Second federal judge extends block stopping Trump from freezing grants and loans
by PBS News
Politics Mar 6, 2025 12:37 PM EST
BOSTON (AP) — A second federal judge on Thursday extended a block barring the Trump administration from freezing grants and loans potentially totaling trillions of dollars.
U.S. District Court Judge John McConnell in Rhode Island granted the preliminary injunction in the lawsuit filed by nearly two dozen Democratic states after a Trump administration plan for a sweeping pause on federal spending stirred up a wave of confusion and anxiety across the United States.
In his ruling, McConnell said the executive branch was trying to put itself above Congress and by doing so “undermines the distinct constitutional roles of each branch of our government.”
“The Executive has not pointed to any constitutional or statutory authority that would allow them to impose this type of categorical freeze,” McConnell wrote. “The Court is not limiting the Executive’s discretion or micromanaging the administration of federal funds. Rather, consistent with the Constitution, statutes, and caselaw, the Court is simply holding that the Executive’s discretion to impose its own policy preferences on appropriated funds can be exercised only if it is authorized by the congressionally approved appropriations statutes.”
The states say a litany of programs are still waiting for federal funds or some clarity on whether the money is going to be delivered. McConnell also said the states had demonstrated standing in this case.
“The States have introduced dozens of uncontested declarations illustrating the effects of the indiscriminate and unpredictable freezing of federal funds, which implicate nearly all aspects of the States’ governmental operations and inhibit their ability to administer vital services to their residents,” he wrote. “These declarations reflect at least one particularized, concrete, and imminent harm that flows from the federal funding pause — a significant, indefinite loss of obligated federal funding.”
Rhode Island Attorney General Peter Neronha said President Donald Trump, a Republican, has “attempted to subvert the rule of law in favor of illegal executive power” through his executive orders.
“We don’t have kings in this country, and today’s preliminary injunction reaffirms that,” Neronha, a Democrat, said in a statement.
“Americans pay taxes to the federal government knowing that the Congress will allocate their dollars towards agencies and programs that will support them in their daily lives,” he continued. “The President’s federal funding freeze would be laughable if it wasn’t so utterly destructive. It flies in the face of everything we know to be true about our government, namely our separation of powers, by attempting to render the Congress as irrelevant.”
Among the funding impacted is billions of dollars that would fund rooftop solar power in low-income neighborhoods, subsidizes low- and moderate-income households’ purchase and installation of electric heat pump water heaters and grants to reduce greenhouse gas emissions and other harmful pollutants.
“The Trump administration’s illegal funding freeze jeopardized law enforcement funding, essential health care and childcare services, and other critical programs that millions of Americans rely on,” New York Attorney General Letitia James, a Democrat, said in a statement.
The White House previously said the temporary funding halt would ensure that the payments complied with Trump’s agenda, which includes increasing fossil fuel production, removing protections for transgender people and ending diversity, equity and inclusion efforts.
The Republican administration has since rescinded a memo outlining the funding freeze. Still, many state government, universities and nonprofits have argued federal agencies continue to block funding for a range of programs.
U.S. District Judge Loren AliKhan in Washington has also extended an order blocking the funding freeze. AliKhan granted a preliminary injunction requested by groups representing thousands of nonprofits and small businesses.
Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Gates
Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
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Ed Martin
@EagleEdMartin
Dear @elon, Please see this important letter. We will not tolerate threats against DOGE workers or law-breaking by the disgruntled. All the best. Ed Martin
9:46 AM · Feb 3, 2025
*************************
United States Senate
Committee on the Judiciary
Washington, DC 20510-6275
March 6, 2025
Office of Disciplinary Counsel
District of Columbia Court of Appeals
515 5th Street NW
Building A, Suite 117
Washington, DC 20001
Re: Request for Disciplinary Investigation of Edward Robert Martin, Jr.
To the Disciplinary Counsel:
We write to express our grave concern about actions taken by Edward Robert Martin, Jr. that may constitute professional misconduct under the D.C. Rules of Professional Conduct. Since his appointment as Interim U.S. Attorney for the District of Columbia on January 20, 2025, Mr. Martin has abused his position in several ways, including dismissing charges against his own client and using the threat of prosecution to intimidate government employees and chill the speech of private citizens. Due to the serious nature of this misconduct, we request that the Office of Disciplinary Counsel open an investigation to determine whether Mr. Martin, who is a member of the D.C. Bar, violated applicable D.C. Rules of Professional Conduct and should be subject to disciplinary action.
While in private practice, Mr. Martin appeared as defense counsel in cases related to the January 6, 2021 attack on the U.S. Capitol.1 On January 21, 2025, Mr. Martin personally submitted a motion to dismiss the eight felony counts and two misdemeanors against Joseph Padilla, who had already been convicted and sentenced for these charges.2 While in private practice, Mr. Martin represented Mr. Padilla in this very matter, and Mr. Martin sought this dismissal while still representing Mr. Padilla.3 By not recusing himself from this matter, Mr. Martin created an impermissible conflict of interest and appearance of impropriety by using his new government office to favor his client, whom he was defending from the very charges he sought to dismiss.
Similarly, Mr. Martin appeared as defense counsel for January 6 defendant William Chrestman, a member of the Proud Boys’ Kansas City chapter.4 Mr. Chrestman was sentenced to four and a half years imprisonment after pleading guilty to one count each of obstruction of an official proceeding and threatening a federal officer.5 Mr. Martin only moved to withdraw from his representation of Mr. Chrestman on February 4, 2025.6 This withdrawal occurred after Mr. Martin initiated Project 1512, an internal review of the use of 18 U.S.C. §1512 obstruction charges by the U.S. Attorney’s Office for the District of Columbia in January 6 cases.7 By not removing himself from the Chrestman matter in a timely fashion, Mr. Martin created an appearance of impropriety.
There is also evidence indicating that Mr. Martin, since his appointment as Interim U.S. Attorney, has communicated directly with January 6 defendants who were not his clients. William Pope was charged with one felony and four misdemeanors for his actions on January 6.8 On January 28, 2025, Mr. Pope filed a post-dismissal notice to the court and motion to produce casefiles which refers to ongoing discussions with Mr. Martin: “I have asked the new U.S. Attorney if the government is opposed to me keeping these files with my case notes.…and I have been told the government no longer considers these specific items sensitive for me.”9 In a later filing, Mr. Pope asked the court to “direct Mr. Martin to file a statement on whether or not he allowed me to keep all discovery files that are intertwined with my case notes.”10 If he communicated directly with Mr. Pope about his case, Mr. Martin created the appearance of impropriety because he may be called as a witness for the defendant in a matter involving the office he currently leads.
The D.C. Bar defines misconduct as “[a]cts or omissions by an attorney…which violate the attorney’s oath of office or the rules or code of professional conduct currently in effect.”11 Mr. Martin’s apparent misconduct here seems to violate several rules. Rule 1.7(b)(4) prohibits representing a client with respect to a matter if “[t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party….”12 Under this rule, Mr. Martin cannot effectively represent the United States in taking any investigative or prosecutorial steps against Mr. Padilla, including steps favorable to Mr. Padilla, in the same matter in which he defended and still represented Mr. Padilla. Doing so also violates Rule 3.8(a)’s prohibition on prosecutors in criminal cases “exercising discretion to…improperly favor…any person.”13 Mr. Martin’s misconduct also implicates Rule 8.4(d)’s prohibition of “conduct that seriously interferes with the administration of justice,” by creating an appearance of impropriety regarding the circumstances behind the dismissal of the charges against his client, Mr. Padilla. Mr. Martin’s representation of Mr. Padilla and Mr. Chrestman, both of whom were charged with obstruction of Congress, creates an appearance of impropriety in any review or prosecutorial steps relating to the U.S. Attorney’s Office for the District of Columbia’s handling of obstruction charges against other January 6 defendants. Further, Mr. Martin’s conduct as it relates to Mr. Pope’s ongoing matter may implicate Rule 3.7, which prohibits an attorney’s involvement where they are “likely to be a necessary witness.”14 Other Rules may be similarly implicated.
Since assuming the duties of Interim U.S. Attorney for the District of Columbia, Mr. Martin has also engaged in additional, repeated conduct that appears to violate Rule 8.4(d), as well as Rule 3.8’s special responsibilities for prosecutors. Specifically, Mr. Martin has made numerous extrajudicial statements that threaten prosecution with the apparent intent of intimidating government employees and chilling the speech of private citizens, including:
• A February 3 tweet and letter to Elon Musk threatening that “we will pursue any and all legal action against anyone who impedes your work or threatens your people.”15
• A February 7 tweet and letter to Elon Musk threatening that “if people are discovered to have broken the law or even acted simply unethically, we will investigate them and we will chase them to the end of the Earth to hold them accountable.”16
• A February 14 tweet threatening former Special Counsel Jack Smith and his legal representation to “[s]ave your receipts, Smith and Covington. We’ll be in touch soon.”17.
• The February 19, 2025 announcement of “Operation Whirlwind,” a new initiative to investigate and prosecute alleged threats to government officials, which included sending letters of inquiry to two Democratic Members of Congress regarding statements criticizing Elon Musk and Supreme Court justices.18
Mr. Martin’s conduct not only speaks to his fitness as a lawyer; his activities are part of a broader course of conduct by President Trump and his allies to undermine the traditional independence of Department of Justice investigations and prosecutions and the rule of law.19 When a government lawyer, particularly one entrusted with a leadership role in the nation’s foremost law enforcement agency, commits serious violations of professional conduct, it undermines the integrity of our justice system and erodes public confidence in it. Public confidence would be further eroded if such serious misconduct is met with no consequences. Therefore, we submit this letter of complaint to respectfully request that the Office of the Disciplinary Counsel initiate an investigation and take appropriate disciplinary proceedings pursuant to Rule XI of the Rules Governing the District of Columbia Bar.
We appreciate your prompt attention to this sensitive matter. The Committee is available for further consultation as needed.
Sincerely,
Richard J. Durbin
United States Senator
Richard Blumenthal
United States Senator
Mazie K. Hirono
United States Senator
Sheldon Whitehouse
United States Senator
Alex Padilla
United States Senator
Adam B. Schiff
United States Senator
Christopher A. Coons
United States Senator
Cory A. Booker United States Senator
Amy Klobuchar
United States Senator
Peter Welch
United States Senator
cc: The Honorable Charles E. Grassley
Chairman, Committee on the Judiciary
_______________
Notes:
1 United States v. Padilla, 21-cr-214 (JDB); United States v. Chrestman, 21-cr-160-5 (TJK); United States v. Krol, 22-cr-110-1 (RC).
2 See United States’ Motion to Dismiss Indictment with Prejudice Pursuant to Federal Rule Criminal Procedure 48(a), United States v. Padilla, No. 1:21-cr-00214 (D.D.C. Jan. 21, 2025).
3 Mr. Martin did not seek to withdraw his representation of Mr. Padilla until February 4, a full 14 days after he personally signed the motion to dismiss. See Defense Counsel’s Motion to Withdraw as Counsel, United States v. Padilla, No. 1:21-cr-00214 (D.D.C. Feb. 4, 2025).
4 Spencer S. Hsu, Salvador Rizzo, & Tom Jackman Lawyer Who Represented Jan. 6 Defendants Made Interim D.C. U.S. Attorney, WASH. POST (Jan. 21, 2025), https://www.washingtonpost.com/dc-md-va ... artin-jan- 6-lawyer-dc-us-attorney/
5 See Judy L. Thomas & Daniel Desrochers, Olathe Proud Boy Who Carried Ax Handle into Capitol On Jan. 6 Pleads Guilty to Felonies, THE KANSAS CITY STAR (Oct. 16, 2023), https://www.kansascity.com/news/local/c ... 0469.html; Judy L. Thomas & Daniel Desrochers, KS Proud Boy Who Stormed Capitol Released From Prison Early. He Got Thousands in Donations, KANSAS CITY STAR (Oct. 16, 2024), https://www.kansascity.com/news/local/a ... 58694.html.
6 See Defense Counsel’s Motion to Withdraw as Counsel, United States v. Chrestman, No. 1:21-cr-00160 (D.D.C. Feb. 5, 2025).
7 Ryan J. Reilly, Trump's New D.C. Prosecutor Launches Review to Examine 'Great Failure' Of Key Charge Leveled Against Jan. 6 Defendants, NBC NEWS (Jan. 27, 2025), https://www.nbcnews.com/politics/justicedepartment/ trump-dc-prosecutor-ed-martin-launches-review-jan-6-cases-rcna189503.
8 Tim Hrenchir, Judge dismisses Jan. 6 riot charges against Topekan Will Pope and His Brother, TOPEKA CAPITALJ. (Jan. 27, 2025), https://www.cjonline.com/story/news/cou ... sttopekan- will-pope-and-his-brother/77917282007/.
9 See United States v William Alexander Pope, Notice to the Court Regarding Order No. 239 and a New Motion to Produce Various Case Files, No. 1:21-cr-00128-RC (D.D.C. Jan. 28, 2025).
10 See United States v William Alexander Pope, Reply to the Government’s Opposition (No. 292) to My Notice on Order No. 239 and Motion for Case Files (No. 391), No. 1:21-cr-00128-RC (D.D.C. Feb. 19, 2025)
11 Rules Governing the District of Columbia Bar, Rule XI, Section 2(b).
12 D.C. Rules of Professional Conduct, Rule 1.7(b)(4).
13 D.C. Rules of Professional Conduct, Rule 3.8(a). Although the dismissal of the charges against Mr. Padilla was prompted by President Trump’s pardon, Mr. Martin’s conduct here violates Rule 3.8(a) due to the fact that he did not recuse himself from this matter as required by his employer in the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635.502(e) due to his covered relationship with Mr. Padilla as defined in 5 C.F.R. § 2635.502(b)(1)(iv). There is no indication that Mr. Martin received the requisite authorization by an agency designee prior to submitting the motion to dismiss as provided for in 5 C.F.R. § 2635.502(d).
14 D.C. Rules of Professional Conduct, Rule 3.7.
15 @EagleEdMartin (Feb. 3, 2025, 11:46 AM), https://x.com/EagleEdMartin/status/1886456136032817488.
16 @EagleEdMartin (Feb. 7, 2025, 11:27 AM), https://x.com/EagleEdMartin/status/1887901087983689761 (emphasis in original).
17 @USAEdMartin (Feb. 14, 2025, 8:19 PM), https://x.com/USAEdMartin.
18 Spencer S. Hsu, D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, WASH. POST (Feb. 20, 2025), https://www.washingtonpost.com/dc-md-va ... ddemocrats.
19 See e.g., Mr. Martin has used the official Twitter account of the U.S. Attorney’s Office for the District of Columbia to describe himself and his colleagues as “President Trumps’ [sic] lawyers” who “fight to protect his leadership as our President…” @USAO_DC (Feb. 25, 2025, 3:18 PM), https://x.com/USAO_DC/status/1894119675786621225. He has also premised terminations of Assistant U.S. Attorneys on the fact that they were hired prior to President Trump’s second inauguration: “Based on your hiring as an Assistant United States Attorney in the District of Columbia in the weeks leading up to President Trump’s second inauguration, your hiring has hindered the ability of Acting U.S. Attorney Martin to staff his office in furtherance of his obligation to faithfully implement the agenda that the American people elected Trump to execute.” See Letter from Stephanie M. Hinds, Director, U.S. Dep’t of Justice, Exec. Off. for U.S. Attorneys, to Sean Brennan, Assistant U.S. Attorney (Jan. 31, 2025).
****************************
President Trump’s New Gilded Age: How Trump’s Department of Justice is Promoting Political and Corporate Corruption to Benefit His Most Loyal Supporters
Democratic Staff Report
Committee on the Judiciary
U.S. House of Representatives
February 25, 2025
Immediately after President Trump assumed office, the Administration began purging experienced career civil servants throughout the Department of Justice (DOJ), clearing out the leadership ranks of national security and public corruption prosecutors, replacing them with inexperienced sycophants. At the same time, the Administration has taken steps to suppress anti-corruption prosecutions and investigations, disbanding critical task forces at DOJ and the Federal Bureau of Investigation (FBI), and halting the enforcement of anti-corruption laws. Recently, the Trump DOJ attempted to enter into a corrupt quid pro quo with indicted New York City Mayor Eric Adams, essentially forcing multiple veteran prosecutors, including staunch conservatives, to resign rather than follow through on unlawful and unethical orders from Acting Deputy Attorney General Emil Bove. Together, these efforts threaten effective law enforcement, undermine public confidence in the rule of law, and foster networks of corruption and lawlessness that ultimately make our communities less safe. Under President Trump, the DOJ has become an agency charged with ensuring that the President’s most loyal supporters can break the law with impunity.
I. THE TRUMP DOJ IS ALREADY A LAWLESS DEPARTMENT THAT PROTECTS THOSE MOST LOYAL TO THE PRESIDENT AND CARRIES OUT HIS DEMANDS FOR REVENGE AND RETRIBUTION
Donald Trump’s time as president and as a presidential candidate has been defined by his desire for vengeance against people whom he believes have wronged him. During his first term, he demanded retribution against FBI leadership under Director James Comey for initiating the investigation into Russian election interference. During his 2024 campaign, Donald Trump made more than 100 threats to prosecute or punish his political enemies, particularly members of the January 6th Committee.1 Moreover, during a March 2023 speech at the Conservative Political Action Conference (CPAC), then-presidential candidate Trump said: “I am your warrior. I am your justice. And for those who have been wronged and betrayed: I am your retribution.”2 He also asked several of his close advisers, including at least one of his personal attorneys, if they knew all the names of senior FBI agents and Justice Department personnel who have worked on the federal probes into him.3
Since taking office, President Trump and members of his Administration have made good on their promise to seek retribution and have weaponized the federal government in order to achieve that goal. As mentioned in the following section of this report, the Trump Administration has begun a wholesale purge of career government officials at the FBI and DOJ. However, the Administration’s actions do not stop there. Shortly after taking office, Attorney General (AG) Pam Bondi launched a “Weaponization Working Group” to investigate prosecutions against President Trump, including his 34-count felony conviction and the $486 million civil fraud judgment against him in New York.4 The Trump Administration has also pardoned more than 1,500 people charged in connection with the Capitol attack on January 6, 2021, ordered the Justice Department investigate thousands of career federal prosecutors and FBI employees, and directed federal prosecutors with the U.S. Attorney’s Office for the Southern District of New York (SDNY) to drop corruption charges against New York City Mayor Eric Adams.5
Perhaps, the most chilling actions have come from the U.S. Attorney’s Office for the District of Columbia. Earlier this week, news reports revealed that Edward Martin, the Interim U.S. Attorney for the District of Columbia, had begun an investigation of statements made by Democratic political figures, which he coined “Operation Whirlwind.”6 This investigation began with a “letter of inquiry” to Senate Majority Leader Chuck Schumer about his March 2020 statement that Supreme Court Justices Brett Kavanaugh and Neil Gorsuch would “pay the price” if they voted to restrict abortion rights.7 Senator Schumer’s Chief of Staff responded to Mr. Martin’s allegations by highlighting a subsequent speech that Senator Schumer made on the Senate floor, in which he said: “My point was that there would be political consequences…for President Trump and Senate Republicans if the Supreme Court, with the newly confirmed Justices, stripped away a woman’s right to choose.”8 In addition to Senator Schumer, Representative Robert Garcia also received a letter from Mr. Martin regarding his statements about Elon Musk.9 As Rep. Garcia has pointed out, Mr. Martin’s letters of inquiry are threats that clearly infringe on the First Amendment and are an attempt to silence speech that Elon Musk and the Trump Administration disagree with.10
In addition to his investigation of Democratic political leaders, Mr. Martin has ordered top officials in his office to undertake an internal review of its handling of Capitol riot prosecutions, particularly the office’s decision to charge more than 250 Capitol riot defendants with obstructing an official proceeding of Congress.11 Last June, the Supreme Court adopted a narrower interpretation of the obstruction statute, holding that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the proceeding, or attempted to do so.” 12
Although the Circuit Court for the District Court of Columbia ruled consistent with how January 6 defendants were charged, in an email announcing the internal review, Mr. Martin said, "Obviously, the use was a great failure of our office … and we need to get to the bottom of it.” Mr. Martin then instructed personnel to deliver “all information you have related to the use of 1512 charges including all files, documents, notes, emails and other information.”13
The Trump Administration has also taken a number of actions to abolish and stifle anti-corruption efforts. On February 5, 2025, AG Bondi circulated a memo that, among other things, announced the elimination of the KleptoCapture Task Force, the Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative (KARI).14 The Task Force served as an interagency task force designed to enforce the sanctions, export restrictions, and other measures that the United States had imposed on Russia after its invasion of Ukraine.15 KARI had been established by DOJ in 2010 to bring together prosecutors, financial experts, and investigators to “hold corrupt actors and enablers accountable under the law and to return recovered funds for the benefit of the people harmed by the corruption.”16 Between the establishment of KARI and December 2023, the program had recovered $1.7 billion, with more than $1.6 billion returned to those harmed by corruption efforts.17 These initiatives have been critical to DOJ’s targeting and seizure of ill-gotten assets of corrupt foreign actors in several countries, including Russia and China.18 A leading anti-corruption NGO has noted that the elimination of these initiatives “will significantly diminish the U.S.’s ability to counter the transnational corruption that continues to threaten core U.S. security and economic interests[.]”19
On February 5, AG Bondi also announced that “The National Security Division's Corporate Enforcement Unit is also disbanded. Personnel assigned to the Unit shall return to their previous posts.”20 This unit was responsible for holding largescale companies accountable if they violated U.S. national security law, including sanctions evasion, export control violations, and similar economic crimes.21 This unit would be responsible for holding corporate actors accountable that help foreign adversaries like Russia, China, North Korea, and Iran evade U.S. national security law and sanctions.
In an Executive Order issued February 10, 2025, President Trump additionally halted the enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days and called for the “review in detail all existing FCPA investigations and enforcement actions,” claiming [the FCPA] “has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States.”22 The FCPA has existed since 1977 to prohibit U.S. businesses and their agents from bribing foreign officials abroad related to their businesses, and generally require recordkeeping to “provide reasonable assurances that transactions are executed and assets are accessed and accounted for in accordance with management's authorization.”23
II. PRESIDENT TRUMP IS PURGING EXPERIENCED CAREER CIVIL SERVANTS THROUGHOUT THE DOJ AND REPLACING THEM WITH JUNIOR SYCOPHANTS, MAKING OUR COMMUNITIES LESS SAFE
The Trump Administration has launched an unprecedented and all-out purge at the DOJ, including its components like the FBI, by firing, demoting, and removing career employees, including the most experienced investigators and senior prosecutors charged with enforcing federal law.
The actions below detail the purges that the Trump Administration has engaged in since assuming office.
• Experienced DOJ leadership responsible for combatting corruption and enforcing ethical and recusal rules has been eviscerated. More than 20 veteran DOJ prosecutors and experts, including the leaders of vital sections, have been replaced by loyalist political employees who put President Trump’s unconstitutional agenda above the rule of law.
• The Public Integrity Section has been gutted. President Trump forced out the longtime head of the anti-corruption section, and five additional attorneys— including two of its top lawyers—resigned in protest rather than comply with Acting Deputy Attorney General Emil Bove’s demand that the Section dismiss corruption charges against Mayor Adams.
• Seasoned D.C. prosecutors and FBI agents have been sacked as punishment for working on January 6th cases, as assigned. Mr. Martin fired dozens of career prosecutors in his office for simply having worked on January 6th cases, as assigned, many of whom were currently working to combat violent crime in the District of Columbia. Moreover, the FBI has begun a review of thousands of career agents to evaluate them for potential dismissal, simply for having investigated the January 6th attack as instructed.
• SDNY has become a tool of corruption and quid pro quos. Seven experienced federal prosecutors have resigned from their roles rather than carry out unlawful directives from the Trump Administration to protect New York City Mayor Adams. This includes Danielle Sassoon, the Acting U.S. Attorney for SDNY, as well as Assistant U.S. Attorney Hagan Scotten. Moreover, John Keller, the acting head of the DOJ Public Integrity Section, and Kevin Driscoll, the senior-most career official leading the DOJ’s Criminal Division, also resigned rather than carry out the dismissal of the Adams case after Ms. Sassoon resigned.24
• The government lost a top criminal prosecutor in D.C. Denise Cheung, a 24-year veteran of the DOJ and head of the criminal division of the U.S. Attorney's Office for the District of Columbia, resigned rather than comply with directives to open investigations into the Biden Administration without sufficient evidence.25
These firings and reassignments throughout the Department are detailed below.
