plaintiffs hostage for the resulting harm. That is especially so when Defendants—OMB and its director—will personally face no monetary injury from the injunction.14
III. CONCLUSION
For the foregoing reasons, the court will enter a preliminary injunction. A separate order will issue.
LOREN L. ALIKHAN United States District Judge Date: February 25, 2025
**********
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL COUNCIL OF NONPROFITS, et al.,
Plaintiffs,
v.
OFFICE OF MANAGEMENT AND BUDGET, et al.,
Defendants.
Civil Action No. 25 - 239 (LLA)
ORDER
For the reasons stated in the accompanying Memorandum Opinion, it is hereby
ORDERED that Plaintiffs’ Motion for a Preliminary Injunction, ECF No. 40, is GRANTED to the extent that it is
ORDERED that Defendants are enjoined from implementing, giving effect to, or reinstating under a different name the unilateral, non-individualized directives in OMB Memorandum M-25-13 with respect to the disbursement of Federal funds under all open awards; it is further
ORDERED that Defendants must provide written notice of the court’s preliminary injunction to all agencies to which OMB Memorandum M-25-13 was addressed. The written notice shall instruct those agencies that they may not take any steps to implement, give effect to, or reinstate under a different name the unilateral, non-individualized directives in OMB Memorandum M-25-13 with respect to the disbursement of Federal Funds under all open awards. It shall also instruct those agencies to continue releasing any disbursements on open awards that were paused due to OMB Memorandum M-25-13; it is further
ORDERED that this Order shall apply to the maximum extent provided for by Federal Rule of Civil Procedure 65(d)(2) and 5 U.S.C. §§ 705 and 706; it is further
ORDERED that Defendants shall file a status report on or before February 28, 2025, apprising the court of the status of their compliance with this Order, including by providing a copy of the written notice described above; it is further
ORDERED that the parties shall meet and confer and file a joint status report proposing next steps in this proceeding on or before February 28, 2025; and it is further
ORDERED that Beatrice Adams’s Motion to Intervene, ECF No. 19, is DENIED.
SO ORDERED.
LOREN L. ALIKHAN United States District Judge Date: February 25, 2025
_______________
Notes:
1 Although Plaintiffs originally named then-Acting Director of the Office of Management and Budget Matthew Vaeth as a defendant, Russell Vought—who was confirmed by the Senate on February 6, 2025—“is automatically substituted as a party” in Mr. Vaeth’s place pursuant to Federal Rule of Civil Procedure 25(d).
2 The memorandum included a footnote stating: “Nothing in this memo should be construed to impact Medicare or Social Security benefits.” OMB Pause Memorandum, at 1 n.2.
3 The court issued the administrative stay from the bench shortly before the “temporary pause” of federal funding was set to take effect at 5:00 p.m. Tr. of Emergency Hr’g, at 23:21-24:5, Nat’l Council of Nonprofits, No. 25-CV-239 (D.D.C. Jan. 28, 2025).
4 The same day, Beatrice Adams moved to intervene on behalf of herself and all others similarly situated. ECF No. 19. She sought to dissolve the court’s then-active administrative stay, arguing that child-welfare funding was being used to “facilitate the separation of children from loving homes.” Id. at 3-4. Both parties oppose Ms. Adams’s intervention. ECF Nos. 41, 42. The court will deny Ms. Adams’s motion. To the extent she only seeks to challenge the administrative stay, Ms. Adams’s motion to intervene is now moot. In any event, Ms. Adams’s claims are too factually and legally attenuated from those alleged in Plaintiffs’ complaint, and Defendants are “already adequately representing the Government’s interests in ensuring that all federal funding is administered appropriately.” ECF No. 42, at 1.
5 While the court did not fully address Plaintiffs’ other two claims (that Defendants’ actions were in excess of statutory authority and violated the First Amendment), it noted that they had shown at least some likelihood of success on both. ECF No. 30, at 20 n.6.
6 In the interim, on February 14, the American Center for Law and Justice filed an amicus brief in support of Defendants. ECF No. 46.
7 Amicus American Center for Law and Justice echoes Defendants’ mootness argument, claiming that “none of [Plaintiffs’] desired terms of the Prayer for Relief can be implemented [because] there is no OMB Memo that can be enjoined, restrained, or vacated.” ECF No. 48, at 3. The court has already rejected this argument. To the extent that Plaintiffs’ prayer for relief is limited only to the memorandum, they have shown that the rescission had no real effect on Defendants’ actions. For days after the memorandum purportedly ceased to exist, agencies continued to withhold funds pursuant to its authority. See ECF No. 24-1, at 7. If Amicus were correct, a government agency could order illegal activity, retract that order in name only while continuing to implement its substance, and escape legal liability. The court refuses to ratify such behavior. Amicus goes on to argue that “Plaintiffs cannot use a Complaint directed against the OMB Memo as a basis for obtaining relief against all pauses of whatever basis,” ECF No. 48, at 5, but this misconstrues the requested injunctive relief. Plaintiffs made clear at the preliminary injunction hearing that they only seek to prevent Defendants from ordering or implementing unilateral, blanket pauses across the entire federal funding apparatus. See Tr. of Prelim. Inj. Hr’g, at 55:15-18, Nat’l Council of Nonprofits, No. 25-CV-239 (Feb. 20, 2025) (proposing an order that would enjoin a “unilateral[] . . . freeze on the payment of open awards on a non-individualized basis”). In other words, Plaintiffs wish to use a complaint directed against an agency-ordered blanket freeze to obtain relief against that precise action.
8 Defendants acknowledge, however, that Plaintiffs’ statutory claim—whether OMB has the power and authority to order “a government-wide halt on trillions of dollars in grants, loans, and other forms of financial assistance”—does not raise ripeness concerns. ECF No. 47, at 20 n.2.
9 Indeed, some agencies froze funding portals and resources even before the OMB Guidance Document was issued. Those agencies were necessarily operating pursuant to the original OMB Pause Memorandum, not the subsequent guidance. See, e.g., ECF Nos. 24-4 ¶ 8 (unable to access funding portal during the day on January 28, before Plaintiffs’ complaint was filed around noon); 24-7 ¶ 13 (same); 24-8 ¶ 9 (unable to access fund portal as early as January 27).
10 Both Defendants and Amicus argue that “[t]emporary funding pauses are not an unusual exercise of executive authority.” ECF No. 48, at 6; see ECF No. 47, at 26-28, 30-31. For support, they rely on President Biden’s pause of funding to the southern border wall, Proclamation No. 10,142, Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction, 86 Fed. Reg. 7225 (Jan. 20, 2021), and President Obama’s thirty-day delay of Recovery Act funds, Mem. No. E9-6754, Ensuring Responsible Spending of Recovery Act Funds, 74 Fed. Reg. 12531 (Mar. 20, 2009). Without passing judgment on the merits of any hypothetical challenges to those executive decrees, the court is unpersuaded that targeted pauses of funding for specific projects through an executive order are at all comparable OMB’s nationwide suspension of all federal financial assistance. Again, the court disagrees with Defendants’ and Amicus’s characterization of the pause in this case as “targeted” and “discrete” when the language of the memorandum applied to the “disbursement of all Federal funds under all open awards.” OMB Pause Memorandum, at 2.
11 Defendants repeatedly reference the memorandum’s limitation that agencies only act “to the extent permissible under applicable law,” OMB Pause Memorandum, at 2, but this does not save them. First, the incantation of magic language cannot justify otherwise-illegal action. Plaintiffs’ entire complaint alleges that Defendants’ instruction was unlawful to begin with. Second, even assuming that this language applies does not change the arbitrary-and-capricious analysis. Just because an agency can do something does not make it rational to do so.
12 As was the case at the TRO stage, a plaintiff who brings multiple claims only needs to show a likelihood of success on one of them to obtain injunctive relief. See Media Matters for Am. v. Paxton, 732 F. Supp. 3d 1, 27 (D.D.C.), appeal filed, No. 24-7059 (D.C. Cir. 2024). In the interest of being thorough, the court will address each of Plaintiffs’ claims here.
13 The court reiterates that the District of Rhode Island’s TRO does not lessen the severity of the potential irreparable harm in this case. This court has no control over the District of Rhode Island’s decisions and a TRO in that case does “not block this court from entering a TRO of its own.” ECF No. 30, at 28 n.9; see Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1, 60 (D.D.C. 2020) (“[C]ourts routinely grant follow-on injunctions against the Government, even in instances when an earlier nationwide injunction has already provided plaintiffs in the later action with their desired relief.”) (collecting cases).
14 The court also denies Defendants’ request for an administrative stay pending appeal as premature. Id. at 45. If Defendants, after reviewing this opinion and its accompanying order, believe that a stay pending appeal is warranted, they may make a request consistent with Federal Rule of Appellate Procedure 8.
Highlights: Memorandum Opinion National Council of Nonprofits, et al. v. Office of Management and Budget, et al., Case No. 25 - 239 (LLA) by Judge Loren L. Alikhan, United States District Judge February 25, 2025
Highlights:
Plaintiffs have demonstrated that “even a temporary pause in funding to their members . . . would destroy their ability to provide [critical] services.” … Many, if not all, of Plaintiffs’ members “need weekly injections of federal funds in order to continue operating.” … Some have employees who “live paycheck to paycheck, meaning that a single missed payment could prevent them from buying groceries or paying rent.” … Others had begun to feel the effects of the freeze even before it was supposed to go into effect: one tribal organization was forced to preemptively lay off two employees on January 28. … Plaintiffs also demonstrated constitutional injury because “Defendants [allegedly] singled out their funding programs (in other words, their economic lifelines) based on their exercise of speech and association.”….
Defendants cannot pretend that the nationwide chaos and paralysis from two weeks ago is some distant memory with no bearing on this case. The relief Plaintiffs now seek is a more durable version of the relief they sought then, when their members were on the brink of extinction. In sum, Plaintiffs have marshalled significant evidence indicating that the funding freeze would be economically catastrophic—and in some circumstances, fatal— to their members….
Rescinding the OMB Pause Memorandum did not moot the case because Defendants could not—and still cannot—show that they will not “resume the challenged activity.” As the court previously observed, the White House Press Secretary appeared to completely contradict the act of rescission by expressly stating that it was “NOT a rescission of the federal funding freeze.” … By any reading of the Press Secretary’s remarks, the memorandum’s retraction was an empty gesture. At best, it was meaningless. At worst, it was a brazen attempt to deprive the court of jurisdiction without actually altering course. ... the voluntary-cessation doctrine applies with greater force when a party is suspected of “manipulating the judicial process through the false pretense of singlehandedly ending a dispute” … Because Plaintiffs’ members were still being frozen out of their funding in the wake of the purported “rescission,” … “it appears that OMB sought to overcome a judicially imposed obstacle without . . . ceasing the challenged conduct.”…
Defendants blithely suggest that if they were to revive or reissue the OMB Pause Memorandum at some future point in time, Plaintiffs could simply “file another motion for preliminary relief.” … This proposal completely disregards the mountain of evidence Plaintiffs presented showing that even the threat of a funding freeze was enough to send countless organizations into complete disarray. Hours before the original pause was scheduled to start, organizations were already laying off staff or shuttering programs. … In some cases, this was anticipatory; in others, it was because organizations were already being frozen out of funding portals. … Defendants’ assumption that Plaintiffs can easily rush back before the court for injunctive relief before catastrophe ensues is, quite simply, divorced from reality and the record. Indeed, while turning off funding streams appears to have been alarmingly easy, turning them back on has proven much more difficult…. it took three days to receive funding after entry of the TRO)…
the government is normally entitled to a presumption of good faith on voluntary cessation….But the court will not confer that presumption when the government says one thing while expressly doing another….And it will not reward parties who change appearances without changing conduct….
