Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Gates

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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.

Civil Action No. 25-00400 (AHA)

_______________________________________

GLOBAL HEALTH COUNCIL, et al.,

Plaintiffs,

v.

DONALD J. TRUMP, et al.,

Defendants.

Civil Action No. 25-00402 (AHA) [Judge Amir H. Ali, United States District Judge]

Date: March 10, 2025

Memorandum Opinion and Order

The provision and administration of foreign aid has been a joint enterprise between our two political branches. That partnership is built not out of convenience, but of constitutional necessity. It reflects Congress and the Executive’s “firmly established,” shared constitutional responsibilities over foreign policy, Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 62 (2015) (Roberts, C.J., dissenting), and it reflects the division of authorities dictated by the Constitution as it relates to the appropriation of funds and executing on those appropriations. Congress, exercising its exclusive Article I power of the purse, appropriates funds to be spent toward specific foreign policy aims. The President, exercising a more general Article II power, decides how to spend those funds in faithful execution of the law. And so foreign aid has proceeded over the years.

[Marc Elias] So let me start with something that I don't understand. So you got Article I of the Constitution, which is the Congress, and lays out Congress's power; and you got Article II, which lays out the Executive Branch's power; and you got Article III that lays out the Judicial branch. And I think the Founders had in mind that the most powerful of these branches would actually be the first, would be Article I, right? It would be Congress. And that it would jealously guard its authority -- particularly its ability to spend money, and its ability to issue taxes -- that it would jealously guard this power from a rapacious Executive. That does not seem to be happening. So what do you make of this? Either put on your Constitutional law hat, or put on your member of Congress hat, but what do you make of this?

[Jamie Raskin] Well, in one sense, this is a decades-long process of erosion of Congressional lawmaking power. But this is a dramatic and sudden jump into the unknown, with the President basically defying Congress in Congressional statutes and Appropriations at every turn. But to go back to the beginning, Marc, look, we had a revolution against a king, against a monarch. The first three words of the Constitution are, "We the people." And then, after you get through our beautiful Preamble, it leads right into the creation of Article I: "All legislative power is vested in the Congress of the United States." The sovereign power of the People to create the Constitution flows right into the Congressional power of lawmaking. And you know, Article I lays out everything, from regulating Commerce domestically and internationally, to the power to declare war, budgets, taxes, you name it. And even in Article 1, Section 8, Clause 18, all other powers necessary and proper to the execution of the forgoing powers, right?

Then you get to Article II. My colleague, Jim Jordan's, been running around TV saying that Article II says, in the first sentence, "All Executive power is vested in the President." Yeah, that's true, but what is the executive power, right? When you get past commander-in-chief of the Army and Navy in times of actual conflict, or when the militia's been mobilized, what's the core job of the President? "To take care that the laws are faithfully executed." That's it. "To take care that the laws are faithfully executed." The Articles of Confederation didn't even have a President, right? And then they thought that that was too inefficient, and there was nobody to keep things going to, you know, move the bureaucracy when Congress wasn't in town. And then the President was created, but very clearly in a secondary position. As Madison put it in the Federalist Papers, "The legislative branch is the predominant branch of government."

So sometimes my colleagues will get up, even Democrats will say, "We're three co-equal branches of government." And I just want to say, first of all, "co-equal" is not even a word, okay? You know, that's like extremely unique, or something like that. Secondly, the claim that we have three equal branches is just ridiculous. I mean, when you get to Article II, you've got four short sections. One section is all about how you impeach a President for treason, bribery, and other high crimes and misdemeanors. If we're co-equal, or equal, or equivalent, or whatever, why do we have the power to impeach and try and convict a President, and he doesn't have the power to impeach and try and convict us? The framers were clearly a lot more afraid of a President purporting to be a King, or arrogating the powers of a dictator, than it was afraid of Congress; all of the people, coming from this great huge, vast, diverse country, from different points of views, and working together, and split between the House and the Senate with bicameralism. So, as you know, Washington told Jefferson in that famous anecdote,

There is a tradition that Jefferson coming home from France, called Washington to account at the breakfast-table for having agreed to a second, and, as Jefferson thought, unnecessary legislative Chamber.

"Why," asked Washington, "did you just now pour that coffee into your saucer, before drinking?"

"To cool it," answered Jefferson, "my throat is not made of brass."

"Even so," rejoined Washington, "we pour our legislation into the senatorial saucer to cool it."

It's like, you know, pouring your tea from the cup into the saucer so it can cool off a little bit, right? And the Senate is supposed to allow the passions and tempers of the House of Representatives to cool off a little bit. But in any event, Congress is the lawmaking branch. We also have the power of the purse. We've got the power to spend, right? And you know this Marc, an Appropriations Act is just another federal law. It's like a law against assaulting Federal officers. And they should show more respect for both the law against assaulting Federal officers, and for an Appropriations Act. An Appropriations Act is not a budgetary recommendation, or a point of negotiation, or a bargaining chip with the President. It's a law you follow. The law "To take care that the laws are faithfully executed." So do your job, yeah?  

-- What Every American Can Do To Fight DOGE, by Marc Elias and Jamie Raskin, Democracy Docket, Mar 13, 2025

This case involves a departure from that firmly established constitutional partnership. Here, the Executive has unilaterally deemed that funds Congress appropriated for foreign aid will not be spent. The Executive not only claims his constitutional authority to determine how to spend appropriated funds, but usurps Congress’s exclusive authority to dictate whether the funds should be spent in the first place. In advancing this position, Defendants offer an unbridled view of Executive power that the Supreme Court has consistently rejected—a view that flouts multiple statutes whose constitutionality is not in question, as well as the standards of the Administrative Procedure Act (“APA”). Asserting this “vast and generally unreviewable” Executive power and diminution of Congressional power, Defendants do not cite any provision of Article I or Article II of the Constitution. See generally Glob. Health, ECF No. 34.

When courts have confronted Executive overreach of the foreign policy power in the past, they have stood prepared to reaffirm Congress’s role. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–89 (1952); Zivotofsky, 576 U.S. at 62 (Roberts, C.J., dissenting) (“For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs.”). So too they have stood firm when the Executive treads on Congress’s spending power. See In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013) (Kavanaugh, J.) (granting mandamus). Three Justices aptly captured the import to our nation’s founding: “Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs.” Zivotofsky, 576 U.S. at 67 (Scalia, J., joined by Roberts, C.J., and Alito, J., dissenting). But “[t]he People of the United States had other ideas.” Id. The People “considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.” Id. They “adopted a Constitution that divides responsibility for the Nation’s foreign concerns between the legislative and executive departments.” Id.

Today, this Court reaffirms these firmly established principles of our Constitution. At the same time, however, the Court is mindful of limitations on its own authority. While Congress has directed courts to “hold unlawful and set aside” certain agency action, 5 U.S.C. § 706(2), and the Supreme Court has admonished that the “duty of the judicial department to say what the law is” includes resolving disputes between Congress and the President over foreign policy power, Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)), courts remain constrained in the relief they can offer. The Court must be careful that any relief it grants does not itself intrude on the prerogative of a coordinate branch. The Court accordingly denies Plaintiffs’ proposed relief that would unnecessarily entangle the Court in supervision of discrete or ongoing Executive decisions, as well as relief that goes beyond what their claims allow. For the reasons herein, the Court grants in part and denies in part Plaintiffs’ motions for a preliminary injunction.

I. Background

A. The Political Branches’ Joint Framework For The Provision And Administration Of Foreign Aid

The general framework for foreign aid relevant here began with Congress’s enactment of the Foreign Assistance Act of 1961 (“FAA”), Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. § 2151 et seq.). In the FAA, Congress sets forth principles to guide U.S. foreign policy as it relates to foreign aid. Congress “reaffirms the traditional humanitarian ideals of the American people and renews its commitment to assist people in developing countries to eliminate hunger, poverty, illness, and ignorance.” 22 U.S.C. § 2151(a). The act further declares that “a principal objective of the foreign policy of the United States is the encouragement and sustained support of the people of developing countries in their efforts to acquire the knowledge and resources essential to development and to build the economic, political, and social institutions which will improve the quality of their lives.” Id. Congress also sets forth specific priorities for such foreign assistance: “(1) the alleviation of the worst physical manifestations of poverty among the world’s poor majority; (2) the promotion of conditions enabling developing countries to achieve self-sustaining economic growth with equitable distribution of benefits; (3) the encouragement of development processes in which individual civil and economic rights are respected and enhanced; (4) the integration of the developing countries into an open and equitable international economic system; and (5) the promotion of good governance through combating corruption and improving transparency and accountability.” Id. Congress declares that “pursuit of these goals requires that development concerns be fully reflected in United States foreign policy and that United States development resources be effectively and efficiently utilized.” Id.

In addition to setting forth these principles and priorities, the FAA explicitly recognizes and authorizes the President’s role in administering aid allocated toward those ends. With respect to various areas in which aid is to be targeted, such as health programs, economic development, anticrime efforts, military education, and peacekeeping, Congress authorizes the President “to furnish assistance” “on such terms and conditions as he may determine.” See, e.g., id. §§ 2151b(c)(1), 2291(a)(1)(G)(4), 2346(a), 2347(a), 2348.

The FAA led to the creation of the United States Agency for International Development (“USAID”), first by executive order, see Exec. Order No. 10973, 26 Fed. Reg. 10469 (Nov. 3, 1961), and more than thirty years later enshrined by legislation in the Foreign Affairs Reform and Restructuring Act of 1998, see 22 U.S.C. § 6563. In the years since, Congress has regularly appropriated foreign assistance funds to USAID for specific purposes, including “[f]or necessary expenses to enable the President to carry out the provisions of the Foreign Assistance Act of 1961.” Further Consolidated Appropriations Act of 2024, Pub. L. No. 118-47, 138 Stat. 460, 740. For example, the appropriations act provides: “For necessary expenses to carry out the provisions of chapters 1 and 10 of part I of the Foreign Assistance Act of 1961, for global health activities, in addition to funds otherwise available for such purposes, $3,985,450,000, to remain available until September 30, 2025, and which shall be apportioned directly to the United States Agency for International Development,” and it further specifies the global health issues that amount is to be spent on. Id. The act appropriates other funds “directly to the Department of State” to be spent on specific issues, such as “the prevention, treatment, and control of, and research on, HIV/AIDS.” Id. at 742; see also, e.g., id. at 743 (appropriating funds to the State Department “[f]or necessary expenses to carry out the provisions of the Foreign Assistance Act of 1961 for the promotion of democracy globally”).

B. The Issuance And Implementation Of Executive Order No. 14169

On January 20, 2025, the President issued an executive order entitled “Reevaluating and Realigning United States Foreign Aid.” Exec. Order No. 14169, 90 Fed. Reg. 8619 (Jan. 20, 2025). The order directed an immediate pause in “United States foreign development assistance.” Id. § 3(a). It also directed responsible department and agency heads to review each foreign assistance program and to determine within ninety days of the order “whether to continue, modify, or cease each foreign assistance program,” in consultation with the Director of the Office of Management and Budget (“OMB”) and with the concurrence of the Secretary of State. Id. §§ 3(b), (c). The order directed that the Secretary of State would have authority to waive the pause “for specific programs” and separately allowed for new obligations or the resumption of disbursements during the ninety-day review period, if a review was conducted sooner and the Secretary of State, in consultation with the Director of OMB, approved. Id. §§ 3(d), (e).

In the days that followed, agency officials took actions to institute an immediate suspension of all congressionally appropriated foreign aid. On January 24, the Secretary of State issued a memorandum suspending all new funding obligations, pending a review, for foreign assistance programs funded by or through the State Department and USAID. Glob. Health, ECF No. 43 at 14. USAID officials also issued instructions to immediately pause all new programs, issue stop-work orders, and develop appropriate review standards. Glob. Health, ECF Nos. 58-1 to 58-4. OMB issued a memorandum ordering a temporary pause of all federal financial assistance, including assistance for foreign aid and nongovernmental organizations. Glob. Health, ECF No. 1 ¶ 47. Plaintiffs provide numerous letters terminating or suspending their awards following these actions. See, e.g., Glob. Health, ECF No. 7-4 at 2, 5, 7, 13. The record shows that within a few weeks, the State Department suspended more than 7,000 awards and terminated more than 700. See Glob. Health, ECF No. 25-1 ¶¶ 25–28. USAID proceeded at a similar pace, suspending and terminating 230 awards in a two-day span and, in total, terminating almost 500 awards and suspending thousands of others in just weeks. Glob. Health, ECF Nos. 20, 20-1, 25-1 ¶ 12.

C. The Present Litigation

Plaintiffs, who are all recipients of or have members who receive foreign assistance funding, filed these actions and sought temporary restraining orders (“TROs”) enjoining Defendants from giving effect to Executive Order No. 14169 and the subsequent implementations.1 The Court held a hearing in both cases, and Plaintiffs thereafter submitted revised proposed orders that narrowed the scope of their requested relief. AIDS Vaccine, ECF No. 16-1; Glob. Health, ECF No. 18. The Court granted Plaintiffs’ motions in part and issued a temporary restraining order on still narrower terms. AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, __ F. Supp. 3d __, No. 25-cv-00400, 2025 WL 485324 (D.D.C. Feb. 13, 2025). The Court found that Plaintiffs had made a strong preliminary showing of irreparable harm. Id. at *2–4. Among other things, Plaintiffs provided evidence that they had been and would continue to be forced to shut down program offices, to furlough or terminate staff, and in some cases to shutter their businesses entirely. Id. They further adduced evidence that Defendants’ actions had and would continue to have a catastrophic effect on the humanitarian missions of several Plaintiffs and their members. Id. The Court also concluded that Plaintiffs were likely to succeed on the merits of their claim that the challenged agency action was arbitrary and capricious in violation of the APA, particularly given Defendants’ failure to consider enormous reliance interests. Id. at *4–5. Finally, the Court held that the equities and the public interest favored Plaintiffs in light of the existential threats they faced and the lack of any compelling countervailing harms identified by Defendants. Id. at *6.

Although the Court determined that temporary injunctive relief was warranted, it found that Plaintiffs’ requested injunctions were overbroad and narrowed the relief in multiple ways. Id. Specifically, the Court rejected Plaintiffs’ request to enjoin the President or the Executive Order itself; limited its temporary relief only to the implementation of specific sections of the Executive Order; and rejected language that would have dictated personnel decisions or operational details in complying with the injunction. Id. The Court also declined to enjoin Defendants from taking action to enforce the terms of individual contracts, including expirations, modifications, or terminations pursuant to contractual provisions. Id. With those limitations, the Court temporarily enjoined Defendants (excluding the President) from implementing directives “suspending, pausing, or otherwise preventing the obligation or disbursement of appropriated foreign-assistance funds” or “issuing, implementing, enforcing, or otherwise giving effect to terminations, suspensions, or stop-work orders” in connection with any contracts, grants, cooperative agreements, loans, or other federal foreign assistance awards in existence as of January 19, 2025. Id. at *6–7.

In the two weeks that followed, Plaintiffs moved multiple times to enforce the Court’s TRO and hold Defendants in contempt, providing evidence that Defendants continued their freeze and further evidence of irreparable harm to businesses and organizations across the country. AIDS Vaccine, ECF No. 26; Glob. Health, ECF No. 29; see Glob. Health, ECF No. 29-1 (discussing February 18 internal email stating that Secretary of State “has implemented a 15-day disbursement pause on all $15.9B worth of grants at the State Department” and directing recipients to “review the President’s executive orders and recommend termination of grants that do not comply with those orders” (emphasis omitted)). The Court declined to hold Defendants in contempt and reaffirmed certain flexibility and authority Defendants reserved, consistent with the TRO. AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, __ F. Supp. 3d __, No. 25-cv-00400, 2025 WL 569381, at *1–2 (D.D.C. Feb. 20, 2025); AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, __ F. Supp. 3d __, No. 25-cv-00400, 2025 WL 577516, at *1–2 (D.D.C. Feb. 22, 2025). However, the Court also reiterated: “[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, 2025 WL 569381, at *3; AIDS Vaccine, 2025 WL 577516, at *3.

Within a few days, Plaintiffs in both cases had renewed their motions to enforce. Glob. Health, ECF No. 36; Glob. Health, ECF No. 37 at 25. Plaintiffs explained that, despite the Court’s orders, they were still owed millions of dollars on due and overdue invoices and reimbursement requests; they still lacked access to letter of credit facilities and other payment management systems; and their contracts and awards terminated pursuant to the Executive Order remained terminated. Glob. Health, ECF No. 36 at 2. In addition, several plaintiffs were facing “new and mounting irreparable harms that threaten their very existence and which require emergency relief prior to the Court’s hearing on the preliminary injunction motion.” Id.

The Court held a motions hearing on February 25. At the hearing, Defendants’ counsel acknowledged that the TRO foreclosed them from giving effect to suspensions or terminations that were issued before February 13. Glob. Health, ECF No. 37 at 33–34. The Court asked Defendants’ counsel if he was “aware of steps taken to actually release those funds” over the prior two weeks, consistent with the TRO and later orders. Id. at 35. Counsel responded that he was “not in a position to answer that.” Id. For that and other reasons set forth on the record, the Court orally granted Plaintiffs’ second set of motions to enforce the TRO. The Court ordered Defendants to unfreeze funds for work completed prior to the TRO, giving Defendants an additional thirty-six hours to come into compliance. Id. at 57–58.

Defendants appealed and moved to stay the Court’s oral ruling, asserting for the first time that it would not be possible to process payments within that time. Glob. Health, ECF No. 39. Defendants also provided additional details on suspensions and terminations since the issuance of the TRO. Glob. Health, ECF No. 42. In particular, Defendants represented that they had completed an independent, individualized review process for over 13,000 USAID and State Department awards following the Court’s TRO, which resulted in the termination of all but 500 USAID awards and all but 2,700 State Department awards. Id.

This Court denied Defendants’ motion for a stay pending appeal, pointing out that Defendants had not previously raised the issue of feasibility. AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, No. 25-cv-00400, 2025 WL 625755, at *2 (D.D.C. Feb. 26, 2025). The D.C. Circuit dismissed the appeal for lack of appellate jurisdiction, noting that the February 25 order did not modify Defendants’ obligations under the TRO. AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, No. 25-5046, 2025 WL 621396, at *1 (D.C. Cir. Feb. 26, 2025). Defendants filed an emergency application in the Supreme Court, which issued an administrative stay. The Court subsequently denied Defendants’ application to vacate the February 25 order and instructed this Court to “clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.” Dep’t of State v. AIDS Vaccine Advoc. Coal., 604 U.S. __, No. 24A831, 2025 WL 698083 (U.S. Mar. 5, 2025).

Upon remand from the Supreme Court, this Court promptly ordered the parties to address the feasibility of processing payments. Glob. Health, Min. Order (Mar. 5, 2025). The Court also held a lengthy hearing on Plaintiffs’ preliminary injunction motions and the issue of feasibility. At the hearing, the parties agreed that compliance with the February 25 order required Defendants to make approximately 2,000 USAID payments and to enable drawdowns for awards that proceed on letters of credit. Glob. Health, ECF No. 58 at 131–33; see Glob. Health, ECF No. 39-1 ¶ 4. The Court requested benchmarks to help evaluate the feasibility of processing payments. The parties identified a declaration from Defendants indicating that USAID and State previously had been capable of processing several thousand payments each day. Glob. Health, ECF No. 58 at 133; see Glob. Health, ECF No. 39-1 ¶ 15. As a more recent benchmark, Defendants explained that they had been able to release some payments to Plaintiffs; they have since clarified that they processed approximately 100 payments in an overnight period. Glob. Health, ECF No. 58 at 125; see Glob. Health, ECF No. 54 at 2. The Court ordered Defendants to begin by paying Plaintiffs’ outstanding invoices and letter of credit drawdowns within a four-day period, which would be a small fraction—apparently just 1% to 10%—of the rate at which the agencies previously processed payments and appeared consistent with the rate that Defendants had been able to process payments the night before. Glob. Health, ECF No. 58 at 144–46. The Court asked the parties to come back with any further information that would be helpful in assessing feasibility and setting a clear, administrable benchmark. Id. at 147–49.

II. Discussion

“A preliminary injunction is an extraordinary remedy never awarded as of right” and, to the contrary, “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008). In particular, a plaintiff must establish four factors: “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. In granting a TRO, the Court found that Plaintiffs had established these factors. As discussed below, however, the Court finds that the ground has shifted some since that time, both in terms of further actions on the part of the agencies and further development of the parties’ arguments.

The Court begins by addressing Article III standing. Upon concluding that Plaintiffs clearly have standing, the Court turns to the Winter factors. The Court finds that, although Plaintiffs have shown a likelihood of success under the APA as to the initial agency action they challenged, their challenge to Defendants’ subsequent review of awards is a closer call, and Plaintiffs have not satisfied their burden. Plaintiffs’ constitutional claims, on the other hand, have a substantial likelihood of success, particularly given Defendants’ failure to offer a defensible interpretation of the separation of powers. Because Plaintiffs have shown irreparable harm, which remains largely uncontested, and the remaining factors favor Plaintiffs, the Court grants preliminary injunctive relief in part, tailored to the scope of claims likely to succeed and the relevant harms.2

A. Plaintiffs Have Demonstrated Standing

“To establish Article III standing, the plaintiff must have ‘suffered an injury in fact’ that ‘is fairly traceable to the challenged action of the defendant’ and it must be ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’” Banner Health v. Price, 867 F.3d 1323, 1333–34 (D.C. Cir. 2017) (quoting Friends of the Earth v. Laidlaw Env’t Servs., 528 U.S. 167, 180–81 (2000)). As the Court detailed in its TRO opinion, Plaintiffs adduced evidence that Defendants’ actions had caused them immense harm, including by inflicting massive financial injuries, forcing them to significantly reduce core operations and staff, and jeopardizing their missions. AIDS Vaccine, 2025 WL 485324, at *2–4. Those injuries are fairly traceable to the challenged agency action in this case: namely, the blanket suspension of funds. And a determination that the blanket suspension was unlawful, and therefore cannot be given effect, would likely redress at least some of the harms Plaintiffs have suffered.3

Defendants did not dispute Plaintiffs’ standing at the TRO stage. In their preliminary injunction briefing, however, they now argue Plaintiffs have failed to show Article III standing, and the Court pauses to address that argument. Defendants contend that Plaintiffs allege “no more than” a “pocketbook injury” from the terminations of their awards and are attempting to challenge “implementing acts that do not affect Plaintiffs directly.” Glob. Health, ECF No. 34 at 18 (quoting Collins v. Yellen, 594 U.S. 220, 243 (2021)). Defendants’ argument is difficult to parse and is not supported by the case law they cite. First, when considering injury in fact, financial injury, or “pocketbook injury,” is generally considered the gold standard or “prototypical form of injury in fact.” Collins, 594 U.S. at 243. Indeed, when asked at the preliminary injunction hearing, Defendants conceded that this is “recognized as an Article III injury.” Glob. Health, ECF No. 58 at 63. Here, Plaintiffs argue that the injury not only can be traced to, but flows directly from, the Executive Order and its implementations directing the suspension of congressionally appropriated foreign aid. Indeed, the Executive Order and its implementations are what caused the agreements’ review and their suspension or termination. Moreover, Defendants’ argument overlooks Plaintiffs’ injuries that go beyond their “pocketbook.” Plaintiffs have adduced evidence that Defendants’ actions have critically compromised their missions, causing disruption to programs, substantial layoffs, threats to employees’ physical safety, and impending legal action. See, e.g., AIDS Vaccine, ECF Nos. 1-11, 1-12; Glob. Health, ECF Nos. 36-1, 46-2; see also AIDS Vaccine, 2025 WL 485324, at *2–4 (summarizing evidence of harm).4

At bottom, the relief Plaintiffs seek, an order invalidating Defendants’ blanket directive to suspend congressionally appropriated foreign aid, would mean the government must honor its aid agreements for a period greater than it did. That includes obligations directly affecting Plaintiffs’ pocketbooks and their ability to fulfill their organizational missions, honor their responsibilities to employees, and meet their commitments to community partners. That is textbook injury, causation, and redress.5

B. Plaintiffs Are Likely To Succeed On The Merits

Plaintiffs challenge Defendants’ blanket suspension of foreign aid under the APA as both arbitrary and capricious and contrary to law, and they also assert constitutional claims that Defendants’ actions violate the separation of powers. AIDS Vaccine, ECF No. 1 ¶¶ 45–73; Glob. Health, ECF No. 1 ¶¶ 111–31. The Court need only find that Plaintiffs are likely to succeed on one of these claims for this factor to weigh in favor of a preliminary injunction. That said, any relief should be tailored to the particular claims likely to succeed.

Here, Plaintiffs’ claims challenge different Executive actions. Plaintiffs’ APA claims challenge the Secretary of State’s January 24 memorandum and other contemporaneous directives implementing Executive Order No. 14169 by suspending congressionally apportioned foreign aid, and they seek relief for the consequences that resulted from those directives. Plaintiffs’ constitutional claims challenge Defendants’ authority to unilaterally rescind or defer funds that Congress has appropriated in accordance with its spending power. The Court begins with Plaintiffs’ statutory claims and then turns to their constitutional claims.

1. Plaintiffs Will Likely Prevail, At Least In Part, On Their APA Claims

The APA permits judicial review of “final agency action” and requires a court to “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. §§ 704, 706(2)(A). Here, the final agency action Plaintiffs challenge is the Secretary of State’s January 24 memorandum and other contemporaneous directives implementing Executive Order No. 14169 by suspending congressionally apportioned foreign aid. Glob. Health, ECF No. 1 ¶ 113; AIDS Vaccine, ECF No. 1 ¶ 61. Plaintiffs claim that these actions were both arbitrary and capricious and contrary to law.

a. Plaintiffs’ Claims Seeking To Invalidate The Agencies’ Implementing Directives Are Properly Asserted Under The APA

Defendants raise a threshold challenge as to whether the APA is the right home for Plaintiffs’ claims. The APA provides for judicial review of claims “seeking relief other than money damages” and does not apply where another statute “grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702; see also id. § 704 (final agency action is subject to APA review where “there is no other adequate remedy in a court”). According to Defendants, Plaintiffs’ claims might “ripen into” claims under the Contract Disputes Act (“CDA”), which applies to government procurement contracts, including for the “procurement of services,” and channels claims to the U.S. Court of Federal Claims or the Civilian Board of Contract Appeals after an exhaustion process. Glob. Health, ECF No. 34 at 12; see 41 U.S.C. §§ 7102(a)(2), 7104(b), 7105(e)(1)(B). Alternatively, Defendants argue, Plaintiffs’ claims must proceed under the Tucker Act, which applies to claims for breach of contract against the federal government over $10,000 and channels those claims to the Court of Federal Claims. Glob. Health, ECF No. 34 at 14; see 28 U.S.C. § 1491(a)(1). On Defendants’ account, Plaintiffs have attempted to package contractual claims for “delayed payments” as ones for injunctive relief under the APA, and therefore they fall under one of these other two acts rather than the APA. Glob. Health, ECF No. 34 at 15.6

Defendants’ argument is unpersuasive for several reasons. First, Plaintiffs’ APA claims, by their terms, challenge specific agency actions—here, the implementing policy directives—and ask the Court to “hold them unlawful and set them aside.” Glob. Health, ECF No. 1 ¶¶ 112–14, 116–17, 122. That’s precisely the relief that is afforded—indeed, required—by and routinely granted under the APA. See 5 U.S.C. § 706(2) (providing that courts “shall ... hold unlawful and set aside agency action” that violates APA’s substantive standards). The complaints do not seek money damages. It is, of course, true that after a court sets aside agency action, a natural consequence may be the release of funds withheld pursuant to that action. The Supreme Court recognized this in Bowen v. Massachusetts, 487 U.S. 879 (1988). There, the Court considered whether the APA provided jurisdiction to order the Secretary of Health and Human Services to undo his refusal to reimburse the plaintiff. The Court explained that its cases “have long recognized” that “[t]he fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as ‘money damages.’” Id. at 893. The Court concluded: “since the orders are for specific relief (they undo the Secretary’s refusal to reimburse the State) rather than for money damages (they do not provide relief that substitutes for that which ought to have been done) they are within the District Court’s jurisdiction under § 702’s waiver of sovereign immunity.” Id. at 910.

Indeed, even to the extent that payments might result from Plaintiffs’ APA claims, they do not resemble a “money damages” claim, for breach of contract or otherwise. Here, as the Supreme Court recognized, Judge Bork’s “explanation of the plain meaning of the critical language” in the APA is instructive. Id. at 894. In Maryland Department of Human Resources v. Department of Health & Human Services, 763 F.2d 1441 (D.C. Cir. 1985), Judge Bork considered the APA’s application to “injunctive relief enjoining defendants from reducing funds otherwise due to plaintiffs” and held that this was “not a claim for money damages, although it is a claim that would require the payment of money by the federal government.” Bowen, 487 U.S. at 894 (alteration and internal quotation marks omitted) (quoting Maryland, 763 F.2d at 1446). He explained that any funds that would flow to the plaintiff as the result of agency action being held unlawful under the APA were not “money in compensation for the losses, whatever they may be, that [plaintiff] will suffer or has suffered by virtue of the withholding of those funds.” Id. at 895 (quoting Maryland, 763 F.2d at 1446). The same is true here. Plaintiffs are not seeking compensation for their losses due to the failure to pay them, which, as in any contract case, could be far greater than the amount withheld pursuant to the agency policy; Plaintiffs seek only invalidation of the policy, including the withholding of payment that flowed from it. See also Am.’s Cmty. Bankers v. FDIC, 200 F.3d 822, 829 (D.C. Cir. 2000) (“[M]oney damages represent compensatory relief, an award given to a plaintiff as a substitute for that which has been lost; specific relief in contrast represents an attempt to restore to the plaintiff that to which it was entitled from the beginning.”).

Second, Defendants’ argument that Plaintiffs’ APA claims are contract claims that must proceed under the CDA or Tucker Act is unpersuasive. The D.C. Circuit has “explicitly rejected the ‘broad’ notion ‘that any case requiring some reference to or incorporation of a contract is necessarily on the contract and therefore directly within the Tucker Act’ because to do so would ‘deny a court jurisdiction to consider a claim that is validly based on grounds other than a contractual relationship with the government.’” Crowley Gov’t Servs., Inc. v. Gen. Servs. Admin., 38 F.4th 1099, 1107 (D.C. Cir. 2022) (quoting Megapulse, Inc. v. Lewis, 672 F.2d 959, 967–68 (D.C. Cir. 1982)). “Exclusive jurisdiction in Claims Court under the Tucker Act does not lie ‘merely because [a plaintiff] hints at some interest in a monetary reward from the federal government or because success on the merits may obligate the United States to pay the complainant.’” Id. at 1108 (alteration in original) (quoting Kidwell v. Dep’t of Army, 56 F.3d 279, 284 (D.C. Cir. 1995)). The question under both the CDA and Tucker Act is whether the action “is at its essence a contract claim.” Id. at 1106 (quoting Megapulse, 672 F.2d at 967); see A&S Council Oil Co. v. Lader, 56 F.3d 234, 240 (D.C. Cir. 1995). That inquiry turns on (1) “the source of the rights upon which the plaintiff bases its claims,” and (2) “the type of relief sought (or appropriate).” Crowley, 38 F.4th at 1106 (quoting Megapulse, 672 F.2d at 968).