A. Firings, Reassignments, and Forced Resignations of DOJ Prosecutors
Within just hours of taking office, on January 20, 2025, President Trump summarily removed top career officials from key positions at the DOJ’s National Security, Criminal, Civil Rights, and Environment and Natural Resources Divisions.26 This includes the reassignment of at least 20 key career officials at the DOJ to different positions, some of whom were senior career leaders in the national security and criminal sections.27 Career officials that were reassigned include Bruce Swartz, the long-term head of the Department’s Office of International Affairs, which handles extradition matters,28 as well as Bradley Weinsheimer, the DOJ’s seniormost career official specializing in ethics and recusal issues. Both resigned rather than accept a demotion and reassignment.29
Also, within hours of taking office, President Trump moved to reassign Corey Amundson, the top corruption prosecutor at the Department’s Public Integrity Section, who resigned rather than be reassigned to a newly created task force targeting Sanctuary Cities.30 This section has also recently been swept up into the Eric Adams prosecution.31
On February 13, 2025, Acting Deputy Attorney General Emil Bove instructed the Acting U.S. Attorney for the SDNY, Danielle Sassoon, to drop the corruption charges filed against New York City Mayor Eric Adams, in order to allow Mr. Adams more bandwidth to enforce President Trump’s immigration agenda.32 Ms. Sassoon resigned rather than comply with the demand, noting that the request was “inconsistent with [her] ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts” and describing Mayor Adams’s teams efforts to obtain a quid pro quo in exchange for dismissal.33 The SDNY prosecutors who worked on the case with Ms. Sassoon were put on administrative leave for also refusing to obey the order to file for dismissal, and the lead prosecutor on the case, Hagan Scotten, also resigned on February 14, 2025.34 Mr. Bove then transferred the case over to the DOJ’s Public Integrity Section, demanding that the Section designate someone to dismiss the case against Mayor Adams.35 This led to the resignation of two senior lawyers, plus another three attorneys in the Section, in protest.36 The motion to dismiss was ultimately filed by Mr. Bove and Edward Sullivan, a veteran public corruption prosecutor in the Section, who reportedly agreed to file it “to avoid a mass firing of prosecutors and allow his colleagues time to seek jobs elsewhere.”37
On January 27, 2025, President Trump also fired more than a dozen career prosecutors who previously worked on Special Counsel Jack Smith’s team.38 The Acting Attorney General told them: “I do not believe that the leadership of the department can trust you to assist in implementing the president’s agenda faithfully.”39 Notably, federal civil service laws forbid partisan discrimination and political retribution, and also clearly prevent retaliation against DOJ prosecutors for the crime of doing their jobs as assigned.40
On January 20, 2025, President Trump named Edward Martin as Interim U.S. Attorney for the District of Columbia, and on February 17, 2025, nominated him to serve as the U.S. Attorney in this position.41 Mr. Martin is an election-denying criminal defense attorney for January 6th rioters who, within days of taking this position, launched a probe into the office’s prosecutors who worked on January 6th cases.42 On January 31, 2025, Mr. Martin fired dozens of these career prosecutors in his office, simply for having worked on January 6th prosecutions as they were directed to do by their superiors.43 At the time of their firing, these experienced non-political prosecutors were assigned to tackling serious crime throughout D.C., including drug crimes, domestic violence, and property crime— immediately putting Washington, D.C. residents at greater risk.
On Tuesday, February 21, 2025, President Trump announced that he instructed the DOJ to fire any remaining U.S. attorneys installed by the Biden Administration, in an effort to clean out any remaining appointees who may resist President Trump’s tyrannical government agenda.44 Those firings began Wednesday, February 13, 2025, before his Truth Social announcement, when some holdover U.S. attorneys from the Biden Administration received an abrupt email notifying them of their dismissals and disconnection from their access to government phones and computers.45 It was done so chaotically that some emails went to internal emails that they no longer had access to, meaning U.S. attorneys, the chief law enforcement officers in their respective federal districts, were left scrambling and trying to guess whether they had a job or not until days later.46 In a major departure from common practice, the Trump Administration did not coordinate removal of U.S. attorneys with DOJ’s Executive Office for U.S. Attorneys (EOUSA).47
B. Firings, Reassignments, and Forced Resignations of FBI Agents
Within ten days of taking office, the Trump Administration demoted all six of the seniormost career FBI officials— Executive Assistant Directors who lead the FBI’s National Security; Intelligence; Criminal, Cyber, Response, and Services; Science and Technology, Information and Technology; and Human Resources branches.48 All of these individuals had spent decades with the FBI working their way into these leadership positions under administrations of both parties.49
In these early days, the Trump Administration also forced the Special Agents in Charge (SACs) of multiple FBI offices to either resign or be fired.50 This includes the Field Office in Washington, D.C., which has grave implications on national security given its jurisdiction over many federal government buildings and operations; the Field Office in New Orleans, just days before the city was to host the Super Bowl on February 9; and the Field Offices in Las Vegas and Miami.51
Amid these removals, a memo sent on January 31, 2025, indicated that Acting Deputy Attorney General Bove ordered the targeting and review of every FBI agent who ever investigated a January 6th case, in order to begin “a review process to determine whether any additional personnel actions are necessary.”52 On February 4, 2025, identifying information for over 5,000 FBI officials who worked on these cases was turned over to DOJ leadership.53 In response, FBI agents filed two lawsuits against the DOJ and then-Acting Attorney General James McHenry to prevent the disclosure of this list by Trump allies, which they worry would put both the named agents and their families at risk of harm, especially since some January 6th defendants who were pardoned allegedly “link to each other in posts promoting violence and insurrection against law enforcement agents.”54 On February 7, 2025, the FBI reached an agreement with the plaintiffs not to release any agents’ names without two days’ notice.55
C. Firings, Reassignments, and Forced Resignations of Other DOJ Officials and Employees
On January 20, 2025, President Trump removed multiple senior leaders of the Justice Department's Executive Office for Immigration Review (EOIR) without cause and without notice.56 The firing notice cited a hopelessly vague rationale for their removal, namely “Title II of the Constitution,” which is a textual constitutional provision, not a substantive legal justification for removing civil service-protected career Department employees. Between February 7 and February 14, 2025, 20 immigration judges were also fired, placing additional strains on already notoriously backlogged dockets in immigration courts. 57
On the same day, President Trump also forced out the Director of the Bureau of Prisons (BOP) Collette Peters. Ms. Peters is pursuing an appeal through the Merit Systems Protection Board.58
On February 20, 2025, the Chief Counsel of the DOJ’s Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF) was fired and escorted from the building, without an explanation provided by the DOJ.59
III. REPUBLICANS ARE RECYCLING TIRED CONSPIRACY THEORIES—LIKE DEBUNKED CLAIMS OF THE BIDEN ADMINISTRATION TARGETING CONSERVATIVES—TO DISTRACT THE AMERICAN PEOPLE FROM DOJ’S SLIDE INTO LAWLESSNESS
Instead of conducting oversight of the DOJ and the Administration, Committee Republicans are entirely focused on continuing failed investigations started last Congress and aimed largely at the Biden Administration, the Biden family, and baseless claims of a “corrupt” DOJ working to target and silence conservative voices.
These investigations were launched to investigate the following theories, which have been widely debunked and disproven:
• Big Tech: Republicans allege that the Biden Administration was “colluding” with “Big Tech” to censor conservative voices, and the Biden Administration was “coercing” these companies to remove right-wing content. In reality, the evidence shows that there was no coercion or collusion between the government and social media companies, and the Supreme Court noted in dicta that a district court’s findings of such collusion appeared to be “clearly erroneous.”
• Targeting Catholic Views: Republicans allege that the Biden FBI impermissibly linked Catholics’ religious views to violent extremists in violation of the First Amendment by issuing a memorandum that purports to target Catholic views. In reality, an internal review found that the memo was targeting one specific individual, not Catholic views at large. Moreover, both Attorney General Garland and FBI Director Wray criticized the memo, and trainings and disciplinary actions were put into place to prevent such an occurrence from happening again.
• Targeting Parents: Republicans allege that Attorney General Garland impermissibly linked concerned, law-abiding parents who spoke at schoolboard meetings to domestic terrorists, and used PATRIOT Act investigative tools on them, because they espoused conservative viewpoints and concerns. In reality, Attorney General Garland refuted every claim that parents were being treated as domestic terrorists or that PATRIOT Act tools were being used to target law abiding parents concerned for their children. The word “parent” was not even mentioned in the memo Republicans are so concerned with. The memo was circulated because of increasing violent threats against education officials to keep all such officials safe from harm.
• A “Witch Hunt” Against Trump Over Classified Documents: Republicans allege that the Biden DOJ conducted a “witch hunt” against President Trump when the FBI “raided” his home in Mar-a-Lago to retrieve classified documents, and that Attorney General Garland appointed Jack Smith as Special Counsel to launch a “politically motivated” prosecution against President Trump for his handling of those documents. In reality, President Trump knowingly mishandled hundreds of classified documents and put America’s national security directly at risk, and
• Whistleblower Retaliation: Republicans allege that the Biden FBI systematically revoked security clearances of its conservative-leaning agents as punishment for their right-wing views. In reality, there is no evidence that the FBI systematically used security clearance revocation to target whistleblowers or conservative-minded employees at the FBI.
• Discriminating Against Pro-Life Health Centers: Republicans allege that the Biden Administration selectively enforced the FACE Act, only to protect abortion clinics and never to protect pro-life institutions. In reality, there is no evidence that the Biden Administration selectively enforced the FACE Act, and in fact actively worked to let pro-life centers know they were also protected under this law. This is nothing more than a failed attempt to make it seem like pro-life individuals are under attack.
In reality, Republicans are rehashing these bogus conspiracy theories to gaslight the American public into believing it was President Biden—not Donald Trump—infringing on their civil liberties. Clearly, as detailed in this report, it is Donald Trump’s DOJ that is lawless, discriminatory, and a growing threat to public order and the rights of the people.
_______________
Notes:
1 Tom Dreisbach, Trump has made more than 100 threats to prosecute or punish perceived enemies, NPR (Oct. 22, 2024), https://www.npr.org/2024/10/21/nx-s1-51 ... -liberties.
2 Former Pres. Trump: "I Am Your Justice...I Am Your Retribution”, C-SPAN (Mar. 4, 2023), https://www.c-span.org/clip/campaign-20 ... on/5060238.
3 Ken Dilanian, Jonathan Dienst, Ryan J. Reilly & Tom Winter, Names of FBI agents who investigated Capitol riots to be handed over to Trump DOJ officials, NBC NEWS (Feb. 3, 2025), https://www.nbcnews.com/politics/nation ... rcna189642.
4 Cristine Soto DeBerry, Opinion, Our justice system held Trump accountable. Now he's weaponizing AG, DOJ against it., USA TODAY (Feb. 19, 2025), https://www.usatoday.com/story/opinion/ ... 472835007/.
5 Id.
6 Steve Benen, Trump-appointed prosecutor kicks off ‘Operation Whirlwind,’ eyes Schumer, MSNBC (Feb. 19, 2025), https://www.msnbc.com/rachel-maddow-sho ... rcna192878.
7 Read interim U.S. attorney Ed Martin’s letters to Democratic lawmakers, WASH. POST (Feb. 19, 2025), https://www.washingtonpost.com/dc-md-va ... er-garcia/.
8 Id.
9 Robert Garcia (@RobertGarcia), X (Feb. 20, 2025, 2:55 PM), https://x.com/RobertGarcia/status/1892664373463683535.
10 Id.
11 Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.
12 Fischer Decision at p. 16
13 Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.
14 Memorandum, Total Elimination of Cartels and Transnational Criminal Organizations The Attorney General, U.S. DEP’T OF JUSTICE (Feb. 5, 2025), https://www.justice.gov/ag/media/1388546/dl?inline; Press Release, Attorney General Memorandum Redirects U.S. Anti-Corruption Efforts Raising Questions and Concerns, TRANSPARENCY INTERNATIONAL (Feb. 6, 2025), https://us.transparency.org/news/attorn ... tion-laws/.
15 Press Release, Attorney General Merrick B. Garland Announces Launch of Task Force KleptoCapture, U.S. DEP’T OF JUSTICE (March 2, 2022), https://www.justice.gov/archives/opa/pr ... ptocapture.
16 Press Release, Deputy Assistant Attorney General Kevin Driscoll Delivers Remarks at the Global Forum on Asset Recovery Action Series in Atlanta, U.S. DEP’T OF JUSTICE (Dec. 12, 2023), https://www.justice.gov/archives/opa/sp ... orum-asset.
17 Id.
18 Id.
19 Press Release, Attorney General Memorandum Redirects U.S. Anti-Corruption Efforts Raising Questions and Concerns, Transparency International U.S. (Feb. 6, 2025) (online at https://us.transparency.org/news/attorn ... tion-laws/).
20 Memorandum, General Policy Regarding Charging, Plea Negotiations, and Sentencing, The Attorney General, U.S. DEP’T OF JUSTICE (Feb. 5, 2025), https://www.justice.gov/ag/media/1388541/dl.
21 Press Release, Justice Department’s National Security Division Announces Key Corporate Enforcement Appointments, U.S. DEP’T OF JUSTICE (Sept. 11, 2025), https://www.justice.gov/archives/opa/pr ... nforcement ; Focusing the Spotlight: DOJ Focuses on National Security in Corporate Criminal Enforcement, CROWELL, https://www.crowell.com/en/insights/cli ... nforcement (last visited Feb. 22, 2025).
22 Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025) http://www.whitehouse.gov/presidential- ... -security/ ; Department of Justice, Foreign and Corrupt Practices Act Unit, https://www.justice.gov/criminal/crimin ... ctices-act (last visited Feb. 16, 2025).
23 U.S. Securities and Exchange Commission, Foreign Corrupt Practices Act (FCPA), https://www.sec.gov/enforcement/foreign ... ctices-act (last visited Feb. 22, 2025).
24 Ryan Lucas & Carrie Johnson, 3 top U.S. Prosecutors resign over order to drop NYC Mayor Eric Adams corruption case, NPR (Feb. 13, 2025, 6:11 PM), https://www.npr.org/2025/02/13/nx-s1-52 ... signations.
25 Ryan J. Reilly, Veteran federal prosecutor resigns over bank freeze order from Trump appointee, NBC NEWS (Feb. 18, 2025, 4:23 PM), https://www.nbcnews.com/politics/justic ... rcna192619.
26 Perry Stein & Ellen Nakashima, Justice Dept. removes senior career officials from key positions, WASH. POST (Jan. 21, 2025), https://www.washingtonpost.com/national ... -criminal/.
27 Eric Tucker, Key career officials at Justice Department reassigned to different positions, AP sources say, PBS NEWS (Jan. 22, 2025), https://www.pbs.org/newshour/politics/k ... ources-say.
28 Id.
29 Sarah N. Lynch, US Justice Department senior career ethics official removed from post, source says, REUTERS (Jan. 27, 2025), https://www.reuters.com/world/us/us-jus ... 025-01-27/.
30 Hannah Rabinowitz, et al., How Trump’s Justice Department has gutted the government’s ability to chase public corruption, CNN POLITICS (Feb. 14, 2025, 7:38 AM), https://www.cnn.com/2025/02/14/politics ... index.html.
31 Kara Scannell, et. al., ‘It was never going to be me’: How Trump’s DOJ sparked a crisis and mass resignations over the Eric Adams case, CNN (Feb. 15, 2025, 7:16 AM), https://www.yahoo.com/news/never-going- ... 38140.html.
32 William K. Rashbaum, et. al., Order to Drop Adams Case Prompts Resignations In New York and Washington, N.Y. TIMES (Feb. 13, 2025), https://www.nytimes.com/2025/02/13/nyre ... adams.html.
33 Id.
34 Id.; Jeremy Roebuck, et. al., Justice Officials move to drop Adams case After 7 lawyers refuse, resign in protest, WASH. POST (Feb. 14, 2025), https://www.washingtonpost.com/national ... orruption/.
35 Roebuck, et. al., supra at note 11.
36 Id.; Rashbaum, et. al., supra at note 9; Lucas & Johnson, supra at note 1.
37 Id.
38 Glenn Thrush, et. al., Justice Dept. Fires Prosecutors Who Worked on Trump Investigations, N.Y. TIMES (Jan. 27, 2025), Trump Administration Fires Prosecutors Who Aided Jack Smith Investigations - The New York Times.
39 Id.
40 Id.
41 Press Release, U.S. Att’y’s Off. D.C., Edward R. Martin, Jr. Appointed U.S. Attorney for the District of Columbia (Jan. 27, 2025)(on file with the Committee); Hailey Chi-Sing, Trump nominates Jan. 6 defense attorney for top prosecutor role in DC, FOX NEWS (Feb. 18, 2025), https://www.foxnews.com/politics/trump- ... or-role-dc.
42 Spencer S. Hsu, et. al., Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.
43 Kyle Cheney & Josh Gerstein, DOJ fires dozens of prosecutors who handled Jan. 6 cases, POLITICO (Jan. 31, 2025), https://www.politico.com/news/2025/01/3 ... s-00201904.
44 Hugo Lowell, Trump orders justice department to fire all US attorneys appointed by Biden, THE GUARDIAN (Feb. 19, 2025), https://www.theguardian.com/us-news/202 ... -attorneys.
45 Ben Pen, Trump Said to Terminate Biden Holdover US Attorneys from DOJ, BLOOMBERG LAW (Feb. 12, 2025), https://news.bloomberglaw.com/us-law-we ... department.
46 Lowell, supra at note 22.
47 Pen, supra at note 23.
48 Ken Dilanian, et. al., Trump administration forces out multiple senior FBI officials and January 6 prosecutors, NBC NEWS (Jan. 31, 2025, 6:05 PM), https://www.nbcnews.com/politics/nation ... rcna190138.
49 Id.
50 Id.
51 Id.
52 Id.
53 Josh Campbell, et. al., FBI turns over details of 5,000 employees who worked on January 6 cases to Trump Justice Department, as agents sue, CNN POLITICS (Feb. 4, 2025, 7:27 PM), https://www.cnn.com/2025/02/04/politics ... index.html.
54 Scott McFarlane, et. al., FBI agents sue Trump administration over Jan. 6 scrutiny as FBI discloses list of over 5,000 agents to DOJ, CBS NEWS (Feb. 4, 2025, 5:00 PM), https://www.cbsnews.com/news/fbi-agents ... 6-layoffs/.
55 Robert Legare, et. al., Justice Department agrees not to publicly reveal names of FBI agents who worked on Jan. 6 cases, CBS NEWS (Feb. 7, 2025, 3:48 PM), https://www.cbsnews.com/news/justice-de ... ol-attack/.
56 Alexander Mallin & Mike Levine, Multiple immigration-related DOJ officials removed as part of Trump overhaul: Source, ABC NEWS (Jan. 20, 2025, 9:13 PM), https://abcnews.go.com/US/multiple-immi ... =117920486.
57 Elliot Spagat, Justice Department fires 20 immigration judges from backlogged courts amid major government cuts, AP POLITICS (Feb. 15, 2025, 2:50 PM), https://apnews.com/article/trump-immigr ... 8baf39113a.
58 New Administration Highlights: Trump Revokes Biden’s Security Clearance, N.Y. TIMES (Feb. 7, 2025), https://www.nytimes.com/live/2025/02/07 ... =url-share.
59 Ken Dilanian (@KenDilianianNBC), X (Feb. 20, 2025, 2:59 PM), https://x.com/KenDilanianNBC/status/1892665418419937327.
***********************************
ACLU
AMERICAN CIVIL LIBERTIES UNION
District of Columbia
529 14th Street NW, Ste. 722
Washington, DC 20045
(202) 457-0800
http://www.acludc.org
February 4, 2025
Edward R. Martin Jr.
U.S. Attorney for the District of Columbia
601 D Street NW
Washington, D.C. 20579
Via email: [email protected]; [email protected]
Re: First Amendment concerns and your February 3 letter to Elon Musk
Dear U.S. Attorney Martin,
We were troubled by your February 3, 2025, letter to Elon Musk posted to X in which you promised to “pursue any and all legal action against anyone who impedes your work or threatens your people” and warned that “[a]ny threats, confrontations, or other actions in any way that impact [DOGE employees’] work may break numerous laws.”
There are legally significant differences between “threats” and “confrontations, or other actions in any way that impact [DOGE employees’] work.” The former, if they meet the definition of “true threats,” are unprotected speech under the First Amendment, whereas many words and actions in the latter category—such as criticizing DOGE or its employees, suing DOGE, petitioning government officials to rein DOGE in, and even simply reporting on DOGE and its employees— are not only lawful, but protected by the First Amendment. Similarly, while “threaten[ing] [DOGE’s] people” is not protected by the First Amendment, “imped[ing] [DOGE’s] work” covers a broader (and, depending on how defined, not necessarily unprotected) range of speech.
The government can prosecute unlawful threats; “[w]hat [it] cannot do, however, is use the power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024). Further, even indirect threats by government officials chill speech and may themselves violate the First Amendment. See id. at 189-90 (discussing, among other indicia of unconstitutional coercion, “thinly veiled threats to institute criminal proceedings”).
Additionally, the letter’s choice to single out speakers with particular viewpoints—“Antifa and BLM rioters”—as examples of who ought to be prosecuted raises the specter of viewpoint discrimination, which is also unconstitutional. E.g., Iancu v. Brunetti, 588 U.S. 388, 393 (2019) (“[A] core postulate of free speech law” is that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.”).
We urge you to clarify publicly that your promise to “pursue . . . legal action” is aimed at “true threats” and other conduct unprotected by the First Amendment, and that your office will enforce the law evenhandedly without regard to anyone’s political association, ideology, or viewpoint.
Sincerely,
ACLU of the District of Columbia
***************************
U.S. Attorney Ed Martin
@USAEdMartin
Public stats make one thing clear:
my predecessor - his name is Matt Graves - chose to engage in lawfare. As he upped political prosecutions, he steered resources$ to a now-debunked legal theory that targeted American citizens, and gun prosecutions went down. Literally.
Let me be clear: he used our $ to chase political hoaxes while the people of DC were terrorized by thugs with guns.
That Biden prosecutor chose politics over the people of DC. History will mark his shame.
We will put the people first. We will get the thugs with guns. We comin.’
We will Make DC Safe Again.
#MarchBadness
8:23 AM · Mar 1, 2025
********************************
"Our initial review of the evidence presented to us indicates that certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees" said Edward R. Martin Jr., U.S. Attorney for the District of Columbia. "We are in contact with FBI and other law-enforcement partners to proceed rapidly. We also have our prosecutors preparing."
Edward J. Martin Jr.
United States Attorney
District of Columbia
*******************************
"As President Trump's lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put American first.
Edward J. Martin Jr.
United States Attorney
District of Columbia
@EagleEdMartin
Dear @elon, Please see this important letter. We will not tolerate threats against DOGE workers or law-breaking by the disgruntled. All the best. Ed Martin
U.S. Department of Justice
Edward R. Martin, Jr.
United States Attorney
District of Columbia
Patrick Henry Building
601 D Street, N.W.
Washington, D.C. 20530
February 3, 2025
Mr. Elon Musk
DOGE
United States Government
SENT VIA X: @elonmusk
Dear Elon,
It was good to work with the DOGE team this weekend. We must keep all our government employees safe and we must protect the American people's property. Anyone imperiling others violating our laws.[!!!]
I recognize that some of the staff at DOGE has been targeted publicly. At this time, I ask that you utilize me and my staff to assist in protecting the DOGE work and the DOGE workers. Any threats, confrontations, or other actions in any way that impact their work may break numerous laws.
Let me assure you of this: we will pursue any and all legal action against anyone who impedes your work or threatens your people. We will not act like the previous administration who looked the other way as the Antifa and BLM rioters as well as thugs with guns trashed our capital city. We will protect DOGE and other workers no matter what.
One last warning for you: late last week, we indicted an economist who worked at the Fed for economic espionage for the Communist Chinese. Please be very aware that there are those who are acting against our American people in every way. Refer to us any questionable conduct or details that you find or notice.
Please keep in touch.
All the best,
Sincerely,
Edward R Martin, Jr.
United States Attorney
9:46 AM · Feb 3, 2025
*************************
United States Senate
Committee on the Judiciary
Washington, DC 20510-6275
March 6, 2025
Office of Disciplinary Counsel
District of Columbia Court of Appeals
515 5th Street NW
Building A, Suite 117
Washington, DC 20001
Re: Request for Disciplinary Investigation of Edward Robert Martin, Jr.
To the Disciplinary Counsel:
We write to express our grave concern about actions taken by Edward Robert Martin, Jr. that may constitute professional misconduct under the D.C. Rules of Professional Conduct. Since his appointment as Interim U.S. Attorney for the District of Columbia on January 20, 2025, Mr. Martin has abused his position in several ways, including dismissing charges against his own client and using the threat of prosecution to intimidate government employees and chill the speech of private citizens. Due to the serious nature of this misconduct, we request that the Office of Disciplinary Counsel open an investigation to determine whether Mr. Martin, who is a member of the D.C. Bar, violated applicable D.C. Rules of Professional Conduct and should be subject to disciplinary action.
While in private practice, Mr. Martin appeared as defense counsel in cases related to the January 6, 2021 attack on the U.S. Capitol.1 On January 21, 2025, Mr. Martin personally submitted a motion to dismiss the eight felony counts and two misdemeanors against Joseph Padilla, who had already been convicted and sentenced for these charges.2 While in private practice, Mr. Martin represented Mr. Padilla in this very matter, and Mr. Martin sought this dismissal while still representing Mr. Padilla.3 By not recusing himself from this matter, Mr. Martin created an impermissible conflict of interest and appearance of impropriety by using his new government office to favor his client, whom he was defending from the very charges he sought to dismiss.
Similarly, Mr. Martin appeared as defense counsel for January 6 defendant William Chrestman, a member of the Proud Boys’ Kansas City chapter.4 Mr. Chrestman was sentenced to four and a half years imprisonment after pleading guilty to one count each of obstruction of an official proceeding and threatening a federal officer.5 Mr. Martin only moved to withdraw from his representation of Mr. Chrestman on February 4, 2025.6 This withdrawal occurred after Mr. Martin initiated Project 1512, an internal review of the use of 18 U.S.C. §1512 obstruction charges by the U.S. Attorney’s Office for the District of Columbia in January 6 cases.7 By not removing himself from the Chrestman matter in a timely fashion, Mr. Martin created an appearance of impropriety.
There is also evidence indicating that Mr. Martin, since his appointment as Interim U.S. Attorney, has communicated directly with January 6 defendants who were not his clients. William Pope was charged with one felony and four misdemeanors for his actions on January 6.8 On January 28, 2025, Mr. Pope filed a post-dismissal notice to the court and motion to produce casefiles which refers to ongoing discussions with Mr. Martin: “I have asked the new U.S. Attorney if the government is opposed to me keeping these files with my case notes.…and I have been told the government no longer considers these specific items sensitive for me.”9 In a later filing, Mr. Pope asked the court to “direct Mr. Martin to file a statement on whether or not he allowed me to keep all discovery files that are intertwined with my case notes.”10 If he communicated directly with Mr. Pope about his case, Mr. Martin created the appearance of impropriety because he may be called as a witness for the defendant in a matter involving the office he currently leads.