Under the most generous viewing of the case’s chronology, agencies had maybe four hours (but probably fewer) to actualize the OMB Guidance Document….despite the guidance’s attempt to carve out “program[s] that provide[] direct benefits to individuals,” …The guidance also exempted “[f]unds for small businesses” and “Head Start” payments, … but those fell victim to the freeze, too…Defendants cannot rely on the OMB Guidance Document as a saving grace when it had virtually no effect on the ground….
The touchstone of this inquiry is rationality, and Defendants’ actions flunk that test. Defendants still cannot provide a reasonable explanation for why they needed to freeze all federal financial assistance in less than a day to “safeguard valuable taxpayer resources.”… Evaluating funding priorities can be done without needing to starve citizens or deny critical health services….The potential $3 trillion in financial assistance implicated by the freeze is a “breathtakingly large sum of money to suspend practically overnight.”… “[r]ather than taking a measured approach to identify purportedly wasteful spending, Defendants cut the fuel supply to a vast, complicated, nationwide machine—seemingly without any consideration for the consequences of that decision.”… Doing so was not—and could never be—rational, especially when the decision was made without grappling with its catastrophic effects or the logistical nightmare of its implementation….
When an agency suddenly changes course, it must recognize “that longstanding policies may have engendered serious reliance interests that must be taken into account.”…
In the simplest terms, the freeze was ill-conceived from the beginning. Defendants either wanted to pause up to $3 trillion in federal spending practically overnight, or they expected each federal agency to review every single one of its grants, loans, and funds for compliance in less than twenty-four hours. The breadth of that command is almost unfathomable…. “[ i]t is unclear whether twenty-four hours is sufficient time for an agency to independently review a single grant, let alone hundreds of thousands of them.”). Either way, Defendants’ actions were irrational, imprudent, and precipitated a nationwide crisis. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim….
Plaintiffs’ second claim argues that Defendants dramatically overstepped the bounds of their legal authority in ordering a nationwide funding freeze. Agencies “are creatures of statute” and are therefore subject to the limits prescribed by Congress….they “‘literally ha[ve] no power to act’ except to the extent Congress [has] authorized.”…
When an agency seeks to “exercise powers of vast economic and political significance,” the “sheer scope of [an agency]’s claimed authority” can trigger heightened judicial scrutiny….
“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’” the court “typically greet[s] its announcement with a measure of skepticism.”… Defendants attempted to freeze as much as $3 trillion dollars—the sum total of “all activities related to [the] obligation or disbursement of all Federal financial assistance.” …That is “no everyday exercise of federal power.”…
The scope of power OMB seeks to claim is “breathtaking,” and its ramifications are massive… there is no clear statutory hook for this broad assertion of power …
Plaintiffs’ third claim alleges that Defendants are “threaten[ing] [the] continued receipt of federal financial assistance based explicitly on [the recipients’] exercise of their core First Amendment rights of speech and association.”… Defendants are correct that the government “is not required to subsidize First Amendment rights,”… or “assist others in funding the expression of particular ideas,”…
What is less clear, however, is whether the government may deliberately withhold funds that have already been earmarked for certain recipients based exclusively on the recipient’s viewpoints….‘Due Process Clauses generally confer no affirmative right to governmental aid.’”… But that calculus could change if individuals or organizations have already been awarded certain funds and grants—as is the case with Plaintiffs’ members here. If Defendants were to unfreeze promised funds only to organizations expressing one view, but not to organizations expressing the opposite view, that could raise First Amendment concerns….
The Supreme Court has held that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech[,] even if he has no entitlement to that benefit.”… the government cannot “leverage funding to regulate speech outside the contours of the [funding] program itself.”… when the government exerts First Amendment pressures that have nothing to do with the actual financial assistance program, that can be a constitutional violation….
The OMB Pause Memorandum made several policy statements that are hostile to concepts like “Marxist equity,” “transgenderism,” and “woke gender ideology.” … It also instructed federal agencies to pause all disbursements that could be connected to these ill-defined categories. There is no indication that expressing viewpoints on these issues (or being associated with them at all) is in any way tied to the “contours of the [funding] program[s] [themselves].”…
The government “may not ‘aim at the suppression of dangerous ideas’” or “manipulate[]” a subsidy “to have a coercive effect.”… By appearing to target specific recipients because they associate with certain ideas, Defendants may be crossing a constitutional line….
The fact that organizations have been able to draw down funds in the immediate aftermath of the court’s TRO means nothing if the spigot is shut off again. The injunctive relief that Defendants fought so hard to deny is the only thing in this case holding potentially catastrophic harm at bay. The court’s previous order may have bought Plaintiffs a few additional weeks of funding, but they remain just as vulnerable as they were in the first week of February. A single disbursement does not protect a recipient when the next disbursement is equally as vital. …
“Plaintiffs paint[ed] a stark picture of nationwide panic in the wake of the funding freeze.”… Nonprofits and organizations across the country were left adrift as they scrambled to make sense of the memorandum and its effects…. Entire funding portals were taken offline with no rhyme or reason, generating significant confusion and fear….Many organizations had to resort to desperate measures just to stay operational. The pause placed critical programs for children, the elderly, and everyone in between in serious jeopardy. Because the public’s interest in not having trillions of dollars arbitrarily frozen cannot be overstated, Plaintiffs have more than met their burden here….
Amicus American Center for Law and Justice echoes Defendants’ mootness argument, claiming that “none of [Plaintiffs’] desired terms of the Prayer for Relief can be implemented [because] there is no OMB Memo that can be enjoined, restrained, or vacated.”…
If Amicus were correct, a government agency could order illegal activity, retract that order in name only while continuing to implement its substance, and escape legal liability. The court refuses to ratify such behavior….
Both Defendants and Amicus argue that “[t]emporary funding pauses are not an unusual exercise of executive authority.”… For support, they rely on President Biden’s pause of funding to the southern border wall … and President Obama’s thirty-day delay of Recovery Act funds,…
The court is unpersuaded that targeted pauses of funding for specific projects through an executive order are at all comparable OMB’s nationwide suspension of all federal financial assistance. Again, the court disagrees with Defendants’ and Amicus’s characterization of the pause in this case as “targeted” and “discrete” when the language of the memorandum applied to the “disbursement of all Federal funds under all open awards.”…
Defendants repeatedly reference the memorandum’s limitation that agencies only act “to the extent permissible under applicable law,”… But this does not save them. First, the incantation of magic language cannot justify otherwise-illegal action. Plaintiffs’ entire complaint alleges that Defendants’ instruction was unlawful to begin with. Second, even assuming that this language applies does not change the arbitrary-and-capricious analysis. Just because an agency can do something does not make it rational to do so.
US Supreme Court allows Trump's freeze of foreign aid funding temporarily by Brendan Pierson and John Kruzel Reuters February 27, 2025 12:21 PM MST Updated an hour ago https://www.reuters.com/legal/trump-adm ... 025-02-26/
• Plaintiffs say Trump actions violate US law, Constitution • Administration had asked US Supreme Court to intervene
WASHINGTON, Feb 26 (Reuters) - U.S. Supreme Court Chief Justice John Roberts on Wednesday paused a federal judge's order requiring President Donald Trump's administration to pay foreign aid funds to contractors and grant recipients.
Roberts issued an interim order placing on hold Washington-based U.S. District Judge Amir Ali's action that had imposed a deadline of 11:59 p.m. on Wednesday night. Roberts provided no rationale for the order, known as an administrative stay, which will give the court additional time to consider the administration's more formal request to block Ali's ruling.
Roberts asked for a response from the plaintiffs -- organizations that contract with or receive grants from the U.S. Agency for International Development and the State Department -- by noon on Friday.
The order came after Trump's administration said in a court filing on Wednesday it had made final decisions terminating most U.S. foreign aid contracts and grants, while maintaining that it cannot meet Ali's court-ordered deadline.
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.
The administration is cutting more than 90% of the U.S. Agency for International Development's foreign aid contracts and over $58 billion in overall U.S. assistance around the world, a State Department spokesperson said separately, calling the cuts part of Trump's "America First agenda."
The foreign aid funding dispute arose from a pair of lawsuits brought by the aid organizations, alleging that the agencies have illegally frozen all foreign aid payments.
The Trump administration has kept those payments largely frozen despite a February 13 temporary restraining order from Ali that they be released, and multiple subsequent orders that the administration comply, culminating in the Wednesday night deadline.
Lawyers for the U.S. Justice Department have maintained that the administration has a right to suspend its agreements while it reviews them to determine whether they comply with administration policy.
That review is now complete, the administration said in its new filing. It said USAID has made final decisions to cancel nearly 5,800 awards, while keeping more than 500, and that the State Department has canceled about 4,100 awards, while keeping about 2,700.
An administration official said in an earlier court filing that grounds for terminating contracts include that they were related to diversity, equity, inclusion and accessibility efforts, or were deemed wasteful.
Trump has taken a hard line on programs related to diversity, equity and inclusion, signing an executive order in his second day in office last month directing federal agency chiefs to dismantle DEI policies.
The administration said on Wednesday that Secretary of State Marco Rubio had ordered that past-due invoices from the plaintiffs for work before January 24, when the payment freeze began, to be "expedited for payment without the ordinary vetting procedures, in a good-faith effort to comply" with Ali's order. It said that while some money would be paid on Wednesday, full payments could take weeks.
FUNDING FREEZE UNDERMINES RELIEF EFFORTS
Trump, a Republican, ordered a 90-day pause on all foreign aid on his first day in office last month. That order, and ensuing stop-work orders halting USAID operations around the world, have jeopardized the delivery of life-saving food and medical aid, throwing global humanitarian relief efforts into chaos.
USAID administers some 60% of U.S. foreign assistance and disbursed $43.79 billion in fiscal 2023. According to a Congressional Research Service report this month, its workforce of 10,000, of which about two-thirds serves overseas, assisted about 130 countries.
Trump's administration on Sunday said it was placing all but leaders and critical staff at USAID on paid administrative leave and eliminating 1,600 positions. Employee unions have sued to challenge the cuts, though a judge last week allowed them to go ahead.
Ali, who was appointed by Trump's Democratic predecessor, former President Joe Biden, issued his temporary restraining order to prevent irreparable harm to the plaintiffs while he considers their claims.
The plaintiffs allege Trump has exceeded his authority under federal law and the U.S. Constitution by effectively dismantling an independent agency and canceling spending authorized by Congress.
The plaintiffs have said the administration has not done anything to comply with the restraining order, and some have said they will shut down within days if they are not paid.
"The lengths that the government is willing to go to flout a court order, all for the goal of ending life-saving humanitarian assistance, is staggering," said Allison Zieve, a lawyer representing two plaintiffs, AIDS Vaccine Advocacy Coalition and Journalism Development Network, on Wednesday.
Other plaintiffs include international development company DAI Global and refugee assistance organization HIAS.
Both Ali and a Rhode Island federal judge [John J. McConnell, Jr.] in a separate case over a broader federal payment freeze have castigated the Trump administration for failing to follow their orders. The administration in both cases has maintained it is trying in good faith to interpret and comply with the orders.
Feb 25, 2025: Minute Entry and Order for proceedings held via Zoom before Judge Amir H. Ali: Motion Hearing held on 2/25/2025 re 36 Emergency MOTION to Enforce Temporary Restraining Order filed by GLOBAL HEALTH COUNCIL, DAI GLOBAL LLC, DEMOCRACY INTERNATIONAL, INC., AMERICAN BAR ASSOCIATION, SMALL BUSINESS ASSOCIATION FOR INTERNATIONAL COMPANIES, CHEMONICS INTERNATIONAL, INC., MANAGEMENT SCIENCES FOR HEALTH, INC., HIAS.Oral arguments HEARD, motion GRANTED for the reasons stated on the record. The restrained defendants are ordered to comply as discussed by 11:59 p.m. on February 26, 2025. (Court Reporter Bryan Wayne) (znbn)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AIDS VACCINE ADVOCACY COALITION, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF STATE, et al.,
Defendants.