As set forth above, “the face of the complaint” in both cases makes clear that Plaintiffs are asserting a right “to be free from government action beyond [its] congressional authority.” Id. at 1108 (alteration in original) (citation omitted). The sources of Plaintiffs’ claims “are the statutes identified in [their] complaint[s],” id., which include the APA, the Impoundment Control Act, the Anti-Deficiency Act, and the Further Consolidated Appropriations Act of 2024. AIDS Vaccine, ECF No. 1 ¶¶ 45–73; Glob. Health, ECF No. 1 ¶¶ 79–110. And, consistent with those sources, the remedy Plaintiffs seek is simply to “hold unlawful and set aside agency action.” 5 U.S.C. § 706(2); Glob. Health, ECF No. 1 ¶¶ 112–14, 116–17, 122; see also N.J. Conservation Found. v. FERC, 111 F.4th 42, 63 (D.C. Cir. 2024) (“Vacatur is the normal remedy when we are faced with unsustainable agency action.” (internal quotation marks and citation omitted)). Plaintiffs do not seek money damages and, to return to Judge Bork’s apt distinction, do not seek the contractual remedy of “money in compensation for [their] losses, whatever they may be,” in relation to any breach of their agreements. Bowen, 487 U.S. at 895 (quoting Maryland, 763 F.2d at 1446). Indeed, it would be quite extraordinary to consider Plaintiffs’ claims to sound in breach of contract when they do not at all depend on whether the terms of particular awards were breached—they instead challenge whether the agency action here was unlawful, irrespective of any breach.7

To be sure, some Plaintiffs or other parties may have individual claims sounding in contract that could be brought against their respective contracting counterparties. The critical point is that here Plaintiffs assert APA claims to invalidate agency policy directives, regardless of any breach of any agreement or the extent of their losses. See Kidwell, 56 F.3d at 284 (“Even where a monetary claim may be waiting on the sidelines, as long as the plaintiff’s complaint only requests non-monetary relief that has considerable value independent of any future potential for monetary relief—that is, as long as the sole remedy requested is declaratory or injunctive relief that is not negligible in comparison with the potential monetary recovery—we respect the plaintiff’s choice of remedies and treat the complaint as something more than an artfully drafted effort to circumvent the jurisdiction of the Court of Federal Claims.” (internal quotation marks and citations omitted)). Plaintiffs’ claims are properly asserted under the APA.8

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Part 2 of 3

b. Plaintiffs Will Likely Prevail In Showing That Defendants’ Initial Directives To Freeze Foreign Aid Were Arbitrary And Capricious

“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 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, the court “must confirm that the agency has fulfilled its duty to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016) (internal quotation marks omitted) (quoting State Farm, 463 U.S. at 43). “[A]n agency rule would be arbitrary and capricious if the agency 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. (alteration in original) (quoting State Farm, 463 U.S. at 43).

In granting a TRO, the Court concluded that Plaintiffs were likely to succeed in showing that Defendants’ implementation of a blanket suspension of congressionally appropriated foreign aid pending review was arbitrary and capricious. The Court explained that there was nothing in the record that provided “a rational connection between the facts found and the choice made” to impose an immediate and wholesale suspension of foreign aid in order to review programs. Moreover, nothing in the record suggested that Defendants considered and had a rational reason for disregarding the massive reliance interests of businesses and organizations that would have to shutter programs or close their doors altogether. The blanket suspension thus “entirely failed to consider an important aspect of the problem.” AIDS Vaccine, 2025 WL 485324, at *5.

This continues to be true with respect to the original implementing directives. Defendants have yet to offer any explanation, let alone one supported by the record, for why a blanket suspension setting off a shockwave and upending reliance interests for thousands of businesses and organizations around the country was a rational precursor to reviewing programs. Instead, Defendants assert that the Executive Order and January 24 implementing memorandum provided “more than enough explanation” given the Executive’s “vast” powers over foreign affairs. Glob. Health, ECF No. 34 at 37. But the Executive Order simply stated that the purpose of the freeze was to allow the administration to assess programmatic efficiencies and ensure that foreign aid is consistent with U.S. foreign policy. Exec. Order No. 14169 § 3(a). And the implementing memorandum said:

Across the United States government, it is currently impossible to access sufficient information in one place to determine whether the foreign assistance policies and interests supported by appropriations are not duplicated, are effective, and are consistent with President Trump’s foreign policy. The Department needs a centralized repository from which senior Department, USAID officials, Ambassadors, missions and others can draw sufficiently detailed information from which the Secretary can make judgments. Further guidance regarding a new or updated repository and mandatory bureau submissions to it will be forthcoming.

Glob. Health, ECF No. 43 at 14.

The desire to review programs for efficiency or consistency, and to access information in one place, does not have a rational connection to the directives to proceed with a sudden, blanket suspension of congressionally appropriated aid. Nor do any of these articulated goals demonstrate consideration of the immense reliance interests among businesses and other organizations across the country. When an agency suddenly changes course, it must recognize “longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 591 U.S. 1, 30 (2020) (quoting Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016)). There is, of course, nothing inherently arbitrary and capricious about agencies conducting a review of aid programs for these purposes or building a centralized repository. But these assertions alone do not provide a rational explanation for why such a review required an immediate and wholesale suspension of all aid—including many longstanding programs taking place pursuant to contractual terms—and do not bear on the failure to consider the reliance interests of small and large businesses that would have to shutter programs or close altogether and furlough or lay off swaths of Americans in the process.9

Defendants also insist that the funding freeze was not “comprehensive or undifferentiated” because the Secretary of State approved certain waivers, including for foreign military financing, emergency food assistance, and legitimate expenses incurred before the pause went into effect. Glob. Health, ECF No. 34 at 37. But none of those waivers involve or demonstrate consideration of the massive reliance interests of U.S. businesses and organizations. And the record belies the assertion that the waivers provided any meaningful relief from the blanket freeze. At the TRO stage, Plaintiffs proffered specific facts that the availability of a waiver did not meaningfully mitigate the harm described, and Defendants acknowledged “hiccups” in the waiver process. Glob. Health, ECF No. 22 at 31; see AIDS Vaccine, 2025 WL 485324, at *4. In particular, State Department officials could not provide any information regarding qualification for waivers, while officials in USAID bureaus were unresponsive to similar inquiries. Glob. Health, ECF No. 7-3 ¶¶ 11–12, 19–20. Even if an organization received a waiver, moreover, no aid would be disbursed because the government’s payout portals were disabled. Id. ¶ 11. And one plaintiff received limited waivers lasting for only thirty days, which did little to address the harm due to the uncertainty as to whether the company would have to halt operations again at the end of that period. Glob. Health, ECF No. 7-6 ¶ 6.

Despite pointing to the possibility of waivers again in their preliminary injunction briefing, Defendants have not proffered any evidence to rebut the showing Plaintiffs made at the TRO stage. Meanwhile, Plaintiffs offer even more evidence that the waiver process has been largely irrelevant. See, e.g., Glob. Health, ECF No. 29-5 ¶ 4 (plaintiff received no payments in week after entry of TRO, including for programs that had received waivers); AIDS Vaccine, ECF No. 26-3 ¶¶ 37–38 (programs receiving waivers were not able to restart due to lack of funding); AIDS Vaccine, ECF No. 46-1 at 4 (internal USAID memorandum concluding that successful implementation of waiver process “was not possible due to administrative and bureaucratic challenges, including contradictory and shifting guidance regarding approval for required activities and failure of Agency leadership to process disbursement of funds for activities once approved”).

Because the current record does not include “a rational connection between the facts found and the choice made” and indicates Defendants “entirely failed to consider an important aspect of the problem,” Plaintiffs are likely to succeed on their APA claims as they relate to the original directives implementing a blanket suspension of aid.

c. Although A Close Question, Plaintiffs Will Likely Not Prevail In Showing That Defendants’ Subsequent Terminations Flow From The Original Directives In Violation Of The APA

Although Plaintiffs are likely to succeed in showing Defendants’ implementing directives violated the APA, the parties disagree on how far that goes—namely, whether the invalidation of the initial implementing directives affects the review of agreements and large-scale terminations that occurred after the Court entered its TRO on February 13, 2025. This is a close question on this record, but the Court finds Plaintiffs have not made an adequate showing that the large-scale terminations resulted from the same agency action they challenge in their complaints. The Court’s conclusion is also informed by Plaintiffs’ failure to offer a clear and administrable standard for determining when terminations would no longer be tainted by the original implementing directives without entangling the Court in supervision of Executive decisions as to individual agreements.

As described above, the APA requires a plaintiff to identify the “agency action” they seek to set aside, 5 U.S.C. §§ 704, 706(2), and here Plaintiffs challenge the directives implementing the Executive Order. See Glob. Health, ECF No. 1 ¶¶ 112–14, 116–17, 122. The effect of the implementing directives in their immediate wake is plain—they ordered contracting officers and grant officers to “immediately issue stop-work orders” articulated under “the terms of the relevant award” for all existing foreign assistance awards. Glob. Health, ECF No. 43 at 16. Agency employees accordingly sent out waves of suspension and termination notices with boilerplate language.10

After the Court’s TRO, however, Defendants claim they conducted a new individualized and comprehensive review of awards. In the interest of tailoring its TRO to the reliance interests at stake, the Court did not enjoin Defendants from taking actions based on the particular terms of individual contracts. AIDS Vaccine, 2025 WL 485324, at *6–7; see also AIDS Vaccine, 2025 WL 569381, at *2 (explaining that “nothing in the TRO limits the agencies from conducting an individualized review of agreements and taking action as to a particular agreement where the agency determines that it has lawful authority to do so”). The Court explained that “[w]hile agency determinations based on wholly independent legal authority and justification such as the terms of particular agreements or sets of agreements, rather than deriving from a general directive to suspend aid, may be subject to some other legal challenge, whether it be under the APA, separation of powers, individual breach of contract cases, or otherwise, such determinations do not violate the present TRO.” AIDS Vaccine, 2025 WL 577516, at *2. It also cautioned that “of course, the TRO does not permit Defendants to simply search for and invoke new legal authorities as a post-hoc rationalization for the enjoined agency action.” Id. at *1 (quoting AIDS Vaccine, 2025 WL 569381, at *1).

As described above, in the roughly two weeks following the TRO, Defendants issued thousands of terminations, ultimately canceling roughly 9,900 of 13,100 USAID and State Department awards. See Glob. Health, ECF No. 42 at 16. Defendants attest that these terminations were the result of an independent review process based on the terms of the programs and the agencies’ independent legal authority to terminate them. They rely principally on a declaration from USAID Deputy Administrator Pete Marocco, which states: “USAID led a rigorous multi-level review process that began with spreadsheets including each contract, grant, or funding instrument where each line of the spreadsheeting reflected one such agreement and included information about the recipient, the amount of the award, the subject matter, and a description of the project that often included the location of the project.” Glob. Health, ECF No. 39-1 ¶ 5. Marocco further describes a process in which policy staff performed an initial review of whether individual agreements were in line with foreign policy priorities, followed by a senior policy official’s review, followed by Marocco’s review, followed by the Secretary of State’s review. Id. The declaration describes a similar process for State Department awards. Id. ¶ 6. As of February 26, Defendants indicated that the review process had been completed for both USAID and State. Glob. Health, ECF No. 43-1 ¶¶ 1–2. In total, nearly 5,800 USAID awards were terminated, while more than 500 were retained. Id. ¶ 1. At State, approximately 4,100 awards were terminated, while roughly 2,700 were retained. Id. ¶ 2.

Plaintiffs in both cases opted to rely on their initial TRO motions at the preliminary injunction stage. Accordingly, their opening motions do not address the post-TRO landscape, and their arguments were limited to their reply briefs and oral argument. Their principal argument is that the review process was a sham. Glob. Health, ECF No. 46 at 16–17. Plaintiffs assert that Defendants “were terminating and suspending hundreds of millions of dollars in awards based on a one-line summary, without actually looking at the award documents themselves, without consulting the personnel who manage the project, and, at least in some cases, without even knowing ‘the location of the project.’” Id. at 17. They highlight, for instance, Marocco’s assertion that the first stage of the review process “often included the location of the project” as a demonstration of how shallow the review was. Id. at 16 (quoting Glob. Health, ECF No. 39-1 ¶ 5). Plaintiffs also say it is “implausible” that the Secretary of State or a group of political appointees could have “engaged in a meaningful individualized review of the hundreds of contracts and awards terminated prior to or after the Court’s TRO.” Id. at 17 n.7. They support these arguments with declarations from contracting officers who dispute that any case-by-case review could have plausibly taken place. Glob. Health, ECF No. 42-1 ¶ 36; AIDS Vaccine, ECF No. 26-3 ¶ 49.

The Court does not reach the merits of these arguments because Plaintiffs have not adequately shown that they arise from the same agency action challenged in this case. Even accepting that the review process described by Marocco took place in a cursory manner, that does not make it the same agency action as the implementing memoranda, as opposed to a distinct, flawed agency action that must be challenged as such.11

Plaintiffs come closer in their argument that the subsequent review was pretext to turn the blanket suspension of foreign aid funds into a near-blanket termination of those funds. Relying on Department of Commerce v. New York, 588 U.S. 752 (2019), Plaintiffs argue that “[n]ot a shred of evidence suggests that Defendants had the terms and conditions of award agreements in mind when they initiated blanket suspensions and terminations.” AIDS Vaccine, ECF No. 45 at 4–5. In doing so, they cite some evidence that supports their allegation of pretext. For example, Plaintiffs point to terminations following Defendants’ review that make no reference to the terms of agreements or legal authority. See AIDS Vaccine, ECF No. 44 at 7–10. They also identify several terminations after the review process that continued to assert the termination was “part of” or “in alignment with” the Executive Order. AIDS Vaccine, ECF No. 40-4 ¶ 24; Glob. Health, ECF Nos. 55-2 to 55-6. And Plaintiffs provide anonymous declarations, including one showing that a senior official instructed contracting officers to follow earlier terminations with expanded termination notices “tailored to the specific award and implementing partner, referencing the relevant clauses or provisions within the award.” AIDS Vaccine, ECF No. 55-1. While Plaintiffs’ showing is sufficient to raise questions, on this record they have not met the high standard of a “strong showing of bad faith or improper behavior.” Dep’t of Com., 588 U.S. at 781 (citation omitted).

Plaintiffs’ proposed relief highlights further difficulty with their argument. They ask for an order requiring Defendants to revoke all terminations and suspensions issued since January 20—a total of roughly 9,900 awards—and to develop plans to restart those programs within ten days. Glob. Health, ECF No. 46-6 at 2–3. Plaintiffs also propose that Defendants be required to submit status reports to the Court every two weeks providing “an individualized statement of reasons” for any new termination or suspension. Id. at 4. And they do so without articulating a meaningful standard for the Court to distinguish between those terminations that are still affected by the original implementing directives and those that are not. This would devolve into the type of intensive supervision of day-to-day agency activities, as well as inquiry into the terms of individual awards, that the Court has expressly rejected. The Court accordingly finds that Plaintiffs are unlikely to succeed on their APA challenge as to the large-scale terminations in the process that followed the Court’s TRO.12

2. Plaintiffs Will Likely Prevail On Their Constitutional Claims

Plaintiffs also assert that Defendants are acting in violation of the separation of powers, including Congress’s shared power over foreign policy, its exclusive power over spending, and the expression of those powers through statutes that constrain the Executive’s authority in relation to foreign aid spending and the impoundment of appropriated funds. These claims are distinct in scope from Plaintiffs’ APA claims, in that they are not premised on the initial blanket directive to suspend funds pending review or an alleged policy to mass terminate aid programs. The argument here is that, irrespective of any particular agency action that may be subject to APA review, Defendants are engaging in a unilateral rescission or deferral of congressionally appropriated funds in violation of Congress’s spending power, as expressed in multiple statutes whose constitutionality has not been questioned. The Court concludes that Plaintiffs are likely to succeed on these claims as well.

In considering claims related to Executive power, including with respect to foreign affairs, the Supreme Court has applied “Justice Jackson’s familiar tripartite framework.” Zivotofsky, 576 U.S. at 10 (citing Youngstown, 343 U.S. at 635–38 (Jackson, J., concurring)). The first category of this framework recognizes that when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). The second category recognizes that “in absence of either a congressional grant or denial of authority,” there is a “zone of twilight in which [the President] and Congress may have concurrent authority.” Id. at 637. The third recognizes that when “the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and “he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id.

Here, Plaintiffs argue that Defendants are operating in the third category of the tripartite framework, in which they have taken “measures incompatible with the expressed or implied will of Congress.” See AIDS Vaccine, ECF No. 45 at 8. Plaintiffs observe that, consistent with the purposes outlined in the Foreign Assistance Act of 1961, Congress has explicitly appropriated foreign aid funds for specified purposes. In March of last year, Congress passed the Further Consolidated Appropriations Act of 2024, Pub. L. No. 118-47, 138 Stat. 460. That act provides: “For necessary expenses to carry out the provisions of chapters 1 and 10 of part I of the Foreign Assistance Act of 1961, for global health activities, in addition to funds otherwise available for such purposes, $3,985,450,000, to remain available until September 30, 2025, and which shall be apportioned directly to the United States Agency for International Development.” 138 Stat. at 740. It further specifies various purposes for which this appropriation “shall be made available,” including “training, equipment, and technical assistance” to build public health institutions; specific health programs like child survival, maternal health, and immunization; and programs for the prevention, treatment, and control of HIV/AIDS, tuberculosis, polio, malaria, and other infectious diseases. Id. The act similarly provides for funds that “shall be apportioned directly to the Department of State” for specified purposes. Id. at 742; see also id. at 743.

Congress has further asserted its spending power in the Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297, which explicitly prohibits the President from impounding appropriated funds without following certain procedures. For permanent impoundments or “rescissions,” Congress specified that if the President “determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided” or “should be rescinded for fiscal policy or other reasons,” he must “transmit to both Houses of Congress a special message” addressing the amount, reasons, impact, and other information related to the proposed recission of funds. 2 U.S.C. § 683(a). The act requires that the funds in question be made available for obligation unless Congress rescinds the appropriation within forty-five days. Id. § 683(b). The act also imposes procedural requirements, including a special message to Congress, where the President seeks to temporarily impound or “defer” funds. Id. §§ 682(1), 684(a).

Defendants do not object to the constitutionality of any of these statutes. They do not, for instance, contend Congress exceeded its authority by mandating that funds be used for specified foreign aid purposes or by mandating the President follow procedures before permanent or temporary impoundment. At the same time, the record here shows that Defendants are acting to rescind or defer the funds Congress has appropriated and have no intent to spend them. Plaintiffs point to multiple public statements in which the President and other senior officials have said Defendants’ actions are being undertaken to end foreign aid funding. For example, they cite contemporaneous statements from the State Department that these actions “prevented” foreign aid spending for policy reasons and to save taxpayer money; from a presidential advisor stating that it is “[t]ime for [USAID] to die”; and from the President stating “CLOSE IT DOWN” with respect to USAID. See AIDS Vaccine, ECF No. 13-1 at 12–13 (alterations in original); Glob. Health, ECF No. 4 at 14. When given the opportunity in these proceedings, Defendants have not disputed this is their intent. See also AIDS Vaccine, ECF No. 46-1 at 35 (internal USAID memorandum indicating that more than $2 billion appropriated to USAID for specific health objectives “has been blocked from obligation to partners”).13 Yet it is uncontested that Defendants have not undertaken the procedures required for the impoundment of congressionally appropriated aid, whether permanent or temporary, by the Impoundment Control Act. See Glob. Health, ECF No. 58 at 102–03.14

This is accordingly a circumstance in which the Executive’s power is “at its lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). As a result, Defendants’ actions must be “scrutinized with caution,” and they “can rely only upon [the President’s] own constitutional powers minus any constitutional powers of Congress over the matter.” Id. Here, the President’s powers come from his general Article II responsibility to serve as the Executive and take care that the laws be faithfully executed. U.S. Const. art. II, § 3. The powers of Congress involve not only its general shared responsibility over foreign affairs, but its core and “exclusive power over the federal purse.” U.S. Dep’t of Navy v. Fed. Lab. Rels. Auth., 665 F.3d 1339, 1346 (D.C. Cir. 2012) (Kavanaugh, J.) (citation omitted); see U.S. Const. art. I, §§ 8, 9. It is well established that “whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law,” and this includes Congress’s core spending power. Zivotofsky, 576 U.S. at 21; see also id. at 16 (noting that the President “could not build an American Embassy abroad without congressional appropriation of the necessary funds”). Under “settled, bedrock principles of constitutional law,” the President “must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute.” Aiken County, 725 F.3d at 259 (emphasis omitted). And if the authority to make law and control spending is to mean anything, it means the President may not disregard a statutory mandate to spend funds “simply because of policy objections.” Id.; see also id. at 261 n.1 (explaining that where a President has policy reasons “for wanting to spend less than the full amount appropriated by Congress for a particular project or program,” it remains the case that “even the President does not have unilateral authority to refuse to spend the funds” and must propose a rescission to Congress for its approval).15

Here, Defendants do not contest that they are declining to spend appropriated funds based on policy objections—indeed, they have explicitly said so. See Exec. Order No. 14169 § 2 (“[N]o further United States foreign assistance shall be disbursed in a manner that is not fully aligned with the foreign policy of the President of the United States.”); Glob. Health, ECF No. 43 at 15 (January 24 memorandum directing departments and agencies to ensure that all foreign assistance is aligned with the President’s foreign policy agenda). Their principal argument, repeatedly asserted throughout their brief, is that the President has “vast and generally unreviewable” powers in the realm of foreign affairs. Glob. Health, ECF No. 34 at 2, 10, 24. Defendants do not ground their position in any specific provision of the Constitution or articulate any limits to this expansive authority. Nor do they engage in any analysis of how these asserted powers relate to those vested in Congress under Article I of the Constitution; indeed, Defendants never cite Article I or mention Congress’s spending power. Defendants instead rely on broad language from United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), to argue that the President is “the sole organ of the federal government in the field of international relations.” Glob. Health, ECF No. 34 at 25.

This argument falls short for several reasons. First and foremost, the Supreme Court has explicitly rejected it. The Court has explained that Curtiss-Wright does not stand for such “unbounded power.” Zivotofsky, 576 U.S. at 20; see also id. at 66 (Roberts, C.J., dissenting) (explaining that Supreme Court cases “have never accepted such a sweeping understanding of executive power”). To the contrary, the Supreme Court has recognized that, notwithstanding the Executive’s important role in foreign affairs, “it is essential the congressional role in foreign affairs be understood and respected.” Id. at 21 (majority opinion). To repeat, “whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.” Id. Or, as the Chief Justice aptly summarized, the 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.’” Id. at 62 (Roberts, C.J., dissenting) (quoting U.S. Const. art. II, § 3). The Executive is therefore “not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” Id. at 21 (majority opinion); see also Youngstown, 343 U.S. at 635 n.2 (Jackson, J., concurring) (“It was intimated [in Curtiss-Wright] that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.”).

Indeed, the claim to “vast and generally unreviewable” power to impound congressionally appropriated aid is weaker here than in past invocations in the foreign affairs context. In Zivotofsky, for instance, the Executive pointed to a long line of “judicial precedent and historical practice” showing that the power at issue, recognition, was “for the President alone,” and the Court emphasized “the lack of any similar power vested in Congress.” 576 U.S. at 14, 21. Defendants do not claim there is any precedent or history allowing the President to dictate whether to spend foreign aid for the statutory purposes here. And the Constitution explicitly vests in Congress the power to spend, U.S. Const. art. I, § 8, cl. 1, and appropriate funds, id. art. I, § 9, cl. 7. This “power over the purse was one of the most important authorities allocated to Congress in the Constitution’s ‘necessary partition of power among the several departments.’” Dep’t of Navy, 665 F.3d at 1346–47 (quoting The Federalist No. 51, at 320 (James Madison) (Clinton Rossiter ed., 1961)). In the third Youngstown category, the President “can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” 343 U.S. at 637 (Jackson, J., concurring). The constitutional power over whether to spend foreign aid is not the President’s own—and it is Congress’s own.16

Aside from their unbounded view of Executive power in foreign policy, Defendants observe that Congress’s “appropriations acts grant the President significant discretion in how to use these funds.” Glob. Health, ECF No. 34 at 33. They also cite City of New Haven v. United States, 809 F.2d 900, 901 (D.C. Cir. 1987), to argue that a “pause” in funding does not qualify as an impoundment. Glob. Health, ECF No. 34 at 35. These arguments are unavailing. No one does or could doubt that the Executive is afforded significant discretion in administering the funds appropriated or, as Defendants put it, “how to use these funds.” See, e.g., 22 U.S.C. § 2151b(c)(1) (authorizing the President “to furnish assistance, on such terms and conditions as he may determine,” for certain programs). As described, the constitutional partnership between the political branches has always recognized the Executive’s role in determining how appropriated funds are spent. The critical point here, which Defendants do not contest, is that Congress’s appropriations laws set the amount that is to be spent. That is, the appropriations laws reflect an exercise of Congress’s own, core constitutional power to determine whether and how much money is spent. Defendants do not argue that Congress’s appropriations laws delegate that core authority to the Executive.

Moreover, the notion that the Executive has simply “paused” appropriations does not avoid the problem. As an initial matter, the contention is belied by public statements indicating that this action has been taken to save taxpayer money and end USAID for policy reasons, which Defendants have not disputed when given the opportunity. And the case Defendants cite to authorize a pause of appropriated funds stands for just the opposite proposition. In City of New Haven, the D.C. Circuit recognized that the Impoundment Control Act’s legislative history indicated that the President might invite little controversy when it comes to “trivial” impoundments relating to the “normal and orderly operation of the government.” 809 F.2d at 908. But the Court explained that other impoundments, those “designed to negate congressional budgetary policies,” were precisely the kind that Congress “was determined to forestall.” Id. A blanket suspension of billions of dollars appropriated by Congress for specific purposes can hardly be classified as trivial. And, indeed, the record makes clear that Defendants’ impoundment was specifically “designed to negate congressional budgetary policies.”17

The Court accordingly finds that Plaintiffs are likely to succeed on their separation of powers claims and rejects Defendants’ unbridled understanding of the President’s foreign policy power, which would put the Executive above Congress in an area where it is “firmly established” that the two branches share power, Zivotofsky, 576 U.S. at 62 (Roberts, C.J., dissenting), where Congress is exercising one of its core powers, and where there is no constitutional objection to the laws it has made.18

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Part 3 of 3

C. Plaintiffs Will Suffer Irreparable Harm Absent Preliminary Injunctive Relief

The Court’s order granting in part Plaintiffs’ motions for a TRO described evidence of the immense irreparable harm to businesses and organizations across the country, which has, at least to date, gone unrebutted by Defendants. AIDS Vaccine, 2025 WL 485324, at *2–4. As the Court explained, this included immense financial harm to Plaintiffs and, in many cases, forced them to significantly cut down on staff or otherwise reduce core operations. A few examples are illustrative:

• One plaintiff, a large investigative journalism organization, has USAID and State Department grants that constitute 38% of its budget, supporting investigations into corruption, sanction violations, and other wrongdoing. AIDS Vaccine, ECF No. 13-4 ¶¶ 2, 6–7, 9. Due to the suspension of appropriated funding and stop-work orders received as a result, the organization has been forced to cut 43 of 199 staff members, with most remaining being moved to a shorter work week. Id. ¶ 12. The organization has had to cancel events, cut travel for reporting, and freeze new equipment purchases. Id. The organization attests that the disruption will continue absent relief. Id. ¶ 13.

• A nonprofit plaintiff focused on protecting refugees and asylum seekers has had to lay off 535 staff members since receiving termination and suspension notices for multiple grants. Glob. Health, ECF No. 7-3 ¶¶ 3–4, 13. It has been forced to shutter program offices and defer payments to vendors. Id. ¶ 21.

• A plaintiff representing small businesses across all sectors attests that the suspension included USAID failing to pay its members for months of unpaid invoices. Glob. Health, ECF No. 7-2 ¶ 8. This has forced small businesses to furlough “most U.S. national staff in home offices and on contracts, and terminate foreign national staff or risk keeping them and being uncertain of payments under stop work orders.” Id. ¶ 10.

• Another plaintiff focused on addressing the global HIV/AIDS epidemic has already been forced to lay off seven employees and will lay off ten more over the next month if the suspension of appropriated foreign aid continues. AIDS Vaccine, ECF No. 13-2 ¶ 12.

In addition, several plaintiffs had attested to how the blanket suspension of funds undermined their core missions and jeopardized vital services to vulnerable populations. For example:

• One plaintiff asserts that the suspension of appropriated foreign aid has disrupted critical health programs, including maternal and child health programs and infectious disease prevention efforts administered by its member organizations. Glob. Health, ECF No. 7-1 ¶ 8. One of those member organizations reports that a $20 million project to support the development of hospital accreditation in Cambodia has been suspended. Id. ¶ 8(a). Another reports that a stop-work order has disrupted a total of $4 million in funding for American Schools and Hospitals Abroad grants in Nepal and Vietnam. Id. ¶ 8(c). And another reports that the freeze has delayed several time-sensitive antimalaria campaigns that are expected to benefit millions of people in Kenya, Uganda, Ghana, Ethiopia, and Zimbabwe. Id. ¶ 8(d). The plaintiff attests that the suspension of appropriated foreign aid funding “is an existential threat to [its] members and their life-saving work.” Id. ¶ 11.

• Another plaintiff reports that it can no longer fund shelters for minors in Central America trying to escape recruitment into criminal gangs. Glob. Health, ECF No. 7-7 ¶ 10.

• A different plaintiff explains that it has abruptly stopped providing medical services for hundreds of adolescents and young students in need in Bangladesh. Glob. Health, ECF No. 7-8 ¶ 12(a).

• An additional plaintiff that supports HIV prevention research and the rollout of HIV prevention medication to high-risk communities in various African countries asserts that the funding freeze has disrupted clinical trials and the rollout of life-saving medication. AIDS Vaccine, ECF No. 13-2 ¶¶ 3–4, 11.

Based on this evidence, the Court concluded that Plaintiffs had made a sufficient preliminary showing that Defendants’ actions “threaten[ed] the very existence of [their] business.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). And they had likewise shown that the “obstacles” created by Defendants’ conduct “make it more difficult for the [plaintiffs] to accomplish their primary mission.” League of Women Voters of United States v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016).19

Over the weeks that have followed, Plaintiffs have continued to produce more evidence of irreparable harm. A supplemental declaration from one plaintiff, for example, explains that the funding freeze has impacted its ability to meet financial obligations, which has in turn placed staff at risk of harassment, intimidation, and potential physical harm. Glob. Health, ECF No. 46-2 ¶ 2. Personnel have also been stranded in high-risk environments due to insufficient repatriation funding. Id. ¶ 3. And the loss of funding has forced security cutbacks, jeopardizing sensitive equipment and program-related data. Id. ¶ 6. As of February 26, the same plaintiff had furloughed around two-thirds of its U.S.-based workforce because of the funding freeze. Glob. Health, ECF No. 46-1 ¶ 32. Another plaintiff reiterated that, unless it received the funds owed by USAID, it would be forced to make another round of furloughs within about two weeks, reducing a staff of more than 250 to as few as ten. Glob. Health, ECF No. 29-4 ¶ 7.

Several declarations from the Global Health Plaintiffs further illustrate the ongoing irreparable harm:

• One plaintiff attests that if USAID does not pay outstanding invoices forthwith, the plaintiff will be in serious legal jeopardy in both the United States and other countries. Glob. Health, ECF No. 36-1 ¶ 7. The plaintiff will be forced to default on numerous contracts, including for corporate insurance and legal services—all while it is facing threatened legal action from staff members because it does not have funds to pay employees. Id. ¶¶ 8–9. And the risks to the plaintiff “are worsening by the day,” as it faces an increased likelihood of not being able to repatriate staff members, pay local legal counsel, or meet obligations to local communities. Id. ¶¶ 12, 15–17.

• Another plaintiff explains that it has been forced to furlough an additional 124 staff members since the TRO was issued because it still has not received any payments. Glob. Health, ECF No. 36-2 ¶¶ 3, 5. Organizational staff and their families “are suffering ongoing financial hardship that worsens with each passing day of reduced or no compensation.” Id. ¶ 5. The plaintiff is in imminent danger of being forced to suspend thousands of staff members without pay, which could violate labor laws in countries where it operates. Id. ¶ 9.

• Still another declaration explains that without imminent payment, a small business focused on energy and infrastructure will be forced to close its doors due to insolvency and to walk away from active federal contracts. Glob. Health, ECF No. 36-3 ¶¶ 5–6.

• Likewise, another plaintiff planned to lay off “a substantial number of its workforce” due to the lack of funding and will have to shutter its doors in all but five to seven of its twenty-four country offices. Glob. Health, ECF No. 36-4 ¶¶ 4, 6.