The D.C. Bar defines misconduct as “[a]cts or omissions by an attorney…which violate the attorney’s oath of office or the rules or code of professional conduct currently in effect.”11 Mr. Martin’s apparent misconduct here seems to violate several rules. Rule 1.7(b)(4) prohibits representing a client with respect to a matter if “[t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party….”12 Under this rule, Mr. Martin cannot effectively represent the United States in taking any investigative or prosecutorial steps against Mr. Padilla, including steps favorable to Mr. Padilla, in the same matter in which he defended and still represented Mr. Padilla. Doing so also violates Rule 3.8(a)’s prohibition on prosecutors in criminal cases “exercising discretion to…improperly favor…any person.”13 Mr. Martin’s misconduct also implicates Rule 8.4(d)’s prohibition of “conduct that seriously interferes with the administration of justice,” by creating an appearance of impropriety regarding the circumstances behind the dismissal of the charges against his client, Mr. Padilla. Mr. Martin’s representation of Mr. Padilla and Mr. Chrestman, both of whom were charged with obstruction of Congress, creates an appearance of impropriety in any review or prosecutorial steps relating to the U.S. Attorney’s Office for the District of Columbia’s handling of obstruction charges against other January 6 defendants. Further, Mr. Martin’s conduct as it relates to Mr. Pope’s ongoing matter may implicate Rule 3.7, which prohibits an attorney’s involvement where they are “likely to be a necessary witness.”14 Other Rules may be similarly implicated.
Since assuming the duties of Interim U.S. Attorney for the District of Columbia, Mr. Martin has also engaged in additional, repeated conduct that appears to violate Rule 8.4(d), as well as Rule 3.8’s special responsibilities for prosecutors. Specifically, Mr. Martin has made numerous extrajudicial statements that threaten prosecution with the apparent intent of intimidating government employees and chilling the speech of private citizens, including:
• A February 3 tweet and letter to Elon Musk threatening that “we will pursue any and all legal action against anyone who impedes your work or threatens your people.”15
• A February 7 tweet and letter to Elon Musk threatening that “if people are discovered to have broken the law or even acted simply unethically, we will investigate them and we will chase them to the end of the Earth to hold them accountable.”16
• A February 14 tweet threatening former Special Counsel Jack Smith and his legal representation to “[s]ave your receipts, Smith and Covington. We’ll be in touch soon.”17.
• The February 19, 2025 announcement of “Operation Whirlwind,” a new initiative to investigate and prosecute alleged threats to government officials, which included sending letters of inquiry to two Democratic Members of Congress regarding statements criticizing Elon Musk and Supreme Court justices.18
Mr. Martin’s conduct not only speaks to his fitness as a lawyer; his activities are part of a broader course of conduct by President Trump and his allies to undermine the traditional independence of Department of Justice investigations and prosecutions and the rule of law.19 When a government lawyer, particularly one entrusted with a leadership role in the nation’s foremost law enforcement agency, commits serious violations of professional conduct, it undermines the integrity of our justice system and erodes public confidence in it. Public confidence would be further eroded if such serious misconduct is met with no consequences. Therefore, we submit this letter of complaint to respectfully request that the Office of the Disciplinary Counsel initiate an investigation and take appropriate disciplinary proceedings pursuant to Rule XI of the Rules Governing the District of Columbia Bar.
We appreciate your prompt attention to this sensitive matter. The Committee is available for further consultation as needed.
Sincerely,
Richard J. Durbin
United States Senator
Richard Blumenthal
United States Senator
Mazie K. Hirono
United States Senator
Sheldon Whitehouse
United States Senator
Alex Padilla
United States Senator
Adam B. Schiff
United States Senator
Christopher A. Coons
United States Senator
Cory A. Booker United States Senator
Amy Klobuchar
United States Senator
Peter Welch
United States Senator
cc: The Honorable Charles E. Grassley
Chairman, Committee on the Judiciary
_______________
Notes:
1 United States v. Padilla, 21-cr-214 (JDB); United States v. Chrestman, 21-cr-160-5 (TJK); United States v. Krol, 22-cr-110-1 (RC).
2 See United States’ Motion to Dismiss Indictment with Prejudice Pursuant to Federal Rule Criminal Procedure 48(a), United States v. Padilla, No. 1:21-cr-00214 (D.D.C. Jan. 21, 2025).
3 Mr. Martin did not seek to withdraw his representation of Mr. Padilla until February 4, a full 14 days after he personally signed the motion to dismiss. See Defense Counsel’s Motion to Withdraw as Counsel, United States v. Padilla, No. 1:21-cr-00214 (D.D.C. Feb. 4, 2025).
4 Spencer S. Hsu, Salvador Rizzo, & Tom Jackman Lawyer Who Represented Jan. 6 Defendants Made Interim D.C. U.S. Attorney, WASH. POST (Jan. 21, 2025), https://www.washingtonpost.com/dc-md-va ... artin-jan- 6-lawyer-dc-us-attorney/
5 See Judy L. Thomas & Daniel Desrochers, Olathe Proud Boy Who Carried Ax Handle into Capitol On Jan. 6 Pleads Guilty to Felonies, THE KANSAS CITY STAR (Oct. 16, 2023), https://www.kansascity.com/news/local/c ... 0469.html; Judy L. Thomas & Daniel Desrochers, KS Proud Boy Who Stormed Capitol Released From Prison Early. He Got Thousands in Donations, KANSAS CITY STAR (Oct. 16, 2024), https://www.kansascity.com/news/local/a ... 58694.html.
6 See Defense Counsel’s Motion to Withdraw as Counsel, United States v. Chrestman, No. 1:21-cr-00160 (D.D.C. Feb. 5, 2025).
7 Ryan J. Reilly, Trump's New D.C. Prosecutor Launches Review to Examine 'Great Failure' Of Key Charge Leveled Against Jan. 6 Defendants, NBC NEWS (Jan. 27, 2025), https://www.nbcnews.com/politics/justicedepartment/ trump-dc-prosecutor-ed-martin-launches-review-jan-6-cases-rcna189503.
8 Tim Hrenchir, Judge dismisses Jan. 6 riot charges against Topekan Will Pope and His Brother, TOPEKA CAPITALJ. (Jan. 27, 2025), https://www.cjonline.com/story/news/cou ... sttopekan- will-pope-and-his-brother/77917282007/.
9 See United States v William Alexander Pope, Notice to the Court Regarding Order No. 239 and a New Motion to Produce Various Case Files, No. 1:21-cr-00128-RC (D.D.C. Jan. 28, 2025).
10 See United States v William Alexander Pope, Reply to the Government’s Opposition (No. 292) to My Notice on Order No. 239 and Motion for Case Files (No. 391), No. 1:21-cr-00128-RC (D.D.C. Feb. 19, 2025)
11 Rules Governing the District of Columbia Bar, Rule XI, Section 2(b).
12 D.C. Rules of Professional Conduct, Rule 1.7(b)(4).
13 D.C. Rules of Professional Conduct, Rule 3.8(a). Although the dismissal of the charges against Mr. Padilla was prompted by President Trump’s pardon, Mr. Martin’s conduct here violates Rule 3.8(a) due to the fact that he did not recuse himself from this matter as required by his employer in the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635.502(e) due to his covered relationship with Mr. Padilla as defined in 5 C.F.R. § 2635.502(b)(1)(iv). There is no indication that Mr. Martin received the requisite authorization by an agency designee prior to submitting the motion to dismiss as provided for in 5 C.F.R. § 2635.502(d).
14 D.C. Rules of Professional Conduct, Rule 3.7.
15 @EagleEdMartin (Feb. 3, 2025, 11:46 AM), https://x.com/EagleEdMartin/status/1886456136032817488.
16 @EagleEdMartin (Feb. 7, 2025, 11:27 AM), https://x.com/EagleEdMartin/status/1887901087983689761 (emphasis in original).
17 @USAEdMartin (Feb. 14, 2025, 8:19 PM), https://x.com/USAEdMartin.
18 Spencer S. Hsu, D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, WASH. POST (Feb. 20, 2025), https://www.washingtonpost.com/dc-md-va ... ddemocrats.
19 See e.g., Mr. Martin has used the official Twitter account of the U.S. Attorney’s Office for the District of Columbia to describe himself and his colleagues as “President Trumps’ [sic] lawyers” who “fight to protect his leadership as our President…” @USAO_DC (Feb. 25, 2025, 3:18 PM), https://x.com/USAO_DC/status/1894119675786621225. He has also premised terminations of Assistant U.S. Attorneys on the fact that they were hired prior to President Trump’s second inauguration: “Based on your hiring as an Assistant United States Attorney in the District of Columbia in the weeks leading up to President Trump’s second inauguration, your hiring has hindered the ability of Acting U.S. Attorney Martin to staff his office in furtherance of his obligation to faithfully implement the agenda that the American people elected Trump to execute.” See Letter from Stephanie M. Hinds, Director, U.S. Dep’t of Justice, Exec. Off. for U.S. Attorneys, to Sean Brennan, Assistant U.S. Attorney (Jan. 31, 2025).
****************************
President Trump’s New Gilded Age: How Trump’s Department of Justice is Promoting Political and Corporate Corruption to Benefit His Most Loyal Supporters
Democratic Staff Report
Committee on the Judiciary
U.S. House of Representatives
February 25, 2025
Immediately after President Trump assumed office, the Administration began purging experienced career civil servants throughout the Department of Justice (DOJ), clearing out the leadership ranks of national security and public corruption prosecutors, replacing them with inexperienced sycophants. At the same time, the Administration has taken steps to suppress anti-corruption prosecutions and investigations, disbanding critical task forces at DOJ and the Federal Bureau of Investigation (FBI), and halting the enforcement of anti-corruption laws. Recently, the Trump DOJ attempted to enter into a corrupt quid pro quo with indicted New York City Mayor Eric Adams, essentially forcing multiple veteran prosecutors, including staunch conservatives, to resign rather than follow through on unlawful and unethical orders from Acting Deputy Attorney General Emil Bove. Together, these efforts threaten effective law enforcement, undermine public confidence in the rule of law, and foster networks of corruption and lawlessness that ultimately make our communities less safe. Under President Trump, the DOJ has become an agency charged with ensuring that the President’s most loyal supporters can break the law with impunity.
I. THE TRUMP DOJ IS ALREADY A LAWLESS DEPARTMENT THAT PROTECTS THOSE MOST LOYAL TO THE PRESIDENT AND CARRIES OUT HIS DEMANDS FOR REVENGE AND RETRIBUTION
Donald Trump’s time as president and as a presidential candidate has been defined by his desire for vengeance against people whom he believes have wronged him. During his first term, he demanded retribution against FBI leadership under Director James Comey for initiating the investigation into Russian election interference. During his 2024 campaign, Donald Trump made more than 100 threats to prosecute or punish his political enemies, particularly members of the January 6th Committee.1 Moreover, during a March 2023 speech at the Conservative Political Action Conference (CPAC), then-presidential candidate Trump said: “I am your warrior. I am your justice. And for those who have been wronged and betrayed: I am your retribution.”2 He also asked several of his close advisers, including at least one of his personal attorneys, if they knew all the names of senior FBI agents and Justice Department personnel who have worked on the federal probes into him.3
Since taking office, President Trump and members of his Administration have made good on their promise to seek retribution and have weaponized the federal government in order to achieve that goal. As mentioned in the following section of this report, the Trump Administration has begun a wholesale purge of career government officials at the FBI and DOJ. However, the Administration’s actions do not stop there. Shortly after taking office, Attorney General (AG) Pam Bondi launched a “Weaponization Working Group” to investigate prosecutions against President Trump, including his 34-count felony conviction and the $486 million civil fraud judgment against him in New York.4 The Trump Administration has also pardoned more than 1,500 people charged in connection with the Capitol attack on January 6, 2021, ordered the Justice Department investigate thousands of career federal prosecutors and FBI employees, and directed federal prosecutors with the U.S. Attorney’s Office for the Southern District of New York (SDNY) to drop corruption charges against New York City Mayor Eric Adams.5
Perhaps, the most chilling actions have come from the U.S. Attorney’s Office for the District of Columbia. Earlier this week, news reports revealed that Edward Martin, the Interim U.S. Attorney for the District of Columbia, had begun an investigation of statements made by Democratic political figures, which he coined “Operation Whirlwind.”6 This investigation began with a “letter of inquiry” to Senate Majority Leader Chuck Schumer about his March 2020 statement that Supreme Court Justices Brett Kavanaugh and Neil Gorsuch would “pay the price” if they voted to restrict abortion rights.7 Senator Schumer’s Chief of Staff responded to Mr. Martin’s allegations by highlighting a subsequent speech that Senator Schumer made on the Senate floor, in which he said: “My point was that there would be political consequences…for President Trump and Senate Republicans if the Supreme Court, with the newly confirmed Justices, stripped away a woman’s right to choose.”8 In addition to Senator Schumer, Representative Robert Garcia also received a letter from Mr. Martin regarding his statements about Elon Musk.9 As Rep. Garcia has pointed out, Mr. Martin’s letters of inquiry are threats that clearly infringe on the First Amendment and are an attempt to silence speech that Elon Musk and the Trump Administration disagree with.10
In addition to his investigation of Democratic political leaders, Mr. Martin has ordered top officials in his office to undertake an internal review of its handling of Capitol riot prosecutions, particularly the office’s decision to charge more than 250 Capitol riot defendants with obstructing an official proceeding of Congress.11 Last June, the Supreme Court adopted a narrower interpretation of the obstruction statute, holding that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the proceeding, or attempted to do so.” 12
Although the Circuit Court for the District Court of Columbia ruled consistent with how January 6 defendants were charged, in an email announcing the internal review, Mr. Martin said, "Obviously, the use was a great failure of our office … and we need to get to the bottom of it.” Mr. Martin then instructed personnel to deliver “all information you have related to the use of 1512 charges including all files, documents, notes, emails and other information.”13
The Trump Administration has also taken a number of actions to abolish and stifle anti-corruption efforts. On February 5, 2025, AG Bondi circulated a memo that, among other things, announced the elimination of the KleptoCapture Task Force, the Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative (KARI).14 The Task Force served as an interagency task force designed to enforce the sanctions, export restrictions, and other measures that the United States had imposed on Russia after its invasion of Ukraine.15 KARI had been established by DOJ in 2010 to bring together prosecutors, financial experts, and investigators to “hold corrupt actors and enablers accountable under the law and to return recovered funds for the benefit of the people harmed by the corruption.”16 Between the establishment of KARI and December 2023, the program had recovered $1.7 billion, with more than $1.6 billion returned to those harmed by corruption efforts.17 These initiatives have been critical to DOJ’s targeting and seizure of ill-gotten assets of corrupt foreign actors in several countries, including Russia and China.18 A leading anti-corruption NGO has noted that the elimination of these initiatives “will significantly diminish the U.S.’s ability to counter the transnational corruption that continues to threaten core U.S. security and economic interests[.]”19
On February 5, AG Bondi also announced that “The National Security Division's Corporate Enforcement Unit is also disbanded. Personnel assigned to the Unit shall return to their previous posts.”20 This unit was responsible for holding largescale companies accountable if they violated U.S. national security law, including sanctions evasion, export control violations, and similar economic crimes.21 This unit would be responsible for holding corporate actors accountable that help foreign adversaries like Russia, China, North Korea, and Iran evade U.S. national security law and sanctions.
In an Executive Order issued February 10, 2025, President Trump additionally halted the enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days and called for the “review in detail all existing FCPA investigations and enforcement actions,” claiming [the FCPA] “has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States.”22 The FCPA has existed since 1977 to prohibit U.S. businesses and their agents from bribing foreign officials abroad related to their businesses, and generally require recordkeeping to “provide reasonable assurances that transactions are executed and assets are accessed and accounted for in accordance with management's authorization.”23
II. PRESIDENT TRUMP IS PURGING EXPERIENCED CAREER CIVIL SERVANTS THROUGHOUT THE DOJ AND REPLACING THEM WITH JUNIOR SYCOPHANTS, MAKING OUR COMMUNITIES LESS SAFE
The Trump Administration has launched an unprecedented and all-out purge at the DOJ, including its components like the FBI, by firing, demoting, and removing career employees, including the most experienced investigators and senior prosecutors charged with enforcing federal law.
The actions below detail the purges that the Trump Administration has engaged in since assuming office.
• Experienced DOJ leadership responsible for combatting corruption and enforcing ethical and recusal rules has been eviscerated. More than 20 veteran DOJ prosecutors and experts, including the leaders of vital sections, have been replaced by loyalist political employees who put President Trump’s unconstitutional agenda above the rule of law.
• The Public Integrity Section has been gutted. President Trump forced out the longtime head of the anti-corruption section, and five additional attorneys— including two of its top lawyers—resigned in protest rather than comply with Acting Deputy Attorney General Emil Bove’s demand that the Section dismiss corruption charges against Mayor Adams.
• Seasoned D.C. prosecutors and FBI agents have been sacked as punishment for working on January 6th cases, as assigned. Mr. Martin fired dozens of career prosecutors in his office for simply having worked on January 6th cases, as assigned, many of whom were currently working to combat violent crime in the District of Columbia. Moreover, the FBI has begun a review of thousands of career agents to evaluate them for potential dismissal, simply for having investigated the January 6th attack as instructed.
• SDNY has become a tool of corruption and quid pro quos. Seven experienced federal prosecutors have resigned from their roles rather than carry out unlawful directives from the Trump Administration to protect New York City Mayor Adams. This includes Danielle Sassoon, the Acting U.S. Attorney for SDNY, as well as Assistant U.S. Attorney Hagan Scotten. Moreover, John Keller, the acting head of the DOJ Public Integrity Section, and Kevin Driscoll, the senior-most career official leading the DOJ’s Criminal Division, also resigned rather than carry out the dismissal of the Adams case after Ms. Sassoon resigned.24
• The government lost a top criminal prosecutor in D.C. Denise Cheung, a 24-year veteran of the DOJ and head of the criminal division of the U.S. Attorney's Office for the District of Columbia, resigned rather than comply with directives to open investigations into the Biden Administration without sufficient evidence.25
These firings and reassignments throughout the Department are detailed below.
A. Firings, Reassignments, and Forced Resignations of DOJ Prosecutors
Within just hours of taking office, on January 20, 2025, President Trump summarily removed top career officials from key positions at the DOJ’s National Security, Criminal, Civil Rights, and Environment and Natural Resources Divisions.26 This includes the reassignment of at least 20 key career officials at the DOJ to different positions, some of whom were senior career leaders in the national security and criminal sections.27 Career officials that were reassigned include Bruce Swartz, the long-term head of the Department’s Office of International Affairs, which handles extradition matters,28 as well as Bradley Weinsheimer, the DOJ’s seniormost career official specializing in ethics and recusal issues. Both resigned rather than accept a demotion and reassignment.29
Also, within hours of taking office, President Trump moved to reassign Corey Amundson, the top corruption prosecutor at the Department’s Public Integrity Section, who resigned rather than be reassigned to a newly created task force targeting Sanctuary Cities.30 This section has also recently been swept up into the Eric Adams prosecution.31
On February 13, 2025, Acting Deputy Attorney General Emil Bove instructed the Acting U.S. Attorney for the SDNY, Danielle Sassoon, to drop the corruption charges filed against New York City Mayor Eric Adams, in order to allow Mr. Adams more bandwidth to enforce President Trump’s immigration agenda.32 Ms. Sassoon resigned rather than comply with the demand, noting that the request was “inconsistent with [her] ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts” and describing Mayor Adams’s teams efforts to obtain a quid pro quo in exchange for dismissal.33 The SDNY prosecutors who worked on the case with Ms. Sassoon were put on administrative leave for also refusing to obey the order to file for dismissal, and the lead prosecutor on the case, Hagan Scotten, also resigned on February 14, 2025.34 Mr. Bove then transferred the case over to the DOJ’s Public Integrity Section, demanding that the Section designate someone to dismiss the case against Mayor Adams.35 This led to the resignation of two senior lawyers, plus another three attorneys in the Section, in protest.36 The motion to dismiss was ultimately filed by Mr. Bove and Edward Sullivan, a veteran public corruption prosecutor in the Section, who reportedly agreed to file it “to avoid a mass firing of prosecutors and allow his colleagues time to seek jobs elsewhere.”37
On January 27, 2025, President Trump also fired more than a dozen career prosecutors who previously worked on Special Counsel Jack Smith’s team.38 The Acting Attorney General told them: “I do not believe that the leadership of the department can trust you to assist in implementing the president’s agenda faithfully.”39 Notably, federal civil service laws forbid partisan discrimination and political retribution, and also clearly prevent retaliation against DOJ prosecutors for the crime of doing their jobs as assigned.40
On January 20, 2025, President Trump named Edward Martin as Interim U.S. Attorney for the District of Columbia, and on February 17, 2025, nominated him to serve as the U.S. Attorney in this position.41 Mr. Martin is an election-denying criminal defense attorney for January 6th rioters who, within days of taking this position, launched a probe into the office’s prosecutors who worked on January 6th cases.42 On January 31, 2025, Mr. Martin fired dozens of these career prosecutors in his office, simply for having worked on January 6th prosecutions as they were directed to do by their superiors.43 At the time of their firing, these experienced non-political prosecutors were assigned to tackling serious crime throughout D.C., including drug crimes, domestic violence, and property crime— immediately putting Washington, D.C. residents at greater risk.
On Tuesday, February 21, 2025, President Trump announced that he instructed the DOJ to fire any remaining U.S. attorneys installed by the Biden Administration, in an effort to clean out any remaining appointees who may resist President Trump’s tyrannical government agenda.44 Those firings began Wednesday, February 13, 2025, before his Truth Social announcement, when some holdover U.S. attorneys from the Biden Administration received an abrupt email notifying them of their dismissals and disconnection from their access to government phones and computers.45 It was done so chaotically that some emails went to internal emails that they no longer had access to, meaning U.S. attorneys, the chief law enforcement officers in their respective federal districts, were left scrambling and trying to guess whether they had a job or not until days later.46 In a major departure from common practice, the Trump Administration did not coordinate removal of U.S. attorneys with DOJ’s Executive Office for U.S. Attorneys (EOUSA).47
B. Firings, Reassignments, and Forced Resignations of FBI Agents
Within ten days of taking office, the Trump Administration demoted all six of the seniormost career FBI officials— Executive Assistant Directors who lead the FBI’s National Security; Intelligence; Criminal, Cyber, Response, and Services; Science and Technology, Information and Technology; and Human Resources branches.48 All of these individuals had spent decades with the FBI working their way into these leadership positions under administrations of both parties.49
In these early days, the Trump Administration also forced the Special Agents in Charge (SACs) of multiple FBI offices to either resign or be fired.50 This includes the Field Office in Washington, D.C., which has grave implications on national security given its jurisdiction over many federal government buildings and operations; the Field Office in New Orleans, just days before the city was to host the Super Bowl on February 9; and the Field Offices in Las Vegas and Miami.51
Amid these removals, a memo sent on January 31, 2025, indicated that Acting Deputy Attorney General Bove ordered the targeting and review of every FBI agent who ever investigated a January 6th case, in order to begin “a review process to determine whether any additional personnel actions are necessary.”52 On February 4, 2025, identifying information for over 5,000 FBI officials who worked on these cases was turned over to DOJ leadership.53 In response, FBI agents filed two lawsuits against the DOJ and then-Acting Attorney General James McHenry to prevent the disclosure of this list by Trump allies, which they worry would put both the named agents and their families at risk of harm, especially since some January 6th defendants who were pardoned allegedly “link to each other in posts promoting violence and insurrection against law enforcement agents.”54 On February 7, 2025, the FBI reached an agreement with the plaintiffs not to release any agents’ names without two days’ notice.55
C. Firings, Reassignments, and Forced Resignations of Other DOJ Officials and Employees
On January 20, 2025, President Trump removed multiple senior leaders of the Justice Department's Executive Office for Immigration Review (EOIR) without cause and without notice.56 The firing notice cited a hopelessly vague rationale for their removal, namely “Title II of the Constitution,” which is a textual constitutional provision, not a substantive legal justification for removing civil service-protected career Department employees. Between February 7 and February 14, 2025, 20 immigration judges were also fired, placing additional strains on already notoriously backlogged dockets in immigration courts. 57
On the same day, President Trump also forced out the Director of the Bureau of Prisons (BOP) Collette Peters. Ms. Peters is pursuing an appeal through the Merit Systems Protection Board.58
On February 20, 2025, the Chief Counsel of the DOJ’s Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF) was fired and escorted from the building, without an explanation provided by the DOJ.59
III. REPUBLICANS ARE RECYCLING TIRED CONSPIRACY THEORIES—LIKE DEBUNKED CLAIMS OF THE BIDEN ADMINISTRATION TARGETING CONSERVATIVES—TO DISTRACT THE AMERICAN PEOPLE FROM DOJ’S SLIDE INTO LAWLESSNESS
Instead of conducting oversight of the DOJ and the Administration, Committee Republicans are entirely focused on continuing failed investigations started last Congress and aimed largely at the Biden Administration, the Biden family, and baseless claims of a “corrupt” DOJ working to target and silence conservative voices.
These investigations were launched to investigate the following theories, which have been widely debunked and disproven:
• Big Tech: Republicans allege that the Biden Administration was “colluding” with “Big Tech” to censor conservative voices, and the Biden Administration was “coercing” these companies to remove right-wing content. In reality, the evidence shows that there was no coercion or collusion between the government and social media companies, and the Supreme Court noted in dicta that a district court’s findings of such collusion appeared to be “clearly erroneous.”