______________________________________
GLOBAL HEALTH COUNCIL, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.
Civil Action No. 25-00402 (AHA)
Order Denying Motion To Stay Pending Appeal
On February 13, 2025, this Court granted a temporary restraining order (“TRO”), finding Plaintiffs had shown that Defendants’ blanket suspension of congressionally appropriated foreign aid funds would cause them irreparable harm and was likely arbitrary and capricious under the Administrative Procedure Act (“APA”) for failing to consider the immense reliance interests at stake. Glob. Health, ECF No. 21; AIDS Vaccine, ECF No. 17. While the Court did not grant Plaintiffs the full scope of emergency relief they sought, it enjoined Defendants from continuing a blanket freeze of the congressionally appropriated funds. Over the nearly two weeks since, Plaintiffs have moved multiple times to enforce the Court’s TRO and hold Defendants in contempt, each time attaching evidence that Defendants have continued their funding freeze and evidence of the irreparable harm to businesses and organizations across the country that justified the TRO. In response to those motions, the Court declined to hold Defendants in contempt and reaffirmed certain flexibility and authority Defendants reserved, consistent with the TRO. AIDS Vaccine, ECF No. 30; AIDS Vaccine, Feb. 25, 2025, Min. Entry; see also AIDS Vaccine, ECF No. 34 (addressing Defendants’ motion for clarification). However, the Court twice reiterated in its orders: “[T]o the extent Defendants have continued the blanket suspension, they are ordered to immediately cease it and to take all necessary steps to honor the terms of contracts, grants, cooperative agreements, loans, and other federal foreign assistance awards that were in existence as of January 19, 2025, including but not limited to disbursing all funds payable under those terms.” AIDS Vaccine, ECF No. 34 at 5; AIDS Vaccine, ECF No. 30 at 5. The Court’s TRO and these subsequent orders remain in effect and unchallenged. Neither Defendants’ recent notice of appeal nor the instant motion to stay pending appeal challenges the terms of the TRO or these prior orders.
Defendants have filed the instant motion to stay the Court’s order granting Plaintiffs’ latest motions to enforce the TRO. In those motions, Plaintiffs again provided evidence that Defendants have simply continued their blanket funding freeze and further documentation of the irreparable harm they are suffering, including attestations of severe harm that will manifest before the end of the week. Plaintiffs explained that they tailored their motion to enforce to address only the most acute irreparable harm, seeking compliance with the TRO by unfreezing the congressionally appropriated funds at least for all work completed prior to February 13, the date of the Court’s TRO. Upon receiving the motion, and now twelve days since the TRO had been granted, the Court held a prompt hearing to hear from all parties in both cases on the state of compliance. At the hearing, counsel for Defendants acknowledged that the Court’s TRO foreclosed Defendants from giving any effect to suspensions or terminations that were issued before February 13. AIDS Vaccine, ECF No. 35 at 33–34. The Court asked counsel for Defendants if he was “aware of steps taken to actually release those funds,” consistent with the TRO and subsequent orders. Id. at 35. Counsel responded that he was “not in a position to answer that.” Id. For this and additional reasons stated on the record, the Court orally granted Plaintiffs’ second round of motions to enforce the TRO. The Court ordered Defendants to unfreeze funds for work completed prior to February 13, consistent with the terms of the TRO and the Court’s subsequent orders, giving Defendants an additional 36 hours to do so. The Court made clear that, although it was focusing on this specific aspect of the TRO that was the subject of Plaintiffs’ motion to enforce and which was a consequence of the TRO’s injunctive relief, the Court was “in no way limiting the scope of the TRO or modifying its terms.” Id. at 55–56. The Court further ordered the parties to provide a joint status report the next day, updating the Court on the circumstances and providing documentation necessary for the parties and Court to assess the state of compliance.
Defendants’ principal basis for staying the Court’s ruling pending appeal appears to be that they can only partially unfreeze funds within the additional 36 hours that the Court gave them, and that they need more time to unfreeze the funds at issue in Plaintiffs’ latest motion to enforce. See AIDS Vaccine, ECF No. 37 at 2–3 (stating it is “not possible for Defendants to comply” within 36 hours). This is not something that Defendants have previously raised in this Court, whether at the hearing or any time before filing their notice of appeal and seeking a stay pending appeal. That is so even though Plaintiffs’ motion to enforce explicitly proposed compliance on this time frame. If Defendants wanted to propose a different schedule for achieving compliance, that is something they could have proposed to this Court and that the Court could have considered alongside Plaintiffs’ showings. Any such schedule would have to take into account that Defendants have already had nearly two weeks to come into compliance, apparently without taking any meaningful steps to unfreeze funds. Moreover, particularly given Defendants’ delay and the imminent harm Plaintiffs have documented, it would require far greater specificity than has been provided in the motion to stay pending appeal, including significant, concrete steps in the immediate term toward reaching compliance. This is not nearly grounds for a stay pending appeal—to the contrary, a stay would directly contradict that purpose.
Defendants’ remaining arguments in the motion for stay pending appeal demonstrate the shifting ground at this early stage and simply highlight the need for expeditious resolution of the preliminary injunction motions in these cases, which the Court has agreed to consider on the parties’ proposed briefing schedule. Defendants state, for instance, that injunctive relief here “intrudes deeply into the prerogatives of the Executive Branch and the discretion committed to the President under Article II,” asserting that “Executive Branch leadership harbors concerns about the possibility of waste and fraud and is in the process of developing revised payment processing systems to address those concerns.” AIDS Vaccine, ECF No. 37 at 4. But the blanket suspension of congressionally appropriated funding that has been challenged and temporarily enjoined was the result of a categorical order, not any specific finding “about the possibility of waste and fraud.” Indeed, in defending the challenged action at the Court’s TRO hearing, Defendants did not even attempt to argue that the agency action was or could be justified based on waste or fraud. And, to date, Defendants have not adduced any evidence “about the possibility of waste and fraud” beyond conclusory statements like the one in their motion.
Moreover, although Defendants’ motion to stay refers to “the prerogatives of the Executive Branch and the discretion committed to the President under Article II,” it does so without offering meaningful depth to analyze the argument, including not identifying the particular constitutional prerogatives they rely on. For instance, Defendants do not explain how the described prerogatives bear on likely violation of the APA, the statutory authority on which the TRO was based and whose constitutional validity has not been challenged. As written, the argument seems to simply presume that Defendants will prevail on the separation of powers questions that Plaintiffs have raised, without nearly enough analytical depth. See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (“The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.”); id. at 62 (Roberts, C.J., dissenting) (recognizing that “[t]he Constitution allocates some foreign policy powers to the Executive, grants some to the Legislature, and enjoins the President to ‘take Care that the Laws be faithfully executed’”).
Defendants’ arguments that injunctive relief under the APA runs into a sovereign immunity problem given the monetary consequences, and that remedies may be available under the Contract Disputes Act or the Tucker Act, are similarly undeveloped and an attempt to pretermit the preliminary injunction stage. Defendants state that the Court has “refus[ed] to consider its own jurisdiction” before entering its TRO. That is not so. At the hearing on Plaintiffs’ motion to enforce, the Court simply noted that the purpose of the hearing was to understand Defendants’ compliance, not to relitigate the TRO. See AIDS Vaccine, ECF No. 35 at 47 (explaining that “this is not an opportunity to relitigate the TRO. The TRO is in effect, it hasn’t been stayed or overturned in any sort of way. I do want to make that clear.”). However, the Court has considered its jurisdiction at each stage of this case. Defendants’ undeveloped arguments on this point to date have not persuaded the Court that they would affect the Court’s prior likelihood of success analysis as it relates to the TRO. For example, Defendants’ instant motion does not meaningfully engage with the large body of precedent on this question. See, e.g., Kidwell v. Dep’t of Army, 56 F.3d 279, 285 (D.C. Cir. 1995) (reviewing this body of case law and recognizing that although “a victory for the plaintiffs may well have required the government to pay them money, the Tucker Act was not implicated” because monetary benefits would not come “from the district court’s exercise of jurisdiction but from the structure of” statutory and regulatory requirements); Am.’s Cmty. Bankers v. FDIC, 200 F.3d 822, 829 (D.C. Cir. 2000) (“Not all forms of monetary relief are money damages.”); Robles v. Kerry, 74 F. Supp. 3d 254, 260 (D.D.C. 2014) (noting that APA waives sovereign immunity for claims seeking “relief other than money damages” but that money damages “are categorically exclusive of specific relief—which includes monetary relief sought as a statutory entitlement”). Parties regularly raise jurisdictional arguments at the TRO phase—or, like here, well after a TRO has been granted—and the conclusion that such arguments do not alter the Court’s analysis is not a basis for staying the TRO pending appeal.
To be sure, the parties requested a briefing schedule to develop these arguments for the preliminary injunction phase, which the Court has adopted and is still in progress. Under that schedule, Defendants recently filed their preliminary injunction brief, and the Court shortened Plaintiffs’ deadline to reply to noon tomorrow, in the interest of proceeding as expeditiously as possible. The Court is prepared to hold a hearing on the preliminary injunction motions in both cases by March 4, 2025, and issue an opinion considering the full record and arguments before it with full dispatch. The Court has set the expiration date for the TRO at 11:59 p.m. on March 10, 2025, or the date the Court resolves the preliminary injunction motions, whichever is sooner.
The purpose of temporary emergency relief was to restore the status quo as it existed before Defendants’ blanket suspension of congressionally appropriated funds, given Plaintiffs’ strong showing of irreparable harm and that Defendants’ blanket suspension of funds was likely arbitrary and capricious. A stay pending appeal would run directly contrary to that purpose and, indeed, would have the opposite effect of rendering the Court’s TRO—unchallenged in the appeal or stay motion—a nullity. The Court accordingly denies Defendants’ motion for a stay pending appeal.
SO ORDERED.
AMIR H. ALI United States District Judge Date: February 26, 2025
**********************************
Three Trump Court Losses Within 90 minutes, But A (Temporary) Save By The Supreme Court Glenn Kirschner Feb 27, 2025
Three federal judges ruled against Trump and his administration's positions, including telling Trump that the federal government can't just stop paying on contracts it entered into to provide certain US aid overseas.
Just when we thought Trump would be required to act lawfully, in steps Supreme Court Chief Justice John Roberts and pauses the lower court ruling requiring the Trump administration to release the funds and make good on the federal government's financial obligations.
Which raises the question: who will ever trust the United States government in the future?
Transcript
So friends, in the span of just 90 minutes, Donald Trump and his administration lost three federal court cases, but in one of those cases, Chief Justice John Roberts came sprinting to the aid of Donald Trump and his lawlessness. Let's talk about that because Justice matters.
hey all Glenn Kirschner here so friends let's start with some good news on the legal front Donald Trump and his administration is getting crushed in case after case after case let's start with the new reporting this from from CNN:
Three different federal judges delivered legal setbacks and slap downs to President Donald Trump in the span of an hour and a half on Tuesday in a series of cases challenging controversial moves taken during the early days of his second term.
The rulings from judges in Washington, DC, and Washington state are the latest to pump the brakes on Trump’s agenda, underscoring the critical role courts have taken on for foes of Trump looking to frustrate his actions.
In DC, Judge Loren AliKhan issued a preliminary injunction that indefinitely blocks the administration from freezing federal grants and loans. The ruling expands an earlier block the appointee of former President Joe Biden issued last month shortly after the White House ordered the funding freeze.