Defendants do not rebut these existential threats to the survival and core missions of businesses and organizations around the country. They respond that there is no irreparable harm because there is an ongoing, individualized review process that “could prevent the harm from transpiring at all.” Glob. Health, ECF No. 34 at 39. And they insist that any damage to Plaintiffs and other enterprises is recoverable. Id. at 40–42. Defendants’ point is well taken in one respect—the Court has found that Plaintiffs are not likely to succeed on this record as it relates to terminations resulting from Defendants’ subsequent review process. And, as discussed below, the Court’s relief must be tailored in that respect.

But Defendants’ argument is unpersuasive as it relates to irreparable harm. Defendants have now stated that they have completed their review process and have represented that they will cancel the vast majority of congressionally appropriated foreign aid. While it is true that the relevant Executive action here has the effect of withholding substantial amounts of funds, the harm here goes to the very subsistence of the organizations, many of which are on the brink of shuttering entirely, and poses an existential threat to the viability of their humanitarian missions. In fact, Defendants have not hesitated to cite the threat of insolvency to Plaintiffs as a justification for not making payments. See Glob. Health, ECF No. 39-1 ¶ 25 (“[T]he plaintiffs have claimed that many grant recipients and contractual counterparties are insolvent or nearly so, raising the high likelihood that they will immediately spend any funds they receive—making it impossible for the Government to recover those funds as a practical matter.”). Defendants’ actions are, in effect, the massive disruption of a whole industry or sector, and Plaintiffs have made a strong showing that the harm is “both certain and great,” as well as “actual and not theoretical.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (citation omitted).

D. The Balance Of The Equities And The Public Interest Favor Plaintiffs

The final two factors, balancing the equities and the public interest, generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009); see Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016). Here, they also weigh in Plaintiffs’ favor.

As the D.C. Circuit has explained, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters, 838 F.3d at 12. “To the contrary, there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.” Id. (internal quotation marks and citation omitted). Additionally, the harms that Plaintiffs have suffered—and will continue to suffer absent preliminary injunctive relief—are stark. Plaintiffs have adduced ample evidence that the funding freeze has had dire humanitarian consequences and has devastated businesses and programs across the country. Defendants still have made no effort to rebut that showing.

Defendants respond that they are undertaking a thorough review of foreign aid programs to determine which ones “make sense for the American people,” and they assert that the public has an interest “in the Executive effectuating foreign affairs.” Glob. Health, ECF No. 34 at 44–45 (citation omitted). But the Executive’s ability to review foreign aid programs is not at issue here. The Court’s TRO order explicitly declined to “enjoin any aspect of the Government’s ability to conduct a comprehensive internal review of government programs.” AIDS Vaccine, 2025 WL 485324, at *6. Indeed, the Court has concluded above that Plaintiffs are not likely to succeed in challenging Defendants’ review process on this record. See supra section II.B.1.c. And while the public no doubt has an interest in the Executive carrying out his important role in foreign affairs, it also has an interest in ensuring those duties are carried out in accordance with law, including the APA, and with the role prescribed to Congress, also a democratically elected branch, under the Constitution. To the extent Defendants’ argument seeks more than that, it is merely a repackaging of their unbridled view of Executive foreign affairs power that has been repeatedly rejected by the Supreme Court. See supra section II.B.2. In terms of the equities and the public interest, the Executive is equal to, not above, Congress and its laws. However, the scale tips in favor of Plaintiffs on these factors in light of their additional, unrebutted showing of enormous harm.

[Marc Elias] So let me start with something that I don't understand. So you got Article I of the Constitution, which is the Congress, and lays out Congress's power; and you got Article II, which lays out the Executive Branch's power; and you got Article III that lays out the Judicial branch. And I think the Founders had in mind that the most powerful of these branches would actually be the first, would be Article I, right? It would be Congress. And that it would jealously guard its authority -- particularly its ability to spend money, and its ability to issue taxes -- that it would jealously guard this power from a rapacious Executive. That does not seem to be happening. So what do you make of this? Either put on your Constitutional law hat, or put on your member of Congress hat, but what do you make of this?

[Jamie Raskin] Well, in one sense, this is a decades-long process of erosion of Congressional lawmaking power. But this is a dramatic and sudden jump into the unknown, with the President basically defying Congress in Congressional statutes and Appropriations at every turn. But to go back to the beginning, Marc, look, we had a revolution against a king, against a monarch. The first three words of the Constitution are, "We the people." And then, after you get through our beautiful Preamble, it leads right into the creation of Article I: "All legislative power is vested in the Congress of the United States." The sovereign power of the People to create the Constitution flows right into the Congressional power of lawmaking. And you know, Article I lays out everything, from regulating Commerce domestically and internationally, to the power to declare war, budgets, taxes, you name it. And even in Article 1, Section 8, Clause 18, all other powers necessary and proper to the execution of the forgoing powers, right?

Then you get to Article II. My colleague, Jim Jordan's, been running around TV saying that Article II says, in the first sentence, "All Executive power is vested in the President." Yeah, that's true, but what is the executive power, right? When you get past commander-in-chief of the Army and Navy in times of actual conflict, or when the militia's been mobilized, what's the core job of the President? "To take care that the laws are faithfully executed." That's it. "To take care that the laws are faithfully executed." The Articles of Confederation didn't even have a President, right? And then they thought that that was too inefficient, and there was nobody to keep things going to, you know, move the bureaucracy when Congress wasn't in town. And then the President was created, but very clearly in a secondary position. As Madison put it in the Federalist Papers, "The legislative branch is the predominant branch of government."

So sometimes my colleagues will get up, even Democrats will say, "We're three co-equal branches of government." And I just want to say, first of all, "co-equal" is not even a word, okay? You know, that's like extremely unique, or something like that. Secondly, the claim that we have three equal branches is just ridiculous. I mean, when you get to Article II, you've got four short sections. One section is all about how you impeach a President for treason, bribery, and other high crimes and misdemeanors. If we're co-equal, or equal, or equivalent, or whatever, why do we have the power to impeach and try and convict a President, and he doesn't have the power to impeach and try and convict us? The framers were clearly a lot more afraid of a President purporting to be a King, or arrogating the powers of a dictator, than it was afraid of Congress; all of the people, coming from this great huge, vast, diverse country, from different points of views, and working together, and split between the House and the Senate with bicameralism. ...

It's like, you know, pouring your tea from the cup into the saucer so it can cool off a little bit, right? And the Senate is supposed to allow the passions and tempers of the House of Representatives to cool off a little bit. But in any event, Congress is the lawmaking branch. We also have the power of the purse. We've got the power to spend, right? And you know this Marc, an Appropriations Act is just another federal law. It's like a law against assaulting Federal officers. And they should show more respect for both the law against assaulting Federal officers, and for an Appropriations Act. An Appropriations Act is not a budgetary recommendation, or a point of negotiation, or a bargaining chip with the President. It's a law you follow. The law "To take care that the laws are faithfully executed." So do your job, yeah?  

-- What Every American Can Do To Fight DOGE, by Marc Elias and Jamie Raskin, Democracy Docket, Mar 13, 2025

E. Scope Of Relief

“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 579 (2017). The court “need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case.” Id. at 580 (citation omitted). As it did at the preliminary injunction hearing, the Court emphasizes that the scope of the injunctive relief should be tailored to the particular claims that are likely to succeed and the particular showings made as to the other factors.

As described above, the Court finds that Plaintiffs are likely to succeed on their APA claims challenging the agency directives that implemented the blanket suspension of congressionally appropriated aid, but they are not likely to succeed as to the review and large-scale terminations that occurred in the process that took place after February 13, 2025. The Court accordingly finds it proper to preliminarily enjoin the parts of those directives, and the actions taken pursuant to them, to implement the freeze between January 20, 2025, and February 13, 2025. However, the Court denies Plaintiffs’ request to preliminarily enjoin or invalidate the subsequent review process or the mass terminations that resulted from it. [!]20 The Court also finds that Plaintiffs are likely to succeed on their constitutional claims that Defendants’ withholding of congressionally appropriated foreign aid funds violates the separation of powers. Again, however, the relief must be properly tailored.

The Court concludes that Plaintiffs’ proposed relief is overbroad in two additional respects as to their APA claims and one as to their constitutional claims. First, Plaintiffs propose relief that goes beyond the implementing directives they challenged in their APA claims, such as specifically enjoining Defendants from “terminating, furloughing, or placing personnel on administrative leave” and ordering them to “restore the status quo as it existed before January 20, 2025,” including by “restoring technical systems” and restoring prior processes to approve payments. Glob. Health, ECF No. 46-6 at 2–4. The Court finds that dictating operational decisions would go beyond the proper relief. While the Court has expressed concern about the length of time before Defendants took action to comply with the TRO, Defendants have since represented that they will adjust staffing levels as needed to comply with the Court’s order and have taken at least some steps to do so. Glob. Health, ECF No. 58 at 125–26.

Second, and relatedly, the Court cannot adopt Plaintiffs’ proposal that Defendants achieve “payment processing rates equivalent to those achieved before January 20, 2025.” Glob. Health, ECF No. 46-6 at 3. In denying Defendants’ application to vacate this Court’s order enforcing its TRO, the Supreme Court emphasized the need for “due regard for the feasibility of any compliance timelines.” AIDS Vaccine, 2025 WL 698083. While that direction was given in the context of the TRO, it applies equally to the preliminary injunction. This Court has since invited both written and oral submissions on the issue of feasibility. During its hearing concerning feasibility, the Court sought the parties’ views on creating a clear and feasible benchmark as it relates specifically to the remaining funds to be disbursed at the TRO phase. Given that the parties frequently articulated their respective arguments in terms of the number of payments processed, the Court proposed that metric and invited the parties’ submissions, including requesting data from the parties on what number of payments processed per day would be feasible (or range of payments processed, to the extent not all payments are created equal).

The parties agree that, as of the time of the appeal, there were roughly 2,000 outstanding payments to be processed by USAID, along with additional payments to be processed by State. Glob. Health, ECF No. 58 at 131–33. They also agree that both USAID and State could previously “process several thousand payments each day.” Glob. Health, ECF No. 39-1 ¶ 15. As a benchmark of the current state, Defendants have submitted that after the Supreme Court lifted its administrative stay, they were able to create the capacity to process about 100 payments over one night. Glob. Health, ECF No. 54 at 2. In light of these benchmarks, the Court found it feasible for Defendants to process roughly 1,200 payments to Plaintiffs over the course of a four-day period, or roughly 300 payments per day. See Glob. Health, ECF No. 53 at 1 (stating that Global Health Plaintiffs have around 1,200 outstanding invoices). Although the Court has invited submissions and discussions related to feasibility, there has not been any specific objection to this rate. The Court accordingly finds it appropriate and feasible to order Defendants to continue to process payments at a rate of approximately 300 per day. Although this is a small fraction of the rate at which payments were processed in a single day before January 20, 2025, it nonetheless allows for Defendants to come into compliance within a relatively short period, at a demonstrated level of current capability. The Court may revisit this benchmark if Defendants make a specific showing of legitimate feasibility concerns.

As to the separation of powers claims, Plaintiffs’ proposed relief is overbroad insofar as it would specifically order Defendants to continue to contract with them. As discussed, the violation here results from the Executive’s decision to unlawfully impound funds appropriated by Congress for specific foreign aid purposes. To be sure, Plaintiffs observe that they occupy a large share of the sector serving the relevant foreign aid purposes, as demonstrated by the severe harm they have faced as a result of the disruption to the sector, and accordingly it may well be that the only or most practical way for Defendants to carry out their duty to spend the funds is to revive existing partnerships, as Plaintiffs suggest. See Glob. Health, ECF No. 58 at 47–48. However, the separation of powers dictates only that the Executive follow Congress’s decision to spend funds, and both the Constitution and Congress’s laws have traditionally afforded the Executive discretion on how to spend within the constraints set by Congress. The appropriate remedy is accordingly to order Defendants to “make available for obligation the full amount of funds Congress appropriated” under the relevant laws. See City of New Haven v. United States, 634 F. Supp. 1449, 1460 (D.D.C. 1986), aff’d, 809 F.2d 900 (D.C. Cir. 1987); cf. Aiken County, 725 F.3d at 260 (granting mandamus relief and concluding that agency could not “decline to spend previously appropriated funds” toward specified purpose).21

III. Conclusion

For the reasons above, the Court grants in part and denies in part Plaintiffs’ motions for a preliminary injunction. Consistent with this opinion, it is hereby ORDERED:

• Defendants Marco Rubio, Peter Marocco, Russell Vought, the U.S. Department of State, the U.S. Agency for International Development, and the Office of Management and Budget (the “Restrained Defendants”) and their agents are enjoined from enforcing or giving effect to sections 1, 5, 7, 8, and 9 of the January 24 State Department memorandum, and any other directives that implement sections 3(a) and 3(c) of Executive Order No. 14169, by giving effect to any terminations, suspensions, or stop-work orders issued between January 20, 2025, and February 13, 2025, for any grants, cooperative agreements, or contracts for foreign assistance. Accordingly, the Restrained Defendants shall not withhold payments or letter of credit drawdowns for work completed prior to February 13, 2025.

• The Restrained Defendants are enjoined from unlawfully impounding congressionally appropriated foreign aid funds and shall make available for obligation the full amount of funds that Congress appropriated for foreign assistance programs in the Further Consolidated Appropriations Act of 2024.

It is further ORDERED that the Restrained Defendants shall take all steps necessary to effectuate this order and shall provide written notice of this order to all recipients of contracts, grants, and cooperative agreements for foreign assistance that were in existence between January 20, 2025, and February 13, 2025. The parties shall file a joint status report by March 14, 2025, that apprises the Court of Defendants’ compliance with this order and proposes a schedule for next steps in this matter. The Court is prepared to hold a prompt hearing at the request of the parties to address any feasibility concerns. The February 13 temporary restraining order issued by the Court is hereby dissolved.

SO ORDERED.

AMIR H. ALI
United States District Judge

Date: March 10, 2025

_______________

1 The parties filed notices of related cases that included National Council of Nonprofits v. Office of Management and Budget, No. 25-cv-00239-LLA (D.D.C.), and American Federation of Government Employees v. Trump, No. 25-cv-00352-CJN (D.D.C.). The judges assigned to those cases determined that the present cases were not sufficiently related, and the cases were submitted for random assignment. See AIDS Vaccine, ECF No. 12; Am. Fed’n, ECF No. 32.

2 Some courts have employed a “sliding scale” approach to the preliminary injunction factors, particularly before the Supreme Court’s decision in Winter. See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, __ F. Supp. 3d __, No. 25-cv-239, 2025 WL 368852, at *9 (D.D.C. Feb. 3, 2025) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). The Court’s analysis here does not depend on the sliding scale method and arrives at the same place when each prong is evaluated as “an independent, free-standing requirement.” Sherley, 644 F.3d at 393 (citation omitted).

3 In seeking preliminary relief, a plaintiff generally need only show a substantial likelihood of standing. See, e.g., Elec. Priv. Info. Ctr. v. U.S. Dep’t of Com., 928 F.3d 95, 104 (D.C. Cir. 2019). Here, Plaintiffs’ standing is plain.

4 Defendants separately challenge whether two plaintiffs have established associational or organizational standing. Glob. Health, ECF No. 34 at 19–21. The Court “need only find one party with standing.” Ams. for Safe Access v. Drug Enf’t Admin., 706 F.3d 438, 443 (D.C. Cir. 2013). And, in any event, the associations have standing. Their members would likely have standing because they have been harmed by the challenged actions, see Glob. Health, ECF Nos. 7-1, 7-2; the interests that the associations seek to protect are “germane” to their organizational purposes, see Glob. Health, ECF Nos. 7-1 ¶ 3, 7-2 ¶ 2 (describing organizational purposes of “identifying priority world health problems and reporting on them to the U.S. public, legislators, international and domestic government agencies, academic institutions, and the world health community” and “promot[ing] the meaningful utilization of U.S. small businesses at U.S government agencies providing foreign assistance”); and, because the relief sought is “invalidation of agency action,” the claims do not require consideration of individual members’ circumstances. Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 596–97 (D.C. Cir. 2015) (citation omitted).

5 Defendants have also filed a sur-reply suggesting that the case is moot in light of their subsequent review and decisions to terminate Plaintiffs’ contracts and grants. Glob. Health, ECF No. 48-1 at 3–5. This argument is not persuasive. Plaintiffs ask the Court to vacate or set aside the agency action that led to the blanket suspension of funds. Granting such vacatur would have the effect of remedying, at least in part, the injuries that give Plaintiffs standing to sue in the first place. While this may not make Plaintiffs whole, it is not a circumstance where it is “impossible for the court to grant any effectual relief.” Id. at 3 (quoting Spirit of the Sage Council v. Norton, 411 F.3d 225, 228 (D.C. Cir. 2005)). As discussed below, however, Defendants’ subsequent review and decisions to terminate do constitute distinct agency action, which Plaintiffs have not challenged. See infra section II.B.1.c.

6 As Defendants acknowledged at the preliminary injunction hearing, this argument applies only to Plaintiffs’ APA claims and does not bear on their constitutional claims. Glob. Health, ECF No. 58 at 87.

7 As Plaintiffs point out, the record also suggests they have subawards and cooperative agreements that do not fall under the CDA or Tucker Act. See, e.g., Glob. Health, ECF Nos. 7-3 ¶ 8, 7-5 ¶¶ 4–5. Defendants seem to concede that not all of Plaintiffs’ awards are contracts subject to those statutes. See Glob. Health, ECF No. 34 at 14 (accepting that “some Plaintiffs may have award documents that are not procurement contracts” and only “some of the claims may proceed under the Tucker Act” (emphasis omitted)); see also U.S. Enrichment Corp. v. United States, 117 Fed. Cl. 548, 553 (2014) (recognizing that “[s]ubcontractors and other third parties are generally not permitted to raise claims directly against the government”); Am. Near E. Refugee Aid v. U.S. Agency for Int’l Dev., 703 F. Supp. 3d 126, 134 (D.D.C. 2023) (rejecting application of Tucker Act to USAID cooperative agreement). Thus, even assuming Plaintiffs have some agreements that qualify as contracts within the CDA or Tucker Act, they also have agreements that would lack those alternative avenues and fall within the APA. Cf. Ams. for Safe Access, 706 F.3d at 440 (denying jurisdictional challenge where court found that at least one named petitioner had standing).

8 In opposing a TRO, Defendants contended that because the President is not an “agency” within the meaning of the APA, an agency’s actions implementing presidential directives are also free from APA review. The Court rejected that argument, finding that Defendants did not ground their argument in the text of the APA, which specifically defines “agency” to include “each authority of the Government of the United States,” 5 U.S.C. § 551(1), and that Defendants failed to meaningfully define the bounds of their argument. AIDS Vaccine, 2025 WL 485324, at *5. To the extent Defendants renew that argument at the preliminary injunction stage, they do not develop it any further, and the Court rejects it for the same reasons stated in the TRO. Glob. Health, ECF No. 34 at 30–31; see also Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996) (“[T]hat the Secretary’s regulations are based on the President’s Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question.”).

Defendants also argue in passing that their directives to suspend aid are not sufficiently circumscribed and discrete agency actions to be challenged under the APA, citing cases where plaintiffs sought “wholesale improvement” of an agency’s programs. Glob. Health, ECF No. 34 at 31–32 (citing Ala.-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 490 (5th Cir. 2014)). But the agency directives Plaintiffs challenge are precisely the sort of “agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy” that the APA explicitly includes and is routinely applied to. 5 U.S.C. § 551(4); cf. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 893–94 (1990) (noting that while challenges seeking “wholesale correction” of an entire program are not proper under the APA, judicial intervention, where appropriate, still “may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole ‘program’ to be revised by the agency in order to avoid the unlawful result that the court discerns”).

9 Defendants attempt to hollow out arbitrary and capricious review with various arguments. For example, they say that rather than ask whether Defendants considered reliance interests, the Court can merely infer from Defendants’ silence that they “exercised their discretion to determine that it would not be possible to consider the consequences of various approaches in the absence of a temporary pause.” Glob. Health, ECF No. 34 at 38. In the alternative, they argue that an agency need not articulate a rationale for its action “beyond simple compliance with the President’s directives.” Id. at 37–38. These arguments conflict with the APA’s mandate and, as already noted, would dramatically and impermissibly cabin judicial review under the APA. See supra n.8.

10 Examples of these notices in the record simply state that programs were suspended “[c]onsistent with the President’s Executive Order” or terminated because the award “no longer effectuates agency priorities and is terminated in accordance with the U.S. Department of State Standard Terms and Conditions and 2 CFR 200.340.” E.g., Glob. Health, ECF No. 7-4 at 2, 5.

11 To be sure, Plaintiffs may be able to formulate some new challenge to Defendants’ process leading to these later terminations, whether in an APA claim premised on the relevant action or a contractual challenge based on the terms of individual awards. The Court expresses no view as to the proper forum for such challenges or whether they might have merit; the point is that they are distinct from the challenge Plaintiffs currently advance.

12 Plaintiffs’ other APA claims, that Defendants acted contrary to law, must also be premised on “agency action,” 5 U.S.C. §§ 704, 706(2), and therefore do not afford any relief distinct from Plaintiffs’ arbitrary and capricious claims. The contrary-to-law claims are likely to succeed insofar as they concern Defendants’ initial directives and actions implementing the Executive Order, for the same reasons Plaintiffs’ separation of powers claims (addressed in the next section) are likely to succeed. The contrary-to-law claims are unlikely to succeed as to the review process and terminations after February 13, 2025, for the same reasons just articulated in this section.

13 When asked to identify anything in the record indicating “an intention to spend the amount that’s been sidelined by terminating the large majority of agreements,” Defendants’ counsel stated that he was “not familiar with somewhere in the record that there is.” Glob. Health, ECF No. 58 at 100–01. Although Defendants requested and were granted the opportunity to “send [the Court] a letter after the hearing,” they did not do so. Id. at 101.

14 Defendants also do not respond to Plaintiffs’ argument that they have violated the Anti-Deficiency Act, which prohibits officials from establishing a “reserve” except in specific circumstances (which Defendants do not claim are present here). See 31 U.S.C. § 1512(c)(1).

15 Plaintiffs observe that even before the Impoundment Control Act took effect, the Supreme Court recognized that the Executive was not free to override Congress’s spending power by making the unilateral decision to allot “less than the entire amounts authorized to be appropriated.” Train v. City of New York, 420 U.S. 35, 41 (1975).

16 In analyzing the President’s authority to impound in the context of domestic spending, some have noted the possibility that unique problems could arise in conflicts between spending mandates and a foreign policy question “confided by the Constitution to [the President’s] substantive direction and control.” Memorandum from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools, 1 Supp. Op. O.L.C. 303, 311 (Dec. 1, 1969); see John G. Roberts, Jr., Memorandum for Fred F. Fielding Re: Impoundment Authority at 2 (Aug. 15, 1985) (“Roberts Memorandum”). But even in the context of foreign affairs, a problem arises only “if spending would conflict with a constitutional obligation vested in the President.” Roberts Memorandum at 2. Defendants have not articulated their argument with remotely sufficient shape to give rise to such a problem—they do not ground the authority to impound here in any particular “constitutional obligation vested in the President”; they do not articulate any bounds to the authority; and they have not raised any challenge to the constitutionality of the governing statutes, as applied or otherwise, including the appropriations act and Impoundment Control Act.

17 Defendants offer some arguments in passing that there is no avenue to relief even if they are in violation of valid statutes expressing Congress’s spending power. First, they say this makes Plaintiffs’ claims “purely statutory” and therefore not cognizable as constitutional claims, citing Dalton v. Specter, 511 U.S. 462 (1994). Glob. Health, ECF No. 34 at 23. But Dalton “merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President’s exercise of that authority, judicial review of an abuse of discretion claim is not available.” Chamber of Com., 74 F.3d at 1331. Here, by contrast, Plaintiffs assert that the Executive has attempted to usurp Congress’s power over the purse in violation of the separation of powers, and there is no asserted or plausible argument that the President is simply exercising discretionary authority conferred by statute. Nor do Defendants explain how this argument can be squared with then-Judge Kavanaugh’s decision issuing mandamus relief in Aiken County. See 725 F.3d at 267.

Defendants also claim that violation of the Impoundment Control Act cannot be a basis for finding action contrary to law under the APA because the Impoundment Control Act allows for enforcement by the Comptroller General. Glob. Health, ECF No. 34 at 35. This argument is limited to Plaintiffs’ contrary-to-law APA claims, see supra n.12, and lacks merit. The APA, by its terms, applies unless another statute “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). And as the D.C. Circuit has observed, any such preclusion must have “sufficient clarity to overcome the strong presumption in favor of judicial review.” Confederated Tribes of Chehalis Rsrv. v. Mnuchin, 976 F.3d 15, 21 (D.C. Cir. 2020) (quoting Thryv, Inc. v. Click-To-Call Techs., LP, 590 U.S. 45, 53 (2020)), rev’d on other grounds sub nom. Yellen v. Confederated Tribes of Chehalis Rsrv., 594 U.S. 338 (2021).

Finally, Defendants argue that the AIDS Vaccine Plaintiffs’ separate claim under the Take Care Clause cannot be a basis for affirmative relief. Glob. Health, ECF No. 34 at 26. However, the Court need not reach that claim or argument since it concludes that Plaintiffs are likely to succeed on their separation of powers claims.

18 The Court notes that, for similar reasons, Plaintiffs would be likely to succeed on their claim that Defendants acted ultra vires. Glob. Health, ECF No. 1 ¶¶ 129–31. “When an executive acts ultra vires”—meaning beyond the scope of his power—“courts are normally available to reestablish the limits on his authority.” Chamber of Com., 74 F.3d at 1328 (quoting Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988)). Defendants do not identify any authority, statutory or otherwise, that would authorize this sort of vast cancelation of congressionally appropriated aid. Even if they did, Defendants do not dispute that they would be in the territory of having to show “clear congressional authorization” based on the “vast economic and political significance” of these actions. See West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 716, 723 (2022) (citations omitted). Needless to say, canceling billions of dollars in congressionally appropriated funds is “no everyday exercise of federal power.” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 595 U.S. 109, 117 (2022) (internal quotation marks and citation omitted).

19 The Court also noted that Plaintiffs’ evidence showed severe harm to their “goodwill, reputation, and relationships with employees, partners, subcontractors, foreign governments, and other stakeholders.” AIDS Vaccine, 2025 WL 485324, at *3 n.2 (quoting Glob. Health, ECF No. 4 at 23). This included concrete examples such as having to violate contractual duties by deferring payments to suppliers, vendors, and landlords, Glob. Health, ECF No. 7-6 ¶¶ 10, 15; disruptions to relationships with longstanding partners whose trust had been cultivated over decades, id.; and having to go back on previous assurances made to clients and partners in reliance on the agreements that have now been canceled, Glob. Health, ECF No. 7-9 ¶ 21. See Armour & Co. v. Freeman, 304 F.2d 404, 406 (D.C. Cir. 1962) (holding that irreparable harm was apparent where defendant’s conduct “could not fail to damage [plaintiff’s] good name”); Atlas Air, Inc. v. Int’l Bhd. of Teamsters, 280 F. Supp. 3d 59, 103 (D.D.C. 2017) (“Injury to reputation can, at least at times, rise to the level necessary to support the issuance of an injunction.”); Xiaomi Corp. v. Dep’t of Def., No. 21-cv-280, 2021 WL 950144, at *9 (D.D.C. Mar. 12, 2021) (collecting cases).

20 The Court notes that Defendants have preserved the government’s frequent argument that relief under the APA should apply only to the particular plaintiffs before the Court. As the Court observed at the preliminary injunction hearing, this argument has not been endorsed by the Supreme Court. Cf. Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 831 (2024) (Kavanaugh, J., concurring) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989))).

21 Defendants request that the Court stay any order issuing a preliminary injunction for a short time while they decide whether to appeal. Glob. Health, ECF No. 34 at 45. That request is denied as premature. If, after reviewing this opinion and order, Defendants decide to pursue an appeal, they may move for a stay pending appeal and the Court will consider it in the ordinary course.

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Part 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. STATE OF NEW YORK; COMMONWEALTH OF MASSACHUSSETTS; STATE OF HAWAIʻI; STATE OF CALIFORNIA; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; STATE OF ILLINOIS; STATE OF MAINE; STATE OF MARYLAND; ATTORNEY GENERAL DANA NESSEL FOR THE PEOPLE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF OREGON; STATE OF RHODE ISLAND; STATE OF VERMONT; STATE OF WASHINGTON; and STATE OF WISCONSIN; Plaintiffs, v. LINDA McMAHON, in her official capacity as Secretary of Education; U.S. DEPARTMENT OF EDUCATION; and DONALD J. TRUMP, in his official capacity as President of the United States; Defendants. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. Case 1:25-cv-10601.

-- Attorney General James Sues Trump Administration To Stop Dismantling of Department of Education and Protect Students. AG James Leads Coalition of 20 Attorneys General in Suing to Stop Trump Administration from Shutting Down the Department of Education, by Letitia James

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

STATE OF NEW YORK; COMMONWEALTH OF MASSACHUSSETTS; STATE OF HAWAIʻI; STATE OF CALIFORNIA; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; STATE OF ILLINOIS; STATE OF MAINE; STATE OF MARYLAND; ATTORNEY GENERAL DANA NESSEL FOR THE PEOPLE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF OREGON; STATE OF RHODE ISLAND; STATE OF VERMONT; STATE OF WASHINGTON; and STATE OF WISCONSIN;

Plaintiffs,

v.

LINDA McMAHON, in her official capacity as Secretary of Education; U.S. DEPARTMENT OF EDUCATION; and DONALD J. TRUMP, in his official capacity as President of the United States;

Defendants.

Case 1:25-cv-10601

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. The Department of Education is essential. Plaintiff States rely on the Department for an extraordinary array of programs. The Department provides funds for low-income children and students with disabilities. It enforces the laws that prohibit discrimination in education. It administers federal student aid programs. These are just some of the key ways the congressional acts governing the existence and responsibilities of the Department are deeply intertwined with the education systems in Plaintiff States. Incredibly, all of these significant and statutorily-mandated functions were covered by a lean staff of only 4,133 people—until March 11, when the Department of Education announced through a press release that it is reducing that staff by 50%. U.S. Department of Education Initiates Reduction in Force, Press Release, Department of Education (Mar. 11, 2025), https://www.ed.gov/about/news/press-rel ... initiates- reduction-force (“March 11 Press Release”). This massive reduction in force (RIF) is equivalent to incapacitating key, statutorily-mandated functions of the Department, causing immense damage to Plaintiff States and their educational systems.

2. Although the Department’s March 11 Press Release says that the Department “will continue to deliver on all statutory programs that fall under the agency’s purview,” id., that assertion is easily belied by the extent and effect of the RIF. So too is the assertion from Secretary McMahon, later on March 11, that the terminations were the “first step” on the road to a “total shutdown” of the Department. Filip Timotija, Education Secretary: Mass layoffs First Step Toward Total Shutdown, The Hill (Mar. 12, 2025), https://thehill.com/homenews/education/5190161- linda-mcmahon-education-department-mass-layoffs.

3. Far from being just a “first step,” the lay-offs are an effective dismantling of the Department. Based on figures provided in the March 11 Press Release, the announced RIF displaces approximately 1,378 employees, all of whom “will be placed on administrative leave” beginning on March 21. March 11 Press Release. These employees join around 600 others who took earlier buy-out offers. Id. The press release states that “[a]fter today’s actions, the Department’s workforce will total roughly 2,183 workers,” an approximately 50% cut from the 4,133 workers the Department of Education had “[w]hen President Trump was inaugurated.” Id.

4. The RIF is so severe and extreme that it incapacitates components of the Department responsible for performing functions mandated by statute, effectively nullifying those mandates. For example, seven regional offices of the Department’s Office for Civil Rights (OCR)—including those in New York, Boston, San Francisco, Philadelphia, and Chicago—have been closed down entirely. Juan Perez, Jr. & Rebecca Carballo, Education Department Documents Detail Massive Scope of Agency Worker Terminations, Politico (Mar. 12, 2025), https://www.politico.com/news/2025/03/1 ... ncyworker- terminations-00226222.