• Targeting Catholic Views: Republicans allege that the Biden FBI impermissibly linked Catholics’ religious views to violent extremists in violation of the First Amendment by issuing a memorandum that purports to target Catholic views. In reality, an internal review found that the memo was targeting one specific individual, not Catholic views at large. Moreover, both Attorney General Garland and FBI Director Wray criticized the memo, and trainings and disciplinary actions were put into place to prevent such an occurrence from happening again.
• Targeting Parents: Republicans allege that Attorney General Garland impermissibly linked concerned, law-abiding parents who spoke at schoolboard meetings to domestic terrorists, and used PATRIOT Act investigative tools on them, because they espoused conservative viewpoints and concerns. In reality, Attorney General Garland refuted every claim that parents were being treated as domestic terrorists or that PATRIOT Act tools were being used to target law abiding parents concerned for their children. The word “parent” was not even mentioned in the memo Republicans are so concerned with. The memo was circulated because of increasing violent threats against education officials to keep all such officials safe from harm.
• A “Witch Hunt” Against Trump Over Classified Documents: Republicans allege that the Biden DOJ conducted a “witch hunt” against President Trump when the FBI “raided” his home in Mar-a-Lago to retrieve classified documents, and that Attorney General Garland appointed Jack Smith as Special Counsel to launch a “politically motivated” prosecution against President Trump for his handling of those documents. In reality, President Trump knowingly mishandled hundreds of classified documents and put America’s national security directly at risk, and
• Whistleblower Retaliation: Republicans allege that the Biden FBI systematically revoked security clearances of its conservative-leaning agents as punishment for their right-wing views. In reality, there is no evidence that the FBI systematically used security clearance revocation to target whistleblowers or conservative-minded employees at the FBI.
• Discriminating Against Pro-Life Health Centers: Republicans allege that the Biden Administration selectively enforced the FACE Act, only to protect abortion clinics and never to protect pro-life institutions. In reality, there is no evidence that the Biden Administration selectively enforced the FACE Act, and in fact actively worked to let pro-life centers know they were also protected under this law. This is nothing more than a failed attempt to make it seem like pro-life individuals are under attack.
In reality, Republicans are rehashing these bogus conspiracy theories to gaslight the American public into believing it was President Biden—not Donald Trump—infringing on their civil liberties. Clearly, as detailed in this report, it is Donald Trump’s DOJ that is lawless, discriminatory, and a growing threat to public order and the rights of the people.
_______________
Notes:
1 Tom Dreisbach, Trump has made more than 100 threats to prosecute or punish perceived enemies, NPR (Oct. 22, 2024), https://www.npr.org/2024/10/21/nx-s1-51 ... -liberties.
2 Former Pres. Trump: "I Am Your Justice...I Am Your Retribution”, C-SPAN (Mar. 4, 2023), https://www.c-span.org/clip/campaign-20 ... on/5060238.
3 Ken Dilanian, Jonathan Dienst, Ryan J. Reilly & Tom Winter, Names of FBI agents who investigated Capitol riots to be handed over to Trump DOJ officials, NBC NEWS (Feb. 3, 2025), https://www.nbcnews.com/politics/nation ... rcna189642.
4 Cristine Soto DeBerry, Opinion, Our justice system held Trump accountable. Now he's weaponizing AG, DOJ against it., USA TODAY (Feb. 19, 2025), https://www.usatoday.com/story/opinion/ ... 472835007/.
5 Id.
6 Steve Benen, Trump-appointed prosecutor kicks off ‘Operation Whirlwind,’ eyes Schumer, MSNBC (Feb. 19, 2025), https://www.msnbc.com/rachel-maddow-sho ... rcna192878.
7 Read interim U.S. attorney Ed Martin’s letters to Democratic lawmakers, WASH. POST (Feb. 19, 2025), https://www.washingtonpost.com/dc-md-va ... er-garcia/.
8 Id.
9 Robert Garcia (@RobertGarcia), X (Feb. 20, 2025, 2:55 PM), https://x.com/RobertGarcia/status/1892664373463683535.
10 Id.
11 Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.
12 Fischer Decision at p. 16
13 Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.
14 Memorandum, Total Elimination of Cartels and Transnational Criminal Organizations The Attorney General, U.S. DEP’T OF JUSTICE (Feb. 5, 2025), https://www.justice.gov/ag/media/1388546/dl?inline; Press Release, Attorney General Memorandum Redirects U.S. Anti-Corruption Efforts Raising Questions and Concerns, TRANSPARENCY INTERNATIONAL (Feb. 6, 2025), https://us.transparency.org/news/attorn ... tion-laws/.
15 Press Release, Attorney General Merrick B. Garland Announces Launch of Task Force KleptoCapture, U.S. DEP’T OF JUSTICE (March 2, 2022), https://www.justice.gov/archives/opa/pr ... ptocapture.
16 Press Release, Deputy Assistant Attorney General Kevin Driscoll Delivers Remarks at the Global Forum on Asset Recovery Action Series in Atlanta, U.S. DEP’T OF JUSTICE (Dec. 12, 2023), https://www.justice.gov/archives/opa/sp ... orum-asset.
17 Id.
18 Id.
19 Press Release, Attorney General Memorandum Redirects U.S. Anti-Corruption Efforts Raising Questions and Concerns, Transparency International U.S. (Feb. 6, 2025) (online at https://us.transparency.org/news/attorn ... tion-laws/).
20 Memorandum, General Policy Regarding Charging, Plea Negotiations, and Sentencing, The Attorney General, U.S. DEP’T OF JUSTICE (Feb. 5, 2025), https://www.justice.gov/ag/media/1388541/dl.
21 Press Release, Justice Department’s National Security Division Announces Key Corporate Enforcement Appointments, U.S. DEP’T OF JUSTICE (Sept. 11, 2025), https://www.justice.gov/archives/opa/pr ... nforcement ; Focusing the Spotlight: DOJ Focuses on National Security in Corporate Criminal Enforcement, CROWELL, https://www.crowell.com/en/insights/cli ... nforcement (last visited Feb. 22, 2025).
22 Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025) http://www.whitehouse.gov/presidential- ... -security/ ; Department of Justice, Foreign and Corrupt Practices Act Unit, https://www.justice.gov/criminal/crimin ... ctices-act (last visited Feb. 16, 2025).
23 U.S. Securities and Exchange Commission, Foreign Corrupt Practices Act (FCPA), https://www.sec.gov/enforcement/foreign ... ctices-act (last visited Feb. 22, 2025).
24 Ryan Lucas & Carrie Johnson, 3 top U.S. Prosecutors resign over order to drop NYC Mayor Eric Adams corruption case, NPR (Feb. 13, 2025, 6:11 PM), https://www.npr.org/2025/02/13/nx-s1-52 ... signations.
25 Ryan J. Reilly, Veteran federal prosecutor resigns over bank freeze order from Trump appointee, NBC NEWS (Feb. 18, 2025, 4:23 PM), https://www.nbcnews.com/politics/justic ... rcna192619.
26 Perry Stein & Ellen Nakashima, Justice Dept. removes senior career officials from key positions, WASH. POST (Jan. 21, 2025), https://www.washingtonpost.com/national ... -criminal/.
27 Eric Tucker, Key career officials at Justice Department reassigned to different positions, AP sources say, PBS NEWS (Jan. 22, 2025), https://www.pbs.org/newshour/politics/k ... ources-say.
28 Id.
29 Sarah N. Lynch, US Justice Department senior career ethics official removed from post, source says, REUTERS (Jan. 27, 2025), https://www.reuters.com/world/us/us-jus ... 025-01-27/.
30 Hannah Rabinowitz, et al., How Trump’s Justice Department has gutted the government’s ability to chase public corruption, CNN POLITICS (Feb. 14, 2025, 7:38 AM), https://www.cnn.com/2025/02/14/politics ... index.html.
31 Kara Scannell, et. al., ‘It was never going to be me’: How Trump’s DOJ sparked a crisis and mass resignations over the Eric Adams case, CNN (Feb. 15, 2025, 7:16 AM), https://www.yahoo.com/news/never-going- ... 38140.html.
32 William K. Rashbaum, et. al., Order to Drop Adams Case Prompts Resignations In New York and Washington, N.Y. TIMES (Feb. 13, 2025), https://www.nytimes.com/2025/02/13/nyre ... adams.html.
33 Id.
34 Id.; Jeremy Roebuck, et. al., Justice Officials move to drop Adams case After 7 lawyers refuse, resign in protest, WASH. POST (Feb. 14, 2025), https://www.washingtonpost.com/national ... orruption/.
35 Roebuck, et. al., supra at note 11.
36 Id.; Rashbaum, et. al., supra at note 9; Lucas & Johnson, supra at note 1.
37 Id.
38 Glenn Thrush, et. al., Justice Dept. Fires Prosecutors Who Worked on Trump Investigations, N.Y. TIMES (Jan. 27, 2025), Trump Administration Fires Prosecutors Who Aided Jack Smith Investigations - The New York Times.
39 Id.
40 Id.
41 Press Release, U.S. Att’y’s Off. D.C., Edward R. Martin, Jr. Appointed U.S. Attorney for the District of Columbia (Jan. 27, 2025)(on file with the Committee); Hailey Chi-Sing, Trump nominates Jan. 6 defense attorney for top prosecutor role in DC, FOX NEWS (Feb. 18, 2025), https://www.foxnews.com/politics/trump- ... or-role-dc.
42 Spencer S. Hsu, et. al., Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.
43 Kyle Cheney & Josh Gerstein, DOJ fires dozens of prosecutors who handled Jan. 6 cases, POLITICO (Jan. 31, 2025), https://www.politico.com/news/2025/01/3 ... s-00201904.
44 Hugo Lowell, Trump orders justice department to fire all US attorneys appointed by Biden, THE GUARDIAN (Feb. 19, 2025), https://www.theguardian.com/us-news/202 ... -attorneys.
45 Ben Pen, Trump Said to Terminate Biden Holdover US Attorneys from DOJ, BLOOMBERG LAW (Feb. 12, 2025), https://news.bloomberglaw.com/us-law-we ... department.
46 Lowell, supra at note 22.
47 Pen, supra at note 23.
48 Ken Dilanian, et. al., Trump administration forces out multiple senior FBI officials and January 6 prosecutors, NBC NEWS (Jan. 31, 2025, 6:05 PM), https://www.nbcnews.com/politics/nation ... rcna190138.
49 Id.
50 Id.
51 Id.
52 Id.
53 Josh Campbell, et. al., FBI turns over details of 5,000 employees who worked on January 6 cases to Trump Justice Department, as agents sue, CNN POLITICS (Feb. 4, 2025, 7:27 PM), https://www.cnn.com/2025/02/04/politics ... index.html.
54 Scott McFarlane, et. al., FBI agents sue Trump administration over Jan. 6 scrutiny as FBI discloses list of over 5,000 agents to DOJ, CBS NEWS (Feb. 4, 2025, 5:00 PM), https://www.cbsnews.com/news/fbi-agents ... 6-layoffs/.
55 Robert Legare, et. al., Justice Department agrees not to publicly reveal names of FBI agents who worked on Jan. 6 cases, CBS NEWS (Feb. 7, 2025, 3:48 PM), https://www.cbsnews.com/news/justice-de ... ol-attack/.
56 Alexander Mallin & Mike Levine, Multiple immigration-related DOJ officials removed as part of Trump overhaul: Source, ABC NEWS (Jan. 20, 2025, 9:13 PM), https://abcnews.go.com/US/multiple-immi ... =117920486.
57 Elliot Spagat, Justice Department fires 20 immigration judges from backlogged courts amid major government cuts, AP POLITICS (Feb. 15, 2025, 2:50 PM), https://apnews.com/article/trump-immigr ... 8baf39113a.
58 New Administration Highlights: Trump Revokes Biden’s Security Clearance, N.Y. TIMES (Feb. 7, 2025), https://www.nytimes.com/live/2025/02/07 ... =url-share.
59 Ken Dilanian (@KenDilianianNBC), X (Feb. 20, 2025, 2:59 PM), https://x.com/KenDilanianNBC/status/1892665418419937327.
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ACLU
AMERICAN CIVIL LIBERTIES UNION
District of Columbia
529 14th Street NW, Ste. 722
Washington, DC 20045
(202) 457-0800
http://www.acludc.org
February 4, 2025
Edward R. Martin Jr.
U.S. Attorney for the District of Columbia
601 D Street NW
Washington, D.C. 20579
Via email: [email protected]; [email protected]
Re: First Amendment concerns and your February 3 letter to Elon Musk
Dear U.S. Attorney Martin,
We were troubled by your February 3, 2025, letter to Elon Musk posted to X in which you promised to “pursue any and all legal action against anyone who impedes your work or threatens your people” and warned that “[a]ny threats, confrontations, or other actions in any way that impact [DOGE employees’] work may break numerous laws.”
There are legally significant differences between “threats” and “confrontations, or other actions in any way that impact [DOGE employees’] work.” The former, if they meet the definition of “true threats,” are unprotected speech under the First Amendment, whereas many words and actions in the latter category—such as criticizing DOGE or its employees, suing DOGE, petitioning government officials to rein DOGE in, and even simply reporting on DOGE and its employees— are not only lawful, but protected by the First Amendment. Similarly, while “threaten[ing] [DOGE’s] people” is not protected by the First Amendment, “imped[ing] [DOGE’s] work” covers a broader (and, depending on how defined, not necessarily unprotected) range of speech.
The government can prosecute unlawful threats; “[w]hat [it] cannot do, however, is use the power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024). Further, even indirect threats by government officials chill speech and may themselves violate the First Amendment. See id. at 189-90 (discussing, among other indicia of unconstitutional coercion, “thinly veiled threats to institute criminal proceedings”).
Additionally, the letter’s choice to single out speakers with particular viewpoints—“Antifa and BLM rioters”—as examples of who ought to be prosecuted raises the specter of viewpoint discrimination, which is also unconstitutional. E.g., Iancu v. Brunetti, 588 U.S. 388, 393 (2019) (“[A] core postulate of free speech law” is that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.”).
We urge you to clarify publicly that your promise to “pursue . . . legal action” is aimed at “true threats” and other conduct unprotected by the First Amendment, and that your office will enforce the law evenhandedly without regard to anyone’s political association, ideology, or viewpoint.
Sincerely,
ACLU of the District of Columbia
***************************
U.S. Attorney Ed Martin
@USAEdMartin
Public stats make one thing clear:
my predecessor - his name is Matt Graves - chose to engage in lawfare. As he upped political prosecutions, he steered resources$ to a now-debunked legal theory that targeted American citizens, and gun prosecutions went down. Literally.
Let me be clear: he used our $ to chase political hoaxes while the people of DC were terrorized by thugs with guns.
That Biden prosecutor chose politics over the people of DC. History will mark his shame.
We will put the people first. We will get the thugs with guns. We comin.’
We will Make DC Safe Again.
#MarchBadness
8:23 AM · Mar 1, 2025
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"Our initial review of the evidence presented to us indicates that certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees" said Edward R. Martin Jr., U.S. Attorney for the District of Columbia. "We are in contact with FBI and other law-enforcement partners to proceed rapidly. We also have our prosecutors preparing."
Edward J. Martin Jr.
United States Attorney
District of Columbia
*******************************
"As President Trump's lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put American first.
Edward J. Martin Jr.
United States Attorney
District of Columbia
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Fri Mar 07, 2025 11:56 pm
Part 1 of 2
https://www.mass.gov/doc/omb-pi-order/download
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE OF RHODE ISLAND; STATE OF NEW JERSEY; COMMONWEALTH OF MASSACHUSETTS; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; STATE OF HAWAII; OFFICE OF THE GOVERNOR ex rel. Andy Beshear, in his official capacity as Governor of the COMMONWEALTH OF KENTUCKY; STATE OF MAINE; STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW MEXICO; STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHINGTON; and STATE OF WISCONSIN,
Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. OFFICE OF MANAGEMENT AND BUDGET; RUSSELL VOUGHT, in his official capacity as Director of the U.S. Office of Management and Budget; U.S. DEPARTMENT OF THE TREASURY; SCOTT BESSENT, in his official capacity as Secretary of the Treasury; PATRICIA COLLINS, in her official capacity as Treasurer of the United States; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; ROBERT F. KENNEDY, JR., in his official capacity as Secretary of Health and Human Services; U.S. DEPARTMENT OF EDUCATION; LINDA MCMAHON, in her official capacity as Secretary of Education; U.S. DEPARTMENT OF TRANSPORTATION; SEAN DUFFY, in his official capacity as Secretary of Transportation; U.S. DEPARTMENT OF LABOR; VINCE MICONE, in his official capacity as Acting Secretary of Labor; U.S. DEPARTMENT OF ENERGY; CHRIS WRIGHT, in his official capacity as Secretary of Energy; U.S. ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, in his official capacity as Secretary of the Interior; U.S. DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM, in her capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF JUSTICE; PAMELA BONDI, in her official capacity as Attorney General of the U.S. Department of Justice; THE NATIONAL SCIENCE FOUNDATION; DR. SETHURAMAN PANCHANATHAN, in his capacity as Director of the National Science Foundation; U.S. DEPARTMENT OF AGRICULTURE; BROOKE ROLLINS, in her official capacity as Secretary of Agriculture; U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; SCOTT TURNER, in his official capacity as Secretary of Housing and Urban Development; U.S. DEPARTMENT OF STATE; U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT; MARCO RUBIO, in his official capacities as Secretary of State and Acting Administrator of the United States Agency for International Development; U.S. DEPARTMENT OF DEFENSE; PETER HEGSETH, in his official capacity as Secretary of Defense; U.S. DEPARTMENT OF VETERANS AFFAIRS; DOUG COLLINS, in his official capacity as Secretary of Veterans Affairs; U.S. DEPARTMENT OF COMMERCE; HOWARD LUTNICK, in his official capacity as Secretary of Commerce; NATIONAL AERONAUTICS AND SPACE ADMINISTRATION; JANET PETRO in her official capacity as Acting Administrator of National Aeronautics and Space Administration; CORPORATION FOR NATIONAL AND COMMUNITY SERVICE; JENNIFER BASTRESS TAHMASEBI, in her official capacity as Interim Head of the Corporation for National and Community Service; U.S. SOCIAL SECURITY ADMINISTRATION; LELAND DUDEK, in his official capacity as Acting Commissioner of United States Social Security Administration; U.S. SMALL BUSINESS ADMINISTRATION; and KELLY LOEFFLER, in her official capacity as Administrator of U.S. Small Business Administration,
Defendants.
C.A. No. 25-cv-39-JJM-PAS
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Chief Judge.
The Executive’s categorical freeze of appropriated and obligated funds fundamentally undermines the distinct constitutional roles of each branch of our government. The interaction of the three co-equal branches of government is an intricate, delicate, and sophisticated balance—but it is crucial to our form of constitutional governance. Here, the Executive put itself above Congress. It imposed a categorical mandate on the spending of congressionally appropriated and obligated funds without regard to Congress’s authority to control spending. Federal agencies and departments can spend, award, or suspend money based only on the power Congress has given to them–they have no other spending power. The Executive has not pointed to any constitutional or statutory authority that would allow them to impose this type of categorical freeze. The Court is not limiting the Executive’s discretion or micromanaging the administration of federal funds. Rather, consistent with the Constitution, statutes, and caselaw, the Court is simply holding that the Executive’s discretion to impose its own policy preferences on appropriated funds can be exercised only if it is authorized by the congressionally approved appropriations statutes. Accordingly, based on these principles and the reasons stated below, the Court grants the States’ Motion for Preliminary Injunction. ECF No. 67.
I. BACKGROUND
We begin by restating the American government principles learned during critical civics education lessons in our youth.1 Our founders, after enduring an eight-year war against a monarch’s cruel reign from an ocean away, understood too well the importance of a more balanced approach to governance. They constructed three co-equal branches of government, each tasked with their own unique duties, but with responsibilities over the other branches as a check in order to ensure that no branch overstepped their powers, upsetting the balance of the fledgling constitutional republic. See Kilbourn v. Thompson, 103 U.S. 168, 191 (1880). These concepts of “checks and balances” and “separation of powers” have been the lifeblood of our government, hallmarks of fairness, cooperation, and representation that made the orderly operation of a society made up of a culturally, racially, and socioeconomically diverse people possible.
The three branches of our government—Legislative, Executive, and Judicial—derive their power from the United States Constitution; they function together, and one branch’s power does not supersede that of another. “To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); see also Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) (Marshall, C.J.) (“[T]he legislature makes, the executive executes, and the judiciary construes the law”). Importantly, James Madison wrote that this system prevents “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands.” The Federalist No. 47, at 301 (C. Rossiter ed. 1961). Such an accumulation and concentration of power would pose an inherent “threat to liberty.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring).
The Legislative branch, consisting of two Houses of Congress elected by the citizens of the states, has the power to levy taxes, finance government operations through appropriations, and to set the terms and conditions on the use of those appropriations. U.S. Const. art. I, §§ 8, 9. Congress also makes laws, and the Constitution prescribes a specific procedure for it to follow involving the agreement of both the House of Representatives and the Senate and presentment of the final bill to the President for signature or veto. U.S. Const. art. I, §§ 1, 7. The President, as head of the Executive Branch, may recommend laws for Congress’s consideration, including those related to spending. U.S. Const. art. II, §§ 1, 3. Once the bill becomes the law, U.S. Const. art. I, § 7, the Constitution imposes on the President a duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. And Article III empowers the Judiciary with the “province and duty ... to say what the law is” in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177 (1803); U.S. Const. art. III, § 2.
Important to this case is how Congress uses its power to authorize spending to support federal programs and activities. One way is through an appropriation, which creates the legal authority to “make funds available for obligation” and to make “expenditure[s]” for the purposes, during the time periods, and in the amounts specified in the law authorizing the appropriations. See 2 U.S.C. § 622(2)(A)(i). An “obligation” is a “definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty on the part of the United States that could mature into” such a liability; an “expenditure,” also known as a “disbursement,” is the actual spending of federal funds. U.S. Gov’t Accountability Off., A Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP, at 45, 48, 70 (Sept. 2005), https://www.gao.gov/assets/gao-05-734sp.pdf (“Budget Glossary”).
Congress has enacted multiple statutes that affirm its control over federal spending. First, the “purpose statute,” 31 U.S.C. § 1301(a), states that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law,”—that is, funds can be used only for the purposes that Congress has designated. Second, the Antideficiency Act prevents agencies from obligating or spending funds absent congressional appropriation. 31 U.S.C. § 1341. Finally, the Congressional Budget and Impoundment Control Act of 1974, 2 U.S.C. §§ 681 et seq. (“ICA”), permits the Executive Branch to “impound” (or decline to spend) federal funds only under a very small set of highly circumscribed conditions.
This case also involves the actions of agencies in receipt of statutorily appropriated federal funding. “When an executive agency administers a federal statute, the agency’s power to act is ‘authoritatively prescribed by Congress.’” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020) (quoting City of Arlington v. FCC, 569 U.S. 290, 297 (2013)). “It is no exaggeration to say that ‘an agency literally has no power to act ... unless and until Congress confers power upon it.’” City of Providence, 954 F.3d at 31 (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). In this case, there are specific statutory provisions instructing federal agencies to provide the States with categorical or formula grants where money is allocated on the basis of enumerated statutory factors such as population or the expenditure of qualifying state funds. ECF No. 114 ¶ 93. Several examples of these formula grants involve funding for Medicaid (42 U.S.C. § 1396(a), highway (23 U.S.C. § 104(a)(1), (b), (c)), special education services (the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.), for mental health and substance abuse treatment (42 U.S.C. §§ 300x(a), 300x-7(a), 300x-21(a), 300x-33(a)), power and heating for low-income residents, (the Low-Income Home Energy Assistance Program (“LIHEAP”), 42 U.S.C. § 8621(a)), the Infrastructure Improvement and Jobs Act (“IIJA”) (Pub. L. No. 117-58, 135 Stat. 429 (2021)) and Inflation Reduction Act (“IRA”) (Pub. L. No. 117-169, 136 Stat. 1818 (2022)) for projects ranging from highways, to broadband access, to pollution reduction, to increasing the reliability of the electric grid, and clean water. These statutes direct the agencies to make grants to states for enumerated purposes in accordance with congressional policies.
With this backdrop, the Court moves to the Executive actions that spurred this lawsuit.
A. The President’s Executive Orders and OMB Memorandum M-25-13
The President issued a series of Executive Orders (“EOs”) in his first eight days of office, directing federal agencies to pause and review funding in connection with his policy priorities—specifically relating to:
• “terminating the Green New Deal” and requiring an immediate pause on disbursement of funds appropriated under the IRA or IIJA (“Unleashing EO”), ECF No. 68-1;
• pausing funding programs relating to “removable or illegal aliens” (“Invasion EO”), ECF No. 68-3;
• identifying “diversity, equity, inclusion, accessibility” programs, in an effort to “Ending Radical and Wasteful Government DEI Programs and Preferencing” (“DEI EO”), ECF No. 68-2;
• ending federal funding of gender ideology (“Gender EO”), to ensure that research or educational grants to medical institutions do not include federal funds for transgender medical care (“Gender-Affirming Care EO”), ECF Nos. 68-5, 65-8; and
• pausing federal foreign aid that is not in line “with the foreign policy of the President of the United States” (“Foreign Aid EO”). ECF No. 68-6.