“In the simplest terms, the freeze was ill-conceived from the beginning. Defendants either wanted to pause up to $3 trillion in federal spending practically overnight, or they expected each federal agency to review every single one of its grants, loans, and funds for compliance in less than twenty-four hours. The breadth of that command is almost unfathomable,” AliKhan wrote in her ruling.
She went on to say that the spending freeze was “irrational, imprudent, and precipitated a nationwide crisis.”
The issue of withholding federal funds has become a major flashpoint during the opening weeks of Trump’s second term, with other pending cases challenging the White House’s decision to suspend all foreign assistance.
That order amounted to a legal reprimand after the plaintiffs in the cases repeatedly accused the administration of not complying with Ali’s earlier temporary restraining order that revived the funding contracts and grants that existed at the end of the Biden administration.
Ali – also a Biden appointee – rebuffed an earlier call by the challengers for the administration to be held in contempt for its alleged non-compliance. But he issued a new order requiring, in more forceful terms, that the government pay money owed to contractors and non-profits for work that had already been completed by the February 13 order.
Meanwhile, across the country in Washington state, a federal judge in Seattle issued a preliminary injunction on Tuesday that halts Trump’s executive order suspending refugee admissions and funding.
Judge Jamal Whitehead, who was also appointed by Biden, said that Trump’s “actions amount to an effective nullification of congressional will in establishing the nation’s refugee admissions program.”
“While the president has substantial discretion to suspend refugee admissions, that authority is not limitless,” the judge said.
Trump’s executive order, signed on his first day back in office, also directed a review of the refugee program and stated that resettlement should only resume if deemed to be in the “national interest” – a move critics argue is a de facto refugee ban.
Cases advance to next stages
The administration is facing at least 80 cases challenging a range of actions taken during Trump’s first few weeks back in office.
The plaintiffs behind those challenges have seen some success as they’ve pressed judges to issue emergency relief during the early stages of the litigation. But the White House, too, has scored some court victories in cases brought against the administration’s efforts to shrink the federal workforce and shutter the US’ foreign aid agency.
Many of the cases are finally getting a more thorough review by judges who are mulling whether to issue preliminary injunctions to block the contested government action. Such a decision is often the final trial court-level ruling issued in cases before they’re appealed by the losing side.
As AliKhan explained her reasoning for issuing the preliminary injunction in the funding freeze case, she said the nonprofits that brought the case were likely to succeed on their claims that the freeze was unlawful.
“The scope of power (the Office of Management and Budget) seeks to claim is ‘breathtaking,’ and its ramifications are massive,” she wrote. “Because there is no clear statutory hook for this broad assertion of power, Plaintiffs are likely to succeed on the merits of this claim.”
And AliKhan noted that her earlier order temporarily halting the funding freeze was just that – temporary.
“The relief Plaintiffs now seek is a more durable version of the relief they sought then, when their members were on the brink of extinction,” she wrote. “In sum, Plaintiffs have marshalled significant evidence indicating that the funding freeze would be economically catastrophic – and in some circumstances, fatal – to their members.”
CNN’s Tierney Sneed and Angelica Franganillo Diaz contributed to this report.
Headline for Trump three court losses in 90 minutes and that article begins three different federal judges delivered legal setbacks and slapd downs to president Donald Trump in the span of an hour and a half on Tuesday in a series of cases challenging controversial moves taken during the early days of his second term the rulings from judges in Washington DC and Washington state are the latest to pump the brakes on Trump's agenda underscoring the critical role courts have taken on for foes of trump looking to frustrate his actions you know friends I would phrase that a little differently I would say it underscores the critical role courts have taken on to prevent Trump lawlessness my editorial Edition the article continues in DC judge Lauren alian issued a preliminary injunction that indefinitely blocks the administration from freezing federal grants and Loans the ruling expands on an earlier block the appointee of former President Joe Biden issued last month shortly after the White House ordered the funding freeze quote in the simplest terms the freeze was Ill conceived from the beginning defendants either wanted to pause up to $3 trillion in federal spending practically overnight or they expected each Federal agency to review every single one of its grants loans and funds for compliance in less than 24 hours the breadth of that command is almost unfathomable judge Ali KH con wrote in her ruling she went on to say that the spending freeze was irrational imprudent and precipitated a nationwide crisis shortly before Ali Khan issued her ruling a separate jurist in the DC federal courthouse judge Amir Ali ordered the Trump Administration to pay foreign aid related money owed to government contractors and nonprofit groups by Wednesday night amid the legal fight over the freezing of us AI ID and state department funds that order amounted to a legal reprimand after the plaintiffs in the cases repeatedly accused the Trump administration of not complying with Ali's earlier temporary restraining order that revived the funding contracts and grants that existed at the end of the Biden Administration meanwhile across the country in Washington state a federal judge in Seattle issued a preliminary injunction on Tuesday that halts Trump's executive order suspending Refugee Admissions and funding judge Jamal Whitehead who was also appointed by Biden said that Trump's actions amount to an effective nullification of congressional will in establishing the nation's Refugee admissions program quote while the president has substantial discretion to suspend Refugee admissions that Authority is not Limitless the judge said and friends just as quick as federal court judges essentially ordered the Trump Administration to comply with its damn contractual obligations pay the money you owe to contractors and the judges didn't put it in exactly those terms those are my words but in substance they told the Trump Administration just act lawfully just you know abide by the contracts you entered into just as soon as they issued those orders well the Supreme Court Chief Justice John Roberts came in and said no no no not so fast we're going to go ahead and pause all that and let the Trump Administration you know default on these contracts violate the terms of the agreements they entered into with these contractors you know a little bit of lawlessness by Trump and his administration is just fine by Supreme Court Justice John Roberts here's the new reporting on that from HuffPost headline Supreme Court for now won't require Trump Administration to release billions in foreign aid the Supreme Court has temporarily blocked the judge's order giving the Trump Administration a midnight deadline to release billions of dollars in US foreign aid and that article Begins the Trump Administration said Wednesday it is eliminating more than 90% of the US agency for International development's foreign aid contracts and $60 billion in overall us assistance around the world putting numbers on its plans to eliminate the majority of us development and humanitarian help abroad the cuts detailed by the administration would leave few surviving us Aid projects for Advocates to try to save in what are ongoing Court battles with the administration the Trump Administration outlined its plans in both an internal memo obtained by the Associated Press and filings in one of those fed Federal lawsuits Wednesday the Supreme Court intervened in that case late Wednesday and temporarily blocked a court order requiring the administration to release billions of dollars in foreign aid by midnight Wednesday's disclosures also give an idea of the scale of the administration's Retreat from us Aid and development assistance overseas and from Decades of us policy that foreign aid helps us interests by stabilizing other countries and economies and building alliances in the federal court filings Wednesday nonprofits owed money on contracts with us Aid described both Trump political appointees and members of musk's Team terminating us AIDS contracts around the world at break next speed without time for any meaningful review they say the nonprofits among thousands of contractors owed billions of dollars in payment since the freeze began called the unmas contract terminations a maneuver to get around complying with the order to lift the funding freeze temporarily so did a democratic lawmaker quote the administration is brazenly attempting to blow through Congress and the courts by announcing the completion of their sham review of foreign aid and the immediate termination of thousands of Aid programs all over the world said Connecticut Senator Chris Murphy a member of the Senate Foreign Relations Committee but US District Judge Amir Ali's order to unfreeze billions of dollars by midnight Wednesday will remain on hold until the Supreme court has a chance to weigh in more fully according to the brief order signed by Chief Justice John Roberts that's right friends the US government made commitments to contractors around the world to provide certain funding and now Donald Trump swoops in and just says yeah we're just going to default on all of those contracts just pull the carpet right out from under underneath all of those people and organizations to whom we made commitments kind of sounds like the way Donald Trump did business as a businessman right stiffing his contractors left and right but ordinarily the courts could step in and hold Donald Trump accountable to the contracts he entered but the US Supreme Court now Chief Justice John Roberts said we're just going to go ahead and endure and indorse at least temporarily Donald Trump's lawlessness his refusal to comply with contracts the United States entered you know friends Donald Trump is not only making us the laughing stock of the world he is damaging the varability of the United States to do business around the globe who in the hell is going to trust the word of the Executive Branch the federal government when not only is Donald Trump willing to for no damn good reason default on our promises and contractual obligations but when he's got a handful of Supreme Court Justices who are willing to put their stamp of approval on Donald Trump's defaults his corruption his lawlessness this is not sustainable for the United States of America and it's up to us and our elected officials to do everything we can to make sure this does not long stand because Justice matters friends as always please stay safe please stay tuned and I look forward to talking with you all again tomorrow [Music]
*******************************
Supreme Court of the United States
No. 24A831
DEPARTMENT OF STATE, ET AL.
Applicants
v.
AIDS VACCINE ADVOCACY COALITION, ET AL.
ORDER
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the February 25, 2025 orders of the United States District Court for the District of Columbia, case Nos. 1:25-cv-00400 and 1:25-cv-00402, are hereby stayed pending further order of the undersigned or of the Court. It is further ordered that any response to the application be filed on or before Friday, February 28, 2025, by 12 p.m. (EST).
/s/ John G. Roberts, Jr. Chief Justice of the United States
Ladies, it's time to start thinking whether the guy you're dating has post apocalyptic warlord potential.
American far-rightists during the 2017 Unite the Right rally in Charlottesville, Virginia. Participants are carrying Confederate battle flags, Gadsden flags, and a Nazi flag.
Contemporary thought
The key thinkers of contemporary far-right politics are claimed by Mark Sedgwick to share four key elements,namely apocalyptism,fear of global elites, belief in Carl Schmitt's friend–enemy distinction and the idea of metapolitics.The apocalyptic strain of thought begins in Oswald Spengler's The Decline of the Westand is shared by Julius Evola and Alain de Benoist. It continues in The Death of the West by Pat Buchanan as well as in fears over Islamization of Europe. Ernst Jünger was concerned about rootless cosmopolitan elites while de Benoist and Buchanan oppose the managerial state and Curtis Yarvin is against "the Cathedral". Schmitt's friend–enemy distinction has inspired the French Nouvelle Droite idea of ethnopluralism.
I notice more people using this label, which I coined a long long time ago, and have always had ambivalent aesthetic feelings about. I used a capital C, but I see more of the miniscule and I think it’s better.
“The cathedral” is just a short way to say “journalism plus academia”—in other words, the intellectual institutions at the center of modern society, just as the Church was the intellectual institution at the center of medieval society.
But the label is making a point. The Catholic Church is one institution—the cathedral is many institutions. Yet the label is singular. This transformation from many to one—literally, e pluribus unum—is the heart of the mystery at the heart of the modern world.
The mystery of the cathedral
The mystery of the cathedral is that all the modern world’s legitimate and prestigious intellectual institutions, even though they have no central organizational connection, behave in many ways as if they were a single organizational structure.
Most notably, this pseudo-structure is synoptic: it has one clear doctrine or perspective. It always agrees with itself. Still more puzzlingly, its doctrine is not static; it evolves; this doctrine has a predictable direction of evolution, and the whole structure moves together.
For instance: in 2021, Harvard, Yale, the Times and the Post are on the same page. If there exists any doctrinal difference between any two of these prestigious American institutions, it is too ineffable for anyone but a Yale man to discern. (Though it may say something that Gray Mirror is not taught at Harvard.)
In 1951, Harvard, Yale, the Times and the Post were on the same page. But Yale in 1951 was on nowhere near the same page as Yale in 2021. If you could teleport either Yale into the other’s time zone, they would see each other as a den of intellectual criminals.
So it’s not just that everyone—at least, everyone cool—is on the same page. It’s more like: everyone is reading the same book—at the same speed. No wonder all the peasants are seeing conspiracies in their motherfucking soup. If you saw a group of bright red dots move across the evening sky this way, what would you think they were? Pigeons? Remote-controlled pigeons, illuminated by lasers? Sometimes even Occam is baffled.