5. This massive RIF is not supported by any actual reasoning or specific determinations about how to eliminate purported waste in the Department—rather, the RIF is part and parcel of President Trump’s and Secretary McMahon’s opposition to the Department of Education’s entire existence. The Administration’s goal of eliminating the Department of Education by any means necessary has been plainly and repeatedly stated: President Trump called the Department “a big con job” and declared that he would “like to close it immediately.” Michael C. Bender, Trump Is Said to Be Preparing Order That Aims to Eliminate Education Dept., The New York Times (Mar. 6, 2025), https://www.nytimes.com/2025/03/06/us/p ... education- department-executive-order.html. He also stated that he would like Secretary McMahon to put herself “out of a job.” Zachary B. Wolf, Trump and Musk are moving to smother these three pieces of the government, CNN (Feb. 5, 2025). Secretary McMahon has affirmed that “President Trump believes that the bureaucracy in Washington should be abolished so that we can return education to the states, where it belongs,” and that she “wholeheartedly support[s] and agree[s] with this mission.” Lexi Lonas Cochran, McMahon says she ‘wholeheartedly’ agrees with Trump plan to abolish Education Department, The Hill (Feb. 25, 2025), https://thehill.com/homenews/education/ ... menttrump/. On March 3, 2025, Secretary McMahon asked employees to join her in “perform[ing] one final, unforgettable public service to future generations of students” by dismantling the Department of Education. Secretary McMahon: Our Department’s Final Mission, U.S. Department of Education (Mar. 3, 2025), https://perma.cc/F7BT-MQ3D. On the evening of March 11, Secretary McMahon stated that “the President’s mandate,” his “directive to me, clearly, is to shut down the Department of Education.” See Timotija, Education Secretary, cited supra ¶ 2.

6. But the Trump Administration cannot dismantle the Department of Education. It cannot override—whether through large-scale RIFs or otherwise—the statutory framework prescribing the Department’s responsibilities. As the Supreme Court put it nearly a century ago, “[t]o Congress under its legislative power is given the establishment of offices [and] the determination of their functions and jurisdiction.” Myers v. United States, 272 U.S. 52, 129 (1926). And, thus, administrative agencies “are creatures of statute.” Nat’l Fed. of Indep. Bus. v. OSHA, 595 U.S. 109, 117 (2022).

7. Past attempts to eliminate the Department of Education have reflected these limitations on executive power. President Reagan sought legislation to dismantle the Department of Education, which Congress did not pass. See Ronald Reagan, Address Before a Joint Session of the Congress Reporting on the State of the Union (Jan. 26, 1982) (“The budget plan I submit to you . . . will realize major savings by dismantling the Departments of Energy and Education.”), available at https://nationalcenter.org/ncppr/2001/1 ... the-union- 1982. Since then, numerous bills have been introduced to shutter the Department of Education. See Mona Vakilifathi, Why Trump is Trying to Reduce the Status of the Department of Education, Brookings Inst. (July 16, 2018), https://www.brookings.edu/articles/why- ... -toreduce- the-status-of-the-department-of-education. Each of these efforts reflects the uncontroversial understanding that only Congress may abolish an agency it created.

8. And while Congress has granted the Secretary of Education—though not the President—the authority to modestly restructure the Department of Education, she is expressly limited to “allocat[ing] or reallocat[ing] functions among the officers of the Department” or modifying “organizational entities within the Department as may be necessary or appropriate.” 20 U.S.C. § 3473(a). She is not permitted to eliminate or disrupt functions required by statute, nor can she transfer the Department’s responsibilities to another agency outside of its statutory authorization. Id.

9. Because neither the President nor his agencies can undo the many acts of Congress that authorize the Department, dictate its responsibilities, and appropriate funds for it to administer, the President’s directive to eliminate the Department of Education (“Directive”)—including through the March 11 decimation of the Department’s workforce and any other agency implementation—is an unlawful violation of the separation of powers, and the Executive’s obligation to take care that the law be faithfully executed.

10. The Department’s implementation of the Directive, including through the March 11 RIF, is separately unlawful because it violates the Administrative Procedure Act (APA). It is arbitrary and capricious, and contrary to law.

11. For these reasons, Plaintiff States seek declaratory and injunctive relief against the Directive and any implementation of it by Secretary McMahon and the Department of Education, including the March 11 RIF.

JURISDICTION AND VENUE

12. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the laws of the United States). Jurisdiction is also proper under the judicial review provisions of the APA. 5 U.S.C. §§ 702, 704. An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may grant declaratory relief, injunctive relief, and other relief pursuant to 28 U.S.C. §§ 2201–2202 and 5 U.S.C. §§ 705, 706.

13. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and (e)(1) because a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this district, and Defendants are United States agencies or officers acting in their official capacities.

PARTIES

A. Plaintiffs

14. Plaintiff State of New York is a sovereign state of the United States of America. As a body politic and a sovereign entity, it brings this action on behalf of itself and as trustee, guardian, and representative of all residents, and political subdivisions of New York. Attorney General Letitia James is the chief law enforcement officer for New York.

15. Plaintiff Commonwealth of Massachusetts is a sovereign commonwealth in the United States of America. Massachusetts is represented by Attorney General Andrea Campbell, who is the chief law enforcement officer of Massachusetts.

16. Plaintiff State of Hawai’i, represented by and through Attorney General Anne E. Lopez, is a sovereign state of the United States of America. The Attorney General is Hawai’i’s chief legal officer and chief law enforcement officer and is authorized by Hawaii Revised Statutes § 28-1 to pursue this action.

17. Plaintiff State of California is a sovereign state in the United States of America. California is represented by Attorney General Rob Bonta, who is the chief law enforcement officer of California.

18. Plaintiff State of Arizona, represented by and through its Attorney General, is a sovereign state of the United States of America. Arizona is represented by and through its chief legal officer, Kristin K. Mayes. See Ariz. Rev. Stat. § 41-192(A). Attorney General Mayes is authorized to pursue this action on behalf of the State of Arizona. Id.

19. Plaintiff State of Colorado is a sovereign state in the United States of America. Colorado is represented by and through its Attorney General Phil Weiser. The Attorney General acts as the chief legal representative of the state and is authorized by Colo Rev. Stat. § 24-31-101 to pursue this action.

20. Plaintiff State of Connecticut is a sovereign state of the United States of America. Connecticut is represented by and through its chief legal officer, Attorney General William Tong, who is authorized under General Statutes § 3-125 to pursue this action on behalf of the State of Connecticut.

21. Plaintiff State of Delaware, represented by and through its Attorney General, Kathleen Jennings, is a sovereign state of the United States of America. The Attorney General is Delaware’s chief law enforcement officer and is authorized to pursue this action pursuant to 29 Del. C. § 2504.

22. Plaintiff District of Columbia is a municipal corporation organized under the Constitution of the United States. It is empowered to sue and be sued, and it is the local government for the territory constituting the permanent seat of the federal government. The District is represented by and through its chief legal officer, Attorney General Brian L. Schwalb. The Attorney General has general charge and conduct of all legal business of the District and all suits initiated by and against the District and is responsible for upholding the public interest. D.C. Code. § 1-301.81.

23. Plaintiff State of Illinois is a sovereign state in the United States of America. Illinois is represented by Attorney General Kwame Raoul, who is the chief law enforcement officer of Illinois.

24. Plaintiff State of Maine is a sovereign state of the United States of America. Maine is represented by its Attorney General, who is authorized to pursue this action pursuant to 5 Me. Rev. Stat. § 191.

25. Plaintiff State of Maryland is a sovereign state of the United States of America. Maryland is represented by Attorney General Anthony G. Brown, who is the chief legal officer of Maryland.

26. Plaintiff the People of the State of Michigan is represented by Attorney General Dana Nessel. The Attorney General is Michigan’s chief law enforcement officer and is authorized to bring this action on behalf of the People of the State of Michigan pursuant to Mich. Comp. Laws § 14.28.

27. Plaintiff State of Minnesota is a sovereign state of the United States of America. Minnesota is represented by Attorney General Keith Ellison, who is the chief law enforcement officer of Minnesota.

28. Plaintiff State of Nevada is a sovereign state of the United States of America. Nevada is represented by and through its chief legal officer, Attorney General Aaron D. Ford. The Attorney General has the authority to file this suit to protect and secure the interests of the State. NRS 228.170.

29. Plaintiff State of New Jersey is a sovereign state in the United States of America. New Jersey is represented by Attorney General Matthew Platkin, who is the chief law enforcement officer of New Jersey.

30. Plaintiff State of Oregon is a sovereign state of the United States of America. Oregon is represented by Attorney General Dan Rayfield, who is the chief law enforcement officer of Oregon.

31. Plaintiff State of Rhode Island is a sovereign state in the United States of America. Rhode Island is represented by Attorney General Peter F. Neronha, who is the chief law enforcement officer of Rhode Island.

32. Plaintiff State of Vermont is a sovereign state of the United States of America. Vermont is represented by its Attorney General, who is the State’s chief legal officer and authorized to pursue this action on behalf of the State. Vt. Stat. Ann. tit. 3, § 159.

33. Plaintiff State of Washington, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is Washington’s chief law enforcement officer and is authorized under Wash. Rev. Code § 43.10.030 to pursue this action.

34. Plaintiff State of Wisconsin is a sovereign state of the United States of America. Wisconsin is represented by Attorney General Josh Kaul, who is the chief law enforcement officer of Wisconsin.

B. Defendants

35. Defendant Linda McMahon is the Secretary of the United States Department of Education and that agency’s highest ranking official. She is charged with the supervision and management of all decisions and actions of the agency. She is sued in her official capacity. 20 U.S.C. § 3412.

36. Defendant the United States Department of Education is a cabinet agency within the executive branch of the United States government that has been created by Congress. 20 U.S.C. § 3411. Defendants United States Department of Education and Linda McMahon are jointly referred to as “Agency Defendants.”

37. Defendant Donald J. Trump is the President of the United States. He is responsible for the actions and decisions that are being challenged by Plaintiffs in this action and is sued in his official capacity.

LEGAL BACKGROUND

A. The Executive Has No Authority to Incapacitate a Congressionally Created Agency.

38. It is a bedrock constitutional principle that the President and his agencies cannot make law. Rather, they can only—and indeed, they must—implement the laws enacted by Congress, including those statutes that create federal agencies and dictate their duties. The Executive thus can neither outright abolish an agency nor incapacitate it by cutting away the personnel required to implement the agency’s statutorily-mandated duties.

39. Article I, Section 1 of the United States Constitution enumerates that: “[a]ll legislative Powers herein granted shall be vested in Congress.” U.S. Const. Art. I, § 1.

40. “The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that ‘differences of opinion’ and the ‘jarrings of parties’ would ‘promote deliberation and circumspection’ and ‘check excesses in the majority.’” Seila Law LLC v. CFPB, 591 U.S. 197, 223 (2020) (quoting The Federalist No. 70, at 475 (A. Hamilton) and No. 51, at 350).

41. “As Chief Justice Marshall put it, this means that ‘important subjects . . . must be entirely regulated by the legislature itself,’ even if Congress may leave the Executive ‘to act under such general provisions to fill up the details.’” West Virginia v. EPA, 597 U.S. 697, 737 (2022) (Gorsuch, J., concurring) (quoting Wayman v. Southard, 10 Wheat. 1, 42–43, 6 L.Ed. 253 (1825)).

42. Congress has exclusive authority to abolish executive agencies, and either redistribute their functions to existing or newly created agencies, or to discontinue their functions. See, e.g., Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, §§ 471, 441, and 451(b) (abolishing Immigration and Naturalization Service and transferring its functions to the newlycreated Department of Homeland Security); Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, Division G; 112 Stat. 2681 (abolishing several agencies and consolidating their functions within the Department of State, and creating USAID as an independent executive agency).

43. The Constitution vests executive power in the President. U.S. Const., art. II, § 1. The primary function of the President is understood to be cabined in the “Take Care” clause, which requires that the President “shall take Care that the Laws be faithfully executed.” U.S. Const., art. II, § 3. Nothing in Article II can be construed to authorize the Executive to dismantle a statutorily created agency directly or indirectly.

44. The Executive has no authority to enact, amend, or repeal statutes. Clinton v. City of New York, 524 U.S. 417, 438 (1998). The Executive does not have, under the Constitution or otherwise, an undefined “inherent” power, even in “emergency” circumstances, to unilaterally decide to ignore statutes. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

45. Indeed, the Executive acts at the “lowest ebb” of his constitutional authority and power when he acts contrary to “the express or implied will of Congress.” Id. at 637 (Jackson, J., concurring).

B. The Statutory Framework Authorizing the Department of Education.

46. In 1979, pursuant to its constitutional authority, Congress established the Department of Education, and many of its offices, by statute with the enactment of the Department of Education Organization Act. That Act made express findings about the importance of the Department’s mission. Department of Education Organization Act, Pub. L. 96-88, 93 Stat. 669 (1979) (codified as amended at 20 U.S.C. §§ 3401–3510); see also 20 U.S.C. §§ 3411–3427 (offices); id. §§ 3401–3402 (findings and purpose).

47. “[P]rimary responsibility for establishing policy and providing funding for elementary and secondary education rests with the states and instrumentalities therein,” but the Department of Education “has primary responsibility for administering federal elementary, secondary, and postsecondary education programs.” See Rebecca R. Skinner et al., A Summary of Federal Education Laws Administered by the U.S. Department of Education, Cong. Rsch. Serv. (Dec. 12, 2024) (hereinafter, “the Skinner Report”).

48. Over time, Congress has enacted more statutes authorizing additional functions for the Department of Education and appropriating additional funds for it to administer. The major statutes administered by the Department (as detailed in the Skinner Report, see id.) include:

a. The Elementary and Secondary Education Act (ESEA). The ESEA (Pub. L. 89-10, as amended) was enacted in 1965 and was last reauthorized in 2015 by the Every Student Succeeds Act (ESSA) (Pub. L. 114-95). Title I-A, the largest ESEA program, provides compensatory grants to local educational agencies (LEAs). Congress appropriates funds for ESEA on an annual basis.

b. The Individuals with Disabilities Education Act (IDEA). In 1975, Congress enacted Pub. L. 94-142 (now known as the IDEA), which authorizes grant programs that support legally-mandated early intervention and special education services for children with disabilities from birth to age 21. The IDEA was last reauthorized in 2004 (Pub. L. 108-446). Over 90% of IDEA funds are appropriated for Part B (Section 611), which provides funding for special education services for school-aged children. The authorization of appropriations for Part B is permanent. Funds for Part C—which authorizes state grants for infants and toddlers with disabilities—and Part D—which authorizes national activities—have been appropriated on an annual basis.

c. Higher Education Act of 1965 (HEA). The HEA (Pub. L. 89-329, as amended) was enacted in 1965. It was last comprehensively reauthorized by the Higher Education Opportunity Act of 2008 (HEOA) (Pub. L. 110-315) and has since been amended multiple times. Title IV of the HEA authorizes a number of student aid programs that assist students with postsecondary education expenses. These include the Federal Pell Grant program, the William D. Ford Federal Direct Loan program, and the Federal Work-Study program. The HEA also authorizes programs providing federal support directly to institutions of higher education through Title III and Title V. HEA programs are funded through a combination of discretionary and mandatory appropriations. Mandatory funding for the Direct Loan program is permanently authorized, and mandatory funding for the Federal Pell Grant program is permanently appropriated. Funding continues to be appropriated for other HEA programs annually.

d. Rehabilitation Act of 1973. Under the Rehabilitation Act of 1973 (Pub. L. 93-112, as amended), the Department provides funds to support vocational rehabilitation services primarily through the State Vocational Rehabilitation Services Program, which supports services to help individuals with disabilities. Congress continues to appropriate funding for the program annually.

e. Civil Rights Laws. The Department is also charged with enforcing various civil rights laws that prohibit discrimination in all programs or activities that receive federal financial assistance (unless otherwise noted). These include Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352, as amended); Title IX of the Education Amendments of 1972 (Pub. L. 92-318, as amended); Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, as amended); the Age Discrimination Act of 1975 (Pub. L. 94-135, as amended); and Title II of the Americans with Disabilities Act of 1990 (Pub. L. 101-336, as amended).

f. Privacy Rights Laws. The Department also enforces laws that protect student privacy rights: (1) the Family Educational Rights and Privacy Act (FERPA); and (2) the Protection of Pupil Rights Amendment (PPRA).

49. Congress has granted the Secretary of Education limited discretion to reallocate functions within the Department, but that authority is modest, and in no way includes the power to eliminate statutorily-created functions. The Secretary is authorized to “allocate or reallocate functions among the officers of the Department, and to establish, consolidate, alter, or discontinue such organizational entities within the Department as may be necessary or appropriate.” 20 U.S.C. § 3473(a). “[ b]ut the authority of the Secretary” under these provisions “does not extend to: (1) any office, bureau, unit, or other entity transferred to the Department and established by statute or any function vested by statute in such an entity or officer of such an entity, except as provided in subsection (b); (2) the abolition of organizational entities established by this chapter; or (3) the alteration of the delegation of functions to any specific organizational entity required by this chapter.” Id. By statute, there are fourteen offices and programs that may be “consolidate[d], alter[ed], or discontinue[d],” or have their “functions” “reallocate[d]” by the Secretary. Id. § 3473(b)(1). Even then, however, the Secretary must give the congressional committees of jurisdiction “a full and complete statement of the action proposed to be taken pursuant to this subsection and the facts and circumstances relied upon in support of such proposed action,” and then wait ninety days before acting. Id. § 4373(b)(2).

50. Thousands of employees have administered the many programs the Department is mandated to operate. Nothing in the numerous statutes creating the Department and describing its mandated functions can be construed as authorizing the Executive to gut an agency such that it can no longer meet its statutory obligations.

C. Requirements Governing RIFs.

51. The Department may engage in limited restructuring and downsizing of its workforce through a RIF, “an administrative procedure by which agencies eliminate jobs and reassign or separate employees who occupied the abolished positions.” James v. Von Zemenszky, 284 F.3d 1310, 1314 (Fed. Cir. 2002). But the Department’s authority to administer RIFs does not override Congress’s exclusive authority to abolish executive agencies or to discontinue their functions. And an agency cannot use a RIF to unilaterally cease implementing the agency’s statutorily-mandated duties.

52. Consistent with those limits, any federal agency reducing staff pursuant to a RIF must follow specific statutory and regulatory procedures. These include following required retention preferences for employees. “[I]n any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings.” James, 284 F.3d at 1314–15; see also 5 U.S.C. § 3502(a).

53. All civilian employees in the executive branch of the federal government, including employees of the Department of Education, are covered by the Office of Personal Management’s (OPM) regulations regarding RIFs. 5 C.F.R. § 351.202(a). All agencies of the federal government are required to follow the OPM regulations “when the agency determines that a [RIF] is necessary.” 5 C.F.R. § 351.204.

FACTUAL ALLEGATIONS

54. The Department of Education operates programs that touch on nearly every aspect and level of education. The Department’s elementary and secondary programs annually serve nearly 18,200 school districts and over 50 million students attending roughly 98,000 public schools and 32,000 private schools, while the Department’s higher education programs provide services and support to more than 12 million postsecondary students.

A. The Department of Education’s Support Across All Spectrums of Education.

55. The Department of Education is among the smallest federal agencies, yet it is charged with performing an immense breadth of work.

The Department’s Support for Birth-to-Grade 12 Educational Programs.

56. In federal fiscal year 2024, the Department directed 25.4% of its total spending to states and local governments. The federal government provides 13.6% of the funding for public K–12 education.

57. The two largest sources of federal funding for schools are Title I funding and IDEA funding. The Department of Education distributes over $18 billion under the Title I program to help support schools with high-poverty populations, providing benefits like extra staff to supplement reading instruction. The Department disburses over $15 billion in IDEA funding, which helps cover the costs of special education.

58. Public education funding varies significantly across states. K–12 schools in Alaska receive the most federal funding per pupil, followed by North Dakota. Utah and Kansas receive the least federal funding per pupil. New York and Massachusetts are among those that receive the least federal funding per pupil. Nevertheless, every state receives considerable federal funding and services from the Department.

59. The K–12 funding provided by the Department supports a wide variety of educational programs and needs: special education, including paying for assistive technology for students with disabilities; the payment of teacher salaries, and benefits, school counselors, and homeless liaisons; the professional development and salaries for special education teachers, paraprofessionals, and reading specialists; transportation to help children receive the services and programming they need; and physical therapy, speech therapy, and social workers.

60. For instance, Department of Education funding supports education of students with disabilities, both in public and private schools. Funding through IDEA, 20 U.S.C. §§ 1400–1409, pays for a broad range of special education services required by individualized education programs (IEPs) for students with disabilities attending public schools. IDEA funding also helps school districts pay for the costs of placing students with disabilities who need out-of-district placements in special education schools and programs that can meet their needs. E.g., 34 C.F.R. §§ 300.145– 300.146. IDEA also provides funding for equitable services for students with disabilities attending regular private schools. 34 C.F.R. §§ 300.130–300.138. IDEA funding helps support the cost of salaries of special education teachers and other service providers who provide direct instruction and services to students with disabilities, such as speech-language pathologists, reading specialists, physical and occupational therapists, audiologists, psychologists, behavioral therapists, deaf and hard of hearing instructors, and other service providers. IDEA funding also supports the cost of augmentative communication equipment and devices for students with disabilities with speech, language or communication impairments. IDEA also funds the costs of providing Extended School Year programs for students with disabilities who need continuous support outside of the academic year to help students maintain their academic, social, behavioral, and communication skills. IDEA funding also supports professional development activities for special education teachers and other service providers who work with students with disabilities to better meet the students’ needs. IDEA funding supports special education instruction and services to students with disabilities who are in institutional settings.

61. The Department of Education also administers grants for various disaster and emergency-related relief and preparations, through the Office of Elementary and Secondary Education and the Department’s Disaster Recovery Unit.

62. Department of Education funding also supports early childhood education for children from birth through kindergarten. For instance, the Preschool Development Grant Birth through Five program is a $250 million competitive federal grant designed to improve states’ early childhood systems by building upon existing federal, state, and local early care and learning investments.

The Department’s Role in Providing Administrative and Substantive Services for Birth-to-Grade 12 Education.

63. The Department of Education’s statutory mission includes promoting “improvements in the quality and usefulness of education through federally supported research, evaluation and sharing of information.” 20 U.S.C. § 3402(4).

64. To that end, the Department of Education gathers data, identifies best practices in pedagogy, and disseminates that research to educators and others. The Department also operates several National Centers housed within the Institute of Education Sciences, all of which conduct research, collect and analyze data, and provide technical assistance to educators, parents, students, policymakers, and the general public on a range of topics aimed at improving academic achievement for all children and ensuring the effectiveness of educational programs. See 20 U.S.C. §§ 3419, 9511(a) (establishing the Institute of Education Sciences); 20 U.S.C. § 9531(a) (establishing a National Center for Educational Research); 20 U.S.C. § 9541(a) (establishing the National Center for Education Statistics); 20 U.S.C. § 9561(a) (establishing the National Center for Education Evaluation and Regional Assistance); 20 U.S.C. § 9567(a) (establishing the National Center for Special Education Research). The Department, for example, creates resources to support educators and school districts in meeting academic standards, providing education to children who are English language learners, addressing school safety, bullying, and chronic absenteeism, supporting children with significant behavioral issues, and other important topics.

65. The Department’s Office of English Language Acquisition, Language Enhancement and Academic Achievement for Limited English Proficient Students oversees policy for the education needs of linguistically and culturally diverse students. 20 U.S.C. § 3420.

66. The Student Privacy Policy Office implements FERPA and PPRA, both of which specifically mandate the creation of an office and review board to investigate, process, review, and adjudicate violations of the student privacy laws. 20 U.S.C. §§ 1232g(g), 1232h(f).

67. The Department’s Office of Safe and Healthy Schools administers, coordinates and recommends policy for programs such as drug and violence prevention programs, character and civic education, and a variety programs supporting students’ physical and mental health.

68. The Department’s Office of Special Education and Rehabilitative Services (OSERS) provides guidance, technical assistance, and oversight of special education requirements under the IDEA. 20 U.S.C § 3417. The Office of Special Education Programs, established within OSERS, administers programs concerning education of children with disabilities. 20 U.S.C. § 1402(a).

69. The Department provides guidance relating to the educational rights of students who are homeless under the McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§ 11301– 11481. Similarly, the Department provides guidance regarding protections for students in foster care under the ESSA.

70. The Department collects and publishes data relating to education services across the country. For example, it conducts the Civil Rights Data Collection, through which it compiles and publishes data on a broad range of civil rights related topics that serve as a valuable resource to state educational agencies.

The Department’s Role in Safeguarding Equal Access to Public Education.

71. The Department of Education plays a critical role in safeguarding equal access to public education through transparency and accountability. The Department’s Office for Civil Rights (OCR) was created by Congress and has historically focused on ensuring that schools provide equal access to education across diverse student bodies. 20 U.S.C. § 3413.

72. OCR directs, coordinates, and recommends policy for activities that are designed to, among other things, comply with legislative and regulatory civil rights requirements. For example, in May 2022, OCR announced proposed amendments to the Department of Education’s regulations implementing Section 504 of the Rehabilitation Act of 1973. U.S. Department of Education Announces Intent to Strengthen and Protect Rights for Students with Disabilities by Amending Regulations Implementing Section 504 (May 2022), available at https://www.ed.gov/about/ed-offices/ocr/news-room#2022. As part of that process, OCR sought and considered written suggestions from the public about how best to improve the current regulations. Id. In 2024, OCR also promulgated regulations implementing Title IX of the Education Amendments of 1972, restoring strong protections against sexual harassment and assault and reinforcing critical protections for LGBTQ+ students. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33,474 (Apr. 29, 2024).

73. OCR is charged with enforcing and investigating alleged violations of various federal civil rights laws that protect students against discrimination, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. OCR has a responsibility to act in a reasonably prompt manner in response to alleged violations of these laws.

74. In FY 2024, OCR reviewed the highest volume of complaints ever, totaling 22,687 complaints. U.S. Department of Education Office for Civil Rights, 2024 Fiscal Year Annual Report (2024), available at https://www.ed.gov/media/document/ocr-r ... education- 2024-109012.pdf. That number represented an 18% increase over a previous record high in FY 2023 of 19,201 complaints. Id.

75. In addition to their enforcement and investigative work, OCR has provided trainings and technical assistance to state educational agencies and local educational agencies on civil rights laws. For example, OCR provided training to state and local educational agencies regarding digital accessibility of websites and other electronic documents for individuals who have disabilities, including blindness.

The Department’s Administration of Higher Education Programs and the Federal Student Loan System.

76. The federal student loan programs administered under Title IV of the Higher Education Act of 1965, as amended, are central components of the financial aid provided to students in Plaintiff States. These programs are designed to provide critical assistance to prospective students and expand access to higher education to students who could not otherwise afford to pursue a degree or certificate.

77. The Department manages the federal student loan system through its Office of Federal Student Aid (FSA), which handles loan disbursement, servicing and borrower assistance. 20 U.S.C. § 1018.

78. Included in this system is the administration of Pell Grants, work-study programs and subsidized loans. The Department awards more than $120 billion a year in grants, work-study funds, and low-interest loans to approximately 13 million students. Much of this funding is sent directly to colleges and universities, including public colleges and universities in the Plaintiff States. If Program Participation Renewals are not processed in a timely manner, it could impact the ability of institutions to operate and most of their student to attend the institution by functionally eliminating the availability of financial aid.

79. The Office of Federal Student Aid develops the Free Application for Federal Student Aid (FAFSA) form and processes, with vendors, more than 17.6 million FAFSA forms each year. The deadline for applicants to submit their FAFSA forms is June 30, 2025, although many students submit their FAFSA forms earlier, as their decision about whether they can afford to attend college and, if so, which college, is necessarily dependent on learning what financial aid they qualify for. If FAFSA forms are not processed on time, this will mean that many students may seek to delay their decisions about which college to attend, and many students will decide to postpone attending college, for a year or indefinitely.

80. While the Department distributes this funding to institutions of higher education, it also ensures that the institutions receiving Title IV funding are financially responsible. The Secretary of Education determines the standard of financial responsibility and enforces it as required under the HEA. When something happens that could affect an institution’s financial responsibility, the institution is required to notify the Department within 21 days. If such notifications are no longer monitored by the Department, institutions that continue to receive Title IV funding could engage in wasteful or unnecessary spending without repercussion.

81. Under the HEA, the Department enforces the requirement that institutions of higher education provide counseling to new students as well as graduating students with information about debt management and repayment. If the Department ceased enforcement of these programs, it would become substantially more difficult to ensure that institutions provide this counseling. Accordingly, students could lose the opportunity to make informed decisions about their student loan debt, or could even become unwitting victims of predatory lending.

82. The Department’s responsibilities are not just financial. The Department manages large-scale data collection and enforcement which would not be possible on a state-by-state basis. Such data are described in various Congressional Acts and often implicate campus safety. Collecting this vital data across states, and therefore monitoring nationwide trends, would be infeasible for individual states to perform and would thereby go unenforced.

83. For instance, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”) also requires colleges and universities to disclose, via an annual report, certain crimes that occur in certain places if they are reported to certain people. See 20 U.S.C. § 1092; 34 CFR 668.46. If the Department no longer processed the notice and reports made under this and other statutes, colleges and universities would lose a valuable partner in supporting their compliance with these reporting requirements and in interpreting and responding to the information gathered, which in turn would impede the ability of colleges and universities to keep their campus safe.

84. Similarly, the Department enforces reporting and compliance of campus safety with regard to drug and alcohol use under the Drug Free Schools and Communities Act and the HEA. These statutes require institutions of higher education to maintain policies surrounding illegal drug and alcohol use, and to determine the number of drug- and alcohol-related violations and fatalities associated with the institution. The Department collects this information from institutions and ensures compliance. Were the Department to cease enforcement of these Acts, institutions would no longer need to monitor and report this data, impacting campus safety.

85. The Violence Against Women Act requires the Secretary of Education to nationally survey reports of sexual and domestic violence or harassment across institutes of higher education. The Secretary of Education is required to report the data biennially, which institutions receiving federal funding must in turn publish (at a campus level) on their websites. This allows current or prospective students to make informed decisions regarding their place of education. Were the Department to cease collection of this information, not only would campus safety be affected by the lack of enforcement, but the Secretary of Education would be in violation of the Violence Against Women Act.

86. The Family Educational Rights and Privacy Act (FERPA) is enforced by the Department. It requires that institutions of higher education allow students to inspect their records, and that institutions obtain written request before sharing such records with external personnel. Lack of enforcement of FERPA places students’ data security and private records at risk.

87. The Department’s Office of Postsecondary Education is responsible for formulating federal postsecondary education policy and administering programs to support of increased access to quality postsecondary education. 20 U.S.C. § 3415.

88. The Department is also responsible for vital aspects of higher education accreditation. The accreditation of institutions of higher education is a joint process between the educational institutions, states, the Department, and third-party accreditation authorities. Accreditation ensures that educational institutions meet certain standards for quality and assures students that a degree from that institution has and will continue to have value in the workplace. The Department is responsible for reviewing the accreditation standards of agencies that review programs and institutions of higher education. While some accrediting agencies work without Department of Education recognition, these agencies need not conform to any standards of quality or integrity. Without Department-recognized accreditation, institutions of higher education may engage in profit-seeking behaviors without relating any educational benefits to students. Many unaccredited institutions are profit-hungry “diploma mills,” which lack external quality control or educational standards and whose diplomas are therefore meaningless to the job market and worthless to graduates.

The Department’s Programs Supporting Vocational Education and Rehabilitation.

89. The Department of Education provides both vocational education and vocational rehabilitation services to help individuals gain skills for employment and support those with disabilities in finding and maintaining jobs.

90. The Department’s Office of Vocational and Adult Education oversees programs that assist adults with obtaining a high school diploma or the equivalent and support them in their pursuit of postsecondary, career, or technical education.

91. The Department’s Office of Career, Technical, and Adult Education (OCTAE) administers and coordinates programs related to career and technical education, adult education and literacy, and community colleges for advancing workforce development. 20 U.S.C. § 3416.