On January 27, 2025, the Office of Management and Budget’s (OMB) Acting Director, Matthew J. Vaeth issued OMB Memorandum M-25-13 (“OMB Directive”), entitled “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs” to executive departments and agencies’ heads. See ECF No. 68-9. The OMB Directive instructed federal agencies to “complete a comprehensive analysis of all of their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” Id. at 2. Then, the OMB Directive mandated that, in the interim of the comprehensive analyses, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the Executive Orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI [diversity, equality, and inclusion], woke gender ideology, and the green new deal.” Id. Agencies had until February 10, 2025 to submit to the OMB “detailed information on any programs, projects, or activities subject to this pause.” Id. The OMB Directive further noted that the pause would continue “until OMB has reviewed and provided guidance” to the agencies in relation to the information submitted to the OMB. Id. The pause was set to “become effective on January 28, 2025, at 5:00 PM.” Id.
B. The States’ Suit, the OMB Directive’s Rescission, and the TRO
On January 28, the “States”—comprising twenty-two states and the District of Columbia—brought suit against the President and the heads of numerous federal executive departments and agencies, arguing that their actions to implement the OMB Directive violated: (1) the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Counts I, II); (2) the Separation of Powers (Count III); and the Spending, Presentment, Appropriations, and Take Care Clauses of the U.S. Constitution (Counts IV, V). ECF No. 1. Additionally, the States immediately moved for a temporary restraining order (“TRO”) to “restrain the Defendants from enforcing the OMB Directive’s directive to ‘pause all activities related to obligation or disbursement of all Federal financial assistance.’” ECF No. 3 at 3 (citing OMB Directive at 2). That same day, the U.S. District Court for the District of Columbia issued an administrative stay on the OMB Directive until it could hold a hearing on a separate motion for a TRO from coalitions of nonprofit organizations. See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 314433 (D.D.C. Jan. 28, 2025).
The next day, a hearing for the TRO motion was set for 3:00 p.m. (Hearing Notice Jan. 29, 2025) and the Defendants entered an appearance. ECF No. 39. But shortly before the hearing, the Defendants filed a notice stating that the OMB rescinded the OMB Directive and that the Plaintiffs’ claims and request for prospective relief were now moot. ECF No. 43. Nonetheless, the Court preceded with the TRO hearing at the States’ request. During the hearing the States argued against mootness, presenting White House Press Secretary Karoline Leavitt’s post-rescission announcement on X (formerly Twitter) stating that the federal funding freeze was not rescinded and that the President’s EOs remained in full force and effect. See Minute Entry Jan. 29, 2025; ECF No. 44; see also ECF No. 68-126 (screenshot of the Press Secretary’s X announcement). Feeling inclined to grant a TRO based on the evidence before it, the Court requested that the States submit, and the Defendants respond, to a proposed TRO order (Minute Entry Jan. 29, 2025)—a request the parties promptly complied with, see ECF Nos. 46, 49.
Based on the Press Secretary’s announcement—along with supplemental evidence showing continued enforcement of the OMB Directive—the Court determined that the OMB Directive’s rescission was “in name only” and that the “substantive effect of the directive carries on.” ECF No. 50 at 10. Thus, the Court found that the OMB Directive’s rescission did not moot the States’ claims and ultimately issued a TRO on January 31. See id. at 11-12. The TRO provided that the Defendants: “shall not pause, freeze, impede, block, cancel, or terminate [their] compliance with awards and obligations . . . to the States . . . except on the basis of the applicable authorizing statutes, regulations, and terms” and shall be enjoined from “from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive . . ..” Id.2
C. TRO Enforcement Order, The Defendants’ Appeal, And The Preliminary Injunction Hearing
A few days after the Court issued the TRO, it set an expedited briefing schedule on the States’ Motion for a Preliminary Injunction. See Text Order, Feb. 3, 2025. Then, on February 6, the Court extended the TRO’s duration, for good cause, until it could rule on the preliminary injunction motion. See Text Order, Feb. 6, 2025. A day later, the States filed an emergency motion to enforce the TRO, pointing to evidence that their access to federal funds was still being denied.3 See ECF No. 66. Based on the evidence, the Court determined that there were “pauses in funding [that] violate[d] the plain text of the TRO” and granted the States’ Motion, ordering the Defendants to end any federal funding pauses and take steps to carry out the TRO during its pendency. ECF No. 96 at 3-4.
Soon after the Court granted the States’ emergency enforcement motion, the Defendants appealed to the First Circuit the Court’s: (1) TRO; (2) order extending the TRO’s duration, and: (3) order enforcing the TRO. ECF No. 98 at 1. The Defendants sought a stay of the Court’s orders from the First Circuit, including an immediate administrative stay. Id. The Defendants also filed a motion to stay, requesting the Court to stay its orders pending appeal. ECF No. 100. Ultimately, the First Circuit denied the Defendants’ motion for an administrative stay (ECF No. 106 at 2), the Court denied the Defendants’ motion to stay (ECF No. 111), and the Defendants then voluntarily dismissed their appeal. ECF Nos. 121, 122. In the meantime, the States amended their complaint. ECF No. 114.
Eventually, after an expedited briefing period, the Court held a hearing on the preliminary injunction motion where the States presented evidence of the categorical pause in funding and the harms resulting. The Defendants did not rebut any of that evidence or introduce any evidence of their own but instead simply argued against the States’ Motion on other grounds. At the close of the arguments, the Court reiterated that the TRO was in full force and effect and took the States’ Motion for Preliminary Injunction under advisement.
II. STANDARD OF REVIEW
“A request for a preliminary injunction is a request for extraordinary relief.” Cushing v. Packard, 30 F.4th 27, 35 (1st Cir. 2022). “To secure a preliminary injunction, a plaintiff must show ‘(1) a substantial likelihood of success on the merits, (2) a significant risk of irreparable harm if the injunction is withheld, (3) a favorable balance of hardships, and (4) a fit (or lack of friction) between the injunction and the public interest.’” NuVasive, Inc. v. Day, 954 F.3d 439, 443 (1st Cir. 2020) (quoting Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)). In evaluating whether the plaintiffs have met the most important requirement of likelihood of success on the merits, a court must keep in mind that the merits need not be “conclusively determine[d];” instead, at this stage, decisions “are to be understood as statements of probable outcomes only.” Akebia Therapeutics, Inc. v. Azar, 976 F.3d 86, 93 (1st Cir. 2020) (partially quoting Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991)). “To demonstrate likelihood of success on the merits, plaintiffs must show ‘more than mere possibility’ of success–rather, they must establish a ‘strong likelihood’ that they will ultimately prevail.” Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per curiam) (quoting Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010)).
III. DISCUSSION
A. Jurisdiction
The Defendants assert that the Court lacks jurisdiction to enter preliminary relief in this case because: (1) the OMB Directive’s rescission renders the States’ claims—or at least their request for preliminary relief—moot; and (2) the States have not established standing to challenge the OMB Directive. See ECF No. 113 at 11-22. The Court will address each argument in turn.
1. Mootness
The Defendants contend that the States’ claims here are directed only against the OMB Directive, and thus the rescission of the OMB Directive renders the States’ claims moot. Id. at 11. They assert that the States’ allegations of ongoing harms, such as continued funding freezes, do not stem from the challenged OMB Directive but from actions that are not challenged in the States’ Complaint. Id. at 13. Those purportedly unchallenged actions that the Defendants suggest are the true basis for the States’ ongoing harms are: (1) independent agency decisions not based on the OMB Directive; and (2) the issuance of OBM Memorandum M-25-11 (the “Unleashing Guidance”)—which directed agencies to immediately pause certain disbursement of funds appropriated under the IRA and the IIJA.4 Id. at 14-15.
The OMB Directive’s rescission does not render the States’ claims moot. The voluntary cessation doctrine precludes a finding of mootness in this case. The voluntary cessation doctrine gives rise to a mootness exception when the following two-part test is met: (1) the defendant voluntarily ceased the challenged conduct to moot the plaintiff’s case; and (2) there is a reasonable expectation that the defendant will repeat the challenged conduct after the lawsuit’s dismissal. Lowe v. Gagné-Holmes, 126 F.4th 747, 756 (1st Cir. 2025) (citing Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 9 (1st Cir. 2021)). Here, there was a rescission of the challenged OMB Directive, see ECF No. 68-12, but as the Court has previously found, the evidence suggests that the OMB Directive’s rescission was in name only and “may have been issued simply to defeat the jurisdiction of the courts.” ECF No. 50 at 10. The Court made this finding, in part, based on a statement from the White House Press Secretary after the OMB Directive’s rescission, stating:
ECF No. 68-126; ECF No. 50 at 10-11. The Defendants’ contentions that the sole goal of that statement was “ending confusion” and “focusing agencies on the legal effect of the President’s recent Executive Orders” are unavailing. ECF No. 113 at 16. The Press Secretary’s statement reflects that the OMB Directive’s rescission was a direct response to a court-issued stay against the OMB Directive so that the challenged federal funding freeze could continue without any judicially-imposed impediment. Therefore, the Defendants’ voluntary rescission of the OMB Directive was a clear effort to moot legal challenges to the federal funding freeze announced in the OMB Directive.
Nor have the Defendants met their heavy burden of illustrating that it is “‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Brown v. Colegio de Abogados de Puerto Rico, 613 F.3d 44, 49 (1st Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The Defendants purport that a reinstatement of the challenged OMB Directive, absent an injunction, is a fear that is “wholly speculative given the existence of the President’s Executive Orders which separately address the President’s priorities.” ECF No. 113 at 16. But nothing suggests that the OMB voluntarily abandoned the OMB Directive because they believed that: (1) the President’s EOs, alone, sufficiently instructed agencies on how to implement the President’s priorities; or (2) the OMB Directive was deficient or exceeded the Defendants’ constitutional or statutory authority. See ECF No. 68-12 (recission without explanation). Rather, as explained above, the Press Secretary’s statement reflects that the OMB Directive’s rescission was in direct response to litigation that impeded the execution of a federal funding freeze. Thus, the rationale underlying the OMB Directive’s rescission makes it unreasonable to conclude that the Defendants will not reinstate the challenged funding freeze absent an injunction from this Court. Accordingly, the States’ challenges are not moot based on the OMB Directive’s rescission.
Next, the Defendants claim that the States’ request for preliminary relief is moot because, by rescinding the OMB Directive, the Defendants have “voluntarily provided the prospective injunctive relief that the States sought in their Complaint.” ECF No. 113 at 17. Since the Defendants’ submission of their Opposition to the States’ Motion for Preliminary Injunction, the States have filed an Amended Complaint that clarifies the scope of their claims and requests for relief. See ECF No. 114. The States request that the Court preliminarily enjoin the Agency Defendants from implementing “the Federal Funding Freeze” “effectuated through EOs, the Unleashing [Guidance], the OMB Directive, and other agency actions . . ..” Id. ¶ 246. The States’ request for a preliminary injunction makes clear that they are challenging a pause on federal funding that was implemented under not only the OMB Directive, but also to the EOs incorporated therein and other agency actions such as the OMB’s issuance of the Unleashing Guidance. Thus, the rescission of the OMB Directive does not provide the States with all the prospective relief they have requested.6 Accordingly, the States’ preliminary injunction request is not moot.
2. Standing
The Defendants assert that the States lack standing to challenge the OMB Directive, particularly with respect to claims based on funding streams that “(1) are not within the scope of the OMB Memo; (2) are not managed by any of the Defendant agencies; or (3) benefit other States or third parties that are not plaintiffs in this case.” ECF No. 113 at 18-19. “To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.’” Dep’t of Com. v. New York, 588 U.S. 752, 766 (2019) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008)). The Defendants contend that the States seek to bring five claims against “thousands of various agency funding streams,” and thus must demonstrate standing for each claim against each funding stream. ECF No. 113 at 18. But the States’ claims are not against funding streams.7 Rather, the States’ claims focus on the Defendants’ actions, which seek to inhibit access to obligated funds indefinitely and indiscriminately—without reference to statute, regulations, or grant terms.
The States have introduced dozens of uncontested declarations illustrating the effects of the indiscriminate and unpredictable freezing of federal funds, which implicate nearly all aspects of the States’ governmental operations and inhibit their ability to administer vital services to their residents.8 These declarations reflect at least one particularized, concrete, and imminent harm that flows from the federal funding pause—a significant, indefinite loss of obligated federal funding. And such a harm is fairly traceable to the Defendants’ conduct via their acts to implement a widespread federal funding pause under the OMB Directive, the EOs incorporated therein, and the Unleashing Guidance. Granting this Motion in the States’ favor will more than likely redress their injuries because it would inhibit the abrupt, indefinite pause of obligated federal funds on which the States rely to administer vital services to their residents. Accordingly, the States have the requisite standing to challenge the federal funding freeze.
Now that the Court has jumped over these initial hurdles, it moves to resolution of the States’ preliminary injunction motion.
https://www.mass.gov/doc/omb-pi-order/download
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE OF RHODE ISLAND; STATE OF NEW JERSEY; COMMONWEALTH OF MASSACHUSETTS; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; STATE OF HAWAII; OFFICE OF THE GOVERNOR ex rel. Andy Beshear, in his official capacity as Governor of the COMMONWEALTH OF KENTUCKY; STATE OF MAINE; STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW MEXICO; STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHINGTON; and STATE OF WISCONSIN,
Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. OFFICE OF MANAGEMENT AND BUDGET; RUSSELL VOUGHT, in his official capacity as Director of the U.S. Office of Management and Budget; U.S. DEPARTMENT OF THE TREASURY; SCOTT BESSENT, in his official capacity as Secretary of the Treasury; PATRICIA COLLINS, in her official capacity as Treasurer of the United States; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; ROBERT F. KENNEDY, JR., in his official capacity as Secretary of Health and Human Services; U.S. DEPARTMENT OF EDUCATION; LINDA MCMAHON, in her official capacity as Secretary of Education; U.S. DEPARTMENT OF TRANSPORTATION; SEAN DUFFY, in his official capacity as Secretary of Transportation; U.S. DEPARTMENT OF LABOR; VINCE MICONE, in his official capacity as Acting Secretary of Labor; U.S. DEPARTMENT OF ENERGY; CHRIS WRIGHT, in his official capacity as Secretary of Energy; U.S. ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, in his official capacity as Secretary of the Interior; U.S. DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM, in her capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF JUSTICE; PAMELA BONDI, in her official capacity as Attorney General of the U.S. Department of Justice; THE NATIONAL SCIENCE FOUNDATION; DR. SETHURAMAN PANCHANATHAN, in his capacity as Director of the National Science Foundation; U.S. DEPARTMENT OF AGRICULTURE; BROOKE ROLLINS, in her official capacity as Secretary of Agriculture; U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; SCOTT TURNER, in his official capacity as Secretary of Housing and Urban Development; U.S. DEPARTMENT OF STATE; U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT; MARCO RUBIO, in his official capacities as Secretary of State and Acting Administrator of the United States Agency for International Development; U.S. DEPARTMENT OF DEFENSE; PETER HEGSETH, in his official capacity as Secretary of Defense; U.S. DEPARTMENT OF VETERANS AFFAIRS; DOUG COLLINS, in his official capacity as Secretary of Veterans Affairs; U.S. DEPARTMENT OF COMMERCE; HOWARD LUTNICK, in his official capacity as Secretary of Commerce; NATIONAL AERONAUTICS AND SPACE ADMINISTRATION; JANET PETRO in her official capacity as Acting Administrator of National Aeronautics and Space Administration; CORPORATION FOR NATIONAL AND COMMUNITY SERVICE; JENNIFER BASTRESS TAHMASEBI, in her official capacity as Interim Head of the Corporation for National and Community Service; U.S. SOCIAL SECURITY ADMINISTRATION; LELAND DUDEK, in his official capacity as Acting Commissioner of United States Social Security Administration; U.S. SMALL BUSINESS ADMINISTRATION; and KELLY LOEFFLER, in her official capacity as Administrator of U.S. Small Business Administration,
Defendants.
C.A. No. 25-cv-39-JJM-PAS
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Chief Judge.
The Executive’s categorical freeze of appropriated and obligated funds fundamentally undermines the distinct constitutional roles of each branch of our government. The interaction of the three co-equal branches of government is an intricate, delicate, and sophisticated balance—but it is crucial to our form of constitutional governance. Here, the Executive put itself above Congress. It imposed a categorical mandate on the spending of congressionally appropriated and obligated funds without regard to Congress’s authority to control spending. Federal agencies and departments can spend, award, or suspend money based only on the power Congress has given to them–they have no other spending power. The Executive has not pointed to any constitutional or statutory authority that would allow them to impose this type of categorical freeze. The Court is not limiting the Executive’s discretion or micromanaging the administration of federal funds. Rather, consistent with the Constitution, statutes, and caselaw, the Court is simply holding that the Executive’s discretion to impose its own policy preferences on appropriated funds can be exercised only if it is authorized by the congressionally approved appropriations statutes. Accordingly, based on these principles and the reasons stated below, the Court grants the States’ Motion for Preliminary Injunction. ECF No. 67.
I. BACKGROUND
We begin by restating the American government principles learned during critical civics education lessons in our youth.1 Our founders, after enduring an eight-year war against a monarch’s cruel reign from an ocean away, understood too well the importance of a more balanced approach to governance. They constructed three co-equal branches of government, each tasked with their own unique duties, but with responsibilities over the other branches as a check in order to ensure that no branch overstepped their powers, upsetting the balance of the fledgling constitutional republic. See Kilbourn v. Thompson, 103 U.S. 168, 191 (1880). These concepts of “checks and balances” and “separation of powers” have been the lifeblood of our government, hallmarks of fairness, cooperation, and representation that made the orderly operation of a society made up of a culturally, racially, and socioeconomically diverse people possible.
The three branches of our government—Legislative, Executive, and Judicial—derive their power from the United States Constitution; they function together, and one branch’s power does not supersede that of another. “To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); see also Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) (Marshall, C.J.) (“[T]he legislature makes, the executive executes, and the judiciary construes the law”). Importantly, James Madison wrote that this system prevents “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands.” The Federalist No. 47, at 301 (C. Rossiter ed. 1961). Such an accumulation and concentration of power would pose an inherent “threat to liberty.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring).
The Legislative branch, consisting of two Houses of Congress elected by the citizens of the states, has the power to levy taxes, finance government operations through appropriations, and to set the terms and conditions on the use of those appropriations. U.S. Const. art. I, §§ 8, 9. Congress also makes laws, and the Constitution prescribes a specific procedure for it to follow involving the agreement of both the House of Representatives and the Senate and presentment of the final bill to the President for signature or veto. U.S. Const. art. I, §§ 1, 7. The President, as head of the Executive Branch, may recommend laws for Congress’s consideration, including those related to spending. U.S. Const. art. II, §§ 1, 3. Once the bill becomes the law, U.S. Const. art. I, § 7, the Constitution imposes on the President a duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. And Article III empowers the Judiciary with the “province and duty ... to say what the law is” in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177 (1803); U.S. Const. art. III, § 2.
Important to this case is how Congress uses its power to authorize spending to support federal programs and activities. One way is through an appropriation, which creates the legal authority to “make funds available for obligation” and to make “expenditure[s]” for the purposes, during the time periods, and in the amounts specified in the law authorizing the appropriations. See 2 U.S.C. § 622(2)(A)(i). An “obligation” is a “definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty on the part of the United States that could mature into” such a liability; an “expenditure,” also known as a “disbursement,” is the actual spending of federal funds. U.S. Gov’t Accountability Off., A Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP, at 45, 48, 70 (Sept. 2005), https://www.gao.gov/assets/gao-05-734sp.pdf (“Budget Glossary”).
Congress has enacted multiple statutes that affirm its control over federal spending. First, the “purpose statute,” 31 U.S.C. § 1301(a), states that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law,”—that is, funds can be used only for the purposes that Congress has designated. Second, the Antideficiency Act prevents agencies from obligating or spending funds absent congressional appropriation. 31 U.S.C. § 1341. Finally, the Congressional Budget and Impoundment Control Act of 1974, 2 U.S.C. §§ 681 et seq. (“ICA”), permits the Executive Branch to “impound” (or decline to spend) federal funds only under a very small set of highly circumscribed conditions.
This case also involves the actions of agencies in receipt of statutorily appropriated federal funding. “When an executive agency administers a federal statute, the agency’s power to act is ‘authoritatively prescribed by Congress.’” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020) (quoting City of Arlington v. FCC, 569 U.S. 290, 297 (2013)). “It is no exaggeration to say that ‘an agency literally has no power to act ... unless and until Congress confers power upon it.’” City of Providence, 954 F.3d at 31 (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). In this case, there are specific statutory provisions instructing federal agencies to provide the States with categorical or formula grants where money is allocated on the basis of enumerated statutory factors such as population or the expenditure of qualifying state funds. ECF No. 114 ¶ 93. Several examples of these formula grants involve funding for Medicaid (42 U.S.C. § 1396(a), highway (23 U.S.C. § 104(a)(1), (b), (c)), special education services (the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.), for mental health and substance abuse treatment (42 U.S.C. §§ 300x(a), 300x-7(a), 300x-21(a), 300x-33(a)), power and heating for low-income residents, (the Low-Income Home Energy Assistance Program (“LIHEAP”), 42 U.S.C. § 8621(a)), the Infrastructure Improvement and Jobs Act (“IIJA”) (Pub. L. No. 117-58, 135 Stat. 429 (2021)) and Inflation Reduction Act (“IRA”) (Pub. L. No. 117-169, 136 Stat. 1818 (2022)) for projects ranging from highways, to broadband access, to pollution reduction, to increasing the reliability of the electric grid, and clean water. These statutes direct the agencies to make grants to states for enumerated purposes in accordance with congressional policies.
With this backdrop, the Court moves to the Executive actions that spurred this lawsuit.
A. The President’s Executive Orders and OMB Memorandum M-25-13
The President issued a series of Executive Orders (“EOs”) in his first eight days of office, directing federal agencies to pause and review funding in connection with his policy priorities—specifically relating to:
• “terminating the Green New Deal” and requiring an immediate pause on disbursement of funds appropriated under the IRA or IIJA (“Unleashing EO”), ECF No. 68-1;
• pausing funding programs relating to “removable or illegal aliens” (“Invasion EO”), ECF No. 68-3;
• identifying “diversity, equity, inclusion, accessibility” programs, in an effort to “Ending Radical and Wasteful Government DEI Programs and Preferencing” (“DEI EO”), ECF No. 68-2;
• ending federal funding of gender ideology (“Gender EO”), to ensure that research or educational grants to medical institutions do not include federal funds for transgender medical care (“Gender-Affirming Care EO”), ECF Nos. 68-5, 65-8; and
• pausing federal foreign aid that is not in line “with the foreign policy of the President of the United States” (“Foreign Aid EO”). ECF No. 68-6.
On January 27, 2025, the Office of Management and Budget’s (OMB) Acting Director, Matthew J. Vaeth issued OMB Memorandum M-25-13 (“OMB Directive”), entitled “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs” to executive departments and agencies’ heads. See ECF No. 68-9. The OMB Directive instructed federal agencies to “complete a comprehensive analysis of all of their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” Id. at 2. Then, the OMB Directive mandated that, in the interim of the comprehensive analyses, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the Executive Orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI [diversity, equality, and inclusion], woke gender ideology, and the green new deal.” Id. Agencies had until February 10, 2025 to submit to the OMB “detailed information on any programs, projects, or activities subject to this pause.” Id. The OMB Directive further noted that the pause would continue “until OMB has reviewed and provided guidance” to the agencies in relation to the information submitted to the OMB. Id. The pause was set to “become effective on January 28, 2025, at 5:00 PM.” Id.
B. The States’ Suit, the OMB Directive’s Rescission, and the TRO
On January 28, the “States”—comprising twenty-two states and the District of Columbia—brought suit against the President and the heads of numerous federal executive departments and agencies, arguing that their actions to implement the OMB Directive violated: (1) the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Counts I, II); (2) the Separation of Powers (Count III); and the Spending, Presentment, Appropriations, and Take Care Clauses of the U.S. Constitution (Counts IV, V). ECF No. 1. Additionally, the States immediately moved for a temporary restraining order (“TRO”) to “restrain the Defendants from enforcing the OMB Directive’s directive to ‘pause all activities related to obligation or disbursement of all Federal financial assistance.’” ECF No. 3 at 3 (citing OMB Directive at 2). That same day, the U.S. District Court for the District of Columbia issued an administrative stay on the OMB Directive until it could hold a hearing on a separate motion for a TRO from coalitions of nonprofit organizations. See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 314433 (D.D.C. Jan. 28, 2025).
The next day, a hearing for the TRO motion was set for 3:00 p.m. (Hearing Notice Jan. 29, 2025) and the Defendants entered an appearance. ECF No. 39. But shortly before the hearing, the Defendants filed a notice stating that the OMB rescinded the OMB Directive and that the Plaintiffs’ claims and request for prospective relief were now moot. ECF No. 43. Nonetheless, the Court preceded with the TRO hearing at the States’ request. During the hearing the States argued against mootness, presenting White House Press Secretary Karoline Leavitt’s post-rescission announcement on X (formerly Twitter) stating that the federal funding freeze was not rescinded and that the President’s EOs remained in full force and effect. See Minute Entry Jan. 29, 2025; ECF No. 44; see also ECF No. 68-126 (screenshot of the Press Secretary’s X announcement). Feeling inclined to grant a TRO based on the evidence before it, the Court requested that the States submit, and the Defendants respond, to a proposed TRO order (Minute Entry Jan. 29, 2025)—a request the parties promptly complied with, see ECF Nos. 46, 49.