Moreover, this mystery is critical to the nature, fate and epistemology of our society, because we regard the distributed nature of these prestigious and trusted institutions as an inviolable principle of of our intellectual security. We would never concede this level of axiomatic infallibility to a single organization, like the Catholic Church—that would be putting all our brains in one basket. No egghead would make that mistake.
While we are aware that individuals—even very smart individuals—can go extremely awry in their perception and analysis of reality, and while we have seen even groups do the same thing (hence “groupthink”), we are sure they cannot all go wrong together. To err is human—but eliminating error is just a function of sufficient statistical power.
But statistics only works if your samples are independent. If some mysterious force is coordinating them—you are not measuring reality, you are just measuring that force.
And indeed, our samples seem only nominally independent. While we can detect no obvious organizational connection between them, they are highly correlated. And they retain these correlations even as they move across long periods of time.
We can expect this form of coordinated progress in hard science and engineering. These fields are tightly constrained by two inexorable forces: physical reality and human ignorance. The latter relaxes its grip only by painfully-won millimeters.
But the physical and human situation of the arts and humanities—of philosophy, ethics, literature, religion and politics—has been largely unchanged for millennia. We see no evidence of any extrinsic and unidirectional force that should be coordinating these fields. Yet these are just the fields that seem to be moving the fastest.
Who are we? Where are we going? If we could understand the forces that are driving us, we could predict where we are going. Unfortunately, the answer may be: hell.
Darwin and the discourse
Harvard is not a black box. We know how these organizations work.
The institutions of the cathedral are not relevant as hierarchical command structures. They are not an army of ideas, like the Church. The dean of chemistry does not tell the chemistry professors what God thinks they should think about methylfluorocarbons.
Rather, the cathedral operates as a discourse—not an army of ideas, a market of ideas. The institutions are just brands—marks of prestige. Ideas in this market evolve; they reproduce by being taught, they mutate by being thought, and they are selected by—
By what? If we want to know what a Darwinian system will evolve, we have to look at the selective pressures on its organisms. What is our cathedral selecting for?
First, let’s look at the soundest part of the building: math. In math, the marketplace of ideas is straightforward. Error is not tolerated. Priority is rigidly respected. Even the importance and quality of mathematical results is generally agreed on. In fact, even in the Soviet Union and Nazi Germany, pure mathematics did pretty well as a field.
In math, the only selective advantage an idea can have is that it is good math. Good math beats bad math. Math is perfectly suited to the cathedral—and the Soviet Union. In fact, it is hard to imagine any form of government so dysfunctional and dystopian that it could not, given the raw autistic IQ talent, make progress in math.
The hard sciences are supposed to work like math. In certain places, certain fields, and certain ways, they do. In few places are they completely broken, though this of course depends on your definition of “hard.”
But in science already we sense that here are other forces; that the selective advantage of an idea may not be solely driven by the quality of that idea; that while some shared sense of quality does remain intact, it is starting to feel like an eroding legacy.
And to the east of science—well, de gustibus non disputandum ["In matters of taste, there can be no disputes"]. Obviously, in the debate between 1951 Yale and 2021 Yale—your mileage may vary. I feel that in general, while both score some points, the former is nowhere near harsh enough. But that’s just me.
Suppose this is so, and Yale has declined. Yale is made of people and ideas. It is quite implausible that psychometric tests would show a great difference in the intelligence of its students and professors between 1951 and 2021—and they might well come out in favor of the latter.
Which suggests that any problem is with the ideas—that bad ideas in the humanities have in some way flourished at Yale (and everywhere else)—like toxic green algae in a once-blue mountain lake. Now why would that happen?
It must be related to the pattern of selective advantage in this marketplace of ecology. Maybe a nearby pig farm has unleashed a flood of sewage into the lake. Pig manure is a nutrient which alters the pattern of selective advantage in the lake, making it easier to exist as a stinking algal bloom and harder to flourish as a happy rainbow trout.
A parable
On the continent of Mu, there are two nations, Mundana and Mutopia. Like Burundi and Rwanda, they have very similar populations and very different governments.
Mundana is a traditional absolute monarchy with an official state religion, like Tsarist Russia. Mutopia is a progressive liberal democracy, like here but more so. In Mundana you are beheaded for even acting gay; in Mutopia you are required to try it at least, like, once.
Mundana has erected its so-called Titanium Curtain between itself and this utter filth, preventing all social and intellectual contact. But in Mundana, too, there are liberal intellectuals—some people, it turns out, are born that way. These free-thinkers are of course hunted by the Tsar’s secret police and must use funky encrypted Internet stuff to live, breathe, think, shitpost and make gay bondage dates.
Whereas Mutopia, of course, is run by liberal intellectuals. To be precise: Mutopia is governed by a permanent administrative state which implements policies designed by liberal professors at prestigious institutions, and supervised by liberal journalists at prestigious institutions. These are hard gigs to get, and great gigs to have. And no one need supervise the professors and journalists—they are self-watching watchmen. Nice!
Now: which liberal intellectuals do you think will have better ideas, pound for pound? Remember that the Mundanan intellectuals can’t hear what the Mutopians are saying, or vice versa—these are two entirely separate marketplaces of ideas.
Your intuitive answer is that you’ll get better, more premium content from Mundanan dissidents than Mutopian professors. Let’s look at why you’re right.
Selective advantage of dominant ideas
The sewage that is polluting the lake is sovereignty. The dissidents have better ideas than the professors because the professors have sovereignty and the dissidents don’t.
The professors and journalists have sovereignty because final decisions are entrusted to them and there is no power above them. Only professors can formulate policy—that is, set government strategy; only journalists can hold government accountable—that is, manage government tactics. Strategy plus tactics equals control.
The dissidents do not have sovereignty because neither the Tsar nor the Church cares what they think. These powers do care that they think, and their only wish is for this thinking to cease—furthermore, they know just where to make the incision. Dissidents have no good reason to think at all—so it doesn’t matter at all what they’re thinking.`
So in the furtive, candle-lit garrets of dissident Mundana, the ideas that win are just the best ideas; the intellectuals that win are just the best thinkers. In Mundana, the only selective advantage an idea can have is its mere truth and/or beauty. The life of a Mundanan dissident is terrible, but diamond-hard and extremely pure.
Whereas in the lecture halls and newsrooms of Mutopia, there is a market for dominant ideas. A dominant idea is an idea that validates the use of power. Such an idea will enjoy a selective tailwind in the Mutopian market.
And there is no market for recessive ideas. A recessive idea is an idea that invalidates power or its use. Such an idea will fight a selective headwind in the Mutopian market. Neither of these distorting evolutionary effects appears among Mundanan dissidents.
Consider the problem of climate change. There are two responses to this problem: action or inaction. Action requires power—and a lot of it, because it has to redirect about, like, 10^14 dollars worth of economic activity. Ain’t no thing!
The idea of climate alarmism corresponds to action. The idea of climate denialism corresponds to inaction. Without knowing which side is right, we can observe that alarmism is a dominant idea, whereas denialism is a recessive idea.
It is not hard to see why, in the lecture halls and newsrooms, dominant ideas tend to outcompete recessive ideas. A dominant idea is an idea that tends to benefit you and your friends. A dominant idea will be especially popular with your friends and former students in the civil service, because it gives them more work and more power.
And a recessive idea, of course, is the opposite of all these things. A climate scientist who holds the recessive idea of climate denialism is saying to his colleagues and the whole world: climate science is not important. Is it surprising—in the Bayesian sense— that a consensus of climate scientists would conclude that climate science matters?
None of this analysis tells us whether the dominant idea or the recessive idea is good. What it tells is that the Mutopian cathedral cannot tell us—because its marketplace of ideas will always select for the dominant idea.
When we remove pseudo-information that has obviously evolved in this way, we are not left with the opposite of the pseudo-information, but an absence of information. Whatever the signal reality is sending us, we cannot hear it. All we know is that our institutions cannot hear, think, learn, know, understand or teach any recessive ideas—that is, ideas that would damage or delegitimate the powers that be.
This mass brain-damage to the public mind is curiously replicated over in Mundana, whose Tsar is no less intolerant of seditious, heretical and subversive misinformation. Why would the Tsar let some gay, atheist newspaper editor curse God, the Church, and the whole Royal Family? What? Has Mundana somehow run short of prison cells? Are all the knout-makers on some, like, knout strike? By God, he will beat the man himself!
The Tsar—whose public mind is a canon, not a discourse—gets almost exactly the same results as the cathedral, by the exact opposite methods. The Tsar punishes deviation from canonical thought. The cathedral rewards conformity with dominant thought.
Of course, stick and carrot are two great tastes that taste great together—but they are both power. It is easy to think that reward and punishment are different things; they are not; they are different ways of getting to the same place, that is, human dominion.
The cathedral cannot be repaired
The cathedral can’t be repaired for two reasons. The first is that it can’t be repaired—just look at it. The second is that it isn’t the problem.
Go back to the lake and the sewage. How do you fix the lake? Not by skimming off the algae! Obviously, you need to stop the sewage leak and get rid of the pig farm. Then, you can either wait for the lake to purify itself naturally, or pump the polluted water out and let the clear blue mountain stream refill the basin. I recommend… the latter.
In this case the pig farm is a form of government that leaks power—that inherently wants to outsource responsibility to outside actors. Whenever the government relies on university research for a strategy or policy decision, or makes a decision which is influenced by media reporting, or selectively releases information to the media, this trust is leaking sovereignty into the cathedral. Which, being outside the government, is about as “democratic” as Genghis Khan.
Why does the government—or more precisely, the civil service—leak power? Because it is a bureaucracy, and bureaucracies leak power. It’s like asking why a two-stroke engine burns oil—or at least why a diesel engine puffs out soot.
In a bureaucracy, decisions at every level are not taken by individuals; they are taken by processes. All work is according to process. Managers in a bureaucracy are not bosses; they are exception handlers.
The fundamental rule of success as a bureaucrat is that while it is important to get credit for things that go right (everyone in the process will get credit), it is essential to avoid blame for things that go wrong. Fortunately, decision by process spreads and multiplies the thrill of success, while it diffuses and dilutes the sorrow of failure.
But if he can export accountability and responsibility outside the government itself, the bureaucrat feels like he is dumping this toxic waste in the deep ocean. Or in a blue mountain lake. What pig farmer wants a lagoon full of manure on his farm? Even the pigs hate that smell… and that’s why the Mutopian bureaucracy leaks power. As does every other bureaucracy, perhaps unless it’s brand-new.
And this is why you can’t fix it. An organization which focuses responsibility toward the top, without leaking, is an organization structured like an army or a corporation. In this form of organization (used by almost everything that isn’t a government), your manager actually is your boss. Final authority and responsibility lands on one person.
This form of government—the form that doesn’t leak power—has a name. It is called a monarchy. The form of government currently used by Mutopia also has a name. It is a bureaucracy, which is one kind of oligarchy. (“Deep State,” if you absolutely must.)
So the difference between our government, and a government which is “power-tight,” is as basal as it could be—not like the difference between a goat and a gazelle, like the difference between a gazelle and a chanterelle. There isn’t really, like, a kind of surgery that will turn either of these things into the other.
The future of Mu
So Mutopia’s magic 8-ball is broken—and it can’t be fixed. Its government is making decisions that are not just random, but actively perverse and self-destructive, because its brain is the cathedral, which is structurally biased toward these dominant ideas, many but not all of which are just plain bad ideas.
No wonder Mutopia is such a hot mess. But then again, Mundana is a hot mess too. Its government, which is also totally unaccountable, is also making perverse, destructive decisions—because the Tsar is getting senile. His syphilis is starting to kick in, too…
Fortunately, just after the above parable was taken, things really turned around in Mu. In both countries, the peasants revolted. And as in (almost) no peasant rebellion ever, things miraculously turned out well.