92. OCTAE’s Division of Academic and Technical Education (DATE) is responsible for helping adult students acquire academic and technical skills to be prepared for high-skill, highwage, or high-demand occupations.

93. DATE administers formula and discretionary grant programs under the Carl D. Perkins Career and Technical Education Act (Perkins V), 20 U.S.C. §§ 2301–2414, which is the primary source of federal funding for career and technical education. DATE also provides assistance to states to improve program quality, implementation, and accountability, and establish national initiatives that help states implement rigorous career and vocational education programs.

94. DATE also administers the Perkins Collaborative Resource Network, which provides resources and tools for state directors and state staff who administer career and technical education programs.

95. OCTAE’s Division of Adult Education and Literacy (DAEL) administers adult education and literacy programs that help adults acquire the basic skills they need including reading, writing, math, English language proficiency, and problem-solving. The Office of Correctional Education, which coordinates efforts to support educational opportunities in correctional settings, is also located in DAEL.

96. DAEL administers formula grant programs to adults under the Adult Education and Family Literacy Act (AEFLA) and Title II of the Workforce Innovation and Opportunity Act. 29 U.S.C. §§ 3271–3333; 29 U.S.C. §§ 3101–3361. These programs provide assistance to states to improve program quality, accountability, and capacity, and establish national leadership activities to enhance the quality of adult education.

97. OCTAE provides national leadership to strengthen the role of community colleges in expanding access to postsecondary education for youth and adults and advancing workforce development.

98. OCTAE’s community college initiatives are designed to build public support for community colleges as centers of innovation and providers of excellent education and training that are affordable and accessible to all Americans, facilitate the dissemination of timely and actionable guidance on community college educations for teachers, administrators, students, parents, and employers, and promote the development of strategies that support students in the completion of their postsecondary certification and degree programs.

99. The Department of Education also provides critical vocational rehabilitation services and funding for individuals with disabilities through its Rehabilitation Services Administration (RSA), a component of the Department’s Office of Special Education and Rehabilitative Services (OSERS). 29 U.S.C. § 702. RSA provides leadership and resources to assist state and other agencies in providing vocational rehabilitation and other services to individuals with disabilities to maximize their employment, independence, and integration into the community and the competitive labor market.

100. The Rehabilitation Services Administration funds and administers many programs, including disability employment programs, an independent living program, technical assistance centers, training programs, and disability innovation fund programs.

101. Two disability employment programs—the State Vocational Rehabilitation Services Program and the State Supported Employment Services Program—provide formula grants to states to provide employment services for individuals with disabilities.

102. The State Vocational Rehabilitation Services Program is authorized by the Rehabilitation Act of 1973 (Rehabilitation Act), as amended by Title IV of the Workforce Innovation and Opportunity Act. This program provides grants to assist states in operating statewide vocational rehabilitation programs, each of which is an integral part of a statewide workforce development system.

103. The State Supported Employment Services Program is authorized by Title VI of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended by Title IV of the Workforce Innovation and Opportunity Act. This program provides grants to assist states in developing and implementing collaborative programs with appropriate entities to provide supported employment services for individuals with the most significant disabilities, including youth with the most significant disabilities, who require supported employment services following the achievement of a supported employment outcome.

104. Supported employment grant funds are used to supplement funds provided under the State Vocational Rehabilitation Services Program to provide supported employment services. Program funds may be used to provide supported employment services, once an individual has been placed in supported employment, for up to 24 months and to supplement other vocational rehabilitation services necessary to help individuals with the most significant disabilities find work in the integrated labor market.

105. The Rehabilitation Services Administration also provides Independent Living Services for Older Individuals Who Are Blind formula grants to states under Title VII, Chapter II of the Rehabilitation Act of 1973, as amended by Title IV of the Workforce Innovation and Opportunity Act, to support services for individuals age 55 or older whose severe visual impairment makes competitive employment difficult to obtain but for whom independent living goals are feasible.

106. The Rehabilitation Services Administration further provides critical technical assistance, training programs, and disability innovation fund programs to states supported through discretionary grants.

107. Certain technical assistance centers provide training and technical assistance to states and state agencies including those that ensure: that transition-age youth with disabilities receive high-quality education services, state agencies are trained to provide adequate vocational rehabilitation services to individuals who are blind, the increase in number and quality of employment outcomes for individuals with disabilities.

108. The Rehabilitation Services Administration also provides training programs and assistance to states. For example, it administers training programs to help fund undergraduate and graduate programs in the field of rehabilitation and training programs for the use of braille for personnel providing vocational rehabilitation services or education services to youth and adults who are blind. They also allow new and innovative training programs to improve methods of training rehabilitation personnel for more effective delivery of rehabilitation services.

109. The Rehabilitation Services Administration also provides funds through Disability Innovation Fund Programs (“Disability Innovation Fund”) to state agencies to conduct innovative activities aimed at improving outcomes for individuals with disabilities. For example, these funds allow evidence-based practices for individuals with disabilities to advance in high-demand and high-quality careers, foster partnerships among agencies, evaluate new or substantially improved model strategies to transition youth and adults with disabilities to competitive integrated employment, and increase the opportunity for Subminimum Wage to Competitive Integrated Employment program participants to obtain competitive integrated employment.

The Department’s Administration of Impact Aid.

110. Because school districts rely heavily on local property taxes for funding, property tax exemptions on federal land create funding shortages for neighboring school districts. The Impact Aid program, signed into law by President Harry Truman in 1950 (Pub. L. 815 and Pub. L. 874), is a critical method of ensuring the financial survival of local school districts whose revenue is decreased due to the presence of non-taxable federal land. School districts that are near, or serve students from, military bases, federal lands, federal low-rent housing facilities, and tribal communities lose local revenue because of the presence of these nontaxable federal activities. While these school districts typically continue to receive funding from their states, Impact Aid funding partially reimburses school districts for this loss of locally-derived revenue.

111. The Department is the primary agency responsible for administering Impact Aid payments to local school districts. See ESEA, Title VII, 20 U.S.C. § 7701–7714, 34 C.F.R. § 222. Every year, each school district seeking Impact Aid must submit an application to the Department. Typically this is January 31, though late application deadlines can extend to April 1 with payment of a penalty. The Department reviews the applications and processes payments based on congressional appropriations each fiscal year and allocates funding in multiple installments until all available funds are distributed.

112. Many school districts within the Plaintiff States are heavily dependent on the Department’s effective funding distribution and administration of Impact Aid due to the large amount of nontaxable federal property within their boundaries, as the amount of Impact Aid received by each school district is based on the number of affected students who live on federal property or whose parents work in federal facilities. School districts within Plaintiff States receive hundreds of millions of dollars annually in Impact Aid funding for construction, special education, maintenance, and operations.

113. The Impact Aid Program is the only K–12 Federal education program that is not forward funded. Any delay in either appropriations or administration has an immediate impact on Impact Aid-recipient school districts’ ability to fund day-today operations, instructional expenditures, utility payments or payroll.

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Part 2 of 2

B. The President’s Directive to Dismantle the Department of Education and the Secretary of Education’s Elimination of Nearly Half of the Department’s Workforce.

114. President Trump has publicly described his intention to dismantle the Department of Education. That goal has been plainly and repeatedly stated: President Trump called the Department of Education “a big con job” and declared that he would “like to close it immediately.” See, e.g., Michael C. Bender, Trump Is Said to Be Preparing Order That Aims to Eliminate Education Dept., The New York Times (Mar. 6, 2025), https://www.nytimes.com/2025/03/06/us/p ... utiveorder. html. He also stated that he would like the newly installed Secretary of Education, Linda McMahon, to put herself “out of a job.” Zachary B. Wolf, Trump and Musk are moving to smother these three pieces of the government, CNN (Feb. 5, 2025) (“I told Linda, ‘Linda, I hope you do a great job in putting yourself out of a job.’ I want her to put herself out of a job – Education Department.”).

115. Secretary McMahon has indicated that she plans to heed this call and break down the Department of Education from within. She affirmed that “President Trump believes that the bureaucracy in Washington should be abolished so that we can return education to the states, where it belongs,” and that she “wholeheartedly support[s] and agree[s] with this mission.” Cochran, McMahon, cited supra ¶ 5. On March 3, 2025, Secretary McMahon asked employees to join her in “perform[ing] one final, unforgettable public service to future generations of students” by dismantling the Department of Education. Secretary McMahon: Our Department’s Final Mission, U.S. Department of Education (Mar. 3, 2025), https://perma.cc/F7BT-MQ3D.

116. On March 6, 2025, news outlets reported that the White House had drafted an executive order calling on the Secretary of Education to “take all necessary steps to facilitate the closure of the Department of Education (DOE) and return authority over education to the States and local communities, the maximum extent allowed by law.”

117. On March 11, 2025, five days after reports of the draft executive order calling for the Department’s dismantling, the U.S. Department of Education announced that its workforce is being cut virtually in half. The Department described a massive reduction in force (RIF)—as part of its “final mission”—that affects “[a]ll divisions within the Department.” U.S. Department of Education Initiates Reduction in Force, Press Release (Mar. 11, 2025), https://www.ed.gov/about/news/press-rel ... ctionforce.

118. Based on figures provided by the Department, the RIF displaces approximately 1,378 employees, all of whom “will be placed on administrative leave beginning Friday, March 21st.” The total reduction in force to the Department of Education is “roughly” 1,950 people: the approximately 1,378 employees subject to the RIF, the 259 employees that accepted the so-called “Fork in the Road” offer (referred to in the press release as the “Deferred Resignation Program”), and the 313 employees that accepted a “Voluntary Separation Incentive Payment.” The press release states that “[a]fter today’s actions, the Department’s workforce will total roughly 2,183 workers,” an approximately 50% cut from the 4,133 workers the Department of Education had “[w]hen President Trump was inaugurated.”

119. On March 11, 2025, Secretary McMahon stated, during an interview with Laura Ingraham of Fox News, that the workforce reductions were the first steps in dismantling the Department of Education:

Ingraham: Now, is this the first step on the road to a total shutdown?

McMahon: Yes, actually it is, because that was the President’s mandate. His directive to me, clearly, is to shut down the Department of Education, which we know we’ll have to work with Congress, you know, to get that accomplished. But what we did today was to take the first step of eliminating what I think is bureaucratic bloat.

See Fox News Channel, https://www.foxnews.com/video/6369901522112 (televised interview).

120. On information and belief, the RIF devastated important segments of the Department of Education, rendering the agency unable to perform its core functions.

121. On information and belief, almost the entire staff of the Institute of Education Sciences has been eliminated.

122. On information and belief, the majority of staff in the Office for Civil Rights have been eliminated or otherwise removed. The Office for Civil Rights, created by Congress and codified at 20 U.S.C. § 3413, enforces federal civil rights laws in schools and other recipients of Department of Education funding, and directs, coordinates, and recommends policy for activities that are designed to administer the provisions of legislation and Departmental policy prohibiting discrimination on the basis of race, color, national origin, sex, handicap, or age. Regional offices of the Office for Civil Rights in Boston, San Francisco, Cleveland, New York, Chicago, Dallas, and Philadelphia have been eliminated and closed, with employees terminated in each of those offices.

123. The cuts to the Office for Civil Rights will have deep impacts on the Department of Education’s ability to carry out its vital work. Given that the RIF heavily impacted investigative staff, on information and belief the cuts will force remaining investigators to nearly double their caseloads, severely limiting meaningful investigation of discrimination in schools.

124. On information and belief, the Office of General Counsel has also been gutted, with many divisions eliminated and approximately three-quarters of OGC’s staff terminated. One such eliminated division, the Ethics Division, is responsible for counseling current and past Department employees on ethics matters. On information and belief, the Office of General Counsel advised offices and units across the Department and its effective gutting will negatively impact the Department’s ability to perform statutory functions.

125. On information and belief, all OGC attorneys specializing in K–12 grants, IDEA grants, and equity grants have been terminated. The RIF has also resulted in the termination of most OGC attorneys focused on privacy issues.

126. On information and belief, the RIF has had a material impact on the Office of Special Education and Rehabilitation Services, which serves as the principal adviser to the Secretary on Departmental matters related to special education and rehabilitative services. See 20 U.S.C. § 3417. In particular, the RIF may hamstring OSERS activities related to policy, program and strategic planning, regulations, evaluation, and grant activities.

127. On information and belief, the RIF has also effectively eliminated the Office of Elementary and Secondary Education’s State and Grantee Relations Team, which partners with stakeholders and connects them to the resources and relationships they need to support and educate students nationally.

128. On information and belief, the RIF has also seriously impacted the Department of Education’s FSA. FSA directs, coordinates, and recommends policies for programs that are designed to provide financial assistance to eligible students enrolled in postsecondary educational institutions. This assistance includes grants, loans, and work-study assistance to nearly 12.9 million students through approximately 6,100 postsecondary institutions.

129. Upon information and belief, given the impending challenges of students facing renewed payments following the pandemic, the Department employed contractors to help borrowers weather the resumed payments. Even prior to the RIF, it was reported on March 7, that “the agency hasn’t been able to provide any communication to schools, servicers, or borrowers about how to navigate the changes that are coming.” https://edition.cnn.com/2025/03/07/poli ... tion-trump. “And many staffers with institutionalized knowledge about the aid programs have been fired or left.” Id.

130. In a public LinkedIn post, the Executive Director of the newly formed Office of Loan Portfolio Management at Federal Student Aid wrote:

When I accepted the position two months ago, I dove in, putting together a strategy for tackling the challenges that I knew would come with managing a group of 200 dedicated public servants and shepherding 43M borrowers back into our complex repayment environment after a long payment pause and on-ramp. But now, I have lost many of those 200 staff, with more to come. I spend my days justifying our existence, our dignity, and our mission. I try to keep the work going in spite of the impossible environment we find ourselves in. I'm afraid of what the coming days, weeks, months, years will bring not just for me and the Department, but for the borrowers we serve. I've dedicated my career to the work of supporting college affordability and a student aid system that supports our most vulnerable, and it is heartbreaking to see that dissolving before my eyes. I'm not sure what the future will bring, but as always, I’m here to fight, to work for the mission, to do the right thing.

https://www.linkedin.com/feed/update/ur ... 3838350337.

131. On information and belief, within FSA, the RIF has resulted in the termination of many of the Department’s employees in the School Eligibility and Oversight Services Group, which is responsible for administering a program of eligibility, certification, financial analysis, and oversight of schools participating in Federal Student Aid programs. In order to receive Federal Student Aid funds, schools must remain compliant with Title IV requirements and submit to audits which confirm compliance. Department employees responsible for Title IV oversight ensure compliance, process auditing results, and release Title IV funding timely.

132. On information and belief, the RIF has effectively eliminated FSA’s Vendor Oversight Division, which oversees and assists federal student loan servicers. The Vendor Oversight Division is responsible for ensuring that loan servicers fulfill their contracts while meeting Department requirements. When such requirements are not met, it is responsible for enforcing corrective action. For example, when the Higher Education Loan Authority of the State of Missouri (MOHELA) failed to comply with its contractual requirements after the return to repayment in August 2023, including mismanaging borrower accounts, the Department imposed a corrective action plan on MOHELA, which the Vendor Oversight Division is responsible for overseeing and defending. The Vendor Oversight Division also plays a key role in verifying compliance with the requirements of the Public Service Loan Forgiveness (PSLF) program and the Income-Based Repayment plan before instructing federal loan servicers to discharge a student’s debt under these programs.

133. On information and belief, the RIF has eliminated key staff members in FSA’s Product Management Group, including those responsible for the online income-driven repayment application, Direct Loan Consolidation application, and PSLF Help Tool, which enables borrowers to certify their qualifying employment for the PSLF Program.

134. In sum, on information and belief, the RIF has so severely impaired the Department of Education that it can no longer function, and cannot comply with its statutory requirements.

C. The Incapacitation of the Department of Education Will Cause Grave Harm to the States and Their Residents.

135. The effective gutting of the Department of Education will result in a wide range of devastating harms for Plaintiff States and their residents that could be neither prevented nor mitigated.

136. The Directive and RIF will result in the loss of or delays in Department funding and supports impacting nearly every aspect of K–12 education in the Plaintiff States because there will be such a significant reduction in staff. These impacts will include teacher shortages from the loss in salary funding, which in turn will result in increased class sizes. The impacts will also include a loss of professional development and salaries for special education teachers, paraprofessionals, reading specialists, physical therapists, speech therapists, and social workers, which in turn will result in lost educational opportunities for students that cannot be recovered or remedied. Without Department of Education financial support, states will lose critical services from special education students and students with IEPs. States would lose funding for assistive technology for students with disabilities, and funding for transportation to help children receive the services and programming they need. The dismantling of the Department will also result in the termination of afterschool programs.

137. Regardless of what alternative resources are put in the place of the Department of Education, the process of the Department’s dismantling will create and has created chaos, disruption, uncertainty, delays and confusion for Plaintiff States and their residents. States anticipating federal fund disbursements do not know whether staff will be employed and able to be contacted regarding those disbursements. Students at state universities do not know whether their federal student aid packages will be timely processed and made available before the Fall 2025 semester begins.

138. For instance, on March 12, 2025, the day after the RIF was announced, the Department’s website for administering the distribution of federal funds (referred to as the “G6” system) became unavailable. G6 was the Department system used for managing federal funds, and allowed schools to request payments, adjust drawdowns, and return cash to the Department for many Title IV programs. On March 12, the website for the G6 system stated: “G6.ed.gov will no longer exist, G5.gov will be the correct URL. To access G5, external users should enter their G5 email ID and their G5 email password.”

139. When certain users then attempted to then access the G5.gov system for the distribution of federal funds, the G5 website announced:

ALERT: Due to severe staffing restraints, you can expect delays in connecting to a live help desk agent for assistance with G5. We recommend sending an email to [email protected] with a summary of your issue or question. The next available agent during normal business hours will respond to your email in the order it was received.

140. On March 12, 2025, a user of the G5 system from the Massachusetts Department of Elementary and Secondary Education attempted to access the G5 system in order to process a request for anticipated disbursements of federal funds, but was unable to access the G5 system for hours. The user was told that the G5 system was experiencing a “system glitch.”

141. The harms from the dismantling of the Department go beyond systems breakdowns and unresponsive administrators.

142. On information and belief, the dismantling of the Department has more than decimated the Office for Civil Rights (OCR). Without a functioning OCR, school districts in Plaintiff States may be emboldened to restrict access to quality education and ignore complaints of discrimination or hate against students based on race, gender identity, disability status, religion, and immigration status. Students with current complaints will likely see no meaningful resolution, with cases backlogged due to the shortage of employees to resolve them. Students facing discrimination, sexual harassment, or sexual assault will lose a critical avenue to report their case.

143. On information and belief, the dismantling of the Department will result in higher costs to attend institutions of higher education. Not only will federal funding for Pell grants, workstudy programs and subsidized loans be at risk, but so too will the Department’s administration of those programs, without which they cannot operate even if they were fully funded. Without these federal programs supporting students of higher education, the cost of pursuing higher education will increase and fewer students will have the opportunity to attend college. For many state university systems, disruption to or loss of Pell grants would be an existential threat, especially to their mission to serve first generation college students.

144. On information and belief, the gutting of the Office of General Counsel that has resulted from the dismantling of the Department will have impacts throughout the Department’s statutory and non-statutory functions. Without the now-eliminated Ethics Division, current Department employees are now deprived of the counseling regarding ethics matters that govern all manner of agency actions affecting Plaintiff States’ participation in Department programs. The termination of all OGC attorneys specializing in K–12 grants, IDEA grants, and equity grants will necessarily impede the Department’s ability to award and administer those grants to Plaintiff States.

145. On information and belief, the RIF’s effective elimination of the Office of Elementary and Secondary Education’s State and Grantee Relations Team signifies the Plaintiff States’ loss of a critical partner in identifying and developing the resources and relationships needed to support and educate students.

146. On information and belief, the RIF’s impacts on the implementation of the Federal Student Aid program will be monumental. By terminating many of the Department’s employees in the School Eligibility and Oversight Services Group, the Department has lost the tool responsible for administering a program of eligibility, certification, financial analysis, and oversight of schools participating in Federal Student Aid programs. Moreover, with the effective elimination of FSA’s Vendor Oversight Division, which oversees and assists federal student loan servicers, Plaintiff States and their students lose tools to help ensure that loan servicers comply with their contractual requirements.

147. On information and belief, in addition to these disruptions of the administration of Federal Student Aid generally is the disruption that will come to the administration of FAFSA applications specifically. With the destruction of these multiple aspects of the FSA program at the Department, the Department is deprived of the administrative systems necessary to administer and process the millions of FAFSA applications the Department receives. Indeed, the dismantling of the Department comes just as the college admissions and decisionmaking process is at its peak, with the FAFSA application deadline merely two and a half months from the RIF. The President’s Directive and the Agency Defendants’ implementation of it has resulted in mass uncertainty regarding whether and how FAFSA applications will be processed, and will result in delays and obstructions in the immediate future.

148. On information and belief, without the Vendor Oversight Division’s verification of compliance with the requirements of the Public Service Loan Forgiveness program and the Income-Based Repayment plan, Plaintiff States and their educational institutions are deprived of a system by which loan servicers receive instructions regarding the discharge of student debt under FSA programs.

CAUSES OF ACTION
Count I
Violation of the Separation of Powers Doctrine – Usurping Legislative Authority
(Against All Defendants)

149. The States reallege and incorporate by reference the allegations set forth in the preceding paragraphs.

150. Article I, Section 1 of the United States Constitution enumerates that: “[a]ll legislative Powers herein granted shall be vested in . . . Congress.” U.S. Const. Art. I, Sec. 1.

151. “The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that ‘differences of opinion’ and the ‘jarrings of parties’ would ‘promote deliberation and circumspection’ and ‘check excesses in the majority.’” Seila Law LLC, 591 U.S. at 223 (quoting The Federalist No. 70, at 475 (A. Hamilton) and No. 51, at 350).

152. Thus “‘important subjects . . . must be entirely regulated by the legislature itself,’ even if Congress may leave the Executive ‘to act under such general provisions to fill up the details.’” West Virginia v. EPA, 597 U.S. 697, 737 (2022) (Gorsuch, J., concurring) (quoting Wayman v. Southard, 10 Wheat. 1, 42–43, 6 L.Ed. 253 (1825)).

153. The separation of powers doctrine thus represents a central tenet of our Constitution. See, e.g., Trump v. United States, 603 U.S. 593, 637–38 (2024); Seila Law LLC, 591 U.S. at 227.

154. Consistent with these principles, the Executive’s powers are limited to those specifically conferred by the Constitution and federal statutes, and do not include any undefined residual or inherent power.

155. Any instance where the President, by Executive Order or otherwise, directs an agency to take an action that runs afoul of a statute or the legislative intent of Congress, violates the Separation of Powers doctrine.

156. Any instance where the President, by Executive Order or otherwise, directs that an agency authorized by Congress to perform statutory duties cease operations, effectively repeals the statutes that authorize that agency and thus violates the Separation of Powers doctrine.

157. Here, where Congress has created the Department of Education, the Executive and his agencies cannot incapacitate it, absent Congressional action that directs them to do so. The Actions challenged herein thus violate Constitutional and statutory mandates, contravene Congressional intent, and are unlawful.

158. This court is authorized to enjoin any action by the Executive and his agencies that “is unauthorized by statute, exceeds the scope of constitutional authority, or is pursuant to unconstitutional enactment.” Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569, 576 (D.D.C. 1952), aff ’d, 343 U.S. 579.

159. Pursuant to 28 U.S.C. § 2201, the States are also entitled to a declaration that the President’s Directive and the Department of Education’s implementation of the Directive violates the constitutional separation of powers doctrine, and impermissibly arrogates to the executive power that is reserved to Congress.

Count II
Violation of the Separation of Powers – Take Care Clause
(Against All Defendants)

160. The States reallege and incorporate by reference the allegations set forth in the preceding paragraphs.

161. The Take Care Clause provides that the executive must “take Care that the Laws be faithfully executed . . . .” U.S. Const. Art. II, Sec. 3; UARG v. EPA, 573 U.S. 302, 327 (2014) (“Under our system of government, Congress makes the laws and the President . . . faithfully executes them” (quotation and citation omitted)).

162. The Executive violates the Take Care Clause where it declines to execute or otherwise undermines statutes enacted by Congress and signed into law or duly promulgated regulations implementing such statutes. See In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 551 (D.C. Cir. 1999) (“the President is without authority to set aside congressional legislation by executive order”); Kendall v. United States, 37 U.S. 524, 613 (1838) (rejecting argument that by charging the President with faithful execution of the laws, the Take Care clause “implies a power to forbid their execution”).

163. By issuing the Directive to dismantle an agency authorized by Congress, the President has failed to faithfully execute the laws enacted by Congress in violation of the Take Care Clause.

164. This court is authorized to enjoin any action by the Executive and his agencies that “is unauthorized by statute, exceeds the scope of constitutional authority, or is pursuant to unconstitutional enactment.” Youngstown Sheet & Tube Co., 103 F. Supp. at 576, aff ’d, 343 U.S. 579.

165. Pursuant to 28 U.S.C. § 2201, the States are also entitled to a declaration that the Directive and the Department of Education’s implementation violates the constitutional separation of powers doctrine, and impermissibly arrogates to the executive power that is reserved to Congress.

Count III
Ultra Vires – Conduct Outside the Scope of
Statutory Authority Conferred on the Executive
(Against All Defendants)

166. The States reallege and incorporate by reference the allegations set forth in the preceding paragraphs.

167. Neither the President nor an agency can take any action that exceeds the scope of their constitutional and/or statutory authority.

168. Federal courts possess the power in equity to grant injunctive relief “with respect to violations of federal law by federal officials.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326–27 (2015). Indeed, the Supreme Court has repeatedly allowed equitable relief against federal officials who act “beyond th[e] limitations” imposed by federal statute. Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689 (1949).

169. Defendants’ conduct in issuing the Directive and the Department of Education’s implementation of it is contrary to law and outside of Defendants’ authority.

170. Pursuant to 28 U.S.C. § 2201, Plaintiff States are entitled to a declaration that the Directive and the Department of Education’s implementation of it is contrary to law and outside of Defendants’ authority.

171. Plaintiff States are further entitled to a preliminary and permanent injunction preventing Agency Defendants from implementing the Directive.

Count IV
Violation of the Administrative Procedure Act – Contrary to Law
(Against Agency Defendants)

172. Plaintiff States incorporate by reference the allegations contained in the preceding paragraphs.

173. Agency Defendants are “agenc[ies]” under the APA. 5 U.S.C. § 551(1).

174. Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(B)–(C).

175. Congress enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 391 (2024) (quoting U.S. v. Morton Salt, 338 U.S. 632, 644 (1950)). In Loper Bright, the Supreme Court clarified that historical principles of “respect” did not equate to deference, and that “Section 706 makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference.” Id. at 392 (emphasis in original). Rather, it “remains the responsibility of the court to decide whether the law means what the agency says.” Id. (quoting Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 109 (2015) (Scalia, J., concurring in judgment)).

176. An agency may not take any action that exceeds the scope of its constitutional or statutory authority.

177. No constitutional or statutory authority authorizes the Department of Education to refrain from fulfilling its statutory duties, or to violate federal law.

178. An agency likewise may not violate its own regulations. When a federal agency promulgates “[r]egulations with the force and effect of law,” those regulations “supplement the bare bones” of federal statutes. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954). “It is an abecedarian principle of administrative law that agencies must comply with their own regulations.” Manguriu v. Lynch, 794 F.3d 119, 122 (1st Cir. 2015) (citation omitted). An agency’s action may be set aside pursuant to the APA if the action violates the agency’s own procedures, particularly if that error prejudices the interest of a person before the agency. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545–46 (6th Cir. 2004); see also Town of Weymouth, Mass. v. Mass. Dep’t of Env’t Prot., 961 F.3d 34, 47 (1st Cir. 2020), on reh’g, 973 F.3d 143 (1st Cir. 2020) (“[A]n agency action may be set aside as arbitrary and capricious if the agency fails to ‘comply with its own regulations.’” (quoting Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014)).

179. The Agency Defendants lack authority to implement the Directive as it calls for actions that are not authorized by statute, and are in direct contravention of statutory authority governing the creation and operation of the Department of Education. The Agency Defendants also lack authority to use a RIF to override the limitations on their own power to dismantle statutorilymandated agency functions. These agency actions are unauthorized, unprecedented, and not entitled to deference by this Court.

180. In enacting the Directive, the Agency Defendants have acted contrary to the applicable regulations governing the administration of Department functions.

181. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiff States are entitled to a declaration that the Agency Defendants lack legal authority to implement the Directive, contrary to congressional directive and intent, and have, in so doing, acted contrary to law, outside of statutory authority, and in violation of the APA.

182. Plaintiff States are also entitled to vacatur of the Department of Education’s implementation of the Directive, and a preliminary and permanent injunction preventing the Agency Defendants from implementing the Directive.

Count V
Violation of the Administrative Procedure Act –
Arbitrary & Capricious and an Abuse of Discretion
(Against Agency Defendants)

183. Plaintiff States incorporate by reference the allegations contained in the preceding paragraphs.

184. Defendants include “agenc[ies]” under the APA 5 U.S.C. § 551(1).

185. The APA requires that a court “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

186. An agency action is arbitrary or capricious where it is not “reasonable and reasonably explained.” FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). An agency must provide “a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted).

187. That “reasoned explanation requirement of administrative law . . . is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” Dep’t of Commerce v. New York, 588 U.S. 752, 785 (2019). Agencies may not rely on explanations that are “contrived” or “incongruent with what the record reveals about the agency’s priorities and decisionmaking process.” Id.

188. An action is also arbitrary and capricious if the agency “failed to consider . . . important aspect[s] of the problem” before it. Dep’t of Homeland Sec. v. Regents of the Univ. of Calif., 591 U.S. 1, 25 (2020) (quoting Motor Vehicle Mfrs., 463 U.S. at 43).

189. The Department’s mass RIF is arbitrary and capricious because the Department provided no reasoned basis or explanation for its mass RIF.

190. The Department’s RIF is arbitrary and capricious because the Agency Defendants failed to consider the consequences of their actions.

191. The Department’s RIF is arbitrary and capricious because the Department’s stated reasons for the RIF—to promote “efficiency” and “accountability” —are pretext for the President and Secretary McMahon’s stated goal of dismantling the Department from within.

192. The Department’s RIF is arbitrary and capricious because the Agency Defendants’ actions impede their ability to perform the Department’s functions, both those that are required by statute and those that are not.

193. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiff States are entitled to a declaration that the Agency Defendants’ actions implementing the Directive violate the APA because they are arbitrary and capricious.

194. Plaintiff States are also entitled to vacatur of the Agency Defendants’ implementation of the Directive pursuant to 5 U.S.C. § 706, and a preliminary and permanent injunction preventing Agency Defendants from implementing the Directive.

195. Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(B)–(C).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff States pray that this Court:

i. Issue a judicial declaration that President Trump’s Directive to dismantle the Department of Education, and the Department of Education’s implementation of the Directive are unlawful because they violate the United States Constitution and the Administrative Procedure Act;

ii. Pursuant to 5 U.S.C. § 706, vacate Agency Defendants’ actions implementing President Trump’s Directive to dismantle the Department of Education;

iii. Preliminarily and permanently enjoin the Agency Defendants from implementing President Trump’s Directive to dismantle the Department of Education, including through ordering a reduction in force;

iv. Award the Plaintiff States their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and

v. Grant other such relief as this Court may deem proper.