Based on the Press Secretary’s announcement—along with supplemental evidence showing continued enforcement of the OMB Directive—the Court determined that the OMB Directive’s rescission was “in name only” and that the “substantive effect of the directive carries on.” ECF No. 50 at 10. Thus, the Court found that the OMB Directive’s rescission did not moot the States’ claims and ultimately issued a TRO on January 31. See id. at 11-12. The TRO provided that the Defendants: “shall not pause, freeze, impede, block, cancel, or terminate [their] compliance with awards and obligations . . . to the States . . . except on the basis of the applicable authorizing statutes, regulations, and terms” and shall be enjoined from “from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive . . ..” Id.2
C. TRO Enforcement Order, The Defendants’ Appeal, And The Preliminary Injunction Hearing
A few days after the Court issued the TRO, it set an expedited briefing schedule on the States’ Motion for a Preliminary Injunction. See Text Order, Feb. 3, 2025. Then, on February 6, the Court extended the TRO’s duration, for good cause, until it could rule on the preliminary injunction motion. See Text Order, Feb. 6, 2025. A day later, the States filed an emergency motion to enforce the TRO, pointing to evidence that their access to federal funds was still being denied.3 See ECF No. 66. Based on the evidence, the Court determined that there were “pauses in funding [that] violate[d] the plain text of the TRO” and granted the States’ Motion, ordering the Defendants to end any federal funding pauses and take steps to carry out the TRO during its pendency. ECF No. 96 at 3-4.
Soon after the Court granted the States’ emergency enforcement motion, the Defendants appealed to the First Circuit the Court’s: (1) TRO; (2) order extending the TRO’s duration, and: (3) order enforcing the TRO. ECF No. 98 at 1. The Defendants sought a stay of the Court’s orders from the First Circuit, including an immediate administrative stay. Id. The Defendants also filed a motion to stay, requesting the Court to stay its orders pending appeal. ECF No. 100. Ultimately, the First Circuit denied the Defendants’ motion for an administrative stay (ECF No. 106 at 2), the Court denied the Defendants’ motion to stay (ECF No. 111), and the Defendants then voluntarily dismissed their appeal. ECF Nos. 121, 122. In the meantime, the States amended their complaint. ECF No. 114.
Eventually, after an expedited briefing period, the Court held a hearing on the preliminary injunction motion where the States presented evidence of the categorical pause in funding and the harms resulting. The Defendants did not rebut any of that evidence or introduce any evidence of their own but instead simply argued against the States’ Motion on other grounds. At the close of the arguments, the Court reiterated that the TRO was in full force and effect and took the States’ Motion for Preliminary Injunction under advisement.
II. STANDARD OF REVIEW
“A request for a preliminary injunction is a request for extraordinary relief.” Cushing v. Packard, 30 F.4th 27, 35 (1st Cir. 2022). “To secure a preliminary injunction, a plaintiff must show ‘(1) a substantial likelihood of success on the merits, (2) a significant risk of irreparable harm if the injunction is withheld, (3) a favorable balance of hardships, and (4) a fit (or lack of friction) between the injunction and the public interest.’” NuVasive, Inc. v. Day, 954 F.3d 439, 443 (1st Cir. 2020) (quoting Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)). In evaluating whether the plaintiffs have met the most important requirement of likelihood of success on the merits, a court must keep in mind that the merits need not be “conclusively determine[d];” instead, at this stage, decisions “are to be understood as statements of probable outcomes only.” Akebia Therapeutics, Inc. v. Azar, 976 F.3d 86, 93 (1st Cir. 2020) (partially quoting Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991)). “To demonstrate likelihood of success on the merits, plaintiffs must show ‘more than mere possibility’ of success–rather, they must establish a ‘strong likelihood’ that they will ultimately prevail.” Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per curiam) (quoting Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010)).
III. DISCUSSION
A. Jurisdiction
The Defendants assert that the Court lacks jurisdiction to enter preliminary relief in this case because: (1) the OMB Directive’s rescission renders the States’ claims—or at least their request for preliminary relief—moot; and (2) the States have not established standing to challenge the OMB Directive. See ECF No. 113 at 11-22. The Court will address each argument in turn.
1. Mootness
The Defendants contend that the States’ claims here are directed only against the OMB Directive, and thus the rescission of the OMB Directive renders the States’ claims moot. Id. at 11. They assert that the States’ allegations of ongoing harms, such as continued funding freezes, do not stem from the challenged OMB Directive but from actions that are not challenged in the States’ Complaint. Id. at 13. Those purportedly unchallenged actions that the Defendants suggest are the true basis for the States’ ongoing harms are: (1) independent agency decisions not based on the OMB Directive; and (2) the issuance of OBM Memorandum M-25-11 (the “Unleashing Guidance”)—which directed agencies to immediately pause certain disbursement of funds appropriated under the IRA and the IIJA.4 Id. at 14-15.
The OMB Directive’s rescission does not render the States’ claims moot. The voluntary cessation doctrine precludes a finding of mootness in this case. The voluntary cessation doctrine gives rise to a mootness exception when the following two-part test is met: (1) the defendant voluntarily ceased the challenged conduct to moot the plaintiff’s case; and (2) there is a reasonable expectation that the defendant will repeat the challenged conduct after the lawsuit’s dismissal. Lowe v. Gagné-Holmes, 126 F.4th 747, 756 (1st Cir. 2025) (citing Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 9 (1st Cir. 2021)). Here, there was a rescission of the challenged OMB Directive, see ECF No. 68-12, but as the Court has previously found, the evidence suggests that the OMB Directive’s rescission was in name only and “may have been issued simply to defeat the jurisdiction of the courts.” ECF No. 50 at 10. The Court made this finding, in part, based on a statement from the White House Press Secretary after the OMB Directive’s rescission, stating:
This is NOT a rescission of the federal funding freeze. It is simply a rescission of the OMB memo. Why? To end any confusion created by the court’s injunction. The President’s EO’s on federal funding remain in full force and effect, and will be rigorously implemented.5
ECF No. 68-126; ECF No. 50 at 10-11. The Defendants’ contentions that the sole goal of that statement was “ending confusion” and “focusing agencies on the legal effect of the President’s recent Executive Orders” are unavailing. ECF No. 113 at 16. The Press Secretary’s statement reflects that the OMB Directive’s rescission was a direct response to a court-issued stay against the OMB Directive so that the challenged federal funding freeze could continue without any judicially-imposed impediment. Therefore, the Defendants’ voluntary rescission of the OMB Directive was a clear effort to moot legal challenges to the federal funding freeze announced in the OMB Directive.
Nor have the Defendants met their heavy burden of illustrating that it is “‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Brown v. Colegio de Abogados de Puerto Rico, 613 F.3d 44, 49 (1st Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The Defendants purport that a reinstatement of the challenged OMB Directive, absent an injunction, is a fear that is “wholly speculative given the existence of the President’s Executive Orders which separately address the President’s priorities.” ECF No. 113 at 16. But nothing suggests that the OMB voluntarily abandoned the OMB Directive because they believed that: (1) the President’s EOs, alone, sufficiently instructed agencies on how to implement the President’s priorities; or (2) the OMB Directive was deficient or exceeded the Defendants’ constitutional or statutory authority. See ECF No. 68-12 (recission without explanation). Rather, as explained above, the Press Secretary’s statement reflects that the OMB Directive’s rescission was in direct response to litigation that impeded the execution of a federal funding freeze. Thus, the rationale underlying the OMB Directive’s rescission makes it unreasonable to conclude that the Defendants will not reinstate the challenged funding freeze absent an injunction from this Court. Accordingly, the States’ challenges are not moot based on the OMB Directive’s rescission.
Next, the Defendants claim that the States’ request for preliminary relief is moot because, by rescinding the OMB Directive, the Defendants have “voluntarily provided the prospective injunctive relief that the States sought in their Complaint.” ECF No. 113 at 17. Since the Defendants’ submission of their Opposition to the States’ Motion for Preliminary Injunction, the States have filed an Amended Complaint that clarifies the scope of their claims and requests for relief. See ECF No. 114. The States request that the Court preliminarily enjoin the Agency Defendants from implementing “the Federal Funding Freeze” “effectuated through EOs, the Unleashing [Guidance], the OMB Directive, and other agency actions . . ..” Id. ¶ 246. The States’ request for a preliminary injunction makes clear that they are challenging a pause on federal funding that was implemented under not only the OMB Directive, but also to the EOs incorporated therein and other agency actions such as the OMB’s issuance of the Unleashing Guidance. Thus, the rescission of the OMB Directive does not provide the States with all the prospective relief they have requested.6 Accordingly, the States’ preliminary injunction request is not moot.
2. Standing
The Defendants assert that the States lack standing to challenge the OMB Directive, particularly with respect to claims based on funding streams that “(1) are not within the scope of the OMB Memo; (2) are not managed by any of the Defendant agencies; or (3) benefit other States or third parties that are not plaintiffs in this case.” ECF No. 113 at 18-19. “To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.’” Dep’t of Com. v. New York, 588 U.S. 752, 766 (2019) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008)). The Defendants contend that the States seek to bring five claims against “thousands of various agency funding streams,” and thus must demonstrate standing for each claim against each funding stream. ECF No. 113 at 18. But the States’ claims are not against funding streams.7 Rather, the States’ claims focus on the Defendants’ actions, which seek to inhibit access to obligated funds indefinitely and indiscriminately—without reference to statute, regulations, or grant terms.
The States have introduced dozens of uncontested declarations illustrating the effects of the indiscriminate and unpredictable freezing of federal funds, which implicate nearly all aspects of the States’ governmental operations and inhibit their ability to administer vital services to their residents.8 These declarations reflect at least one particularized, concrete, and imminent harm that flows from the federal funding pause—a significant, indefinite loss of obligated federal funding. And such a harm is fairly traceable to the Defendants’ conduct via their acts to implement a widespread federal funding pause under the OMB Directive, the EOs incorporated therein, and the Unleashing Guidance. Granting this Motion in the States’ favor will more than likely redress their injuries because it would inhibit the abrupt, indefinite pause of obligated federal funds on which the States rely to administer vital services to their residents. Accordingly, the States have the requisite standing to challenge the federal funding freeze.
Now that the Court has jumped over these initial hurdles, it moves to resolution of the States’ preliminary injunction motion.
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Part 2 of 2
B. Likelihood of Success on the Merits
1. Administrative Procedure Act Claims
The States assert that the Agency Defendants’9 implementation of the federal funding freeze, without regard to relevant authorizing statutes and regulations, violates the Administrative Procedure Act (“APA”) because such actions violate the law, are ultra vires, and arbitrary and capricious. ECF No. 67 at 52 (citing 5 U.S.C. § 706(2)(A)). To begin, the Court must address the Defendants’ arguments that the States’ APA claims do not fall within the Court’s subject matter jurisdiction.
a. Final Agency Action
The APA allows judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. An agency action is “final” if: (1) it marks the “‘consummation’ of the agency’s decisionmaking process,” and (2) the action determines rights or obligations or creates legal consequences. Harper v. Werfel, 118 F.4th 100, 116 (1st Cir. 2024) (citing Bennett v. Spear, 520 U.S. 154, 177 (1997)).
The States identify: (1) the OMB Directive itself; and (2) the Agency Defendants’ implementation of a categorical federal funding freeze, under the OMB Directive and Section 7(a) of the Unleashing EO, as final agency actions. ECF No. 67 at 53. The Defendants contend that the OMB Directive and other “guidance” about implementing the President’s priorities are not final agency actions because the OMB Directive did not determine which funds or grants should be paused but required agencies to make such a determination under their respective authorities. ECF No. 113 at 28.
To suggest that the challenged federal funding freezes were purely the result of independent agency decisions rather than the OMB Directive or the Unleashing Guidance is disingenuous. Recall that the OMB Directive informed agencies that they “must complete a comprehensive analysis of all of their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” ECF No. 68-9 at 2. The OMB Directive mandated that “[i]n the interim” of these comprehensive analyses, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders . . ..” Id. (second emphasis added). Elsewhere, the OMB Directive emphasized that “[e]ach agency must pause . . . disbursement of Federal funds under all open awards.” Id.
The record makes clear that following the OMB Directive’s issuance—and even before it was set to take effect—many of the States found themselves unable to draw down appropriated and awarded funding because they were completely shut out from accessing federal funding payment portals such as the Payment Management Services (“PMS”).10 As the States highlight, such a wholesale shutdown does not suggest that agencies made individualized assessments of their statutory authorities and relevant grant terms before making the determination to blanketly pause access to obligated funds.11 And how could these agencies make such assessments? The OMB Directive explicitly stated that the “temporary funding pause will become effective on January 28, 2025, at 5:00 PM”—a mere day after the Directive was issued. Id. As another court faced with a similar challenge to the OMB Directive underscored “it is unclear whether twenty-four hours is sufficient time for an agency to independently review a single grant, let alone hundreds of thousands of them.” Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 368852, at *8 (D.D.C. Feb. 3, 2025). Overall, the OMB Directive amounted to a command, not a suggestion, that Agency Defendants shall execute a categorical, indefinite funding freeze to align funding decisions with the President’s priorities. Such a command, along with the Agency Defendants swift actions to execute the categorical funding freeze, marked the “consummation of each agency’s decisionmaking process to comply with the President’s executive order, the OBM [Directive], or both.” Drs. for Am. v. Off. of Pers. Mgmt., No. CV 25-322 (JDB), 2025 WL 452707, at *5 (D.D.C. Feb. 11, 2025).
The same analysis applies to the Agency Defendants’ acts implementing funding pauses under Section 7(a) of the Unleashing EO and the OMB’s Unleashing Guidance. The Unleashing Guidance largely reiterates the Unleashing EO’s instruction that agencies immediately pause disbursements of funds under the IRA or IIJA and does not even attempt to allow for agency discretion.12 See ECF No. 68-13 at 2. And agencies, such as the Department of Energy (DOE) and the U.S. Department of Agriculture acted quickly to implement the pause of appropriated IIJA and IRA funds. See ECF Nos. 68-123 ¶¶ 33, 36, 37; 68-92 ¶¶ 14-15. Thus, the implementation of those IIJA and IRA funding pauses likely marked the consummation of each agency’s decision to comply with the Unleashing EO, the Unleashing Guidance, or both, not to exercise its discretion.
As to the second finality factor, the evidentiary record sufficiently shows that the abrupt, categorical, and indefinite pause of obligated federal funds is the direct, appreciable legal consequence that States have suffered from the Agency Defendants’ actions implementing the funding pauses commanded in the OMB Directive and the Unleashing EO. Accordingly, the Agency Defendants’ actions suffice as “final agency action” as to permit the Court’s judicial review of such actions under the APA.
Returning to the merits, the Court must decide whether the States are likely to succeed on their claim that the Defendants’ implementation of the federal funding freeze was contrary to law, ultra vires, and arbitrary and capricious. Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions” if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Because this standard is “quite narrow: a reviewing court ‘may not substitute its judgment for that of the agency, even if it disagrees with the agency’s conclusions.’” Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015) (quoting River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009)). Therefore, a reviewing court must uphold an agency’s decision if it is: (1) devoid of legal errors; and (2) “supported by any rational review of the record.” Mahoney v. Del Toro, 99 F.4th 25, 34 (1st Cir. 2024) (quoting Atieh, 797 F.3d at 138). The Court will first discuss whether the Defendants’ actions were contrary to law and then turn to whether such acts were arbitrary and capricious.
b. Contrary to Law and Ultra Vires Actions
The States assert that the Defendants acted contrary to law and exceeded their statutory authority when imposing the challenged federal funding freeze. “When an executive agency administers a federal statute, the agency’s power to act is ‘authoritatively prescribed by Congress.’” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020) (quoting City of Arlington v. FCC, 569 U.S. 290, 297 (2013)). Therefore, “an agency literally has no power to act ... unless and until Congress confers power upon it.” Id. (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, (1986)). Any action an agency takes that is beyond the limits of its statutory authority is ultra vires and violates the APA. Id.
The statutory scheme governing federal appropriations are at the forefront of the States’ ultra vires and “contrary to law” claims against the Agency Defendants. The States contend that the ICA13 permits the Executive to defer or decline the expenditure of appropriated federal funds only under certain limited conditions that are not present here. See ECF No. 67 at 45, 54-55. They highlight that such an expenditure deferral cannot be made based on policy reasons but only on the permissible bases listed under the ICA. See id. at 54 (citing 2 U.S.C. § 684(b)); Mem. of Gen. Accountability Off., Office of Management and Budget—Withholding of Ukraine Security Assistance, B-331564, at 6 (Jan. 16, 2020), https://perma.cc/6TMT-3CH2. The States also note that the ICA requires the Executive to send a “special message” to Congress explaining proposed deferrals. Id. at 55 (2 U.S.C. § 684(a)). Thus, the States argue that the federal funding freeze exceeded the Defendants’ authority and contravened the ICA because: (1) the freeze, or deferral, was impermissibly based on “policy disagreement with Congressional priorities;” and (2) the Executive failed to send the required “special message” to Congress detailing the numerous proposed deferrals.
The ICA provides that “[w]henever the President, the Director of the [OMB], [or] the head of any [U.S.] department or agency . . . proposes to defer any budget authority provided for a specific purpose or project,” the President must send a “special message” to Congress detailing the proposed deferrals. 2 U.S.C. § 684(a). A “deferral of budget authority” includes: (1) “withholding or delaying the obligation or expenditure of budget authority . . . provided for projects or activities;” or (2) “any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority . . ..” Id. § 682(1)(A), (B). Further, the ICA enumerates only three bases in which a deferral is permissible: (1) “to provide for contingencies;” (2) “to achieve savings made possible by or through changes in requirements or greater efficiency of operations;” or (3) “as specifically provided by law.” Id. § 684(b). “No officer or employee of the United States may defer any budget authority for any other purpose.” Id. (emphasis added).
Here, the OMB Directive and Section 7(a) of the Unleashing EO, constituted a budget authority deferral because it commanded—and prompted—an indefinite withholding or delay of obligated funds. 2 U.S.C. § 682(1)(A). Thus, under the law, the President was required to send a special message to Congress detailing the proposed deferrals, such as the amounts deferred, the proposed deferral period, and the programs involved. See id. § 684(a). There is no evidence that such a special message detailing the indefinite, widespan deferrals of obligated funding was ever communicated to Congress. Accordingly, the States have substantiated a likelihood of success in proving that the Executive’s actions were contrary to law when bringing about a deferral of budget authority without sending a special message to Congress as the ICA requires.
The States also raise that “the Funding Freeze violates the specific statutes in which Congress mandated that funding be used in a specific manner according to specific terms.” ECF No. 67 at 55. They assert that many federal funding streams are so-called “categorical” or “formula” grants that Congress directed the Executive to provide to the States based on “enumerated statutory factors, such as population or the expenditure of qualifying State funds.” Id. (citing City of Los Angeles v. Barr, 941 F.3d 931, 934-35 (9th Cir. 2019)). Thus, the States contend that Congress’s specific directives in the statutory and regulatory schemes that govern such “formula” funding streams are inconsistent with the sweeping authority the Defendants have asserted in carrying out the federal funding freeze. Id. at 48, 55-56.
The States have underscored clear examples in which Congress has appropriated funds to federal programs and has strictly prescribed how those funds must be expended. For example, the IIJA appropriated over $14 billion in grants for the States’ Clean Water revolving funds from 2022 to 2026. IIJA, Pub. L. No. 117-58, § 50210, 135 Stat. 429, 1169 (2021). Those funds are a creature of a separate statute—the Federal Clean Water Act—which instructs the Environmental Protection Agency (“EPA”) that it “shall make capitalization grants to each State,” via formula grants, to establish and support water pollution control revolving funds for certain enumerated objectives and policy goals. 33 U.S.C. §§ 1381(a), (b); 1383(c); 1384(a), (c)(2).
Additionally, the IRA established a program to subsidize heat pump systems purchases, instructing the DOE Secretary that they “shall reserve funds . . . for each State energy office” based on an allotment formula. 42 U.S.C. § 18795a(a)(2)(A)(i) (emphasis added). Further, a climate pollution reduction grant under the IRA directed that the EPA “shall make a grant to at least one eligible entity in each State for the costs of developing a plan for the reduction of greenhouse gas air pollution . . ..” 42 U.S.C. § 7437(b). Congress has instructed other agencies to provide the States with federal funding using a mandatory fixed formula. See e.g., 23 U.S.C. § 104(a)(1), (b), (c) (instructing that the Transportation Secretary “shall” distribute federal highway funds based on mandatory apportionment formulas); 42 U.S.C. §§ 300x(a), 300x-7(a), 300x-21(a), 300x-33(a) (directing that the Health and Human Services Secretary “shall make” or “shall determine the amount of” grants to States for mental health and substance abuse treatment based on fixed statutory formulas).
These are a few examples of funding streams where Congress has mandated that the Executive spend appropriated funds according to a prescribed statutory formula, thus leaving agency Secretaries with no discretion to deviate from such formula. See ECF No. 67 at 6-11, 48-50; see also ECF No. 147 at 9-10. Yet the Agency Defendants halted the disbursement of these formula grants when freezing appropriated funds to ensure spending conformed with the President’s policy priorities. See e.g., ECF Nos. 68-35 ¶ 20 (California’s Water Resources Control Board unable to draw down funds under existing Clear Water State Revolving Funds grant agreements on January 31); 68-123 ¶ 4, 9 (Colorado unable to draw down funds for the IRA climate pollution reduction grant); see also ECF No. 68-124 at 2 (DOE memorandum announcing that “[a]ll funding and financial assistance . . . shall not be announced, approved, finalized, modified, or provided until a review of such takes place to ensure compliance with . . . Administration policy.”).
But “[a]bsent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals.” City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018). There is sufficient evidence that, in implementing the funding freeze, the Agency Defendants withheld funding that Congress did not tie to compliance with the President’s policy priorities in the OMB Directive and the Unleashing EO. Accordingly, the States have substantiated a likelihood of success on the merits that the Agency Defendants acted “not in accordance with the law”—in violation of the APA—when exceeding their statutory authority to carry out a categorical federal funding freeze. 5 U.S.C. § 706(2)(A).
c. Arbitrary and Capricious
Next, the States argue that the challenged federal funding freeze is arbitrary and capricious because it is not “reasonable or reasonably explained.” ECF No. 67 at 56 (quoting Fed. Commc’ns Comm’n v. Prometheus Radio Project, 592 U.S. 414, 423 (2021)). The States assert that the Agency Defendants did not provide a satisfactory explanation for the funding freeze and explained only that the freeze was aimed at helping the President achieve his policy priorities. ECF No. 67 at 56. The States contend that achieving such priorities “cannot come in the form of an across-the-board directive that contravenes numerous statutory provisions without explanation of how that action comports with applicable statutory or regulatory commands or factors relevant under those authorities.” Id. Further, the States allege that the Defendants disregarded the harmful consequences of the funding freeze, particularly the danger to “critical services [upon which] millions of Americans rely.” Id. at 56-57. Lastly, the States argue that the freezing of all funds appropriated under the IRA and the IIJA was substantively unreasonable because it lacks support in law and contravenes statutory text. Id. at 57.
The Defendants counter that the OMB Directive adequately explained the goals of the funding freeze, which was “to effectuate the President’s Executive Orders and ‘safeguard valuable taxpayer resources.’” ECF No. 113 at 57 (citing OMB Directive at 1). Further, the Defendants assert that the OMB Directive rationally connected the temporary pause to those stated objectives when explaining that the pause was needed to give “the Administration time to review agency programs and determine the best [funding uses] consistent with the law and the President’s priorities.” Id. at 57-58 (citing OMB Directive at 2). They highlight that the OMB Directive explicitly orders agencies to act “consistent with the law” six times and thus agencies were not directed to contravene their statutory authorities. Id. at 58.
Moreover, the Defendants argue they did consider important aspects of the problem because the OMB Directive highlighted the problem—the “significant amount of money” spent each year on financial assistance—and merely directed agencies to assess the problem by reviewing which assistance may be impacted by the President’s order. Id. Additionally, they assert that they considered the practical consequences that would flow and took steps to mitigate them because the OMB Directive: (1) exempted assistance provided directly to individuals from the pause; (2) noted that the OMB could grant exceptions on a case-by-case basis; (3) directed only a temporary pause; and (4) provided a delayed effective date. Id. at 58-59.
A decision is 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.’” Melone v. Coit, 100 F.4th 21, 29 (1st Cir. 2024) (Craker v. DEA, 714 F.3d 17, 26 (1st Cir. 2013)). The Court finds that the Defendants have not provided a rational reason that the need to “safeguard valuable taxpayer resources” is justified by such a sweeping pause of nearly all federal financial assistance with such short notice. Rather than taking a deliberate, thoughtful approach to finding these alleged unsubstantiated “wasteful or fraudulent expenditures,” the Defendants abruptly froze billions of dollars of federal funding for an indefinite period. It is difficult to perceive any rationality in this decision—let alone thoughtful consideration of practical consequences—when these funding pauses endanger the States’ ability to provide vital services, including but not limited to public safety, health care, education, childcare, and transportation infrastructure. See ECF No. 67 at 24-34, 58-61.
Further, the mere twenty-four hours that the OMB gave agencies to discern which of thousands of funding freezes must or must not be paused flouts the Defendants’ arguments that either the “delayed” effective date or the “consistent with the law” instruction mitigated the harm that the pause caused. The OMB Directive essentially ordered agencies to effectuate the blanket pause and then decide later which funding streams they actually had lawful authority to withhold. See e.g., ECF No. 68-55 ¶¶ 27-28 (New York’s Office of Children and Family Services unable to draw down funds from PMS on morning January 28—faced with message stating: “Due to [EOs] regarding potentially unallowable grant payments, PMS is taking added measures to process payments. Reviews of applicable programs and payments will result in delays and/or rejections of payments.”). Again, the Defendants have not proffered a rational reason for how their alleged goal of safeguarding taxpayer funds justified a de facto suspension of nearly all federal funding. Thus, the States have substantiated a likelihood of success of proving that the Agency Defendants’ implementation of the funding freeze was arbitrary and capricious.