What happened in Mundana
What happened in Mundana: the peasants revolted. With the collective rationality we often, or at least sometimes, see in peasants, they realized the following facts:
Second: there was a responsible elite which could staff a new form of government. This new form is a “constitutional” monarchy in which the monarch is actually a joke—a stuffed shirt with a crown on top. The real power now belongs to the intellectual underground which survived the Tsar’s persecutions.
Therefore, these rational peasants used the power of democracy—which is irresistible but unstable—to depose their old monarchy and install a new oligarchy. This is the right way to use democracy—one political force which is never an end, but always a means.
Real power in the new regime is held by the new civil service—staffed, of course, by the dissidents against the old regime. Any evidence of having been persecuted by the Tsarist secret police is now a badge of honor which entitles you to various distinctions, privileges and job opportunities. Save those hit-piece clippings, dissidents—one day, they may well become your receipts.
This new system of government works extremely well, because the new ruling class is extremely well-selected. It consists of people who were ready to sacrifice everything to preserve both their sanity and their dignity. Such types make the best statesmen—and the ideas of the Mundanan dissident, we know, are evolved for nothing but cold truth.
So the new, free Mundana is run by its unbiased liberal intellectuals. Things are looking up in Mundana! And they’ll keep getting better—for a while…
What happened in Mutopia
What happened in Mutopia: the peasants revolted. With the collective rationality we often, or at least sometimes, see in peasants, they realized the following facts:
First: their government sucked. Both the cathedral and the civil service were insanely obsessed with race—because race war is a dominant idea. Crime grew rampant— because tolerating crime is a dominant idea. And when the civil service actually had to solve a real, unanticipated, significant problem, it turned out to be almost useless. And there was an army, too—which could not win a war, not even an irrelevant war.
Moreover, as the cathedral’s worldview diverged from reality, Mutopia had more and more trouble in enforcing this worldview by carrots alone. Eventually it turned to the other kind of mind control—and started developing almost Mundanan techniques of stick-based intellectual punishment. There were censors, informers, the whole deal.
Second: there was a responsible elite which could staff a new form of government. In the so-called “private sector,” the art of monarchy had been perfected. Some of these monarchies had even assembled staffs as big as any government that Mutopia could need, with an average human quality (or at least IQ) perhaps never equalled, executing with relentless perfection to—
Executing with relentless perfection to bring you toys, conveniences, luxuries, games and entertainment, porn and drugs, and all the “service economy” money could buy. But—nothing that was actually important, of course. Lol.
Therefore, these rational peasants used the power of democracy—which is irresistible but unstable—to depose their old oligarchy and install a new monarchy. This is the right way to use democracy—one political force which is never an end, but always a means.
The new monarch—a man recognized by all as the outstanding visionary leader of the Mutopian “private sector,” a master of not one but two groundbreaking companies—staffed his new regime, a startup state, with veterans of Mutopia’s technology wars.
These hardcore West Coast thugs knew nothing at all of government—though they sometimes would hire some grizzled old front-line GS man, as a contractor, just for the transitional assistance—no Gordian knot ever stopped these hotshot punks.
As for the old oligarchy, the cathedral and civil service—they were simply liquidated—rounded up, shot, dumped in a ditch, soaked with gas and burned… No! What am I saying? That was a totally different timeline. Bad dream. Sorry. That would be a major bummer. Please definitely don’t do that.
The Mutopian bureaucrats were some of the best people in the country, of course. Some were even rehired in new, entry-level positions. The rest were paid a generous severance and helped to find new, fulfilling work that lived up to their real talents. If they were math or science professors—they might even wind up with the same jobs.
Obviously, by serving the old regime, none of them did anything even slightly wrong. Normal people would be Nazis in Nazi Germany and Stalinists in the USSR, too. It’s time to get over blaming citizens or even government officials for the crimes of their regimes. This is just one of those bad 20th-century ideas that needs to be forgotten.
Within months, or at least years, Mutopia was a clean, humming, gleaming paradise, where everyone had not only the toys and conveniences they deserved, but also the genuinely meaningful and fulfilling work they deserved. And no one—no one at all—was still obsessed with race.
The peasants’ gratitude toward their new monarch—also a highly progenitive man, with redundant budding heirs—is impossible to express. This new, functional Mutopia is run not by incompetent time-servers and eggheads with their heads in the clouds, but by its most capable and visionary doers—under the leadership not just of a new king, but of a new dynasty whose family mission is tomake Mutopia great, not just on the scale of years, but on the scale of centuries—
It is our wish and will, that this State and this Reich last for a thousand years.
Chapter Three: Fraudulent Populism, Excerpt from Tyrant: Shakespeare on Politics by Stephen Greenblatt
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Trump: Long Live the King!
IN DEPICTING THE aspiring tyrant's strategy, Shakespeare carefully noted among the landed classes of his time the strong current of contempt for the masses and for democracy as a viable political possibility. Populism may look like an embrace of the have-nots, but in reality it is a form of cynical exploitation. The unscrupulous leader has no actual interest in bettering the lot of the poor. Surrounded from birth with great wealth, his tastes run to extravagant luxuries, and he finds nothing remotely appealing in the lives of underclasses. In fact, he despises them, hates the smell of their breath, fears that carry diseases, and regards them as fickle, stupid, worthless and expendable. But he sees that they can be made to further his ambitions.
It is not the well-meaning king, or the principled civil ' servant Duke Humphrey, who understands what is down there at thevery bottom of the realm. It is York's genius, if that is the right word for something so base, to grasp the use he can make of the resentment that seethes among the poorest of the poor. "I will stir up in England some black storm," he broods to himself, a storm that will not cease to rage until the crown he plans to seize -- "the golden circuit on my head" -- shines like the sun and calms the fury. And he has, he reveals, found the perfect person to be his agent: "I have seduced a headstrong Kentishman,/John Cade" (2 Henry VI 3.1.349-57).
John (or Jack) Cade was an actual person- -- a lower-class rebel about whom few personal details are known -- who led a bloody popular revolt that flared up against the English government in I 450 and was quickly and violently suppressed: To fashion his character, Shakespeare cobbled together materials he gathered from the historical chronicles (including the charge that Cade was secretly funded by York), combined them with the traces of other peasant uprisings, and added details drawn from his own vivid imagination.
The grand Richard Plantagenet, Duke of York, does not care in the slightest about the ultimate fate of the base man he has seduced into furthering his designs, and he cares still less about the ragged mob he intended to stir up into rebellion. But he has observed Cade carefully and seen qualities that may make him useful, including an uncanny indifference to pain and, therefore, an ability to keep hidden their secret bond:
Say he be taken, racked, and tortured, I know no pain they can inflict upon him Will make him say I moved him to those arms. (3.1.376-78)
Secrecy is important: it would not do for the powerful aristocrat to be revealed as the instigator of a vicious popular uprising.
The uprising turns out to be an even greater storm than York could have wished. The mob, gathering just outside London in Blackheath, is rallied by Cade, who proves himself to be an effective demagogue, the master of voodoo economics:
There shall be in England seven halfpenny loaves sold for a penny, the three-hooped pot shall have ten hoops, and I will make it felony to drink small beer. All the realm shall be in common ..... [T]here shall be no money; all shall eat and drink on my score. (4.2.61-68)
When the crowd roars its approval, Cade sounds exactly like a modern stump speaker: "I thank you, good people" (4.2.167).
The absurdity of these campaign promises is not an impediment to their effectiveness. On the contrary: Cade keeps producing demonstrable falsehoods about his origins and making wild claims about the great things he will do, and the crowds eagerly swallow them. To be sure, his neighbors know that Cade is a congenital liar:
CADE: My mother a Plantagenet --
BUTCHER: [Aside] I knew her well; she was a midwife.
CADE: My wife descended of the Lacys --
BUTCHER: [Aside] She was indeed a peddler's daughter and sold laces. (4.2.39-43)
Cade's absurd assertions of aristocratic lineage should make him seem merely a buffoon. Far from a wealthy, high-born magnate, he is little more than a vagabond: "I have seen him whipped three market days together" (4.2.53-54), whispers one of his supporters. But, strangely enough, this knowledge does not diminish the mob's faith.
Cade himself, for all we know, may think that what he is so obviously making up as he goes along will actually come to pass. Drawing on an indifference to the truth, shamelessness, and hyperinflated self-confidence, the loudmouthed demagogue is entering a fantasyland -- "When I am king, as king I will be" -- and he invites his listeners to enter the same magical space with him. In that space; two and two do not have to equal four, and. the most recent assertion need . not remember the contradictory assertion that was· made a few seconds earlier.
In ordinary times, when a public figure is caught in a lie or simply reveals blatant ignorance of the truth, his standing is diminished. But these are not ordinary times. If a dispassionate bystander were to point out all of Cade's grotesque distortions, mistakes, and downright lies, the crowd's anger would light on the skeptic and not on Cade. Famously, it is at the end of one of Cade's speeches that someone in the crowd shouts, "The first thing we do, let's kill all the lawyers" (4.2.71).
Shakespeare knew that the line would get laughs, as it has done for the last four centuries. It releases the current of aggression that swirls around the whole enterprise of the law -- directed not merely at venal attorneys but at all the agents of the vast social apparatus that compels the honoring of contracts, the payment of debts, the fulfillment of obligations. We blithely imagine that the crowd wants such responsible qualities in its leaders, but the scene suggests otherwise. What it wants instead is permission to ignore commitments; to violate promises, and to break the rules.
Cade begins by talking vaguely about "reformation," but his actual appeal is wholesale destruction. He urges the mob to pull down London's law schools, the Inns of Court, but that is only the beginning. "I have a suit unto your lordship," entreats one of his chief followers, "that the laws of England may come out of your mouth" (4.7.3-7). "I have thought upon it," Cade replies, "it shall be so. Away! Burn all the records of the realm; my mouth shall be the Parliament of England" (4.7-.11-13).
That in this destruction the common people would lose even the very limited power they possess -- the power expressed when they voted in parliamentary elections -- does not matter. For Cade's ardent supporters, the time-honored institutional system of representation is worthless. It has, they feel, never represented them. Their inchoate wish is to tear up all the agreements, cancel all the debts, and wreck all the existing institutions. Better to have the law come from the mouth of the dictator, who may claim to be a Plantagenet but whom they recognize as one of their own. The masses are perfectly aware that he is a liar, but -- venal, cruel, and self-serving though he is -- he succeeds in articulating their dream: "Henceforward all things shall be in common" (4.7.16).
Cade's rant stands in for any transparency about his own past. and any serious commitment to make good on this or that particular promise. Far from demanding that he keep his word, his followers are gratified when he rails against all contracts: "Is not this a lamentable thing, that the skin of an innocent lamb should be made parchment; that parchment, being scribbled o'er, should undo a man?, (4.2.72-75). The remark about the "scribbled-over" parchment is at once ridiculous -- how else should legal documents look? -- and canny. The poor whose passions Cade is arousing feel excluded, despised, and vaguely ashamed. They have been left out of an economy that increasingly demands possession of a once-esoteric technology: literacy. They do not imagine that they can master this new skill, nor does their leader propose that they undertake any education. It would hardly suit his purposes if they did so. What he does instead is manipulate their resentment of the educated.
The mob quickly apprehends a clerk and levels an accusation against him: "he can write and read." Indeed, his accusers report, "We took him setting of boys' copies" (4.2.81) -- that is, preparing writing exercises for schoolboys. Cade undertakes to conduct the interrogation: "Dost thou use to write thy name,'' he asks. "Or hast thou a mark to thyself, like a honest plain-dealing man?" (4.2.92-93). If the clerk knew what was good for him, he would insist that he was illiterate and signed his name only with a mark. Instead he proudly proclaims his accomplishment: "Sir, I thank God I have been so well brought up that I can write my name." "He hath confessed!" the mob shouts. ''Away with him! He's a villain and a traitor." "Away with him, I say!" orders Cade, echoing the crowd's demand. "Hang him with his pen and ink-horn about his neck" (4.2.94-99).