Dated: March 13, 2025

Respectfully submitted,

ANDREA JOY CAMPBELL
Attorney General for the Commonwealth of Massachusetts
By: /s/ Katherine Dirks

Katherine Dirks (BBO No. 673674)
Chief State Trial Counsel
Yael Shavit (BBO No. 695333)
Chief, Consumer Protection Division
Elizabeth Carnes-Flynn (BBO No. 687708)
Nathaniel Hyman (BBO No. 698506)
Assistant Attorneys General
1 Ashburton Pl.
Boston, MA 02108
(617) 963-2277
[email protected]
[email protected]
[email protected]
[email protected]

LETITIA JAMES
Attorney General for the State of New York

By: /s/ Rabia Muqaddam
Rabia Muqaddam*
Special Counsel for Federal Initiatives
Molly Thomas-Jensen*
Gina Bull*
Special Counsel
28 Liberty St.
New York, NY 10005
(929) 638-0447
[email protected]
[email protected]
[email protected]

ANNE E. LOPEZ
Attorney General for the State of Hawaiʻi

By: /s/ Kalikoʻonālani D. Fernandes
David D. Day*
Special Assistant to the Attorney General
Kalikoʻonālani D. Fernandes*
Solicitor General
Ewan C. Rayner*
Deputy Solicitor General
425 Queen Street
Honolulu, HI 96813
(808) 586-1360
[email protected]
[email protected]
[email protected]

ROB BONTA
Attorney General for the State of California

By: /s/ Lucia Choi
Lucia Choi*
Deputy Attorney General
Michael L. Newman*
Senior Assistant Attorney General
Srividya Panchalam*
James E. Stanley*
Supervising Deputy Attorneys General
Natasha A. Reyes*
Deputy Attorney General
California Attorney General’s Office
300 South Spring Street
Los Angeles, CA 90013
(213) 269-6364
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

PHIL WEISER
Attorney General for the State of Colorado

By: /s/ David Moskowitz
David Moskowitz*
Deputy Solicitor General
1300 Broadway, #10
Denver, CO 80203
(720) 508-6000
[email protected]

KRISTIN K. MAYES
Attorney General for the State of Arizona

By: /s/ Hayleigh S. Crawford
Hayleigh S. Crawford*
Deputy Solicitor General
2005 North Central Avenue
Phoenix, AZ 85004
(602) 542-3333
[email protected]
[email protected]

KATHLEEN JENNINGS
Attorney General for the State of Delaware
By: /s/ Ian R. Liston
Ian R. Liston*
Director of Impact Litigation
Vanessa L. Kassab*
Deputy Attorney General
Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801
(302) 683-8899
[email protected]

WILLIAM TONG
Attorney General for the State of Connecticut

By: /s/ Patrick Ring
Patrick Ring*
Assistant Attorney General
165 Capitol Avenue
Hartford, CT 06106
(860) 808 5020
[email protected]

BRIAN L. SCHWALB
Attorney General for the District of Columbia

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

KWAME RAOUL
Attorney General for the State of Illinois

By: /s/ Karyn L. Bass Ehler
Karyn L. Bass Ehler*
Assistant Chief Deputy Attorney General
Katharine P. Roberts*
Assistant Attorney General
Office of the Illinois Attorney General
115 S. LaSalle St.
Chicago, IL 60603
(312) 814-4985
[email protected]
[email protected]

AARON M. FREY
Attorney General for the State of Maine

By: /s/ Sean D. Magenis
Sean D. Magenis*
Assistant Attorney General
Office of the Attorney General
6 State House Station
Augusta, ME 04333-0006
(207) 626-8800
[email protected]

ANTHONY G. BROWN
Attorney General for the State of Maryland

By: /s/ Keith M. Jamieson*
Keith M. Jamieson*
Assistant Attorney General
Office of the Attorney General
200 Saint Paul Place, 20th Floor
Baltimore, MD 21202
(410) 576-6960
[email protected]

DANA NESSEL
Attorney General for the People of Michigan

By: /s/ Neil Giovanatti
Neil Giovanatti*
Kathleen Halloran*
Assistant Attorneys General
Michigan Department of Attorney General
525 W. Ottawa
Lansing, MI 48909
(517) 335-7603
[email protected]
[email protected]

KEITH ELLISON
Attorney General for the State of Minnesota

By: /s/ Liz Kramer
Liz Kramer*
Solicitor General
445 Minnesota Street, Suite 1400
St. Paul, MN, 55101
(651) 757-1010
[email protected]

AARON D. FORD
Attorney General for the State of Nevada

By: /s/ Heidi Parry Stern
Heidi Parry Stern*
Solicitor General
Office of the Nevada Attorney
General
1 State of Nevada Way, Ste. 100
Las Vegas, NV 89119
[email protected]

MATTHEW J. PLATKIN
Attorney General for the State of New Jersey

By: /s/ Jessica L. Palmer
Jessica L. Palmer*
Deputy Attorney General
25 Market Street
Trenton, NJ 08625-0093
(609) 696-4607
[email protected]

DAN RAYFIELD
Attorney General for the State of Oregon

By: /s/ Elleanor H. Chin
Elleanor H. Chin*
Senior Assistant Attorney General
100 SW Market Street
Portland, OR 97201
(971) 673-1880
[email protected]

PETER F. NERONHA
Attorney General for the State of Rhode Island

By: /s/ Kathryn T. Gradowski
Kathryn T. Gradowski*
Special Assistant Attorney General
150 South Main Street
Providence, RI 02903
(401) 274-4400, Ext. 2810
[email protected]

CHARITY R. CLARK
Attorney General for the State of Vermont

By: /s/ Jonathan T. Rose
Jonathan T. Rose*
Solicitor General
109 State Street
Montpelier, VT 05609
(802) 793-1646
[email protected]

JOSHUA L. KAUL
Attorney General for the State of Wisconsin

By: /s/ Charlotte Gibson
Charlotte Gibson*
Assistant Attorney General
Wisconsin Department of Justice
Post Office Box 7857
Madison, WI 53707-7857
(608) 957-5218
[email protected]

NICHOLAS W. BROWN
Attorney General for the State of Washington

By: /s/ Spencer W. Coates
Spencer W. Coates*
Assistant Attorney General
Cristina Sepe*
Deputy Solicitor General
Office of the Washington State Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
[email protected]
[email protected]
*Pro Hac Vice Applications Forthcoming

[admin]

What Every American Can Do To Fight DOGE
by Marc Elias and Jamie Raskin
Democracy Docket
Mar 13, 2025 Defending Democracy — Complete Podcast

[Marc Elias] So let me start with something that I don't understand. So you got Article I of the Constitution, which is the Congress, and lays out Congress's power; and you got Article II, which lays out the Executive Branch's power; and you got Article III that lays out the Judicial branch. And I think the Founders had in mind that the most powerful of these branches would actually be the first, would be Article I, right? It would be Congress. And that it would jealously guard its authority -- particularly its ability to spend money, and its ability to issue taxes -- that it would jealously guard this power from a rapacious Executive. That does not seem to be happening. So what do you make of this? Either put on your Constitutional law hat, or put on your member of Congress hat, but what do you make of this?

[Jamie Raskin] Well, in one sense, this is a decades-long process of erosion of Congressional lawmaking power. But this is a dramatic and sudden jump into the unknown, with the President basically defying Congress in Congressional statutes and Appropriations at every turn. But to go back to the beginning, Marc, look, we had a revolution against a king, against a monarch. The first three words of the Constitution are, "We the people." And then, after you get through our beautiful Preamble, it leads right into the creation of Article I: "All legislative power is vested in the Congress of the United States." The sovereign power of the People to create the Constitution flows right into the Congressional power of lawmaking. And you know, Article I lays out everything, from regulating Commerce domestically and internationally, to the power to declare war, budgets, taxes, you name it. And even in Article 1, Section 8, Clause 18, all other powers necessary and proper to the execution of the forgoing powers, right?

Then you get to Article II. My colleague, Jim Jordan's, been running around TV saying that Article II says, in the first sentence, "All Executive power is vested in the President." Yeah, that's true, but what is the executive power, right? When you get past commander-in-chief of the Army and Navy in times of actual conflict, or when the militia's been mobilized, what's the core job of the President? "To take care that the laws are faithfully executed." That's it. "To take care that the laws are faithfully executed." The Articles of Confederation didn't even have a President, right? And then they thought that that was too inefficient, and there was nobody to keep things going to, you know, move the bureaucracy when Congress wasn't in town. And then the President was created, but very clearly in a secondary position. As Madison put it in the Federalist Papers, "The legislative branch is the predominant branch of government."

So sometimes my colleagues will get up, even Democrats will say, "We're three co-equal branches of government." And I just want to say, first of all, "co-equal" is not even a word, okay? You know, that's like extremely unique, or something like that. Secondly, the claim that we have three equal branches is just ridiculous. I mean, when you get to Article II, you've got four short sections. One section is all about how you impeach a President for treason, bribery, and other high crimes and misdemeanors. If we're co-equal, or equal, or equivalent, or whatever, why do we have the power to impeach and try and convict a president, and he doesn't have the power to impeach and try and convict us? The framers were clearly a lot more afraid of a President purporting to be a King, or arrogating the powers of a dictator, than it was afraid of Congress; all of the people, coming from this great huge, vast, diverse country, from different points of views, and working together, and split between the House and the Senate with bicameralism. So, as you know, Washington told Jefferson in that famous anecdote,

There is a tradition that Jefferson coming home from France, called Washington to account at the breakfast-table for having agreed to a second, and, as Jefferson thought, unnecessary legislative Chamber.

"Why," asked Washington, "did you just now pour that coffee into your saucer, before drinking?"

"To cool it," answered Jefferson, "my throat is not made of brass."

"Even so," rejoined Washington, "we pour our legislation into the senatorial saucer to cool it."

It's like, you know, pouring your tea from the cup into the saucer so it can cool off a little bit, right? And the Senate is supposed to allow the passions and tempers of the House of Representatives to cool off a little bit. But in any event, Congress is the lawmaking branch. We also have the power of the purse. We've got the power to spend, right? And you know this Marc, an Appropriations Act is just another federal law. It's like a law against assaulting Federal officers. And they should show more respect for both the law against assaulting Federal officers, and for an Appropriations Act. An Appropriations Act is not a budgetary recommendation, or a point of negotiation, or a bargaining chip with the President. It's a law you follow. The law "To take care that the laws are faithfully executed." So do your job, yeah?  

-- What Every American Can Do To Fight DOGE, by Marc Elias and Jamie Raskin, Democracy Docket, Mar 13, 2025

Maryland Congressman Jamie Raskin joins Defending Democracy to discuss the state of democracy, how Republicans are ceding their constitutional powers and the one action every American should do to protest DOGE.



Transcript

Donald Trump has seized congress's
constitutional power but Republican
leaders are giving it to him
representative Jamie Rasin is here to
discuss welcome back to defending
democracy I'm Mark Elias let's get
started Congressman Rasin welcome back
to defending democracy uh thank you for
having me Mark delighted to be with you
of course all right so I need everyone
to hear from you because you are both
the foremost uh scholar in the Congress
about congressional power the
Constitution executive branch power and
also you're just a super smart member of
Congress who understands how the body
works.

So let me start with something
that I don't understand. So you got
Article I of the Constitution, which
is the Congress, and lays out Congress's
power; and you got Article II, which lays out
the Executive Branch's power; and you got
Article III that lays out the
Judicial branch. And I think the Founders
had in mind that the most powerful of
these branches would actually be the
first, would be Article I, right? It would
be Congress. And that it would jealously
guard its authority -- particularly its ability to
spend money, and its ability to
issue taxes -- that it would jealously
guard this power from a rapacious
Executive. That does not seem to be
happening. So what do you make of this?
Either put on your Constitutional law
hat, or put on your member of Congress
hat, but what do you make of this?

[Jamie Raskin] Well, in
one sense, this is a decades-long process
of erosion of Congressional lawmaking
power. But this is a dramatic and
sudden jump into the unknown, with the
President basically defying Congress in
Congressional statutes and
Appropriations at every turn. But to go
back to the beginning, Marc, look, we had
a revolution against a king, against a
monarch. The first three words of the
Constitution are, "We the people." And then,
after you get through our beautiful
Preamble, it leads right into the
creation of Article I: all legislative
power is vested in the Congress of the
United States. The sovereign power of the
People to create the Constitution flows
right into the Congressional power of
lawmaking. And you know, Article I lays
out everything, from regulating Commerce
domestically and internationally, to the
power to declare war, budgets, taxes,
you name it. And even in Article 1,
Section 8, Clause 18, all other powers
necessary and proper to the execution of
the forgoing powers right?

Then you get
to Article II. My colleague, Jim
Jordan's, been running around TV saying
that Article II says, in the first
sentence, "All executive power is vested
in the president." Yeah, that's true, but
what is the executive power, right? When
you get past commander-in-chief of the
Army and Navy in times of actual
conflict, or when the militia's been
mobilized, what's the core job of the
President? "To take care that the laws are
Faithfully executed." That's it. "To take care that the
laws are Faithfully executed." The
Articles of Confederation didn't even
have a President, right? And then they
thought that that was too inefficient, and
there was nobody to keep things going
and to, you know, move the bureaucracy
when Congress wasn't in town. And then
the President was created. But very
clearly in a secondary position. As
Madison put it in the Federalist Papers,
the legislative branch is the
predominant branch of government. So
sometimes my colleagues will get up, even
Democrats will say, "We're three co-equal
branches of government." And I just want
to say, first of all, "co-equal" is not even
a word, okay? You know, that's like
extremely unique, or something like that.
Secondly, the claim that we have three equal
branches is just ridiculous. I mean, when
you get to Article II, you've got four
short sections. One section is all about
how you impeach a President for treason,
bribery, and other high crimes and
misdemeanors. If we're co-equal, or
equal, or equivalent, or whatever, why do
we have the power to impeach and try and
convict a president, and he doesn't have
the power to impeach and try and convict
us? The framers were clearly a lot more
afraid of a President
purporting to be a King, or arrogating
the powers of a dictator, than it was
afraid of Congress; all of the people,
coming from this great huge, vast, diverse
country, from different points of views,
and working together, and split
between the House and the Senate with
bicameralism. So, as you know, Washington
told Jefferson in that famous anecdote,
It's like, you know, pouring your tea
from the saucer into the cup so it can
cool off a little bit right. And the
Senate is supposed to allow the
passions and tempers of the House of
Representatives to cool off a little bit.
But in any event, Congress is the
lawmaking Branch. We also have the power
of the purse. We've got the power to
spend, right? And you know this Marc, an
Appropriations Act is just another
federal law. It's like a law against
assaulting Federal
officers. And they should show more
respect for both the law against
assaulting Federal officers, and for an
Appropriations act. Appropriations Act is
not a budgetary
recommendation, or a point of negotiation,
or a bargaining chip with the president.
It's a law you follow. The law to take care
that the laws are Faithfully executed; do
your job, yeah?

[Marc Elias] And I want to emphasize
one thing you said uh and and add a
little bit to it you know you point out
that the impeachment power both for
article one and article three the
Judiciary rests solely with Congress and
there is no parallel. The
president cannot remove members of
Congress. The Judiciary can't actually
remove members of Congress. People always
ask me you know why is it that you know
so and so can be convicted of a crime and
they can still run for Congress; so they
can still be in Congress. And the answer
is because only Congress can decide who
in more specifically each chamber decide
its members and there is an opinion that
is according to the Constitution that's
the qualifications Clause correct the
qualifications clause and I was about to
say there's actually very um uh
insightful uh opinion by then circuit
court judge Scalia later Justice Scalia
in which he basically says that this is
a power that is rest that the power to
remove members of Congress rest solely
with their B their members under the
qualifications clause and that it has to
be that way and he explains why it has
to be that way because you could not
have member you could not have the
ability to destroy Congress uh rest any
place else uh by through its
qualifications and that that is uniquely
because of Congress that's uniquely
because of the place Congress plays in
the in the Constitutional scheme so I
agree with all of that but answer me
this that is all true as a matter of
constitutional law why is that not a
matter of political will right now I
mean if you are the speaker of the house
you are the third to in line to the
presiden of United States I mean it was
you know I I am you know old enough to
remember all the way back to Nancy
Pelosi being the speaker and speakers
before and you know she was as tough as
they come um and you know could be uh
could be a partisan but she jealously
guarded Congressional prerogatives even
against democratic presidents and that
was true with tip O'Neal it was true you
know I'd say even with the new ginges of
the world uh you know why has why has
that changed like why is Speaker Johnson
just not willing to assert house
prerogatives because it really is even
within Congress the house has certain
prerogatives that the Senate doesn't
have and why is he so willing to just
say well whatever Donald Trump wants
like that's just the way it is part of
the answer to that is the ethical
collapse of the Republican Party um we
saw what happened to anyone who
dissented were
opposed Donald Trump's autocratic
Ambitions we saw what happened to Liz
jany we saw what happened to Adam k ger
Mitt Romney you name it I mean there
were 10 Republican house members uh who
voted to impeach there were seven
Republican Senators who voted to convict
and the vast majority of them are gone
um and that's almost Donald Trump's uh
prominant uh motivation I mean probably
after making whatever money he can make
in office it is making sure that
everybody follows him that's more
important to him than even being in the
majority he wants to have absolute
control control over their party so part
of that you know does demonstrate the
the complete
deterioration of GOP ethics and support
for uh Congress as a branch I mean
Madison really thought that members of
Congress would identify with legislative
interests and the Judiciary would defend
zealously the judicial interest and the
executive the executive interest but
what we have now is people who are loyal
to
uh the institution of the political
party before the formal constitutional
institutions in some sense um this has
been a dynamic and a problem since the
very beginning of the Republic I mean
our constitution was written famously
against political parties political
parties aren't mentioned in the
Constitution much less a two-party
system um their existence is implied or
Allowed by the First Amendment to the
Constitution with Association and
assembly and speech and so on um but
from the very beginning political
parties began to form in the country you
know the Federalists and the Democratic
Republicans and so there's always been
that partisan or factional Spirit as the
FR Founders described it but it's really
gone off the deep end uh at this point
where you've got one party that would uh
Elevate its own interests and its own
agenda above the Constitution itself
and uh you know that's why people like
Liz Cheney and Adam Kinser and Mitt
Romney in my book continue to be heroes
because they were willing to stand in
the breach when that was happening and
there are precious few Republicans left
certainly in public office who were
willing to do that now yeah we'll be
right back with more of my conversation
with Congressman Rasin in a moment but I
want to take a second to ask you to
subscribe to democracy duckets free
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the most important news and updates you
need to know about the fight for
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now for free at the link above or in the
description below yeah so I want to talk
about the other uh folks who should be
in the breach protecting democracy um it
is interesting to me uh distressing uh
that Donald Trump seems to have targeted
um the independent agencies uh uh uh and
in particular he started with Watchdog
officials so he started with uh the nlrb
the Merit systems protection board the
office of special counsel which is the
Hampton which Hampton Dinger uh people
may know he litigated uh to protect his
job the inspector's General were fired
um and so what do you do you think it is
uh no coincidence as I do that that he
seems to have taken a particular
interest in getting internal Watchdogs
off the
beat well yeah I mean that was um agenda
item number one when they got in office
of course they sacked immediately 17 and
later 18 inspectors General I mean these
are the real corruption Fighters as you
know these are the real people fiing out
waste fraud abuse corruption
self-dealing Kickbacks and so on in
federal departments and agencies and
that's very difficult
painstaking comprehensive work that
takes huge staffs of people and when you
do it you bring in forensic Auditors and
accountants you don't bring in computer
hackers who go and get everybody's data
um and so they sacked the real
corruption fighters in the government
they cleared them out of the way they
dismantled uh enforcement of the Foreign
Corrupt Practices Act they disbanded
numerous uh task forces in the
Department of Justice like the anti
kleptocracy uh task force which were uh
designed to stop foreign Corruption of
American politics and business um and
then um they basically unleashed the
Doge people on all of our data in all of
the Departments and uh all of the
agencies um and so um you know the Elon
Musk and his the band of uh uh computer
hacker juvenile night Raiders these
people uh are not opponents of
corruption they're instruments of
corruption and lawlessness against the
rights of the people um so I have y two
questions about that the first is as a
law professor how do they fit into or
don't fit into the Constitutional
structure and number two what can people
do about it because people like are
people are worried that their data has
been compromised like people are like I
mean average Americans I don't mean like
just like you know members of Congress I
mean like you know average Americans are
petrified that their information I'm
sure you heard from your constituent so
how does how does Doge like fit into
what you described at the beginning of
an AR start with and then what could
people do I'm very glad you raised it
because yesterday the United States
district court for the District of
Columbia uh rendered yet another victory
for the forces of democracy and freedom
they found that doge is in fact a
federal agency some something that uh
Doge was resisting uh and yet uh the
federal district court and judge
Cooper's courtroom found that DOI is a
federal agency and it's subject to
federal laws specifically the Freedom of
Information Act so um the last thing I
did before I got on this call with you
Mark was I um completed filling out a
form the whole thing took me less than
five minutes maybe six minutes to do um
a form demanding
of Doge the department of government
efficiency which in my neighborhood we
call it the dissing our government
employees statute but I was demanding of
Doge and Elon Musk that they turn over
to me all the data they have on me from
the Social Security uh Department from
the Department of Education college
student loans anything they would have
from any federal department that they've
assembled I want to see it and guess
what I've got a right to see it and I
want to know whether they've made it any
changes to it I have a right to
determine whether everything in there is
accurate or if there are inaccuracies to
tell them to change it and I also want
to know whether it's been diverted and
leaked out to any thirdparty Source
whether it is uh Elon musk's artificial
intelligence program grock or any other
business I have a right to know that
that's my data and guess who else has
that right 340 million Americans and for
the cost of a stamp you can write in to
the Department of government efficiency
fill out their form and say give me all
this information now I don't know if
doge is set up to answer foyer requests
I don't think they were thinking a lot
about the public interest but hey uh
this is the magic um and the Paradox of
being part of government there are
people who want to go into government
because they can get as much as they can
out of it that's Elon Musk right but
there are benefits that go there burdens
that go along with the benefits and one
burden is you take control over our data
you tell us what data you've got and you
show us exactly uh what you have this is
our government that's our data uh and we
have a right to know well that's uh
great actual information for everybody
to to hear what the congressman is
saying is not just him because he's a
member of Congress who's entitled to
this but everyone is entitled to this
information so it's something that
anyone can do well everywhere I go
marker saying what can we do what can we
do and you know uh people go to rallies
and then the next minute they're saying
what can we do here's something every
American can do and ought to do get your
foyer request in under the Privacy Act
for your private information that may
have been seized by Elon musk's
Department of government uh efficiency
Doge and then uh we can take it from
there and if they don't respond well
we'll have to deal with that at that
point the other thing that people are
asking about and I don't want this to
turn too wonky but you are con tion law
professor um people are worried that he
seems to be able to fire people who are
not supposed to be fired like on the one
hand they hear that like there are
people who are protected from arbitrary
firing um they hear that you know that
there are these independent agencies and
boards and yet he seems to be firing
these people and they want to know isn't
there some Court like isn't isn't there
some court case or something that says
he can't do this all right so I I want
to answer both about the boards and
agencies and that involves a case called
Humphrey's executive but I want to
answer just about all of the federal
workers the tens of thousands or
hundreds of thousands now of federal
workers who've been sacked okay first on
the members of federal agencies and
Boards like the Securities and Exchange
Commission the Federal Trade Commission
the Federal elction Federal Election
Commission that's a critical one um on
of these things um basically since the
New Deal um there has been a Doctrine
which has said that while the president
gets to absolutely nominate his own uh
cabinet secretaries and his political
subordinates with under his budget his
executive budget he does not have the
right to hire and fire the members of
these bipartisan boards and agencies
those exist under Congressional statute
and they have some quasi legislative
powers by which the court is meant Ru
making Powers um they have some quasi
executive powers they can enforce rules
um whether it's you know the SEC
enforcing rules against insider trading
or the Federal Election Commission uh
enforcing rules against um illegal
campaign expenditures okay um but also
they have quazite Jud judicial powers in
that they can rule on particular cases
that come before them okay so um this is
this has been identified with the rise
of the administrative state which has a
very you know nefarious Sinister sound
in the uh Steve Bannon era but the
administrative State basically makes it
possible to govern a country of hundreds
of millions of people and make sure that
people's rights are Vindicated Within
These agencies within the bureaucracies
if they have a problem they're able to
go to it and um and the agencies in turn
are able to enforce the public interest
well now um Donald Trump is advancing a
federalist Society Dogma um called the
unitary executive which is that uh all
of these agencies all of these boards
are directly under the control of the
president and the president can uh hire
and fire everybody so one of the first
things he did got in office this time
was he sacked all of the Democrats who
sered for example uh on the Federal
Election Commission uh or the Federal
Trade Commission and so on he sacked all
of them saying that was under his
unilateral control they seem like
they're chomping at the bit to get this
question before The Supreme Court where
they believe they have a sympathetic
majority um the rationale for allowing
this before was that um that the
president's job is to take care that the
laws are Faithfully executed there are
laws setting up these boards and
agencies and none of those boards or
agencies in any way interfered with the
essential powers of the president and
the executive um but now they want to
say no basically they're under the
vertical control of the president so
we'll see if that happens it will it
will be uh a
landslide uh reversal and turnabout in
terms of administrative law and public
law in America to say I mean imagine if
uh president Trump actually controlled
the Federal Election Commission he would
obviously use it to attack all of the
Democrats the way he's using the
Department of Justice right now and to
go after his political opponents and if
uh if F found anything done wrong by one
of his uh supporters one of his allies
he would immediately force them to drop
the charges the way he's doing with
mayor Adams in New York who's decided to
cut a deal with Donald Trump and you
know he was willing to lose six or seven
top Conservative Republican
prosecutors um rather than just follow
the law no the president cannot make a
trade for someone in order to uh destroy
a grand jury indictment you can't engage
in that kind of political negotiating so
um but we're watching this and you know
I know that the members of the boards
and agencies will be defending and the
Democrats will be defending the laws as
they've existed of course Trump has more
broadly been trying to sack tens of
thousands of federal workers with the
idea of basically destroying the
functions of the federal government I
mean the Consumer Financial production
Bureau has saved American consumers more
than $21 billion in uh credit card late
charges in Bank overdraft fees all of
these rapacious or ripoff charges that
large corporations pasted on people in
addition to more uh elaborate schemes
against the consuming public uh but they
want to dismantle it I mean in fact
there are hundreds of millions of
dollars right now Mark that are
frozen because the cfpb workers were
told they can't do any work they
literally can't sign a letter turning
this money over to Consumers who have a
lawful right to it so we're going to try
to unlock all of that but the bottom
line is that all of this is an assault
in the Civil Service the core meaning of
the Civil Service is that people can
only be fired for poor professional
performance or professional misconduct
you know for stealing money or for not
doing their job but the people who are
being sacked have been doing a fantastic
job they have Superior evaluations my
guess to the to the Joint session of
Congress where Trump came and spoke was
a a doctor from NIH who's a uh a
pediatric cancer biologist and she'd
been there for several years as a
postgraduate student she did so well and
had such excellent performance rating
she was promoted to the job of top
biologist there and by virtue of being
promoted she was a a probationary
employee which sounds like there's
something wrong all it means is you've
been promoted but the Doge people used
that as a reason to um sack her as part
of the Valentine's Day Massacre and
they're people like that strewn
throughout the federal government I mean
we're talking air tra air traffic
controllers Food and Drug safety uh
inspectors um you know Forest Service
firefighters um all these people have
just been randomly sacked as they try to
hack away at the federal Workforce and
the last point I'll make about this is
you know people really ask why why is
this happening to us I mean if Vladimir
Putin came here and took over the US
government he would be doing nothing
different than what these people are
doing to us right now well if you really
read into Elon Musk and um his friend
Peter teal and their intellectual Guru
named Curtis yarvin these people believe
that democracy's defunct they believe
we're living in a post-constitutional
America the US Constitution they think
is Obsolete and we're in the middle of a
regime change where we're going to move
into some kind kind of monarchical
autocratic
technate and uh guess who's there to be
in charge of it none other than Elon
Musk who could never run for president
because he wasn't born in the United
States he was born in apartheid South
Africa and grew up there and shows
because those are the kinds of attitudes
that now permeate not just Doge but
large parts of uh of the new
Administration but check out the
interview with Curtis yarvin that was in
the New York Times about a month ago
where he said the American people have
got to get over their fear of the word
dictator a dictator he assured us is
just what uh president CEO of a company
is and just as we have dictators in
private corporations we need a dictator
in the corporation that is the US
government and that government serves
primarily the presidents and CEOs of all
these corporations it's a dictator
serving dictators Congressman Jamie
Rasin one of my personal Heroes the
smartest most
astute Observer of the Constitution
Congress and uh uh and politics thank
you for joining me today dear mark thank
you for everything you're doing for us
every day man really all right thanks
for tuning in to this episode of
Defending democracy make sure you're
subscribed to democracy dockets free
daily and weekly newsletters to stay
informed on the latest voting rights and
democracy news we'll see you next time

[admin]

Part 1 of 2

-- USDC, District of Columbia. SUSAN TSUI GRUNDMANN, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. Civil Action No. 25-425 (SLS). Judge Sparkle L. Sooknanan. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. 3/12/25.

https://ia904503.us.archive.org/16/item ... 4.22.0.pdf

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SUSAN TSUI GRUNDMANN,

Plaintiff,

v.

DONALD J. TRUMP, et al.,

Defendants.

Civil Action No. 25 - 425 (SLS)

Judge Sparkle L. Sooknanan

MEMORANDUM OPINION

The Constitution vests Congress with broad authority to organize the Executive Branch. U.S. Const. art. I, §§ 1, 8. From its earliest days, Congress exercised this power by creating institutions to structure the government. And for almost a century and a half, Congress has created independent federal agencies with specific expertise and limited the President’s power to remove principal officers leading those agencies. The Supreme Court first blessed that approach in 1935 when it rejected the President’s claim of “illimitable power of removal” over all federal officers, Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935), instead holding that our Constitution gives Congress the power to “create expert agencies led by a group of principal officers removable by the President only for good cause.” Seila Law LLC v. CFPB, 591 U.S. 197, 204 (2020) (emphasis omitted) (citing Humphrey’s Ex’r, 295 U.S. 602). And the Supreme Court has repeatedly endorsed statutory removal protections for multimember and bipartisan expert agencies since then.

Congress created the Federal Labor Relations Authority (FLRA) to impartially manage and resolve disputes surrounding labor organization in the federal workforce. The independence of the FLRA was central to its creation, as Congress wanted to ensure a fair, consistent, and unbiased process for managing federal labor relations that would not shift with political whims. To achieve this goal, Congress decided to give the three Members of the FLRA a limited statutory protection from removal by the President. They could be removed only for inefficiency, neglect of duty, or malfeasance in office during their staggered five-year terms, and only after notice and a hearing.

In the nearly fifty years since the FLRA’s creation, no President has ever removed a Member. Until now. On February 10, 2025, the Plaintiff, Susan Tsui Grundmann, received a two-sentence email on behalf of President Donald J. Trump informing her that her position on the FLRA had been terminated. Ms. Grundmann received no explanation whatsoever for her termination. And she did not receive notice or a hearing. Ms. Grundmann is not alone. This is one of a series of cases filed in this District challenging the President’s unprecedented removal of officers across the federal government without cause, including Members of the Merit Systems Protection Board and the National Labor Relations Board, as well as the Special Counsel.

The Government vigorously defends Ms. Grundmann’s hasty termination on the basis that the Constitution vests the entirety of the “executive Power” in the President. U.S. Const. art. II, § 1, cl. 1. It argues that the President may remove federal officials on a whim, and in doing so, override Congress’s considered judgment. The Government’s arguments paint with a broad brush and threaten to upend fundamental protections in our Constitution. But ours is not an autocracy; it is a system of checks and balances. Our Founders recognized that the concentration of power in one branch of government would spell disaster. “The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).

The removal in this case was unlawful. The Government concedes that Ms. Grundmann’s removal violated the FLRA’s founding statute—a statute that Congress enacted and the President signed into law to revamp federal labor relations in the federal government. The Government’s argument that the statutory removal provision is unconstitutional cannot be reconciled with longstanding Supreme Court precedent that is binding on this Court. And it would encroach on Congress’s authority under Article I of the Constitution.1

As for remedies, the Government takes the position that this Court lacks the authority to provide meaningful relief in these circumstances. It argues that where a President removes a Senate-confirmed federal officer in violation of a duly enacted and constitutional statute, the only recourse is an award of backpay to that officer. Why? According to the Government, any order from this Court that results in the officer continuing her role against the President’s will would raise grave separation-of-powers concerns. In other words, where a President exceeds his power under Article II of the Constitution and intrudes on Congress’s Article I authority, the Government’s position is that an Article III court may not interpret the law and redress the resulting injury. It is the Government’s own argument that raises grave separation-of-powers concerns. There can be no doubt that “the President is bound to abide by the requirements of duly enacted and otherwise constitutional statutes.” Swan v. Clinton, 100 F.3d. 973, 977 (D.C. Cir. 1996). And it is precisely the role of an Article III court to step in when that does not happen. Ms. Grundmann is entitled to relief that would redress her injury and allow her to continue her work on the FLRA.