Further, the Agency Defendants’ categorical freeze of funding appropriated under the IRA and IIJA is also likely substantively unreasonable in violation of the APA. Generally, substantive unreasonableness may arise when an agency “exercise[s] its discretion unreasonably.” Multicultural Media, Telecom & Internet Council v. Fed. Commc’ns Comm’n, 873 F.3d 932, 936 (D.C. Cir. 2017) (Kavanaugh, J.). As discussed above, the IRA and IIJA appropriated funds to certain programs and funding streams that mandated expenditures based on fixed formulas—not the contravening policies of the President. Based on the record, the Agency Defendants implemented sweeping pauses of IRA/IIJA appropriated funds—under the OMB Directive and Unleashing EO—despite various fundings streams being governed by statutory commands that did not give discretion to withhold funds based on the policy initiatives the Executive sought to further. See e.g., ECF Nos. 48-1 ¶¶ 4-5 , 68-124 at 2; 68-123 ¶¶ 6-10, 26; 68-123 ¶ 36; 68-92 ¶ 15. Thus, the States have substantiated a likelihood of success on illustrating that the Agency Defendants unreasonably exercised its discretion, in violation of the APA, when broadly freezing IRA/IIJA appropriated funds in contravention of the underlying statutory funding commands.
In sum, the Agency Defendants have failed to offer rational reasons for finding that the policy objectives stated in the OMB Directive and Section 2 of Unleashing EO justified the indefinite pause on nearly all federal funding. The breadth and immediacy of the funding freeze and the catastrophic consequences that flowed reflects the Agency Defendants’ failure to: (1) meaningfully consider the “important aspect[s] of the problem[s]”—namely the plain implications of withholding trillions of dollars of federal financial assistance; and (2) reflect if the freeze fell within the bounds of their statutory authority. Accordingly, the States have shown a likelihood of success on their APA claims (Counts I and II). The Court “need go no further.”14 It turns now to whether the States satisfy the other requirements for injunctive relief.15
C. Irreparable Harm
“District courts have broad discretion to evaluate the irreparability of alleged harm and to make determinations regarding the propriety of injunctive relief.” K–Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (quoting Wagner v. Taylor, 836 F.2d 566, 575–76 (D.C. Cir. 1987)). There are “relevant guideposts” to guide that discretion—“the plaintiff’s showing must possess some substance” and “the predicted harm and the likelihood of success on the merits must be juxtaposed and weighed in tandem.” Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996) (citations omitted). The Court found at the TRO stage that the States would suffer irreparable harm if the Defendants’ blanket freeze of appropriated and obligated funds, which currently has no end date, were not enjoined. After a full briefing and hearing on the merits where the Defendants presented no answer, no evidence, and no counter to the States’ extensive evidence of still frozen funds and the harm resulting, the Court finds that the unrefuted evidence shows irreparable and continuing harm.
In their Complaint, preliminary injunction motion, and during the argument thereon, the States laid out scores of examples of obligated funding and the harm that withholding such funding has caused. It is so obvious that it almost need not be stated that when money is obligated and therefore expected (particularly money that has been spent and reimbursement is sought) and is not paid as promised, harm follows—debt is incurred, debt is unpaid, essential health and safety services stop, and budgets are upended. And when there is no end in sight to the Defendants’ funding freeze, that harm is amplified because those served by the expected but frozen funds have no idea when the promised monies will flow again.
Defendants concede that there is no date written into the EOs or the OMB Directive or instructions when the freeze will end but argues that the funding recipients can be assured that it will end eventually, presumably when the agencies have reviewed all of the funding and made decisions about whether any or all or some align with how the President wants that money spent. The States are not reassured by this vague promise, and neither is the Court. This is particularly true where the States had no notice of a potential freeze so they could plan, States appear to have little to no information about how any funding review is being conducted and by whom, and even though the frozen funds were obligated and owed, States had no chance to justify and protect the funding that they were granted by statute, regulation, or grant contract. See, e.g., ECF Nos. 68-28 (receiving no response from EPA officials to inquiry about grants missing from ASAP); 68-33 (same). As the Court observed, these arbitrary and capricious actions violate the APA, with consequences that harm not only to our orderly system of government but also inflict direct pecuniary harm to the States and their residents.
The States have presented unrebutted evidence of the harm they are suffering and will continue to suffer due to this categorical funding freeze. The Court will not recount each instance but will summarize the “highlights” and note that while the States are the plaintiffs in this Court, it is their citizens, often our most vulnerable citizens, who are enduring much of the harm resulting from these arbitrary and capricious acts. The Court makes the following factual findings based on the record evidence.
Head Start and other childcare programs have been impacted. As of February 5, 2025, many Head Start providers were still having difficulties accessing federal funds and are considering layoffs, reductions in service, and even closures. See ECF Nos. 68-76; 68-41. Some States would have to pay more in provider subsidies if federally-funded Head Start childcare does not resume. ECF No. 68-111. Other federally-funded childcare, child welfare services, and early childhood services are impacted. See ECF Nos. 68-76; 68-36; 68-86; 68-116; 68-55; 68-68; 69-39; 68-43.
A freeze in federal funding for education “would catastrophically disrupt student instruction[,]” including for low-income students and children with disabilities. ECF No. 68-89 ¶ 8; see also ECF Nos. 68-75; 68-43; 68-116. A freeze impacts state universities who receive federal funding who may be forced to stop vital research projects. “Even a temporary pause in funding could require the University to shutter or reduce programs, including mission-critical research activities, instruction, and public service activities and to furlough and/or lay off employees.” ECF Nos. 68-112 ¶ 7; 68-121 ¶ 7 (“Research projects that require daily activities and meticulous record-keeping may be ruined, setting back the research enterprise and wasting the federal investment.”).
This funding freeze affects critical healthcare provided through federally-funded Medicaid programs, the Children’s Health Insurance Program (“CHIP”), and other health care programs. ECF Nos. 68-31, 68-32; 68-74; 68-105; 68-24. Loss of Medicaid funding would “significantly impede the delivery of basic health care services to . . . low-income, elderly, and pregnant individuals, as well as individuals with disabilities.” ECF No. 68-32 ¶ 13.
The funding freeze also impacts law enforcement and public safety agencies who also rely on federal funding. Federal grant programs support state and local law enforcement agencies, community violence, and crisis interruption programs, and programs addressing sexual violence, among many other crucial services. ECF Nos. 68-102, 68-18. In an evident and acute harm, with floods and fires wreaking havoc across the country, federal funding for emergency management and preparedness would be impacted. ECF Nos. 68-111; 68-39. To be sure “[i]f a major disaster were to occur while federal emergency management funds . . . are frozen. . . [p]ending preparedness training and mitigation work may come to a stop and the incapacitation of federally-funded emergency management programs and services that would result from a federal funding freeze could very well lead to increased loss of life and injury …, slowed emergency response times, greater risks to first responders, greater property damage, and delays to community recovery and rebuilding.” ECF No. 68-99 ¶ 13.
The freeze affects job training, workforce development, and unemployment programs and the ripple effect of cutting off this funding is felt throughout the States. ECF Nos. 68-94; 68-54; 68-70; 68-104; 68-39; 68-88; see ECF No. 68-29 ¶ 27 (harms to veterans seeking to acquire job skills and employment, and others seeking career and employment training services, reduced level of service in processing and approving unemployment insurance claims and paying out unemployment insurance benefits); ECF No. 68-30 ¶ 13 (harms to workers seeking to participate in job apprenticeship programs).
The freeze also affects federal funds for critical transportation infrastructure, such as the $60 million in promised reimbursement for the costs of removal and salvage of debris from the Francis Scott Key Bridge for which Maryland is awaiting. ECF No. 68-66 ¶¶ 5-7 . Other States have likewise entered into contracts for projects to be paid for with obligated funds. ECF Nos. 68-77; 68-31; 68-66; 68-80; 68-39. Without these funds, States may have to suspend, delay, or cancel projects. ECF No. 68-77.
IIJA and IRA funding programs are subject to the freeze and threaten the loss of essential services to protect the health, safety, and welfare of the States’ residents. See, e.g., ECF No. 68-28 (California Air Resource Board unable to access granted federal funding aimed at monitoring air toxins); ECF No. 68-42 (frozen funds include those awarded to South Coast Air Quality Management District for programs reducing air pollution from freight corridors and warehousing hubs); ECF No. 68-113 (funding freeze threatens to pause important contamination remediation efforts; contracted-for brownfield cleanup work being “held up” by funding freeze); ECF No. 68-106 (frozen funds designated for monitoring of air pollution); ECF No. 68-92 (New York State Department of Environmental Conservation denied funding reimbursement for plugging of orphaned oil and gas wells due to alleged inconsistency with OMB’s Unleashing Guidance).
Congress enacted these statutes and appropriated these funds for legitimate reasons, and the Defendants’ categorical freeze, untethered to any statute, regulation, or grant term, frustrates those reasons, and causes significant and irreparable harms to the States. See, e.g., ECF No. 68-118 (pause in funding streams would have “massive impact,” require resource shifts, and interfere with mission); ECF No. 68-59 (without grant funding, “small public water systems … will continue to rely on drinking water polluted by PFAs and/or other emerging contaminants,” cleanup of oil and hazardous materials contamination in post-industrial communities would likely be abandoned, and state efforts to monitor and mitigate air pollution would be hampered); ECF No. 68-83 (“North Carolina will lose the benefits of over $117 million in conservation projects” if the freeze is not lifted, leaving its residents “more vulnerable to flooding and wildfires.”); ECF No. 68-40 (state would have to regain trust of contractors and homeowners after reimbursement delays); ECF No. 68-122 (funding freeze causes uncertainty, harming Colorado’s ability to provide services to Coloradans relying on federal funds for installation of energy-saving appliances; continued delay will cause homeowners to forfeit improvements to homes that would cut energy bills); ECF No. 68-95 (freezing of IIJA Grid Resilience Innovations Partnerships funding in New York will delay electric grid resilience improvements, “potentially increasing the risk of damage to the grid in a severe weather event and causing additional harm to small municipal electric utilities.”); ECF No. 68-59 (pause in Long Island Sound Program Grant would impede remediation of nitrogen and other pollution); ECF No. 68-79 (frozen $25 million grant funds for replacing lead service lines to residential homes “put[s] the safety of Minnesotans’ drinking water at risk”); ECF No. 68-31 (health care, emergency relief, highway safety, and billions of dollars in water infrastructure, transportation, and broadband infrastructure projects); ECF No. 68-30 (federal funding pause could render California government entities unable to deliver numerous services to increase workplace health and safety); ECF No. 68-35 (interruption in funding threatens California Water Board’s ability to come into compliance with federal safe drinking water standards, including ongoing work to remove lead from water service lines).
Even though some funding has begun to flow again after the TRO entered, the States have presented evidence of harm resulting from the chaos and uncertainty that the Defendants’ arbitrary decision to categorically freeze billions of dollars in federal funding. See, e.g., ECF Nos. 68-40; 68-44 (Connecticut’s Department of Energy and Environmental Protection “unable to recruit and hire future staff” to support Solar for All Program due to “budgetary uncertainty”); 68-107 (uncertainty has led Brown University’s research community to suspend orders of large research equipment, which over time will negatively impact the ability of researchers to conduct their studies); 68-85 (uncertainty surrounding funding forcing New Jersey Board of Public Utilities to decide between delaying Solar for All Program or risking no reimbursement); 68-27 (uncertainty over grants has disrupted California agency’s “ability to budget, plan… and carry out its mission”); see also Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 597959, at *18 (D.D.C. Feb. 25, 2025) (“While funds have resumed flowing to some recipients, that does not erase the imminence or irreparability of what another pause would entail.”).
Even with the Court’s TRO in place, state agencies continue to experience interruptions to access and inconsistent ability to draw down funds from grants funded by IIJA and IRA appropriations. Some funding has been restored in federal funding portals, but others appear to have been removed. See, e.g., ECF Nos. 68-28; 68-35; 68-33; 68-59. And nothing in the Defendants’ briefing or oral presentation reassures the States that federal agencies, under the Executive’s directives, will fulfill their funding obligations in the future. See e.g., ECF Nos. 68-20 (Arizona has incurred obligations over $16 million in reliance on Home Electrification and Appliance Rebate award, of which over $15 million has yet to be reimbursed); 68-49 (University of Hawaii has been paying five employees out of pocket, without reimbursement to which they are entitled); 68-106 (elimination of $3 million Climate Pollution Reduction Grants (“CPRG”) would make statutory compliance more costly); 68-61 (if not reimbursed through CPRG, Massachusetts may be forced to cancel vendor contract); 68-42 (California’s South Coast Air Quality Management District and its subgrantees face risks that EPA would refuse to reimburse incurred work and costs). This litany of struggles experienced in the last seven weeks unquestionably constitute irreparable harm to the States.
D. Balance of the Equities and Public Interest
The Court need not say much more on the final two factors than it did when it granted the TRO as the more developed evidentiary record continues to overwhelmingly show that the balance of equities weighs heavily in favor of granting the States’ preliminary injunction motion and the public interest is supported by “preserv[ing] the status quo.” Francisco Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 19 (1st Cir. 2009).
The Defendants are not harmed where the order requires them to disburse funds that Congress has appropriated to the States and that they have obligated. The Court’s order does not prevent the Defendants from making funding decisions in situations under the Executive’s “actual authority in the applicable statutory, regulatory, or grant terms,” ECF No. 111 at 7; rather it enjoins agency action that violates statutory appropriations and obligations. An agency is not harmed by an order prohibiting it from violating the law.
On the other hand, without injunctive relief to pause the categorical freeze, the funding that the States are due and owed creates an indefinite limbo. Without the injunction, Congressional control of spending will have been usurped by the Executive without constitutional or statutory authority. While some of the funding has begun to flow, and some only after the Court issued an order to enforce the TRO, the States continue to face substantial uncertainty about whether Defendants will meet their contractual obligations under several statutorily appropriated programs, including those under the IIJA and IRA. ECF Nos. 68-93; 68-105; 68-34; 68-101; 68-100; 68-114; 68-39; 68-80; 68-28; 68-40; 68-35; 68-61; 68-95; 68-23; 68-49; 68-60; 68-51; 68-48; 68-106; 68-108; 68-52; 68-83; 68-72; 68-59; 68-42; 68-85; 68-56.
In light of the unrebutted evidence that the States and their citizens are currently facing and will continue to face a significant disruption in health, education, and other public services that are integral to their daily lives due to this overly broad pause in federal funding, the Court finds that the public interest lies in maintaining the status quo and enjoining any categorical funding freeze.
IV. PRELIMINARY INJUNCTION
A preliminary injunction is appropriate, and the Court ORDERS as follows:
1. The Agency Defendants16 are enjoined from reissuing, adopting, implementing, giving effect to, or reinstating under a different name the directives in OMB Memorandum M-25-13 (the “OMB Directive”) with respect to the disbursement and transmission of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations.
2. The Agency Defendants are enjoined from pausing, freezing, blocking, canceling, suspending, terminating, or otherwise impeding the disbursement of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations based on the OMB Directive, including funding freezes dictated, described, or implied by Executive Orders issued by the President before rescission of the OMB Directive or any other materially similar order, memorandum, directive, policy, or practice under which the federal government imposes or applies a categorical pause or freeze of funding appropriated by Congress. This includes, but is by no means not limited to, Section 7(a) of Executive Order 14154, Unleashing American Energy.
3. The Defendants must provide written notice of this Order to all federal departments and agencies to which the OMB Directive was addressed. The written notice shall instruct those departments and agencies that they may not take any steps to implement, give effect to, or reinstate under a different name or through other means the directives in the OMB Directive with respect to the disbursement or transmission of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations.
4. The foregoing written notice shall also instruct those agencies to release and transmit any disbursements to the States on awarded grants, executed contracts, or other executed financial obligations that were paused on the grounds of the OMB Directive and Executive Orders included by reference therein or issued before the rescission of the OMB Directive.
5. In light of the States’ second motion to enforce the TRO, ECF No. 160, Defendant Federal Emergency Management Agency (“FEMA”) shall file a status report on or before March 14, 2025, informing the Court of the status of their compliance with this order.
Additionally, based on its findings that the States: (1) are entitled to a preliminary injunction; and (2) will be irreparably harmed without this Order, the Court DENIES the Defendants’ request to stay this Order pending appeal to the First Circuit. See ECF No. 113 at 65-66. Further, the Court DENIES as moot the Plaintiffs’ motion to enforce the TRO because this Order’s issuance renders the TRO expired. ECF No. 160.
IT IS SO ORDERED.
_________________________________
John J. McConnell, Jr.
Chief Judge
United States District Court for the District of Rhode Island
March 6, 2025
Notes:
1 “This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or, we may ignore these things at our . . . peril.” A.C. v. Raimondo, 494 F. Supp. 3d 170, 181 (D.R.I. 2020), aff'd sub nom. A.C. by Waithe v. McKee, 23 F.4th 37 (1st Cir. 2022).
2 The Court later issued an order on February 10, making clear that the TRO also applied to funds paused under the Unleashing EO and the Unleashing Guidance. See ECF No. 96.
3 The States filed another motion to enforce the TRO on February 28, 2025 relating to FEMA funds that continue to be frozen despite the Court’s TRO and subsequent clarifying orders. ECF No. 160. The Court will address that motion later in this Order.
4 After the Defendants responded to the States’ preliminary injunction motion, the States filed an Amended Complaint to explicitly include challenges to the Unleashing Guidance, the related Unleashing EO, and the general implementation of funding freezes based on the President’s EO. See ECF No. 114 ¶¶ 192, 203-04, 208-09, 215-17, 225-26, 231-32, 237-38, 244-46.
5 The injunction referenced in the Press Secretary’s statement is the administrative stay another federal court issued against the OMB Directive’s instructions to agencies to “pause ... disbursement of Federal funds under all open awards.” See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 314433, at *2 (D.D.C. Jan. 28, 2025).
6 Additionally, various funding disruptions that occurred after the Court’s TRO—and that continue to the present day—underscore how the Directive’s rescission does not suffice as “voluntarily” providing the States all the prospective relief they request. See ECF No. 96 at 3.
7 Even if the States’ claims were targeted at these “thousands” of funding streams, their inability to feasibly take a program-by-program, grant-by-grant approach to raising their challenges is the consequence of the Defendants’ broad, sweeping efforts to indefinitely stop nearly all faucets of federal funding from flowing to carry out the President’s policy priorities, without regard to Congressional authorizations. One cannot set one’s house on fire and then complain that the firefighters smashed all the windows and put a hole in the roof trying to put it out.
8 See e.g., ECF Nos. 68-99 ¶ 11, 12; 68-18 ¶¶ 17-19; 68-102 ¶¶ 4-6 (effects on public safety and emergency management services); 68-31 ¶¶ 6, 7; 68-32 ¶ 13 (effects on health care services); 68-75 ¶¶ 6-8; 68-76 ¶ 5; 68-89 ¶ 5 (effects on State education services); 68-113 ¶¶ 45, 60-61; 68-95 ¶¶ 8-13; 66-123 ¶¶ 5, 29 (effects on environmental safety and energy development); 68-76 ¶¶ 7-19; 68-86 ¶¶ 9-10; 68-116 ¶¶ 15-16, 21 (effects on childcare services and child welfare).
9 “Agency Defendants” refers to the federal executive agencies and departments that are parties in this suit.
10 See e.g., ECF Nos. 68-100 ¶ 8 (Oregon unable to access Medicaid federal funding system for entire day on January 28); 68-93 ¶ 6 (New York State Comptroller Office unable to draw over $70 million in obligated federal funds); 68-118 ¶ 18 (Washington’s DCYF unable to draw down funds on morning of January 28—faced with message from federal payment system stating, “Temporary Pause on Disbursement of Federal Financial Assistance”); 68-55 ¶¶ 27-28 (New York’s DCFS unable to draw down funds from PMS on morning January 28—faced with message stating: “Due to [EOs] regarding potentially unallowable grant payments, PMS is taking additional measures to process payments. Reviews of applicable programs and payments will result in delays and/or rejections of payments.”).
11 While the Defendants claim that the Directive and the EOs required the agencies to pause funding and impose restriction on obligated funds consistent with the law, the undisputed evidence before the Court is that adding the “consistent with the law” caveat was nothing more than window dressing on an unconstitutional directive by the Executive. This is clear because when the Court clarified its TRO, when faced with evidence that the Defendants continued to freeze obligated funding, the money flowed once again.
12 The most that the Unleashing Guidance advances is an attempt to limit the pause of IRA/IIRA to only to “funds supporting programs, projects, or activities that may be implicated by the policy established in section 2 of the [Unleashing] order.” See ECF No. 68-13.
13 The Defendants assert that because the ICA does not provide for a private right of action, the statute is “generally not enforceable through an APA suit.” ECF No. 113 at 44 (citing Gen. Land Off. v. Biden, 722 F. Supp. 3d 710, 734-35 (S.D. Tex. 2024)). The Court declines to adopt such a narrow view of what it may consider when determining whether an agency has acted “not in accordance with law” under the APA. In the Court’s view, “not in accordance with law,” refers to “any law.” F.C.C. v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 300 (2003).
14 The Honorable Bruce M. Selya’s body of over 1800 written opinions, passim.
15 Under the constitutional avoidance doctrine, “federal courts are not to reach constitutional issues where alternative grounds for resolution are available.” Vaquería Tres Monjitas, Inc. v. Pagan, 748 F.3d 21, 26 (1st Cir. 2014) (quoting Am. Civil Liberties Union v. U.S. Conference of Cath. Bishops, 705 F.3d 44, 52 (1st Cir. 2013)). Thus, because the Court finds the challenged agency actions violate the APA, the Court will not decide the States’ constitutional claims (Counts IV-VIII), although the Court has noted in its introduction to this decision that the constitutional balance of powers issues that arise from the Executive’s actions in this case are serious.
16 “Agency Defendants” refers to the federal executive Agencies and Departments that are parties in this suit.
B. Likelihood of Success on the Merits
1. Administrative Procedure Act Claims
The States assert that the Agency Defendants’9 implementation of the federal funding freeze, without regard to relevant authorizing statutes and regulations, violates the Administrative Procedure Act (“APA”) because such actions violate the law, are ultra vires, and arbitrary and capricious. ECF No. 67 at 52 (citing 5 U.S.C. § 706(2)(A)). To begin, the Court must address the Defendants’ arguments that the States’ APA claims do not fall within the Court’s subject matter jurisdiction.
a. Final Agency Action
The APA allows judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. An agency action is “final” if: (1) it marks the “‘consummation’ of the agency’s decisionmaking process,” and (2) the action determines rights or obligations or creates legal consequences. Harper v. Werfel, 118 F.4th 100, 116 (1st Cir. 2024) (citing Bennett v. Spear, 520 U.S. 154, 177 (1997)).
The States identify: (1) the OMB Directive itself; and (2) the Agency Defendants’ implementation of a categorical federal funding freeze, under the OMB Directive and Section 7(a) of the Unleashing EO, as final agency actions. ECF No. 67 at 53. The Defendants contend that the OMB Directive and other “guidance” about implementing the President’s priorities are not final agency actions because the OMB Directive did not determine which funds or grants should be paused but required agencies to make such a determination under their respective authorities. ECF No. 113 at 28.
To suggest that the challenged federal funding freezes were purely the result of independent agency decisions rather than the OMB Directive or the Unleashing Guidance is disingenuous. Recall that the OMB Directive informed agencies that they “must complete a comprehensive analysis of all of their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” ECF No. 68-9 at 2. The OMB Directive mandated that “[i]n the interim” of these comprehensive analyses, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders . . ..” Id. (second emphasis added). Elsewhere, the OMB Directive emphasized that “[e]ach agency must pause . . . disbursement of Federal funds under all open awards.” Id.
The record makes clear that following the OMB Directive’s issuance—and even before it was set to take effect—many of the States found themselves unable to draw down appropriated and awarded funding because they were completely shut out from accessing federal funding payment portals such as the Payment Management Services (“PMS”).10 As the States highlight, such a wholesale shutdown does not suggest that agencies made individualized assessments of their statutory authorities and relevant grant terms before making the determination to blanketly pause access to obligated funds.11 And how could these agencies make such assessments? The OMB Directive explicitly stated that the “temporary funding pause will become effective on January 28, 2025, at 5:00 PM”—a mere day after the Directive was issued. Id. As another court faced with a similar challenge to the OMB Directive underscored “it is unclear whether twenty-four hours is sufficient time for an agency to independently review a single grant, let alone hundreds of thousands of them.” Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 368852, at *8 (D.D.C. Feb. 3, 2025). Overall, the OMB Directive amounted to a command, not a suggestion, that Agency Defendants shall execute a categorical, indefinite funding freeze to align funding decisions with the President’s priorities. Such a command, along with the Agency Defendants swift actions to execute the categorical funding freeze, marked the “consummation of each agency’s decisionmaking process to comply with the President’s executive order, the OBM [Directive], or both.” Drs. for Am. v. Off. of Pers. Mgmt., No. CV 25-322 (JDB), 2025 WL 452707, at *5 (D.D.C. Feb. 11, 2025).
The same analysis applies to the Agency Defendants’ acts implementing funding pauses under Section 7(a) of the Unleashing EO and the OMB’s Unleashing Guidance. The Unleashing Guidance largely reiterates the Unleashing EO’s instruction that agencies immediately pause disbursements of funds under the IRA or IIJA and does not even attempt to allow for agency discretion.12 See ECF No. 68-13 at 2. And agencies, such as the Department of Energy (DOE) and the U.S. Department of Agriculture acted quickly to implement the pause of appropriated IIJA and IRA funds. See ECF Nos. 68-123 ¶¶ 33, 36, 37; 68-92 ¶¶ 14-15. Thus, the implementation of those IIJA and IRA funding pauses likely marked the consummation of each agency’s decision to comply with the Unleashing EO, the Unleashing Guidance, or both, not to exercise its discretion.