Jack Cade longs for the time when, as he puts it, boys played games of toss "for French crowns," a time before the country was "maimed and fain to go with a staff" (4.2.145-50). Until weaklings led it astray, he suggests, England compelled its enemies to tremble before its power, and that glorious swaggering must now be recovered. He promises to make England great again. How will he do that? He shows the crowd at once: he attacks education. The educated elite has betrayed the people. They are traitors who will all be brought to justice, and this justice will be meted out not by judges and lawyers but in a call-and-response between the leader and his mob. The English treasurer Lord Saye "can speak French" -- "and therefore he is a traitor" (4.2.153). It makes perfect sense: "The Frenchmen are our enemies .... I ask but this: can he that speaks with the tongue of an enemy be a good counselor, or no?" The crowd roars the answer: "No, no -- and therefore we'll have his head!" (4.2.155-58).
When the mob, having broken through London's defenses, streams into the city and captures this very Lord Saye, Cade experiences the full flush of triumph. He has in his hands the realm's highest fiscal officer, the emblem of the swamp that he has pledged to drain. (The demagogue's actual metaphor for what he intends to do is slightly homelier:. "Be it known," he declares, "that I am the besom" -- the broom -- "that must sweep the court clean of such filth as thou art" [4.7.27-28].) With his excited followers hanging on every word, he enumerates the charges against his prisoner. He accuses Saye of having done something even worse than giving Normandy to the French:
Thou hast most traitorously corrupted the youth of the realm in erecting a grammar school; and whereas, before, our forefathers had no other books but the score and the tally, thou hast caused printing to be used, and, contrary to the King, his crown, and dignity, thou hast built a paper mill. (4.7.28-33)
Helping foster an educated citizenry -- people who read books -- is Saye's most egregious crime. And Cade has corroborating evidence: "It will be proved to thy face that thou hast men about thee that usually talk of a noun and a verb and such abominable words no Christian ear can endure to hear" (4.7.33-36).
We are meant to find this ridiculous, of course; the scene is quite rightly played for laughs. But Shakespeare grasped something critically important: although the absurdity of the demagogue's rhetoric was blatantly obvious, the laughter it elicited did not for a minute diminish its menace. Cade and his followers will not slink away because the traditional political elite and the entirety of the educated populace regard him as a jackass.
That Cade himself understands the base of his power is suggested by the lines that immediately follow his drivel about nouns and verbs. "Thou hast appointed justices of the peace," he charges Lord Saye,
to call poor men before them about matters they were not able to answer. Moreover, thou hast put them in prison and, because they could not read, thou hast hanged them, when indeed only for that cause they have been most worthy to live. (4.7.36-41)
In some sense, this rant is an extension of the rubbish Cade has been spouting: it is ridiculous for him to suggest that criminals deserve to be pardoned simply because they are illiterate. But the joke begins to curdle. The play has already amply shown that the rich and well-born can get away with murder. Moreover, Shakespeare's audience was well aware that the courts in their own time allowed something called "benefit of clergy," a legal device whereby those condemned to be executed for murder or theft could, if they demonstrated that they were literate, be remanded to jurisdictions which had no death penalty. Cade's accusation that those who could not read were hanged is perfectly accurate -- and it gets at a whole legal system heavily weighted to favor the educated elite.
Small wonder then that there is a fathomless pool of lower-class resentment upon which Cade can draw, and small wonder, too, that the ridicule and contempt heaped upon him and his followers only intensifies this resentment. "Rebellious hinds, the filth and scum of Kent, / Marked for the gallows," the royal officer Sir Humphrey Stafford rails at the mob, "lay your weapons down! / Home to your cottages" (4.2.111-13). Calling them "filth and scum" simply helps highlight the ceremonious show of respect their leader offers them: "It is to you, good people, that I speak," Cade tells them, "Over whom, in time to come, I hope to reign, / For I am rightful heir unto the crown" (4.2.118-20). Once again he advances his grotesque lie, and once again there is an official attempt to expose it: "Villain, thy father was a plasterer," Stafford fumes. To this Cade replies, "And Adam was a gardener" (4.2.121-23).
This reply is something more than a simple non sequitur. Cade's words allude to the slogan of the Peasants' Revolt in the late fourteenth century: "When Adam delved and Eve span, who was then the gentleman?" The peasants' leader, the revolutionary priest John Ball, spelled out the meaning of his incendiary little rhyme: "From the beginning all men were created equal by nature." Before it was over, rebels had torched court records, opened jails, and killed officials of the crown.
Shakespeare carries over into his depiction of Cade's uprising the fear and loathing aroused among the propertied classes by lower-class insurgency. The peasant rebels are fueled by something like the murderous vision of Cambodia's Pol Pot: their goal is to destroy not merely the high-ranking nobles but the entire educated population of the country. "All scholars, lawyers, courtiers, gentlemen," one appalled observer reports. "They call false caterpillars and intend their death" (4.4.35-'36). The common people have been exploited and enslaved; this is the moment for them to seize liberty. "We will not leave one lord, one gentleman," Cade chillingly promises, exhorting his followers to "Spare none but such as go in clouted shoon" (4.2.169-70) -- that is, in the hobnailed boots of peasants. The rural poor have not joined the rebelling urban masses, but the peasants, as Cade puts it, are "such / As would, but that they dare not, take our parts" (4.2.172). They are fellow travelers in the war of the ignorant against the literate and would, if they had the courage, applaud the grisly end he orders for the likes of the well-spoken Lord Saye: "Go, take him away, I say, and strike off his head presently, and then break into his son-in-law's house, Sir James Cromer, and strike off his head, and bring them both upon two poles hither" (4.7.99-101).
When his command is carried out, and the heads are duly brought to him, Cade arranges a piece of sadistic political theater. "Let them kiss one another," he orders, "for they loved well when they were alive." Then he adds, with the cruel sarcasm that perfectly typifies this kind of demagogu, "Now part them again, lest they consult about the giving up of some more towns in France" (4.7.119-22).
Cade aspires to being a tyrant, and a rich one at that: "The proudest peer in the realm shall not wear a head on his shoulders unless he pay me tribute" (4.7.109-10). He imagines for himself, as well, the right to sleep, with all the women he can put his hands on. For a time, he manages to whip his followers into a frenzy of destructiveness: "Up Fish Street! Down Saint Magnus' Corner! Kill and knock down! Throw them into Thames!" (4.8.1-2). But he has no organizational skills or party on which to draw, and we know (though his followers do not) that he is merely the tool of the sinister York.
When the moment is ripe, by borrowing from Cade's own book and appealing to nativist sentiments and dreams of plunder, the royal authorities lure the mob away from their rebellion and in a different direction -- "To France, to France, and get what you have lost!" Isolated and embittered, Cade flees for his life, cursing those who had followed him:
I thought ye would never have given out these arms till you had recovered your ancient freedom. But you are all recreants and dastards and delight to live in slavery to the nobility. Let them break your backs with burdens, take your houses over your heads, ravish your wives and daughters before your faces. (4.8.23-29)
When we next see Cade, he is a starving fugitive, breaking into a garden "to see if I can eat graas, or pick a salad" (4.10.6-7). The garden's owner easily dispatches the emaciated rebel with his sword and drags his corpse "Unto a dunghill which shall be thy grave'' (4.10.76).
King Henry breathes a sigh of relief, but the news of Cade's downfall is accompanied at almost the same moment by word that York, with an Irish army, is advancing toward the royal encampment; York is clever enough to keep his intentions hidden until he has strength enough to act, but he makes clear in his soliloquies that he will settle for nothing less than the crown. What follows is a complex tangle of events, mingling wars in France with domestic conspiracy, treachery, and violence. The outcome is full-scale war between the two parties, the red roses and the white, Lancastrians and Yorkists.
The horrors of this war epitomize the breakdown of basic values -- respect for order, civility, and human decency -- which paves the way for the tyrant's rise. The seeds of the breakdown had already been glimpsed in the argument between York and Somerset, where a disagreement over an obscure point of law had quickly escalated into a barrage of insults. The anger was intensified by the rise of party politics and then, through York's subterfuge, had led to the murder of Duke Humphrey and Jack Cade's rebellion. But civil war lifts the veil of subterfuge: the principal political figures no longer hide their highest ambitions or leave the enactment of their sadistic impulses to their subordinates. The byzantine complexity of the plot from this point forward has made the final play of Shakespeare's trilogy notoriously difficult to stage, but several things are particularly notable.
First, rising chaos makes the outcome of the struggle for power completely unpredictable. When he was operating in the half-shadows and effecting his wishes through substitutes like Cade, York had seemed almost invulnerable. But once he is in the open -- at one point he actually seats himself on the throne, though he is quickly forced to step down -- he and his family become direct targets of the opposing faction. His enemies capture and kill his twelve-year-old son. When, shortly afterward, they capture York himself, they mockingly offer him a handkerchief soaked in his son's blood. Then they taunt him and adorn him with a paper crown before stabbing him to death. Such is the vicious cruelty that he himself has helped to release and legitimate, and such, too, is the end of the would-be tyrant.
Second, the dream of absolute rule is not the goal of a single person alone; in the political conception of the age, it is a dynastic ambition, a family affair. In an age in which power routinely passed from father to the eldest son (or, in the absence of sons, to the eldest daughter), it made perfect sense for tyrants to model themselves after the monarchs they sought to displace and to attempt to secure power for their heirs. Even in democratic systems where succession is determined by vote, we have by no means left dynastic ambition behind; it seems, if anything, to be intensifying in contemporary politics. Besides, who can the perennially insecure tyrant trust more than the members of his own family?
But family interest is only one element in the continuing turmoil Shakespeare depicts. The turmoil is also a consequence of party politics, symbolized here by the plucking of the white and red roses. York's death is significant blow to his party, but it by no means puts an end to the struggle to destroy the legitimate monarch. The Yorkists find a new candidate, York's son Edward, and advance his claim in any way they can.
Third, the political party determined to seize power at any cost makes secret contact with the country's traditional enemy. England's enmity with the nation across the Channel -- constantly fanned by all the overheated patriotic talk of recovering its territories there, and fueled by all the treasure and blood spilled in the attempt to do so -- suddenly vanishes. The Yorkists -- who, in the person of Cade, had pretended to consider it an act of treason even to speak French -- enter into a set of secret negotiations with France. Nominally, the negotiations aim to end hostilities between the two countries by arranging a dynastic marriage, but they actually spring, as Queen Margaret cynically observes, "from deceit, bred by necessity" (3 Henry VI 3.3.68). To bring Edward Plantagenet to the throne, the Yorkists seek to enhance their candidate's power. He still lacks the strength to topple Henry, and his party will obtain that strength wherever they can find it, even if it means betraying their country. It does not matter that the Yorkists have constantly lamented the loss of so much territory to their hated rivals, the French, and have vociferously blamed Henry for the loss. Now suddenly the Yorkists make a show of "kindness and unfeigned love" (3.3.51) to their enemy. Ardent patriots like Talbot are hopelessly naive to believe that loyalty to the nation trumps personal interest. A cynical insider like Queen Margaret knows better: "How can tyrants safely govern home," she asks, "Unless abroad they purchase great alliance?" (3.3.69-70).