For those reasons and the reasons that follow, the Court grants Ms. Grundmann’s Motion for Summary Judgment and denies the Defendants’ Cross-Motion for Summary Judgment.

BACKGROUND

A. Statutory Background

Nearly fifty years ago, Congress enacted the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. §§ 7101–7135, as part of the Civil Service Reform Act (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978). These statutes “comprehensively reorganized the structure of labor-management relations in the federal government.” Library of Cong. v. FLRA, 699 F.2d 1280, 1283 (D.C. Cir. 1983). “Congress intended the new statutory system to serve the twin goals of protecting the right of public employees to organize and bargain collectively, while simultaneously strengthening the authority of federal management to hire and fire employees in the interest of a more effective public service.” Id. (citing 5 U.S.C. § 7101).

Congress created the Federal Labor Relations Authority (FLRA) to “carry[] out the purpose” of the FSLMRS. 5 U.S.C. § 7105(a)(1). It tasked the FLRA with “conduct[ing] hearings and resolv[ing] complaints of unfair labor practices,” “resolv[ing] issues relating to the duty to bargain in good faith,” and “resolv[ing] exceptions to arbitrator’s awards.” Id. § 7105(a)(2). Congress also empowered the FLRA to supervise elections for the selection of labor organizations by employees and to prescribe certain criteria related to labor bargaining in the federal workforce. Id.

The FLRA is composed of three Members, all appointed by the President with the advice and consent of the Senate. Id. § 7104. No more than two of the three Members are permitted to “be adherents of the same political party.” Id. § 7104(a). And each Member is to serve a staggered five-year term. See 5 U.S.C. § 7104(c) (establishing five-year terms); CSRA, Pub. L. No. 95-454, § 7104(c)(1), 92 Stat. 1196 (1978) (staggering terms). The Members can be removed by the President “only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 7104(b). But the President has the authority to designate one of the Members as the “Chairman of the Authority.” Id.

The structure of the FLRA was meant to ensure “the resolution of disputes by the intervention of neutral, independent, third parties[.]” 124 Cong. Rec. 25,720 (1978). Congress sought to “eliminate what [was] perceived by Federal employee unions and others as conflict of interest in the existing council,” H.R. Rep. No. 95-1717, at 159 (1978), and to create a body that was “impartial by independence from any direct responsibility to the incumbent administration,” S Rep. No. 95-969, at 7 (1978). As one sponsor stated:

One of the central elements of a fair labor relations program is effective, impartial administration. Title VII provides for the creation of an independent and neutral Federal labor relations authority to administer the Federal labor management program . . . . Currently the Federal labor-management program is administered by the Federal Labor Relations Council which is composed of three administration officials, . . . none of whom can be considered neutral.

124 Cong. Rec. 25,721 (1978). The belief was that “[i]mpartiality [was] guaranteed by protecting authority members from unwarranted ‘Saturday night’ removals.” Id. at 25,721–25,722.

B. Factual Background

The facts are drawn from the Plaintiff’s Complaint and Statement of Material Facts, which the Defendants do not dispute. Joint Status Report at 3, ECF No. 8.

The Plaintiff, Susan Tsui Grundmann, became a Member of the FLRA on May 12, 2022. Compl. ¶ 3, ECF No. 1. She was appointed by President Joseph R. Biden and confirmed by the Senate to a term set to expire on July 1, 2025. Id. But that expiration date was not set in stone. Under the FSLMRS, she was permitted to continue serving until either her successor took office or the last day of the Congress beginning after the original expiration date, 5 U.S.C. § 7104(c), which in her case would fall in January 2029, Compl. ¶ 3. On January 3, 2023, President Biden designated her as Chairman of the Authority. Pl.’s Mot. for Summ. J. & Prelim. Inj. (“Pl.’s Mot.”) at 1, ECF No. 4; Defs.’ Opp’n to Pl.’s Mot. for Summ. J. (“Defs.’ Opp’n”) at 5, ECF No. 12.

The Government does not allege that Ms. Grundmann has been an ineffective Member of the FLRA. Yet on February 10, 2025, at 10:46 PM, Ms. Grundmann received a two-sentence email from Trent Morse, the Deputy Director of the White House Office of Presidential Personnel: “On behalf of President Donald J. Trump, I am writing to inform you that your position on the Federal Labor Relations Authority is terminated, effective immediately. Thank you for your service.” Pl.’s Decl. in Supp. of Pl.’s Mot. for Summ. J. & Prelim. Inj. (“Pl.’s Decl.”) ¶ 3, ECF No. 4-2. She did not receive notice or a hearing, nor was any “inefficiency, neglect of duty, or malfeasance in office” identified. Compl. ¶ 17. And she has since been unable to perform her duties as a Member of the FLRA. Id. ¶ 20. To the best of Ms. Grundmann’s knowledge, this is the first time a President has ever removed a Member of the FLRA without cause. Pl.’s Decl. ¶ 12.

On February 11, 2025, President Trump named Colleen Duffy Kiko as Chairman, Compl. ¶ 19, leaving the FLRA with only two Members, see id. ¶ 20. Although the FLRA maintains a quorum, without Ms. Grundmann’s tiebreaking vote, certain cases may deadlock and go into abeyance. See Pl.’s Decl. ¶ 7. This is exactly what happened when Ms. Grundmann served as one of only two Members of the FLRA for eighteen months, resulting in about one-third of the cases being deadlocked. Id.

C. Procedural Background

On February 13, 2025, Ms. Grundmann filed a Complaint alleging that her removal without cause violated the FSLMRS. See Compl. ¶¶ 22–25. She named President Trump and Ms. Kiko as Defendants, id. ¶¶ 4–5, and she requested both declaratory and injunctive relief, Compl., Prayer for Relief, ¶¶ 1–3. The next day, on February 14, 2025, she filed a Motion for Preliminary Injunction and Summary Judgment. See Pl.’s Mot. for Summ. J. & Prelim. Inj. (“Pl.’s Mot.”). On February 25, 2025, the Defendants filed their Opposition to the Plaintiff’s Motion for Summary Judgment, see Defs.’ Opp’n, and a Cross-Motion for Summary Judgment, see Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Cross-Mot.”), ECF No. 11. The Plaintiff responded to both on February 28, 2025. See Pl.’s Mem. in Opp’n to Defs.’ Cross-Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 15; Pl.’s Reply in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 16. And the Defendants filed their Reply in support of their Cross-Motion for Summary Judgment on March 5, 2025. See Defs. Reply in Supp. of Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Reply), ECF No. 18. The Court held a hearing on March 7, 2025. Both motions are now ripe for decision.

LEGAL STANDARD

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The burden is on the movant to make the initial showing of the absence of any genuine issues of material fact.” Ehrman v. United States, 429 F. Supp. 2d 61, 66 (D.D.C. 2006). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). When “both parties file cross-motions for summary judgment, each must carry its own burden under the applicable legal standard.” Ehrman, 429 F. Supp. 2d. at 67.

DISCUSSION

The President violated the law when he removed Ms. Grundmann. The removal was in clear contravention of the FSLMRS. And under longstanding Supreme Court precedent, that statute was a valid exercise of Congress’s authority under Article I of the Constitution.

A. Statutory Violation

The Government concedes that Ms. Grundmann’s removal violated the FSLMRS. Motions H’rg (Mar. 7, 2025), Draft Tr. at 24:10–14. The statute provides that “Members of the Authority . . . may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 7104(b). But Ms. Grundmann received no notice or hearing. See Compl. ¶ 17. And the two-sentence email on behalf of the President informing her of the removal did not allege any inefficiency, neglect of duty, or malfeasance in office. See id. The Government instead argues that the removal protection in the FSLMRS is unconstitutional. See Defs.’ Opp’n at 6–12.

B. Constitutionality of the Statute

“[T]he Necessary and Proper Clause grants Congress broad authority to enact federal legislation.” United States v. Comstock, 560 U.S. 126, 133 (2010). This includes the power to provide removal protections to “multimember bodies with ‘quasi-judicial’ or ‘quasi-legislative’ functions.” Seila Law LLC, 591 U.S. at 217. This power to “create a traditional independent agency headed by a multimember board or commission,” id. at 207, “cannot well be doubted,” Humphrey’s Ex’r, 295 U.S. at 629. The Court has repeatedly endorsed such removal protections throughout the last century. See, e.g., id.; Wiener v. United States, 357 U.S. 349 (1958).

But this power is not without limits. “Article II provides that ‘[t]he executive Power shall be vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” Seila Law, 591 U.S. at 213 (quoting U.S. Const. art. II, § 1, cl. 1; id., § 3). This establishes a “general rule that the President possesses ‘the authority to remove those who assist him in carrying out his duties.’” Id. at 215 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 513–14 (2010)). The scope of Congress’s power therefore turns on whether this general rule applies. See id. at 218.

The Supreme Court has identified “two exceptions” that “represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.” Id. (quoting PHH Corp. v. CFPB, 881 F.3d 75, 196 (D.C. Cir. 2018) (Kavanaugh, J., dissenting)). The first comes from Humphrey’s Executor, and it extends to “multimember expert agencies that do not wield substantial executive power.” Seila Law, 591 U.S. at 218. The second comes from Morrison v. Olson, 487 U.S. 654 (1988), and it applies to “inferior officers with limited duties and no policymaking or administrative authority.” Seila Law, 591 U.S. at 218. Congress may provide removal restrictions to an executive officer who fits within either of these two exceptions. See id.

1. The Humphrey’s Executor Exception

Seila Law is best read as teaching that the Humphrey’s Executor exception applies in two steps. Seila Law, 591 U.S. at 218–19. First, courts must ask whether an agency’s structure resembles that of the “New Deal-era FTC” described in Humphrey’s Executor. Seila Law, 591 U.S. at 218. Second, courts must ensure that the agency does not exercise substantial executive power. Id. at 218–19. If both conditions are met, then Congress has the authority to provide removal restrictions. Id. at 218.

The Government quibbles with step two. Even though Seila Law squarely states that the exception extends to “multimember expert agencies that do not wield substantial executive power,” id. (emphasis added), it argues that the exception is limited to agencies “that exercise no executive power,” Defs.’ Opp’n at 8 (emphasis added). Although some language in Seila Law could be read that way, a careful reading of each passage reveals that the opinion is more restrained.

First, Seila Law outlines its general rule in very broad terms. The Supreme Court says that “the ‘executive Power’—all of it—is ‘vested in a President.’” Seila Law, 591 U.S. at 203 (quoting U.S. Const. art. II, § 1, cl. 1; id., § 3). Then it says that the President has the “power to remove . . . those who wield executive power on his behalf.” Id. at 204. The combination of these two statements initially suggests that all executive power is wielded on behalf of the President, so anyone exercising any executive power must be removable at will. See Defs.’ Opp’n at 7. But the Court immediately acknowledges that there are “two exceptions” to this removal power. Seila Law, 591 U.S. at 204. And it would make little sense to call them “exceptions” if they did not involve the exercise of any executive power at all. Id.

Second, Seila Law highlights that in Humphrey’s Executor, “[r]ightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising ‘no part of the executive power.’” Seila Law, 591 U.S. at 215 (quoting Humphrey’s Ex’r, 295 U.S. at 628)). This makes it into the summary of the holding: “In short, Humphrey’s Executor permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” Id. at 216 (emphasis added). But we should not read into this because Seila Law cites Wiener as falling within the Humphrey’s Executor exception. See Seila Law, 591 U.S. at 216. This could not be the case if the exception applied only to agencies that were “said not to exercise any executive power.” Id. (emphasis added). Neither Wiener nor Seila Law ever said such a thing about the War Claims Commission. See generally Wiener, 357 U.S. 349; Seila Law, 591 U.S. 197. The Court’s summary of the Humphrey’s Executor holding should therefore not be conflated with its description of the bounds of the Humphrey’s Executor exception.

Collins v. Yellen, 594 U.S. 220 (2021), does not change this reading of Seila Law. The Government points to broad language from the opinion: “Courts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies, and we do not think that the constitutionality of removal restrictions hinges on such an inquiry.” Collins, 594 U.S. at 253. But Collins was a case about single agency heads, not multimember agencies, so the Humphrey’s Executor exception was not at issue. See id. at 251. The Court in Collins merely declined to create a new exception—beyond the two recognized in Seila Law—for single agency heads that exercise minimal executive power. Id. at 250. Collins even included a footnote right after the broad language that limited its reach to single agency heads. See id. at 253 n.19. That footnote distinguished two historical examples of removal restrictions by saying that “those agencies are materially different because neither of them operated beyond the President’s control, and one of them was led by a multi-member Commission.” Id. (emphasis added). So the language the Government identifies was not meant to apply to multimember agencies. And the Court expressly warned against reading Collins to apply to agencies not before the Court. See id. at 256 n.21. This would make little sense if Collins were meant to change Seila Law.2

2. The Structure of the FLRA

The first question is whether the FLRA’s structure resembles how Humphrey’s Executor described the “New Deal-era FTC.” Seila Law, 591 U.S. at 218. Humphrey’s Executor “identified several organizational features that helped explain its characterization of the FTC as non-executive.” Seila Law, 591 U.S. at 216. First, the Board was “[c]omposed of five members” with “no more than three from the same political party,” signaling that it was “designed to be ‘non-partisan’ and to ‘act with entire impartiality.’” Id. at 216 (quoting Humphrey’s Ex’r, 295 U.S. at 624). Second, “[t]he FTC’s duties were ‘neither political nor executive,’ but instead called for ‘the trained judgment of a body of experts’ ‘informed by experience.’” Id. (quoting Humphrey’s Ex’r, 295 U.S. at 624). And third, “the Commissioners’ staggered, seven-year terms enabled the agency to accumulate technical expertise and avoid a ‘complete change’ in leadership ‘at any one time.’” Id. (quoting Humphrey’s Ex’r, 295 U.S. at 624).

All three features are present in the FLRA. First, the Authority has three Members, and no more than two of them may be “adherents of the same political party,” which ensures bipartisanship. 5 U.S.C. § 7104(a). Second, “the FLRA was intended to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the [Civil Service Reform Act].” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983). And third, each Member serves a staggered five-year term, allowing the agency to gain technical expertise. See 5 U.S.C. § 7104(c) (establishing five-year terms); CSRA, Pub. L. No. 95-454, § 7104(c)(1), 92 Stat. 1196 (1978) (staggering terms). The FLRA’s structure therefore triggers the Humphrey’s Executor exception.

3. The Powers of the FLRA

The next step is to ensure that the FLRA does not exercise substantial executive power. Seila Law, 591 U.S. at 218–19. Whether an agency exercises substantial executive power is a fact-bound inquiry. Humphrey’s Executor “acknowledged that between purely executive officers on the one hand, and officers that closely resembled the FTC Commissioners on the other, there existed ‘a field of doubt’ that the Court left ‘for future consideration.’” Seila Law, 591 U.S. at 217 (quoting Humphrey’s Ex’r, 295 U.S. at 632). This is because “[t]he versatility of circumstances often mocks a natural desire for definitiveness.” Wiener, 357 U.S. at 252. In other words, bright-line rules are not always possible. But by all indications, none of the FRLA’s powers identified by the Government qualifies as a substantial executive power.

First, the Government points to the fact that the FLRA “conduct[s] hearings and resolve[s] complaints of unfair labor practices.” Defs.’ Opp’n at 9 (quoting 5 U.S.C. § 7105(a)(2)(G)). They argue that this puts the FLRA in the same camp as the CFPB in Seila Law, which could “unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications.” Id. (quoting 591 U.S. at 219). And it is true that the FLRA’s power to conduct hearings and resolve complaints is greater than was described in Humphrey’s Executor, where the FTC merely “submit[ed] recommended dispositions to an Article III court.” Seila Law, 591 U.S. at 218–19. But the ability to issue final judgments is not a death knell for removal protections. Just look at Wiener. There, the War Claims Commission “was established as an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof, with finality of determination not subject to review by any other official of the United States or by any court by mandamus or otherwise.” 357 U.S. at 354–55 (cleaned up). Yet the Commission still counts as an example of an agency that fits within the Humphrey’s Executor exception. See Seila Law, 591 U.S. at 216.

Second, the Government points out that the FLRA “has the authority to litigate and enforce its orders in federal court.” Defs.’ Opp’n at 9. It highlights three facts. See id.

1. The FLRA can “require an agency or a labor organization to cease and desist” from statutory violations and “require [the agency or labor organization] to take any remedial action it considers appropriate to carry out the policies” of the FSLMRS. Defs.’ Opp’n at 9 (quoting 5 U.S.C. § 7105(g)(3)). But Humphrey’s Executor was unbothered by the FTC’s ability to “issue and cause to be served a cease and desist order.” 295 U.S. at 620. And the FLRA’s other tools do not resemble the wide range of remedies available to the CFPB in Seila Law, which included restitution, disgorgement, and “civil penalties of up to $1,000,000 (inflation adjusted) for each day that a violation occurs.” 591 U.S. at 206.

2. The FLRA “may petition to enforce such an order in federal court[.]” Defs.’ Opp’n at 9 (citing 5 U.S.C. § 7123(b)). It is true that Seila Law said that “the power to seek daunting monetary penalties against private parties in federal court” is “a quintessentially executive power[.]” 591 U.S. at 199. But it is not clear that the object of an FLRA order—an agency or labor union—should be considered a private party for this analysis. And either way, this is not a substantial exercise of executive power. In Humphrey’s Executor, if an FTC “order [was] disobeyed, the commission [could] apply to the appropriate Circuit Court of Appeals for its enforcement.” 295 U.S. at 620–21. This posed no problem. Id. at 629.

3. The FLRA “has independent litigation authority to send its own attorneys (not Department of Justice attorneys) to litigate civil actions outside the Supreme Court in connection with any of its functions.” Opp’n at 9 (citing 5 U.S.C. § 7105(h)). But again, it is not clear why this would make the power more substantial. When Seila Law described the CFPB’s enforcement powers, it did not even mention whether the attorneys belonged to the CFPB. See 591 U.S. at 206. It was much more concerned about the scale of relief. See id. (“Since its inception, the CFPB has obtained over $11 billion in relief for over 25 million consumers, including a $1 billion penalty against a single bank in 2018.”).

Third, the Government notes that the FLRA has the power to “prescribe rules and regulations to carry out the provisions of the [FSLMRS] applicable to [it].” Defs.’ Opp’n at 9 (quoting 5 U.S.C. § 7134). This includes (1) specifying the criteria for determining when a labor organization represents “a substantial number of the employees of the agency,” which allows the labor organization to be granted consultation rights by the agency, 5 U.S.C. §§ 7105(a)(2)(C), 7113(a); (2) determining whether an agency has a “compelling need” for an agency-wide regulation, which would allow the agency to avoid having to bargain in good faith with a proposal by a labor organization, 5 U.S.C. §§ 7105(a)(2)(D), 7117(b); see also Fed. Lab. Rels. Auth., The Negotiability Guide (June 17, 2013); and (3) determining “who is eligible to vote” for labor organization recognition and establishing the “rules governing such an election,” subject to certain statutory limitations, 5 U.S.C. §§ 7105(a)(2)(B), 7111(d).

These narrow, largely administrative regulatory assignments pale in comparison to what was feared in Seila Law, where “the [CFPB] Director possess[ed] the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U.S. economy.” 591 U.S. at 218. The FLRA promulgates regulations under fewer statutes, Motions H’rg (Mar. 7, 2025), Draft Tr. at 31: 16–17; those statutes provide more guidance than the broad prohibition of “unfair and deceptive practices,” Seila Law, 591 U.S. at 218; and the federal workforce is a smaller segment of the economy than was covered by the CFPB statutes, which included “everything from credit cards and car payments to mortgages and student loans,” id. at 219.

4. Other Seila Law Factors

Seila Law mentions other factors as well, although it is unclear how they should fit into the Humphrey’s Executor exception. See Consumers’ Rsch. v. CPSC, 91 F.4th 342, 355– 56 (5th Cir. 2024). The Court need not solve this puzzle, however, because none of these factors apply.

First, the FLRA’s structure is not “almost wholly unprecedented.” Seila Law, 591 U.S. at 220. To the contrary, agencies like the FLRA are part of the fabric of our federal government. Congress has created independent multimember agencies for nearly a century and a half. See Marshall J. Berger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111, 1116 (2000). The “structure, role, and functions of the [FLRA] were closely patterned after those of the NLRB.” Library of Congress v. FLRA, 699 F.2d 1280, 1287 (D.C. Cir. 1983). And the powers of the NLRB were modeled after those of the FTC, Dish Network Corp. v. NLRB, 953 F.3d 370, 375 n.2 (5th Cir. 2020), only one month after Humphrey’s Executor approved of the FTC’s removal protections, Free Enterprise Fund, 561 U.S. at 547 (Breyer, J., dissenting). The FLRA is “a traditional independent agency, run by a multimember board with a diverse set of viewpoints and experiences.” Seila Law, 591 U.S. at 205–06 (cleaned up).

Second, the FLRA has levers of Presidential accountability. The CFPB Director served a five-year term, leaving some Presidents without “any opportunity to shape its leadership and thereby influence its activities.” Seila Law, 591 U.S. at 225. But the FLRA Members serve staggered five-year terms, allowing every President to wield influence over the agency. See 5 U.S.C. § 7104(c) (establishing five-year terms); CSRA, Pub. L. No. 95-454, § 7104(c)(1), 92 Stat. 1196 (1978) (staggering terms). If the President follows the ordinary course and nominates someone to replace Ms. Grundmann, her term would end on July 1, 2025. Defs.’ Statement of Undisputed Material Facts (Defs.’ SUMF) ¶ 1, ECF No. 11-2. The CFPB also received funds “outside the appropriations process,” which “further aggravate[ed] the agency’s threat to Presidential control.” Seila Law, 591 U.S. at 226. But the FLRA receives its funding through the appropriations process, Further Consolidated Appropriations Act, Pub. L. No. 118–47, 138 Stat. 461 (2023), allowing the President “to recommend or veto spending bills that affect the operation of [the agency],” Seila Law, 591 U.S. at 226.

And that is not all. The General Counsel of the FLRA, who may investigate labor practices and prosecute complaints, “may be removed at any time by the President.” 5 U.S.C. § 7104(f). With the selection of the General Counsel, the President can immediately influence the FLRA’s investigative and prosecutorial power. The President may also “designate one member [of the FLRA] to serve as Chairman of the Authority,” who serves as “the chief executive and administrative officer. Id. § 7104(b). And this title that may be revoked at will. Pl.’s Reply at 10; see, e.g., Fed. Lab. Rels. Auth., Press Release, Patrick Pizzella Designated Acting FLRA Chairman (Sept. 10, 2019), https://perma.cc/ED2R-HVKG. There are therefore no additional features of the FLRA that render its Members’ removal protections “even more problematic.” Seila Law, 591 U.S. at 225.

***

A straightforward reading of Supreme Court precedent thus resolves the merits of this case. The FLRA triggers and satisfies the Humphrey’s Executor exception, making the FSLMRS removal provision a valid exercise of Congress’s constitutional authority. Although the Government claims fidelity to Humphrey’s Executor and the cases that follow, its arguments seem to contemplate absolute presidential authority over the removal of federal officers and would leave Humphrey’s Executor toothless. Indeed, it is difficult to conceive of a federal agency that would fit within the Humphrey’s Executor exception as the Government reads it. But it has been clear for almost a century that Article II does not give the President an “illimitable power of removal” over all federal officers. Humphrey’s Executor, 295 U.S. at 629.

When pressed at oral argument to identify existing federal agencies that would satisfy the Humphrey’s Executor exception, the Government identified only a single agency: the Federal Reserve. Motions H’rg (Mar. 7, 2025), Draft Tr. at 36:19–20. But the Government declined to explain why the Federal Reserve would fit within the exception under the broad arguments it advances in this case. Id. at 36:21–37:5. The Federal Reserve sets the federal funds rate, 12 U.S.C. §§ 225, 263, which permeates every corner of the American economy. If control over that does not rise to an exercise of substantial executive power, then neither does laying down the administrative rules for labor organizing within the federal workforce.

REMEDIES

The Court now turns to the question of remedies. Ms. Grundmann requests both declaratory and injunctive relief. See Compl., Prayer for Relief, ¶¶ 1–2. The Government broadly argues that the Court lacks the authority to award either and is instead limited to an award of backpay to Ms. Grundmann. Motions H’rg (Mar. 7, 2025), Draft Tr. at 45:1–19. According to the Government, because prior removed officials chose to seek backpay only, the Court may not award more than that. The Government held this line at oral argument, insisting that an Article III court is without authority to award relief to redress the injury caused by a President exceeding his Article II authority and intruding on Congress’s Article I authority. Id. at 46:11. The Court disagrees. Ms. Grundmann is entitled to a declaratory judgment saying that her removal was unlawful. And she has also met her burden to receive the permanent injunction that she seeks.

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Part 2 of 2

A. Declaratory Relief

The Plaintiff requests that the Court “[d]eclare that Ms. Grundmann was unlawfully removed as a member of the [FLRA].” Compl., Prayer for Relief, ¶ 1. The Court has the authority to issue such a declaratory judgment, and it exercises its discretion to do so.

The Declaratory Judgment Act (DJA) provides that, “in a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a) (emphasis added). The DJA “alone does not provide a court with jurisdiction,” California v. Texas, 593 U.S. 659, 672 (2021), but it does “enlarge[] the range of remedies available in the federal courts” that have established jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). This Court has jurisdiction over this federal-question case because, at minimum, it could provide backpay to establish redressability. See Compl., Prayer for Relief, ¶ 3 (asking for “all other appropriate relief”); Motions H’rg (Mar. 7, 2025), Draft Tr. at 45:1–46:12 (conceding backpay is available). So the DJA allows for declaratory relief.

In its reply brief, the Government appears to take the position that the Court may not award “declaratory relief stating that the President’s removal of Plaintiff was unlawful.” See Defs.’ Reply at 15. In support, they cite a single quote from a concurring opinion that is inapposite and not binding on this Court. See Franklin v. Massachusetts, 505 U.S. 788, 827 (1992) (Scalia, J., concurring in part and concurring the judgment) (“I think we cannot issue a declaratory judgment against the President.”). When pressed at oral argument, the Government walked this back and agreed that the Court could issue a declaratory judgment saying that Ms. Grundmann’s removal was unlawful. Motions H’rg (Mar. 7, 2025), Draft Tr. at 42:19-20 (“A declaratory judgment saying that the removal was unlawful I think would be an acceptable outcome.”). To be sure, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). That applies even when the person violating the law is the President. See, e.g., Clinton v. New York, 524 U.S. 417, 421 (1998) (affirming a declaratory judgment invalidating the President’s power to wield a line-item veto pen as unconstitutional).

The Government also makes a more modest argument that declaratory relief is generally unavailable whenever injunctive relief is unavailable. See Defs.’ Reply at 15. They cite Samuels v. Mackell for support. 401 U.S. 66, 73 (1971) (“[W]here an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.”). But Samuels merely extended Younger abstention to relief under the Declaratory Judgment Act from ongoing state criminal prosecutions, explaining that a declaratory judgment could have a res judicata effect on the state court proceedings that is not meaningfully different from an injunction. See id. at 68, 73 (“[T]he basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction.”). The Court “express[ed] no views on the propriety of declaratory relief when no state proceedings is pending at the time the federal suit is begun.” Id. at 73. So Samuels does not apply.

“[ I]t is well settled that a declaratory judgment always rests within the sound discretion of the court.” President v. Vance, 627 F.2d 353, 364 n.76 (D.C. Cir. 1980). A declaratory judgment will “ordinarily be granted only when it will either ‘serve a useful purpose in clarifying the legal relations in issue’ or ‘terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’” Id. (quoting E. Borchard, Declaratory Judgments 299 (2d ed. 1941)). The case before the Court involves legal relations that clearly need to be clarified. Ms. Grundmann has challenged her removal by the President as unlawful and needs to know if she can resume her work on the Authority. On the other side, the Government argues that Congress overstepped when it enacted a provision limiting the President’s ability to remove Members of the FLRA without cause. The Court therefore exercises its discretion and provides the requested declaratory relief.

B. Injunctive Relief

The question of injunctive relief is more difficult. An injunction ordering the President to reinstate Ms. Grundmann would raise complicated questions about the separation of powers. And the availability of such an order may turn on technical differences between equitable remedies and legal remedies. These questions can largely be avoided, however, because Ms. Grundmann has never sought reinstatement from the President and ultimately requests a type of injunction that has been blessed by the D.C. Circuit. The Court therefore has the authority to issue the requested injunctive relief, and it finds that such relief is warranted.

1. Availability of Injunctive Relief

Ms. Grundmann has requested various types of injunctive relief throughout these proceedings. She originally asked the Court to enter an injunction ordering Ms. Kiko to reinstate her as a Member of the Authority. But Ms. Kiko lacks the authority to formally reinstate Ms. Grundmann, and it is not clear how such an injunction could be squared with Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), given the plausible evidence that wrongfully removed executive officers were historically reinstated by courts of law instead of courts of equity. Fortunately for Ms. Grundmann, the D.C. Circuit has twice recognized a more modest equitable remedy when an officer has been removed by the President. See Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996), and Severino v. Biden, 71 F.4th 1038 (D.C. 2023). These cases teach that courts may order the members of an agency—or even just the Chair—to recognize the unlawfully removed member as a member and to halt any efforts to hinder her work in that capacity. While this relief may be less complete than formal reinstatement, the D.C. Circuit has said that it strikes the right balance between respecting the rule of law and avoiding conflicts between the branches of government. The Plaintiff now requests this more modest relief, and the Court has the authority to grant it.

a. Formal Reinstatement

In her Complaint, Ms. Grundmann asked the Court to “[e]nter an injunction against Defendant Kiko, ordering her to reinstate Ms. Grundmann as a member of the Board and to refrain from taking any further action to obstruct Ms. Grundmann’s ability to carry out her duties.” Compl., Prayer for Relief, ¶ 2. There are two problems with this request.

First, Ms. Kiko lacks the authority to reinstate Ms. Grundmann. “Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate.” 5 U.S.C. § 7104(b). The Plaintiff conceded this at oral argument. See Motions H’rg (Mar. 7, 2025), Draft Tr. at 18:12–16.

Second, it is not clear how such an injunction can be squared with Grupo. The Supreme Court in Grupo taught that “the general availability of injunctive relief . . . depend[s] on traditional principles of equity jurisdiction.” 527 U.S. at 318–19 (internal citations omitted). This means that “unless Congress expressly provides otherwise, equitable remedies must track remedies traditionally afforded by the equity courts.” Goodluck v. Biden, 104 F.4th 920, 924 (D.C. Cir. 2024) (citing Grupo, 527 U.S. at 318–19). But a preliminary review of the historical record suggests that, at least by the late nineteenth century, wrongfully removed executive officers sought relief in courts of law, not courts of equity. See White v. Berry, 171 U.S. 366 (1898); In re Sawyer, 124 U.S. 200 (1888). Whether this was already true at the Founding is less clear.

It is easy to find evidence from the turn of the last century. In 1888, the Supreme Court said it was “well settled that a court of equity has no jurisdiction over the appointment and removal of public officers.” In re Sawyer, 124 U.S. at 212. And it repeated that statement ten years later. White, 171 U.S. at 377; see also Harkrader v. Wadley, 172 U.S. 148, 165 (1898). According to the Court, “[t]he jurisdiction to determine the title to a public office belong[ed] exclusively to the courts of law, and [was] exercised either by certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of the writ of quo warranto.” In re Sawyer, 124 U.S. at 212; see also White, 171 U.S. at 377. This is consistent with treatises from the time. See, e.g., 2 James L. High, A Treatise on the Law of Injunctions § 1312 (2d ed., Chicago, Callaghan & Co., 1880) (“No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment of public officers or their title to office.”); Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 496 (Chicago, Callaghan & Co., 1890) (saying quo warranto allows courts “not only to oust the respondent [officer] but also to install the relator [officer]”). And the Supreme Court reiterated this view shortly before the merger of law and equity. See Walton v. House of Representatives of Okla., 265 U.S. 487, 490 (1924) (“A court of equity has no jurisdiction over the appointment and removal of public officers”). So it was not a stretch for the Court to say that these cases “reflect . . . a traditional limit upon equity jurisdiction.” Baker v. Carr, 369 U.S. 186, 231 (1962).