Fourth, the legitimate, moderate leader cannot count on popular gratitude or support. In the chaotic free-for-all into which the realm has fallen, this apparent betrayal of principle does hot produce any great outrage. What might at another time have provoked charges of treason is simply accepted as the way things are. And if there are no longer the expected punishments for treachery, so, too, there are no longer the anticipated rewards for virtue. Perhaps such anticipation was always a delusion: a decent ruler should never count on the gratitude of the people. That had already been demonstrated in the Cade rebellion, but it is brought home again, still more fatally, at the climax of the civil war. Just before his downfall, Henry expresses confidence that his subjects will support him because he has always been a reasonably just, caring, and moderate king. The claim is true enough; the mistake, a fatal one, is to think that this will earn him secure popular support. "I have not stopped mine ears to their demands," Henry reassures himself,
Nor posted off their suits with slow delays. My pity hath been balm to heal their wounds; My mildness hath allayed their swelling griefs; My mercy dried their water-flowing tears. I have not been desirous of their wealth Nor much oppressed them with great subsidies, Nor forward of revenge, though they much erred. Then why should they love Edward more than me? (4.9.7-15)
But when the moment of truth comes, in the battle that decides whether the Yorkists will finally succeed in seizing power; there is no rush of popular support for the virtuous Henry. First his son and heir is captured and stabbed to death by the sons of York, and then it is his own turn to die at the hands of Richard, Duke of Gloucester, the most ruthless of these sons. The Yorkist leader, Edward Plantagenet, ascends the throne.
And fifth, the apparent restoration of order, in the wake of national turmoil, may be an illusion. Eager to "spend the time / With stately triumphs, mirthful comic shows" (5.7.42-43), Edward is a more moderate figure than York, his father, far less consumed with fantasies of absolute power. To return the country to a semblance of normal, legitimate rule, he hopes to bring about a collective forgetting of the nightmare from which everyone has barely awakened. In this spirit of amnesia, he characterizes the bloodshed that his party has caused a "sour annoy." And he cheerfully declares that the threats have all vanished: "Thus have we swept suspicion from our seat / And made our footstool of security" (5.7.I1-14).
Everything in the realm, in the new king's final words, seems happily settled: "For here I hope begins our lasting joy" (5.7.46). Yet at the close of Shakespeare's Wars of the Roses trilogy, the audience knows that the joy will be anything but lasting. Edward largely owed his party's victory and, hence, his kingship to his stalwart brothers, George, Duke of Clarence, and Richard, Duke of Gloucester. George, to be sure, wavered at one point in the civil war, siding briefly with the Lancastrians, but he came back to fight for the Yorkist cause. Richard never wavered, and it was he who murdered Henry VI. But with the king bleeding to death at his feet, Richard had quietly made it clear that his only allegiance was to himself. "I have no brother," he declared. "I am myself alone" (5.6.80-83). A new tyrant is waiting in the wings.
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Tyrant by Stephen Greenblatt review – Shakespeare, power and sadistic impulses: The literary scholar leaves parallels with today inexplicit, but has written an engaging study of some of the most eloquent despots on stage by John Mullan The Guardian Fri 6 Jul 2018 03.59 EDT https://www.theguardian.com/books/2018/ ... att-review
Near the end of this book, Stephen Greenblatt observes that Shakespeare was unusually good at staying out of trouble. His friend and rival Ben Jonson was imprisoned for the allegedly seditious play The Isle of Dogs. Their contemporary, Thomas Kyd, fled from an arrest warrant for sedition and was interrogated under torture. Christopher Marlowe was stabbed to death by a government agent, while awaiting an investigation of his unconventional religious beliefs. The career of playwright was not a safe one in Elizabethan or Jacobean England. Greenblatt’s opening chapter lays out the evidence for the dangers of staging drama in Shakespeare’s day, culminating in the elderly Elizabeth I reportedly likening herself to Shakespeare’s Richard II, a monarch defeated and finally murdered by rebels.
Yet Richard II was never banned. Shakespeare prospered while creating his anatomies of power and its abuse. No reader of this single-minded book could be in any doubt of Shakespeare’s fascination with the ways in which a tyrant exercised power. Some of his greatest characters are tyrants, displayed for spectators who knew that, outside the theatre, political dissent or religious heterodoxy could be death. Some of the most memorably caustic lines about the arbitrariness of authority – “a dog’s obeyed in office” – were spoken on Shakespeare’s stage to an audience that included government agents. Yet, as Greenblatt puts it with winning anachronism, “the police were never called”. If the maddened Lear said it, it was allowable. Sentiments that would have been dangerous to voice in the tavern could be broadcast at the Globe.
Greenblatt is returning here to some of the questions that occupied him in the early criticism that made his name, and that established him as the leading light of new historicism. That critical movement specialised in audacious sallies of interpretation; in contrast, this book sticks to dutiful exegesis of Shakespeare’s dialogues. New historicism allowed critics to flourish their ingenuity by finding repressed meanings that their chosen authors had not themselves acknowledged. Now Greenblatt seems almost to believe in the playwright’s intentions.
Anyone who has struggled with Shakespeare’s earliest history plays, his Henry VI trilogy, will be pleased to find here a condensed account of the conspiracy and treachery they dramatise, including the terrifying rise and inevitable fall of the rebel Jack Cade. It is a story of the “sadistic impulses” shared by those who love power. These three plays were the prelude to Richard III, whose warped protagonist appals and captivates Greenblatt. Richard’s skill is “the ability to force his way into the minds of those around him”. He is definitive on Richard’s psychopathology. “Sexual conquest excites him, but only for the endlessly reiterated proof that he can have anything he likes.”
Tyranny is a madness that becomes eloquent in Shakespeare. Not for him the banality of the despot. Macbeth may be a “butcher”, but no one speaks better. Leontes in A Winter’s Tale turns language itself into a fevered, flickering register of paranoia. In every way, these characters are compelling. As Greenblatt elegantly shows, Shakespeare dramatises the very exercise of power – the ways in which subjects and collaborators are seduced or numbed into complicity. Those few who resist intrigue him. The book’s hero is the Duke of Cornwall’s unnamed servant in King Lear who, with his master urged on by his wife Regan to pluck out Gloucester’s eyes, calls on him to stop. The man has served Cornwall “since I was a child”, but now shows his “better service” by trying to stand between the torturer and his victim. “A peasant stand up thus?” is Regan’s contemptuous question, as she stabs him to death.
Greenblatt is not unerring. He says that in Macbeth we witness “the birth of a tyrant” in the famous dialogue where Lady Macbeth goads her hesitating husband into murder. Yet the play is careful to let us know that the scheme to murder Duncan has been hatched some time before the play begins. The witches are not putting something into his head but reminding him of his own dark plans. He is already the would-be tyrant. There is also some uncertainty about what a tyrant is. We get a sharply observed chapter on Coriolanus, but its protagonist is revealed to be anything but a tyrant. He is disabled from wielding power by his distaste for the business of winning over the populace. As Greenblatt himself points out, Coriolanus’s political opponents manipulate him precisely by depicting him to the people as a would-be tyrant. A better candidate for inclusion would surely have been Hamlet’s uncle Claudius, a ruler who can manage sweet reason in his speeches alongside utter ruthlessness in his orders. And what about the Puritan tyrant Angelo in Measure for Measure, soberly making others pay for what are in fact his own sins?
The book may have begun as a newspaper article, drawing lessons from Shakespeare on the eve of the 2016 presidential election, but mostly the reader is left to draw his or her lessons for the present. There are some calculatedly anachronistic analogies: Mary Queen of Scots’ beheading is likened to the killing of Osama bin Laden. Greenblatt admires Shakespeare as “the master of the oblique angle” on power – and wants to find that angle for himself.
Tyrant: Shakespeare on Power is published by Bodley Head. To order a copy for £14.44 (RRP £16.99) go to guardianbookshop.com or call 0330 333 6846. Free UK p&p over £10, online orders only. Phone orders min p&p of £1.99.
Judge temporarily blocks Trump’s mass firings at federal agencies: Judge says office of personnel management lacks power to order firings, including those of probationary employees by Guardian staff and agencies Thu 27 Feb 2025 18.38 EST https://www.theguardian.com/us-news/202 ... mp-firings
A federal judge in California has temporarily blocked the Trump administration from ordering the US defense department and other agencies to carry out the mass firings of some employees.
The US district judge William Alsup said in San Francisco on Thursday that the US office of personnel management (OPM) lacked the power to order federal agencies to fire any workers, including probationary employees who typically have less than a year of experience.
Alsup ordered the OPM, the human resources department for federal agencies, to rescind a 20 January and a 14 February email directing agencies to identify probationary employees who should be fired.
Alsup said he could not order the defense department itself, which is expected to fire 5,400 probationary employees on Friday, and other agencies not to terminate workers because they are not defendants in the lawsuit brought by several unions and nonprofit groups.
But he suggested that the mass firings of federal workers that began two weeks ago would cause widespread harm, including cuts to national parks, scientific research, and services for veterans.
“Probationary employees are the lifeblood of our government. They come in at a low level and work their way up. That’s how we renew ourselves,” said Alsup, a Bill Clinton appointee.
Alsup handed down the order in a case brought by labor unions and nonprofits filed last week.
The complaint filed by five labor unions and five nonprofit organizations is among multiple lawsuits pushing back on the administration’s efforts to vastly shrink the federal workforce.
Thousands of probationary employees have already been fired. Just on Thursday, hundreds of workers at the National Oceanic and Atmospheric Administration (Noaa), the US’s pre-eminent climate research agency, learned they had lost their jobs.
The plaintiffs say the OPM had no authority to terminate the jobs of probationary workers who generally have less than a year on the job. They also say the firings were predicated on a lie of poor performance by the workers.
The Trump administration has maintained that the memo and email from the OPM merely asked agencies to review their probationary workforces and decide who could potentially be terminated, and did not require them to do anything.
“An order is not usually phrased as a request,” Kelsey Helland of the US Department of Justice told Alsup during the hearing.
But the judge said it was unlikely that virtually every federal agency independently decided to decimate its staff.
“How could that all happen with each agency deciding on its own to do something so aberrational? I don’t believe it,” Alsup said.
There are an estimated 200,000 probationary workers – generally employees who have less than a year on the job – across federal agencies. About 15,000 are employed in California, providing services ranging from fire prevention to veterans’ care, the complaint says.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO; AFGE LOCAL 1216; UNITED NURSES ASSOCIATIONS OF CALIFORNIA/UNION OF HEALTH CARE PROFESSIONALS, AFSCME, AFL-CIO; AFGE LOCAL 2110; MAIN STREET ALLIANCE; COALITION TO PROTECT AMERICA’S NATIONAL PARKS; WESTERN WATERSHEDS PROJECT; VOTE VETS ACTION FUND INC.; and COMMON DEFENSE CIVIC ENGAGEMENT,
Plaintiffs,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and CHARLES EZELL, in his official capacity as Acting Director of the U.S. Office of Personnel Management, Defendants. Case No. 3:25-cv-01780-WHA [William Haskell Alsup]
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Docket Entries
41. Feb 27, 2025. Minute Entry for proceedings held before Judge William Alsup: Motion Hearing re: 18 Motion for TRO held on 2/27/2025. Parties stated appearances and proffered argument. Court ruled as stated on the record. Written Memorandum Opinion to issue. Government is to produce expedited discovery on 3/4/2025 by 12:00pm noon (pst). Evidentiary Hearing set for 3/13/2025 08:00 AM in San Francisco, Courtroom 12, 19th Floor before Judge William Alsup. Total Time in Court: 1:32 - 3:13 = 1 Hour; 41 Minutes. Court Reporter: Irene Rodriguez. Plaintiff Attorneys: Danielle Leonard, Stacey Leyton, Eileen Goldsmith, Scott Kronland, James Baltzer, Robin Tholin, Rushad Sanghvi. Defendant Attorney: Kelsey Helland. (This is a text-only entry generated by the court. There is no document associated with this entry.) (afm, COURT STAFF) (Date Filed: 2/27/2025) (Entered: 02/27/2025)