But evidence from the 1880s might not settle the Grupo debate. See Grupo, 527 U.S. at 318 (discussing equitable principles “at the time of the separation of the two countries” (quoting Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939))); id. at 335 (Ginsburg, J., concurring in part and dissenting in part) (discussing equitable principles “at the time of the founding”); Bessent v. Dellinger, 145 S. Ct. 515, 517 (2025) (Gorsuch, J., dissenting) (discussing equitable remedies “at the time of the Nation’s founding”). And the earlier evidence is sparse.

The Court looks in vain to In re Sawyer for help. 124 U.S. 200. The Court there said that “[n]o English case has been found of a bill for an injunction to restrain the appointment or removal of a municipal officer.” Id. at 212. But this argument from silence is far from determinative. And the only English cases cited dealt with corporate officers. See Att’y Gen. v. Earl of Clarendon, 17 Ves. Jr. 490, 498, 34 Eng. Rep. 190, 193 (Ch. 1810); Queen v. Saddlers’ Co., 10 H.L. Cas. 404 (1863); Osgood v. Nelson, L. R. 5 H. L. 636 (1872). The Court also cited many “well-considered” state court cases denying “the power of a court of equity to restrain by injunction the removal of a municipal officer.” In re Sawyer, 124 U.S. at 212. But all of those cases were decided at least a half century after the Founding. See Tappan v. Gray, 7 Hill 259 (N.Y. 1843); Hagner v. Heyberger, 3 Pa. L.J. 370 (1844); Updegraff v. Crans, 47 Pa. 103 (1864); Cochran v. McCleary, 22 Iowa 75 (1867); Delahanty v. Warner, 75 Ill. 185 (1874); Sheridan v. Colvin, 78 Ill. 237 (1875); Dickey v. Reed, 78 Ill. 261 (1875); Harris v. Schryock, 82 Ill. 119 (1876); Beebe v. Robinson, 52 Ala. 66 (1875); Moulton v. Reid, 54 Ala. 320 (1875); cf. State v. Sheldon, 6 N.W. 757 (Neb. 1880); State v. Oleson, 18 N.W. 45 (Neb. 1883); State v. Meeker, 27 N.W. 427 (Neb. 1886).

The vintage of these cases matters. In re Sawyer itself recognized that the Supreme Court of Alabama had only recently decided that reinstatement was not available in equity, “overruling its own prior decisions to the contrary.” 124 U.S. at 214 (citing Beebe, 52 Ala. 66; Moulton, 54 Ala. 320). Those prior decisions had allowed courts of equity to enjoin an unlawfully appointed sheriff where the incumbent sheriff could not proceed by quo warranto, Bruner v. Bryan, 50 Ala. 522, 529 (1874), and to exercise jurisdiction over a dispute about the identity of the true mayor because a quo warranto “would not be a complete remedy,” Reid v. Moulton, 51 Ala. 255, 266 (1874). This flip-flopping could be read as evidence that the consensus view recognized in In re Sawyer was not as well-established at the Founding. But the Court need not come to a firm conclusion on this point since the Plaintiff now seeks different relief.

b. De Facto Reinstatement

This brings us to the relief that is really at issue. In her later briefing and at oral argument, Ms. Grundmann clarified that she seeks only the relief discussed in Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996), and Severino v. Biden, 71 F.4th 1038 (D.C. 2023). That is, she “seeks injunctive relief from Defendant Kiko, a subordinate official, to treat her as a de facto member of the FLRA.” Pl.’s Reply at 14. While resuming her work on the Authority “in this de facto fashion might not be as complete a remedy for [the Plaintiff] as an official reinstatement by the President,” Swan, 100 F.3d at 980, the D.C. Circuit has twice recognized that this relief is available and advisable. See id. at 979–81; Severino, 71 F.4th at 1042–43.

The D.C. Circuit is no stranger to removal challenges. In Swan, a Senate-confirmed Board member of an independent agency was removed by President Clinton after being appointed by President Bush. See 100 F.3d at 975–76. He sued President Clinton and some staff who had implemented the firing, “seeking to have his removal . . . declared unlawful and to obtain injunctive relief ordering his reinstatement as a member of the Board.” Id. at 975. The district court granted summary judgment for the government, and the plaintiff appealed. Id. at 976. On appeal, the D.C. Circuit assessed the plaintiff’s standing, focusing on the redressability prong. See id. at 976. It questioned “whether a federal court has the power to grant injunctive relief against the President of the United States in the exercise of his official duties.” Id. at 976.

Resolving this question required balancing two important values. On the one hand, the Court recognized the “bedrock principle that our system of government is founded on the rule of law, and it is sometimes a necessary function of the judiciary to determine if the executive branch is abiding by the terms of legislative enactments.” Id. at 978. On the other hand, ordering the President “to perform particular executive [acts] . . . at best creates an unseemly appearance of constitutional tension and at worst risks a violation of the constitutional separation of powers.” Id. (internal quotation marks and citations omitted). The Court struggled to resolve this tension the usual way, by enjoining a subordinate official, “because only the President has the power to remove or reinstate [the] Board members.” Id. at 979.

The Court then concluded that certain subordinate officials had enough authority to “substantially redress” the injury without formal reinstatement. See id. at 979. The Executive Director of the agency “could direct the staff to treat [the plaintiff] as a Board member.” Id. at 979. And although they were not initially named in the complaint, the “Chairman, other NCUA Board members[, and] the Board Secretary” could accomplish reinstatement “de facto by treating Swan as a member of the NCUA Board and allowing him to exercise the privileges of that office.” Id. at 979–80. The Court decided that such “partial relief [was] sufficient for standing purposes when determining whether [it could] order more complete relief would require [it] to delve into the complicated and exceptionally difficult questions regarding the constitutional relationship between the judiciary and the executive branch.” Id. at 981.

The D.C. Circuit recited this same analysis just two years ago. In Severino, a member of the Administrative Conference of the United States Council was removed by President Biden after being appointed by President Trump. See 71 F.4th at 1041. He sued President Biden and others, “request[ing] that the court issue an injunction requiring that the President restore him to his position on the Council.” Id. at 1041 (cleaned up). The Court again assessed redressability, looking to Swan for guidance. Severino, 71 F.4th at 1042–43. It declined to answer whether such an injunction could run against the President because it could “enjoin ‘subordinate executive officials’ to reinstate a wrongly terminated official ‘de facto,’ even without a formal presidential reappointment.” Id. at 1042–43 (quoting Swan, 100 F.3d at 980). It explained that the Conference’s Chairperson could include the plaintiff in Board meetings and give him access to his former office, among other things, thereby providing partial relief. Id. at 1043.

The Government argues that Swan and Severino are inapposite because they are standing cases. See Defs.’ Reply at 11–12. The Court disagrees. The redressability analysis asks whether it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Swan, 100 F.3d at 976 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). So a remedy cannot establish redressability if it is beyond the authority of the court. See, e.g., Ege v. U.S. Dep’t of Homeland Sec., 784 F.3d 791, 793 (D.C. Cir. 2015) (“And because we have no jurisdiction under 49 U.S.C. § 46110 to issue an order binding the TSC, we ipso facto cannot redress Ege’s injury even if we were inclined to agree with him.”); Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir. 2010) (identifying a redressability problem because “[i]t is impossible for this court to grant such relief”); Love v. Vilsack, 908 F. Supp. 2d 139, 144– 45 (D.D.C. 2012) (“To satisfy [redressability], a plaintiff must show in the first instance that the court is capable of granting the relief sought.”). Swan itself assessed redressability only because “[a] question exists . . . as to whether a federal court has the power to grant injunctive relief against the President.” 100 F.3d at 976. It therefore makes little sense to hermetically seal the question of redressability from that of remedial availability.

And this Court is in good company reading Swan and Severino as standing for the proposition that such de facto reinstatement is an available remedy. See, e.g., Harris v. Bessent, -- F. Supp. 3d --, No. 25-cv-412, 2025 WL 521027 (D.D.C. Feb. 18, 2025) (Contreras, J.); Dellinger v. Bessent, -- F. Supp. 3d --, No. 25-cv-385, 2025 WL 665041 (D.D.C. Mar. 1, 2025) (Berman Jackson, J.); Wilcox v. Trump, -- F. Supp. 3d --, No. 25-cv-334, 2025 WL 720914 (D.D.C. Mar. 6, 2025) (Howell, J.); Spicer v. Biden, 575 F. Supp. 3d 93, 97 (D.D.C. 2021) (Friedrich, J.) (“Following Swan, the Court could grant effective relief in this case by ordering Ruppersberger and Thalakottur, in their capacities as the Board’s Chairman and DFO, to treat the plaintiffs are full members of the Board.”).

The Government’s other arguments seem to ignore the existence of Swan and Severino altogether. First, it argues that “[w]hen executive officers have challenged their removal by the President, they have traditionally sought back pay, not reinstatement.” Defs.’ Opp’n at 12 (citing Parsons v. United States, 167 U.S. 324, 326 (1897); Shurtleff v. United States, 189 U.S. 311, 318 (1903); Myers, 272 U.S. at 106; Humphrey’s Ex’r, 295 U.S. at 612; Wiener, 357 U.S. at 350). But reinstatement was not an issue in Humphrey’s Executor or Myers because those plaintiffs were both deceased. See Humphrey’s Ex’r, 295 U.S. at 618–19; Myers, 272 U.S. at 106. Nor did it make sense in Wiener since the Commission had been abolished. See 357 U.S. at 350–51. And any argument from past practice should account for the cases where the plaintiffs did seek reinstatement. See Swan, 100 F.3d at 361; Severino, 71 F.4th at 1041.

Second, the Government argues that “members of the First Congress argued against requiring the Senate’s advice and consent for removals precisely because of the risk that such a procedure would require the President to retain someone he had sought to remove.” Defs.’ Opp’n at 13. It points to three Representatives in particular. See id. (citing Myers, 272 U.S. at 124 (saying that Rep. Benson worried that “the President would then have a man forced on him whom he considered as unfaithful”); id. at 131–32 (saying that Rep. Boudinot bemoaned a situation where the President would be “surrounded by officers . . . in whom he can have no confidence”); id. at 132 (saying that Rep. Sedwick asked whether such “a man under these circumstances” should “be saddled upon the President”)). But this paints with too broad a brush. Those very same Representatives highlighted the special danger of removal protections for the office at issue—the Secretary of Foreign Affairs—on the ground that “the direction of our foreign relations” was an “unquestioned field of executive prerogative.” Edward S. Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353, 364–66 (1927) (collecting quotations). So their concerns may well have been limited to the character of the office. See id. at 366 And in any case, three individuals cannot speak for the entire First Congress, especially considering the wide spectrum of opinion it expressed on removal protections. See id. at 361–62. The “implications of the debate, properly understood, were highly ambiguous and prone to overreading.” John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1965 n.135 (2011). The Court declines to enter this historical fray.

Third, the Government argues that Grupo forecloses reinstatement, “[w]hether the order is expressly directed at the President or not.” Defs.’ Opp’n at 15. But this argument fails to appreciate the nuance of the remedy recognized in Swan and Severino. The Court has already acknowledged the strong—albeit imperfect—evidence that reinstatement was not traditionally available in a court of equity. See supra at 23–25. But that evidence does not clearly extend to de facto reinstatement; nor does the Government offer a theory for how it could. The Court is particularly hesitant to second-guess its authority to order de facto reinstatement now that the D.C. Circuit has reaffirmed the remedy’s availability even after Grupo. See Severino, 71 F.4th at 1042–43.

Finally, the Government invites the Court to consider afresh the values already weighed by the D.C. Circuit in Swan and Severino. It argues that the “Plaintiff’s injunction necessarily targets the President.” Defs.’ Reply at 11 (cleaned up). But issuing no relief at all would undermine “the bedrock principle that our system of government is founded on the rule of law.” Swan, 100 F.3d at 978. The Court therefore defers to the careful balance struck by the D.C. Circuit in Swan and Severino, which are binding on this Court.

For all of these reasons, the Court concludes that it has the authority to order injunctive relief as to Ms. Kiko.3

2. Permanent Injunction

Having established its authority to grant injunctive relief, the Court now addresses whether an injunction is appropriate in this case. “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). “A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Id. Ms. Grundmann has satisfied all four factors. The Court therefore grants a permanent injunction.4

a. Irreparable Harm and Inadequate Remedy at Law

The first two factors “are often considered together.” Wilcox, 2025 WL 720914, at *15 n.20 (citing Ridgley v. Lew, 55 F. Supp. 3d 89, 98 (D.D.C. 2014)). And Ms. Grundmann has satisfied both. Her “unlawful removal from office by the President” was an irreparable harm. Berry v. Reagan, No. 83-cv-3182, 1983 WL 538, at *5 (D.D.C. Nov. 14, 1983), vacated as moot, 732 F.2d 949 (Mem.) (D.C. Cir. 1983). And as the Government conceded at oral argument, there is no available remedy at law that would effectuate her reinstatement. See Motions H’rg (Mar. 7, 2025), Draft Tr. at 45:18–46:12.

Ms. Grundmann claims that “[h]er removal has deprived her of her statutory right to function in her office.” Pl.’s Reply at 16. And courts in this District have recognized that this harm can be irreparable. See, e.g., Berry, 1983 WL 538, at *5 (recognizing as irreparable the plaintiffs’ “deprivation of their statutory right to function as Commissioners”); Wilcox, 2025 WL 720914, at *15 (recognizing as irreparable the plaintiff’s deprivation “of a presidentially appointed and congressionally confirmed position of high importance”). The Government argues that loss of employment does not amount to an irreparable harm because backpay is available. See Defs.’ Opp’n at 17–18 (citing Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974)). But Sampson expressly contemplates “that cases may arise in which the circumstances surrounding an employee’s discharge . . . may so far depart from the normal situation that irreparable injury might be found.” 415 U.S. at 92 n.68. This is such a “genuinely extraordinary situation.” Id. Far from a mere claim of lost employment, this is a case of constitutional significance. Backpay does not get Ms. Grundmann back into her role as a Member of the FLRA—a role that the President appointed her to, that the Senate confirmed her for, in an agency that both Congress and the President in their considered judgment created to be independent and free from political meddling. See Harris, 2025 WL 679303, at *13. A check in the mail does not address the gravamen of this lawsuit. Perhaps that is why Ms. Grundmann has not even asked for one.

According to the Government, several cases “reject[] the notion that the deprivation of a unique, singular, or high-level position is any more of an irreparable injury.” Defs.’ Opp’n at 17– 18. But the Government’s cases cannot support such a broad rule. See id. (cases involving corporate managers, subordinate local and state officials, lower-level federal employees, and a credit union board member). Ms. Grundmann is a Senate-confirmed principal officer of a congressionally-created independent agency. She accepted the President’s nomination and earned Senate confirmation in order to serve her country at the highest possible level in her field. This represented the capstone of her long career in public service, see Pl.’s Decl. ¶ 7, and her unlawful termination deprived her of the opportunity to make her mark in this statutorily protected role.

b. Balance of the Equities and Public Interest

The final two injunction factors merge when the Government is a party. Wilcox, 2025 WL 720914, at *17 (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). And Ms. Grundmann has satisfied both. The Authority needs all three voters to avoid deadlock, especially at a time when there have been mass firings across the federal government. And the Government’s arguments about the separation of powers actually weigh in favor of an injunction.

Without this relief, the Authority has only two of its three Members. This runs the risk of letting cases deadlock with no tiebreaker, which would cause those cases to go into abeyance. Pl.’s Mot. at 14; see also Pl.’s Decl. ¶ 7. This is not mere speculation either. “[D]uring the eighteen-month period that Plaintiff Grundmann served as part of a two-member Authority, approximately one-third of the Authority’s cases deadlocked, leading to duplicative disputes and resource waste.” Pl.’s Mot. at 14. Abeyance “results in increased costs and confusion to the parties” and adds “to the bottom line of the agencies, the cost of which is ultimately borne by taxpayers.” Pl.’s Decl. ¶ 10. “It also creates legal uncertainty and likely inconsistency in labor practices the longer key labor issues remain unsolved.” Pl.’s Reply at 20. And this would be a particularly bad time for deadlock considering the widespread firings across the federal workforce in recent months. See Pl.’s Mot. at 15; Pl.’s Reply at 20. In fact, only weeks ago, a court in this District told fired federal workers to pursue their claims before the FLRA before seeking judicial relief. See Nat’l Treasury Emps.’ Union v. Trump, No. 25-cv-420, 2025 WL 561080, at *8 (D.D.C. Feb. 20, 2025). Leaving the Authority with only two voters would make that instruction hollow.

The Government argues that providing this relief raises grave separation-of-powers concerns. See Defs.’ Opp’n at 19. They say that “[s]uch a remedy would undermine the accountability of the Executive Branch enshrined in the Constitution” and that “[t]he Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs.’” Id. at 20 (citing Sampson v. Murray, 415 U.S. 61, 83 (1974)). But the Government ignores the separation-of-powers risks posed by non-intervention. If the Government had its way, it would place unchecked power in the hands of the President, which is antithetical to our system of government. Again, nearly fifty years ago, Congress and the President worked together to create the FLRA as an independent agency. The President appointed Ms. Grundmann to her position, and the Senate confirmed her. The two political branches decided to give her removal protections—protections that have now been ruled constitutional by a federal court. Providing no injunctive relief would allow the President to flout not only Congress’s Article I power to create independent multimember agencies, but also the Court’s Article III power to maintain the rule of law, see Swan, 100 F.3d at 978.5

Congress has already balanced the equities at stake in this case. The FLRA “safeguards the public interest” and “contributes to the effective conduct of public business.” 5 U.S.C. § 7101(a)(1). “[L]abor organizations and collective bargaining in the civil service are in the public interest,” and “the public interest demands . . . the efficient accomplishment of the operations of the Government.” Id. § 7101(a)(2). The public interest therefore favors Ms. Grundmann, and a permanent injunction is warranted.

CONCLUSION

For the foregoing reasons, the Court grants the Plaintiff’s Motion for Summary Judgment and denies the Defendants’ Cross-Motion for Summary Judgment.

The Court has issued a separate order consistent with this Memorandum Opinion.

SPARKLE L. SOOKNANAN
United States District Judge

Date: March 12, 2025

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1 The Government has hinted that it intends to ask the Supreme Court to overrule its precedent, invalidating statutory provisions that have been in place for nearly a century and a half and leaving the President free to fire whomever he wants in the Executive Branch. See Letter from Sarah Harris, Acting Solicitor General, to Sen. Richard Durbin on Restrictions on the Removal of Certain Principal Officers of the United States (Feb. 12, 2025), https://perma.cc/D67G-FKK4.

2 A Fifth Circuit panel recently offered its own distillation of the Humphrey’s Executor exception. See Consumers’ Rsch. v. CPSC, 91 F.4th 342 (5th Cir. 2024). And it did not deal with this broad language from Collins at all, see id., suggesting that it did not read the language as bearing on the exception.

There is also a more ambitious way to square Collins. As the Fifth Circuit noted, id. at 352 n.53, in Seila Law, the Chief Justice and two other Justices said that there “may be means of remedying the defect in the CFPB’s structure,” including, “for example, converting the CFPB into a multimember agency,” 591 U.S. at 237 (opinion of Roberts, C.J.). This matters because the CFPB exercises “significant executive power,” id. at 220 (majority opinion), suggesting the Court might be open to recognizing an exception for “traditional independent agenc[ies], run by a multimember board with a diverse set of viewpoints and experiences,” id. at 205–06, regardless of the amount of executive power exercised. Cf. Consumers’ Rsch., 91 F.4th at 353–54 (arguing that a multimember agency is not removed from the Humphrey’s Executor exception just because it exercises substantial executive power). After all, the Court said that the two definite exceptions “represent what up to now have been the outermost constitutional limits.” Seila Law, 591 U.S. at 218 (emphasis added). If the Court were to take this step, then it would be true that “the constitutionality of removal restrictions” would not “hinge[]” on “the relative importance of the regulatory and enforcement authority of disparate agencies.” Collins, 594 U.S. at 253.

3 In a Notice of Supplemental Authority and at oral argument, the Plaintiff asks the Court to consider a writ of mandamus as an alternative remedy. See ECF No. 17 at 1. Given the lack of briefing on mandamus as a remedy, the Court leaves it for another day. But as other courts in this District have found, a writ of mandamus may well be an available remedy were injunctive relief unavailable in this case. See, e.g., Harris v. Bessent, No. 25-cv-412, 2025 WL 679303, at *11 (D.D.C. Mar. 4 2025); Wilcox v. Trump, No. 25-cv-334, 2025 WL 720914, at *16 n.22 (D.D.C. Mar. 6, 2025).

4 The Plaintiff filed a Motion for Preliminary Injunction and Summary Judgment. See Pl.’s Mot. In her Reply, she sought only a permanent injunction. See Pl.’s Reply at 11–21. The Government has argued that the Plaintiff is not entitled to a preliminary injunction or permanent injunction. See Defs.’ Opp’n at 16 n.5. Because this Court grants the Plaintiff’s Motion for Summary Judgment, it awards a permanent injunction.

5 The Government also argues that the President “cannot be compelled to retain the services of a principal officer whom the President no longer believes should be entrusted with the exercise of executive power.” See Defs.’ Opp’n at 20. But Congress set forth permissible limits on the President’s ability to remove Ms. Grundmann. And the Government has made no attempt to establish inefficiency, neglect of duty, or malfeasance in office on Ms. Grundmann’s part. Absent cause to remove Ms. Grundmann, the President may of course nominate someone to replace her when her term expires in less than four months. Curiously, although the FLRA’s General Counsel may be removed at will, the President has taken no steps to remove that officer.

[admin]

Mexican President Claudia Sheinbaum addresses Trump: "You want a wall, you get a wall."
The Indian Investor
9:59 AM · Feb 9, 2025
https://x.com/Anvith_/status/1888633802706293035

Well, dear Americans, even if you don’t understand much about geography, since for you America is your country and not a continent, it is important for you to know, before the first brick is laid, that there are 7 billion people beyond that wall.

But since you don’t really know the term “people,” we will call them “consumers.” There are 7 billion consumers ready to replace their iPhones with Samsung or Huawei devices in less than 42 hours.

They can also replace Levi’s with Zara or Massimo Duti.

In less than six months, we can easily stop buying Ford or Chevrolet cars and replace them with Toyota, KIA, Mazda, Honda, Hyundai, Volvo, Subaru, Renault or BMW, which are technically better than the cars they produce. These 7 billion people can also stop subscribing to Direct TV, and we don't want to do that, but we can stop watching Hollywood movies and start watching more Latin American or European productions that have better quality, message, cinematic techniques and content.

Although it may sound incredible, we can skip Disney and go to the Xcaret resort in Cancun, Mexico, Canada or Europe: there are other great destinations in South America, East America and Europe.

And even if you don't believe it, even in Mexico there are better hamburgers than McDonald's and they have better nutritional content.

Has anyone seen pyramids in the United States? In Egypt, Mexico, Peru, Guatemala, Sudan and other countries there are pyramids with incredible civilizations.

Find out where to find the wonders of the ancient and modern world. None of them in the US. Shame on Trump, he would have bought them and sold them!

We know that Adidas exists, not just Nike, and we can start wearing Mexican sneakers like Panam. We know more than you think.

We know, for example, that if these 7 billion consumers don't buy their products, there will be unemployment and their economy will collapse (within the racist wall) to such an extent that they will beg us to tear down this ugly wall.

We didn't want to, but....

You want a wall, you get a wall. Sincerely yours."

-- Claudia Sheinbaum

[admin]

“Never Again for Anyone”: 100 Jewish Activists Arrested at Trump Tower Protesting Mahmoud Khalil Arrest
by Amy Goodman & Jewish Voice for Peace
March 14, 2025
https://www.democracynow.org/2025/3/14/ ... transcript



Over 300 protesters with the group Jewish Voice for Peace flooded the lobby of Trump Tower in New York on Thursday wearing red shirts saying “Not in Our Name.” They demanded the immediate release of Mahmoud Khalil and held banners reading “opposing fascism is a Jewish tradition.” About 100 protesters were arrested and face charges of trespassing, obstruction and resisting arrest. Democracy Now! was at the protest. “I refuse to allow this administration to speak in my name, to use our names as Jews, to carry out a fascist agenda,” protester Josh Dubnau said. “The Trump administration is a government that has far-right white supremacists, people that do the Nazi salute, and [Trump’s] fine with that.”

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Mahmoud Khalil, the Columbia University graduate and protest leader being held in ICE detention, felt like he was being kidnapped when he was arrested last week and flown to Louisiana, shackled and in handcuffs by agents who never identified themselves. That’s according to an updated lawsuit filed by Khalil’s legal team late Thursday. They say his treatment by federal authorities reminded Khalil, who’s Palestinian and grew up in Syria, of the time he left Syria in 2013 when his friends were being forcibly disappeared by the Assad regime.

Less than a week after immigration authorities detained Khalil, Department of Homeland Security, or DHS, agents were back on Columbia University’s campus late Thursday to serve two search warrants. Columbia’s interim president said no one was arrested or detained and that the university was obligated to comply with the warrants.

Earlier on Thursday, the Trump administration sent a letter to Columbia with a list of required policy changes it must meet by March 20th in order to begin negotiations to reinstate the $400 million in federal funding the federal government canceled last week over alleged inaction in addressing what they called antisemitism. The letter outlines nine preconditions the university must comply with. These include disciplining students involved in Gaza solidarity protests last spring with expulsion or more severe suspension, turning campus safety officers into police, adopting a definition of “antisemitism” that could limit criticism of Israel, and taking over the Department of Middle Eastern, South Asian and African Studies. In a post on social media, the retired Columbia Law professor Katherine Franke described the letter as a “ransom note.”

Before news of the letter was revealed, Columbia’s administration announced a range of punishments affecting at least 22 students involved in the occupation of a campus building last spring. The students were expelled, suspended for several years or had their degrees temporarily revoked.

Meanwhile, opposition to the Trump administration’s attempt to deport Mahmoud Khalil is only growing. Here in New York, Jewish Voice for Peace organized a nonviolent civil disobedience Thursday in the lobby of the Trump Tower right by the golden escalator where Donald Trump famously descended as he first announced his decision to run for president back in 2015. Some 300 protesters flooded the Trump Tower lobby, demanding the immediate release of Mahmoud Khalil. Nearly a hundred protesters were arrested and face charges of trespassing, obstruction and resisting arrest. Democracy Now! was at the protest.

AMY GOODMAN: We’re here at Trump Tower, where hundreds of protesters have gathered, unfurling banners that say “Jews say do not comply,” “You can’t deported a movement,” calling for Mahmoud Khalil to be freed, banners that say “Never again for anyone,” “No Muslim ban ever.” People are protesting, saying, “We’ve got your back, students. We’ve got your back, Mahmoud. We’ve got your back, Gaza. We’ve got your back, trans people,” and more. The police are beginning to move in. Those who don’t want to be arrested have gone up the escalator. We’ll see what happens. We’re in the middle of Trump Tower, here in Midtown Manhattan.

ELENA STEIN: My name’s Elena Stein. I’m with Jewish Voice for Peace. We’re here today with 300 Jewish people and friends, all of whom are taking the day off work to occupy, to take over Trump Tower, because we know that Mahmoud’s case is a pressure test. The Trump administration wants to know if they can crush dissent altogether. So, it’s Mahmoud’s case. He’s been abducted. But they’re coming for so many more people. They’re starting with noncitizen students. They’ll move to the whole movement for Palestinian liberation. And they’ll do that as a gateway to get to the whole — all of our movements. And so, the time is now. We need everybody to stand up as loudly as possible and ensure that this case cannot go through for all of our movements.

PROTESTERS: No more deportations! End the occupation!

JAY SAPER: I’m Jay Saper with Jewish Voice for Peace, and I’m here to raise my voice to free Mahmoud Khalil. We see that the president is taking action in our name, and we refuse. We see this is a chilling of dissent. And we understand, when you come for one, you must face us all. As Jews, we have an experience with fascism, and our tradition teaches us that we must fight against fascism. So that is why we are rising up right now at Trump Tower to challenge the president’s disappearing, kidnapping, abduction of Mahmoud Khalil.

I have members of my family who were killed at Auschwitz in the Holocaust, and so I am deeply compelled by my family’s story to do everything I can to take action for all of our communities that are under attack right now. This has absolutely nothing to do about Jewish safety, and we will continue to raise our voices. When they are talking about taking action against antisemitism, that is not the case. What they are doing is stifling the movement for Palestinian liberation. And as Jews, we are calling for the U.S. to stop arming Israel, because we believe we can — our liberation is intertwined with one another, and none of us can be safe until all of us are safe.

PROTESTERS: “Never again” for anyone! “Never again” is now!

JANE HIRSCHMANN: I’m Jane Hirschmann with Jewish Voice for Peace. And we’re here to say to President Trump: He’s got to
stop this authoritarianism, this fascism. I personally know about it. My parents were Holocaust survivors. My grandfather and uncle were abducted late at night, just like Mahmoud, just the same, and they were taken to jail. And my mother had to find them and take them out. Once they come for one of us, they’re going to come for all of us. And we are here to say to Trump, “No!” And we are Jewish. We’re here strong. There are over 216 of us. And this is a message we want to send to the president.

PROTESTERS: From Palestine to Mexico, all the walls have got to go!

JOSH DUBNAU: My name is Josh Dubnau. I’m here — I’m here as a Jew, because I refuse to allow this administration to speak in my name, to use our names as Jews to carry out a fascist agenda. There is a long history of Jews fighting fascism. And we are here today, as Jews and allies, to say no to fascism. The Trump administration is a government that has far-right white supremacists, people that do the Nazi salute, and he’s fine with that. He’s fine with supporting the AfD in Germany and other neo-Nazi and far-right groups. He’s not a friend to Jewish people.

POLICE LIAISON: The NYPD would like me to communicate that this has been your final warning, and they will begin arrests now.

PROTESTERS: When Palestine is under attack, what do we do? Stand up! Fight back! When Palestine is under attack, what do we do? Stand up! Fight back!

PROTESTER: I’m a militant anti-Zionist Jew. I’m ashamed —

POLICE OFFICER: You guys press?

AMY GOODMAN: Yes.

POLICE OFFICER: You guys have to leave here. They have the press downstairs.

PROTESTER: — of what — I’m ashamed of what my country is doing.

POLICE OFFICER: You guys have to leave. Come on. Let’s go.

JAMAAL BOWMAN: Jamaal Bowman, former congressman from New York’s 16th District, I love showing up here to support people who are putting their bodies on the line to save our democracy. Honestly, I didn’t even know this was happening. I happened to be in the neighborhood, and someone told me there’s a protest happening at Trump Tower. So I walked over here to just offer my support.

I’m here fighting for democracy, fighting for justice, fighting for humanity, fighting for brother Mahmoud Khalil, who was unlawfully detained in our country that’s supposed to be a country that exercises First Amendment rights. Brother Khalil was a peaceful protester fighting against a genocide in Gaza, like millions across the country and millions around the world. We have to stand up and fight for him, and we have to stand up and fight for everything this democracy is supposed to stand for. We have a fascist, right-wing dictator in the White House. His henchman, Elon Musk, is a Nazi. And we need the people of our country to push back and fight back and stand up against all of the injustices and the inhumanity that’s taking place in our country.

PROTESTERS: From the river to the sea, Palestine will be free!

AMY GOODMAN: Former New York Congressmember Jamaal Bowman standing outside the protest, where, inside, Jewish Voice for Peace, hundreds of people gathered at the Trump Tower, where it all began in 2015 when Donald Trump came down the same escalators and first announced he was running for president. About a hundred people were arrested.