As to the second finality factor, the evidentiary record sufficiently shows that the abrupt, categorical, and indefinite pause of obligated federal funds is the direct, appreciable legal consequence that States have suffered from the Agency Defendants’ actions implementing the funding pauses commanded in the OMB Directive and the Unleashing EO. Accordingly, the Agency Defendants’ actions suffice as “final agency action” as to permit the Court’s judicial review of such actions under the APA.
Returning to the merits, the Court must decide whether the States are likely to succeed on their claim that the Defendants’ implementation of the federal funding freeze was contrary to law, ultra vires, and arbitrary and capricious. Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions” if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Because this standard is “quite narrow: a reviewing court ‘may not substitute its judgment for that of the agency, even if it disagrees with the agency’s conclusions.’” Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015) (quoting River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009)). Therefore, a reviewing court must uphold an agency’s decision if it is: (1) devoid of legal errors; and (2) “supported by any rational review of the record.” Mahoney v. Del Toro, 99 F.4th 25, 34 (1st Cir. 2024) (quoting Atieh, 797 F.3d at 138). The Court will first discuss whether the Defendants’ actions were contrary to law and then turn to whether such acts were arbitrary and capricious.
b. Contrary to Law and Ultra Vires Actions
The States assert that the Defendants acted contrary to law and exceeded their statutory authority when imposing the challenged federal funding freeze. “When an executive agency administers a federal statute, the agency’s power to act is ‘authoritatively prescribed by Congress.’” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020) (quoting City of Arlington v. FCC, 569 U.S. 290, 297 (2013)). Therefore, “an agency literally has no power to act ... unless and until Congress confers power upon it.” Id. (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, (1986)). Any action an agency takes that is beyond the limits of its statutory authority is ultra vires and violates the APA. Id.
The statutory scheme governing federal appropriations are at the forefront of the States’ ultra vires and “contrary to law” claims against the Agency Defendants. The States contend that the ICA13 permits the Executive to defer or decline the expenditure of appropriated federal funds only under certain limited conditions that are not present here. See ECF No. 67 at 45, 54-55. They highlight that such an expenditure deferral cannot be made based on policy reasons but only on the permissible bases listed under the ICA. See id. at 54 (citing 2 U.S.C. § 684(b)); Mem. of Gen. Accountability Off., Office of Management and Budget—Withholding of Ukraine Security Assistance, B-331564, at 6 (Jan. 16, 2020), https://perma.cc/6TMT-3CH2. The States also note that the ICA requires the Executive to send a “special message” to Congress explaining proposed deferrals. Id. at 55 (2 U.S.C. § 684(a)). Thus, the States argue that the federal funding freeze exceeded the Defendants’ authority and contravened the ICA because: (1) the freeze, or deferral, was impermissibly based on “policy disagreement with Congressional priorities;” and (2) the Executive failed to send the required “special message” to Congress detailing the numerous proposed deferrals.
The ICA provides that “[w]henever the President, the Director of the [OMB], [or] the head of any [U.S.] department or agency . . . proposes to defer any budget authority provided for a specific purpose or project,” the President must send a “special message” to Congress detailing the proposed deferrals. 2 U.S.C. § 684(a). A “deferral of budget authority” includes: (1) “withholding or delaying the obligation or expenditure of budget authority . . . provided for projects or activities;” or (2) “any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority . . ..” Id. § 682(1)(A), (B). Further, the ICA enumerates only three bases in which a deferral is permissible: (1) “to provide for contingencies;” (2) “to achieve savings made possible by or through changes in requirements or greater efficiency of operations;” or (3) “as specifically provided by law.” Id. § 684(b). “No officer or employee of the United States may defer any budget authority for any other purpose.” Id. (emphasis added).
Here, the OMB Directive and Section 7(a) of the Unleashing EO, constituted a budget authority deferral because it commanded—and prompted—an indefinite withholding or delay of obligated funds. 2 U.S.C. § 682(1)(A). Thus, under the law, the President was required to send a special message to Congress detailing the proposed deferrals, such as the amounts deferred, the proposed deferral period, and the programs involved. See id. § 684(a). There is no evidence that such a special message detailing the indefinite, widespan deferrals of obligated funding was ever communicated to Congress. Accordingly, the States have substantiated a likelihood of success in proving that the Executive’s actions were contrary to law when bringing about a deferral of budget authority without sending a special message to Congress as the ICA requires.
The States also raise that “the Funding Freeze violates the specific statutes in which Congress mandated that funding be used in a specific manner according to specific terms.” ECF No. 67 at 55. They assert that many federal funding streams are so-called “categorical” or “formula” grants that Congress directed the Executive to provide to the States based on “enumerated statutory factors, such as population or the expenditure of qualifying State funds.” Id. (citing City of Los Angeles v. Barr, 941 F.3d 931, 934-35 (9th Cir. 2019)). Thus, the States contend that Congress’s specific directives in the statutory and regulatory schemes that govern such “formula” funding streams are inconsistent with the sweeping authority the Defendants have asserted in carrying out the federal funding freeze. Id. at 48, 55-56.
The States have underscored clear examples in which Congress has appropriated funds to federal programs and has strictly prescribed how those funds must be expended. For example, the IIJA appropriated over $14 billion in grants for the States’ Clean Water revolving funds from 2022 to 2026. IIJA, Pub. L. No. 117-58, § 50210, 135 Stat. 429, 1169 (2021). Those funds are a creature of a separate statute—the Federal Clean Water Act—which instructs the Environmental Protection Agency (“EPA”) that it “shall make capitalization grants to each State,” via formula grants, to establish and support water pollution control revolving funds for certain enumerated objectives and policy goals. 33 U.S.C. §§ 1381(a), (b); 1383(c); 1384(a), (c)(2).
Additionally, the IRA established a program to subsidize heat pump systems purchases, instructing the DOE Secretary that they “shall reserve funds . . . for each State energy office” based on an allotment formula. 42 U.S.C. § 18795a(a)(2)(A)(i) (emphasis added). Further, a climate pollution reduction grant under the IRA directed that the EPA “shall make a grant to at least one eligible entity in each State for the costs of developing a plan for the reduction of greenhouse gas air pollution . . ..” 42 U.S.C. § 7437(b). Congress has instructed other agencies to provide the States with federal funding using a mandatory fixed formula. See e.g., 23 U.S.C. § 104(a)(1), (b), (c) (instructing that the Transportation Secretary “shall” distribute federal highway funds based on mandatory apportionment formulas); 42 U.S.C. §§ 300x(a), 300x-7(a), 300x-21(a), 300x-33(a) (directing that the Health and Human Services Secretary “shall make” or “shall determine the amount of” grants to States for mental health and substance abuse treatment based on fixed statutory formulas).
These are a few examples of funding streams where Congress has mandated that the Executive spend appropriated funds according to a prescribed statutory formula, thus leaving agency Secretaries with no discretion to deviate from such formula. See ECF No. 67 at 6-11, 48-50; see also ECF No. 147 at 9-10. Yet the Agency Defendants halted the disbursement of these formula grants when freezing appropriated funds to ensure spending conformed with the President’s policy priorities. See e.g., ECF Nos. 68-35 ¶ 20 (California’s Water Resources Control Board unable to draw down funds under existing Clear Water State Revolving Funds grant agreements on January 31); 68-123 ¶ 4, 9 (Colorado unable to draw down funds for the IRA climate pollution reduction grant); see also ECF No. 68-124 at 2 (DOE memorandum announcing that “[a]ll funding and financial assistance . . . shall not be announced, approved, finalized, modified, or provided until a review of such takes place to ensure compliance with . . . Administration policy.”).
But “[a]bsent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals.” City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018). There is sufficient evidence that, in implementing the funding freeze, the Agency Defendants withheld funding that Congress did not tie to compliance with the President’s policy priorities in the OMB Directive and the Unleashing EO. Accordingly, the States have substantiated a likelihood of success on the merits that the Agency Defendants acted “not in accordance with the law”—in violation of the APA—when exceeding their statutory authority to carry out a categorical federal funding freeze. 5 U.S.C. § 706(2)(A).
c. Arbitrary and Capricious
Next, the States argue that the challenged federal funding freeze is arbitrary and capricious because it is not “reasonable or reasonably explained.” ECF No. 67 at 56 (quoting Fed. Commc’ns Comm’n v. Prometheus Radio Project, 592 U.S. 414, 423 (2021)). The States assert that the Agency Defendants did not provide a satisfactory explanation for the funding freeze and explained only that the freeze was aimed at helping the President achieve his policy priorities. ECF No. 67 at 56. The States contend that achieving such priorities “cannot come in the form of an across-the-board directive that contravenes numerous statutory provisions without explanation of how that action comports with applicable statutory or regulatory commands or factors relevant under those authorities.” Id. Further, the States allege that the Defendants disregarded the harmful consequences of the funding freeze, particularly the danger to “critical services [upon which] millions of Americans rely.” Id. at 56-57. Lastly, the States argue that the freezing of all funds appropriated under the IRA and the IIJA was substantively unreasonable because it lacks support in law and contravenes statutory text. Id. at 57.
The Defendants counter that the OMB Directive adequately explained the goals of the funding freeze, which was “to effectuate the President’s Executive Orders and ‘safeguard valuable taxpayer resources.’” ECF No. 113 at 57 (citing OMB Directive at 1). Further, the Defendants assert that the OMB Directive rationally connected the temporary pause to those stated objectives when explaining that the pause was needed to give “the Administration time to review agency programs and determine the best [funding uses] consistent with the law and the President’s priorities.” Id. at 57-58 (citing OMB Directive at 2). They highlight that the OMB Directive explicitly orders agencies to act “consistent with the law” six times and thus agencies were not directed to contravene their statutory authorities. Id. at 58.
Moreover, the Defendants argue they did consider important aspects of the problem because the OMB Directive highlighted the problem—the “significant amount of money” spent each year on financial assistance—and merely directed agencies to assess the problem by reviewing which assistance may be impacted by the President’s order. Id. Additionally, they assert that they considered the practical consequences that would flow and took steps to mitigate them because the OMB Directive: (1) exempted assistance provided directly to individuals from the pause; (2) noted that the OMB could grant exceptions on a case-by-case basis; (3) directed only a temporary pause; and (4) provided a delayed effective date. Id. at 58-59.
A decision is 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.’” Melone v. Coit, 100 F.4th 21, 29 (1st Cir. 2024) (Craker v. DEA, 714 F.3d 17, 26 (1st Cir. 2013)). The Court finds that the Defendants have not provided a rational reason that the need to “safeguard valuable taxpayer resources” is justified by such a sweeping pause of nearly all federal financial assistance with such short notice. Rather than taking a deliberate, thoughtful approach to finding these alleged unsubstantiated “wasteful or fraudulent expenditures,” the Defendants abruptly froze billions of dollars of federal funding for an indefinite period. It is difficult to perceive any rationality in this decision—let alone thoughtful consideration of practical consequences—when these funding pauses endanger the States’ ability to provide vital services, including but not limited to public safety, health care, education, childcare, and transportation infrastructure. See ECF No. 67 at 24-34, 58-61.
Further, the mere twenty-four hours that the OMB gave agencies to discern which of thousands of funding freezes must or must not be paused flouts the Defendants’ arguments that either the “delayed” effective date or the “consistent with the law” instruction mitigated the harm that the pause caused. The OMB Directive essentially ordered agencies to effectuate the blanket pause and then decide later which funding streams they actually had lawful authority to withhold. See e.g., ECF No. 68-55 ¶¶ 27-28 (New York’s Office of Children and Family Services unable to draw down funds from PMS on morning January 28—faced with message stating: “Due to [EOs] regarding potentially unallowable grant payments, PMS is taking added measures to process payments. Reviews of applicable programs and payments will result in delays and/or rejections of payments.”). Again, the Defendants have not proffered a rational reason for how their alleged goal of safeguarding taxpayer funds justified a de facto suspension of nearly all federal funding. Thus, the States have substantiated a likelihood of success of proving that the Agency Defendants’ implementation of the funding freeze was arbitrary and capricious.
Further, the Agency Defendants’ categorical freeze of funding appropriated under the IRA and IIJA is also likely substantively unreasonable in violation of the APA. Generally, substantive unreasonableness may arise when an agency “exercise[s] its discretion unreasonably.” Multicultural Media, Telecom & Internet Council v. Fed. Commc’ns Comm’n, 873 F.3d 932, 936 (D.C. Cir. 2017) (Kavanaugh, J.). As discussed above, the IRA and IIJA appropriated funds to certain programs and funding streams that mandated expenditures based on fixed formulas—not the contravening policies of the President. Based on the record, the Agency Defendants implemented sweeping pauses of IRA/IIJA appropriated funds—under the OMB Directive and Unleashing EO—despite various fundings streams being governed by statutory commands that did not give discretion to withhold funds based on the policy initiatives the Executive sought to further. See e.g., ECF Nos. 48-1 ¶¶ 4-5 , 68-124 at 2; 68-123 ¶¶ 6-10, 26; 68-123 ¶ 36; 68-92 ¶ 15. Thus, the States have substantiated a likelihood of success on illustrating that the Agency Defendants unreasonably exercised its discretion, in violation of the APA, when broadly freezing IRA/IIJA appropriated funds in contravention of the underlying statutory funding commands.
In sum, the Agency Defendants have failed to offer rational reasons for finding that the policy objectives stated in the OMB Directive and Section 2 of Unleashing EO justified the indefinite pause on nearly all federal funding. The breadth and immediacy of the funding freeze and the catastrophic consequences that flowed reflects the Agency Defendants’ failure to: (1) meaningfully consider the “important aspect[s] of the problem[s]”—namely the plain implications of withholding trillions of dollars of federal financial assistance; and (2) reflect if the freeze fell within the bounds of their statutory authority. Accordingly, the States have shown a likelihood of success on their APA claims (Counts I and II). The Court “need go no further.”14 It turns now to whether the States satisfy the other requirements for injunctive relief.15
C. Irreparable Harm
“District courts have broad discretion to evaluate the irreparability of alleged harm and to make determinations regarding the propriety of injunctive relief.” K–Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (quoting Wagner v. Taylor, 836 F.2d 566, 575–76 (D.C. Cir. 1987)). There are “relevant guideposts” to guide that discretion—“the plaintiff’s showing must possess some substance” and “the predicted harm and the likelihood of success on the merits must be juxtaposed and weighed in tandem.” Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996) (citations omitted). The Court found at the TRO stage that the States would suffer irreparable harm if the Defendants’ blanket freeze of appropriated and obligated funds, which currently has no end date, were not enjoined. After a full briefing and hearing on the merits where the Defendants presented no answer, no evidence, and no counter to the States’ extensive evidence of still frozen funds and the harm resulting, the Court finds that the unrefuted evidence shows irreparable and continuing harm.
In their Complaint, preliminary injunction motion, and during the argument thereon, the States laid out scores of examples of obligated funding and the harm that withholding such funding has caused. It is so obvious that it almost need not be stated that when money is obligated and therefore expected (particularly money that has been spent and reimbursement is sought) and is not paid as promised, harm follows—debt is incurred, debt is unpaid, essential health and safety services stop, and budgets are upended. And when there is no end in sight to the Defendants’ funding freeze, that harm is amplified because those served by the expected but frozen funds have no idea when the promised monies will flow again.
Defendants concede that there is no date written into the EOs or the OMB Directive or instructions when the freeze will end but argues that the funding recipients can be assured that it will end eventually, presumably when the agencies have reviewed all of the funding and made decisions about whether any or all or some align with how the President wants that money spent. The States are not reassured by this vague promise, and neither is the Court. This is particularly true where the States had no notice of a potential freeze so they could plan, States appear to have little to no information about how any funding review is being conducted and by whom, and even though the frozen funds were obligated and owed, States had no chance to justify and protect the funding that they were granted by statute, regulation, or grant contract. See, e.g., ECF Nos. 68-28 (receiving no response from EPA officials to inquiry about grants missing from ASAP); 68-33 (same). As the Court observed, these arbitrary and capricious actions violate the APA, with consequences that harm not only to our orderly system of government but also inflict direct pecuniary harm to the States and their residents.
The States have presented unrebutted evidence of the harm they are suffering and will continue to suffer due to this categorical funding freeze. The Court will not recount each instance but will summarize the “highlights” and note that while the States are the plaintiffs in this Court, it is their citizens, often our most vulnerable citizens, who are enduring much of the harm resulting from these arbitrary and capricious acts. The Court makes the following factual findings based on the record evidence.
Head Start and other childcare programs have been impacted. As of February 5, 2025, many Head Start providers were still having difficulties accessing federal funds and are considering layoffs, reductions in service, and even closures. See ECF Nos. 68-76; 68-41. Some States would have to pay more in provider subsidies if federally-funded Head Start childcare does not resume. ECF No. 68-111. Other federally-funded childcare, child welfare services, and early childhood services are impacted. See ECF Nos. 68-76; 68-36; 68-86; 68-116; 68-55; 68-68; 69-39; 68-43.
A freeze in federal funding for education “would catastrophically disrupt student instruction[,]” including for low-income students and children with disabilities. ECF No. 68-89 ¶ 8; see also ECF Nos. 68-75; 68-43; 68-116. A freeze impacts state universities who receive federal funding who may be forced to stop vital research projects. “Even a temporary pause in funding could require the University to shutter or reduce programs, including mission-critical research activities, instruction, and public service activities and to furlough and/or lay off employees.” ECF Nos. 68-112 ¶ 7; 68-121 ¶ 7 (“Research projects that require daily activities and meticulous record-keeping may be ruined, setting back the research enterprise and wasting the federal investment.”).
This funding freeze affects critical healthcare provided through federally-funded Medicaid programs, the Children’s Health Insurance Program (“CHIP”), and other health care programs. ECF Nos. 68-31, 68-32; 68-74; 68-105; 68-24. Loss of Medicaid funding would “significantly impede the delivery of basic health care services to . . . low-income, elderly, and pregnant individuals, as well as individuals with disabilities.” ECF No. 68-32 ¶ 13.
The funding freeze also impacts law enforcement and public safety agencies who also rely on federal funding. Federal grant programs support state and local law enforcement agencies, community violence, and crisis interruption programs, and programs addressing sexual violence, among many other crucial services. ECF Nos. 68-102, 68-18. In an evident and acute harm, with floods and fires wreaking havoc across the country, federal funding for emergency management and preparedness would be impacted. ECF Nos. 68-111; 68-39. To be sure “[i]f a major disaster were to occur while federal emergency management funds . . . are frozen. . . [p]ending preparedness training and mitigation work may come to a stop and the incapacitation of federally-funded emergency management programs and services that would result from a federal funding freeze could very well lead to increased loss of life and injury …, slowed emergency response times, greater risks to first responders, greater property damage, and delays to community recovery and rebuilding.” ECF No. 68-99 ¶ 13.
The freeze affects job training, workforce development, and unemployment programs and the ripple effect of cutting off this funding is felt throughout the States. ECF Nos. 68-94; 68-54; 68-70; 68-104; 68-39; 68-88; see ECF No. 68-29 ¶ 27 (harms to veterans seeking to acquire job skills and employment, and others seeking career and employment training services, reduced level of service in processing and approving unemployment insurance claims and paying out unemployment insurance benefits); ECF No. 68-30 ¶ 13 (harms to workers seeking to participate in job apprenticeship programs).
The freeze also affects federal funds for critical transportation infrastructure, such as the $60 million in promised reimbursement for the costs of removal and salvage of debris from the Francis Scott Key Bridge for which Maryland is awaiting. ECF No. 68-66 ¶¶ 5-7 . Other States have likewise entered into contracts for projects to be paid for with obligated funds. ECF Nos. 68-77; 68-31; 68-66; 68-80; 68-39. Without these funds, States may have to suspend, delay, or cancel projects. ECF No. 68-77.
IIJA and IRA funding programs are subject to the freeze and threaten the loss of essential services to protect the health, safety, and welfare of the States’ residents. See, e.g., ECF No. 68-28 (California Air Resource Board unable to access granted federal funding aimed at monitoring air toxins); ECF No. 68-42 (frozen funds include those awarded to South Coast Air Quality Management District for programs reducing air pollution from freight corridors and warehousing hubs); ECF No. 68-113 (funding freeze threatens to pause important contamination remediation efforts; contracted-for brownfield cleanup work being “held up” by funding freeze); ECF No. 68-106 (frozen funds designated for monitoring of air pollution); ECF No. 68-92 (New York State Department of Environmental Conservation denied funding reimbursement for plugging of orphaned oil and gas wells due to alleged inconsistency with OMB’s Unleashing Guidance).
Congress enacted these statutes and appropriated these funds for legitimate reasons, and the Defendants’ categorical freeze, untethered to any statute, regulation, or grant term, frustrates those reasons, and causes significant and irreparable harms to the States. See, e.g., ECF No. 68-118 (pause in funding streams would have “massive impact,” require resource shifts, and interfere with mission); ECF No. 68-59 (without grant funding, “small public water systems … will continue to rely on drinking water polluted by PFAs and/or other emerging contaminants,” cleanup of oil and hazardous materials contamination in post-industrial communities would likely be abandoned, and state efforts to monitor and mitigate air pollution would be hampered); ECF No. 68-83 (“North Carolina will lose the benefits of over $117 million in conservation projects” if the freeze is not lifted, leaving its residents “more vulnerable to flooding and wildfires.”); ECF No. 68-40 (state would have to regain trust of contractors and homeowners after reimbursement delays); ECF No. 68-122 (funding freeze causes uncertainty, harming Colorado’s ability to provide services to Coloradans relying on federal funds for installation of energy-saving appliances; continued delay will cause homeowners to forfeit improvements to homes that would cut energy bills); ECF No. 68-95 (freezing of IIJA Grid Resilience Innovations Partnerships funding in New York will delay electric grid resilience improvements, “potentially increasing the risk of damage to the grid in a severe weather event and causing additional harm to small municipal electric utilities.”); ECF No. 68-59 (pause in Long Island Sound Program Grant would impede remediation of nitrogen and other pollution); ECF No. 68-79 (frozen $25 million grant funds for replacing lead service lines to residential homes “put[s] the safety of Minnesotans’ drinking water at risk”); ECF No. 68-31 (health care, emergency relief, highway safety, and billions of dollars in water infrastructure, transportation, and broadband infrastructure projects); ECF No. 68-30 (federal funding pause could render California government entities unable to deliver numerous services to increase workplace health and safety); ECF No. 68-35 (interruption in funding threatens California Water Board’s ability to come into compliance with federal safe drinking water standards, including ongoing work to remove lead from water service lines).
Even though some funding has begun to flow again after the TRO entered, the States have presented evidence of harm resulting from the chaos and uncertainty that the Defendants’ arbitrary decision to categorically freeze billions of dollars in federal funding. See, e.g., ECF Nos. 68-40; 68-44 (Connecticut’s Department of Energy and Environmental Protection “unable to recruit and hire future staff” to support Solar for All Program due to “budgetary uncertainty”); 68-107 (uncertainty has led Brown University’s research community to suspend orders of large research equipment, which over time will negatively impact the ability of researchers to conduct their studies); 68-85 (uncertainty surrounding funding forcing New Jersey Board of Public Utilities to decide between delaying Solar for All Program or risking no reimbursement); 68-27 (uncertainty over grants has disrupted California agency’s “ability to budget, plan… and carry out its mission”); see also Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 597959, at *18 (D.D.C. Feb. 25, 2025) (“While funds have resumed flowing to some recipients, that does not erase the imminence or irreparability of what another pause would entail.”).
Even with the Court’s TRO in place, state agencies continue to experience interruptions to access and inconsistent ability to draw down funds from grants funded by IIJA and IRA appropriations. Some funding has been restored in federal funding portals, but others appear to have been removed. See, e.g., ECF Nos. 68-28; 68-35; 68-33; 68-59. And nothing in the Defendants’ briefing or oral presentation reassures the States that federal agencies, under the Executive’s directives, will fulfill their funding obligations in the future. See e.g., ECF Nos. 68-20 (Arizona has incurred obligations over $16 million in reliance on Home Electrification and Appliance Rebate award, of which over $15 million has yet to be reimbursed); 68-49 (University of Hawaii has been paying five employees out of pocket, without reimbursement to which they are entitled); 68-106 (elimination of $3 million Climate Pollution Reduction Grants (“CPRG”) would make statutory compliance more costly); 68-61 (if not reimbursed through CPRG, Massachusetts may be forced to cancel vendor contract); 68-42 (California’s South Coast Air Quality Management District and its subgrantees face risks that EPA would refuse to reimburse incurred work and costs). This litany of struggles experienced in the last seven weeks unquestionably constitute irreparable harm to the States.
D. Balance of the Equities and Public Interest
The Court need not say much more on the final two factors than it did when it granted the TRO as the more developed evidentiary record continues to overwhelmingly show that the balance of equities weighs heavily in favor of granting the States’ preliminary injunction motion and the public interest is supported by “preserv[ing] the status quo.” Francisco Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 19 (1st Cir. 2009).
The Defendants are not harmed where the order requires them to disburse funds that Congress has appropriated to the States and that they have obligated. The Court’s order does not prevent the Defendants from making funding decisions in situations under the Executive’s “actual authority in the applicable statutory, regulatory, or grant terms,” ECF No. 111 at 7; rather it enjoins agency action that violates statutory appropriations and obligations. An agency is not harmed by an order prohibiting it from violating the law.
On the other hand, without injunctive relief to pause the categorical freeze, the funding that the States are due and owed creates an indefinite limbo. Without the injunction, Congressional control of spending will have been usurped by the Executive without constitutional or statutory authority. While some of the funding has begun to flow, and some only after the Court issued an order to enforce the TRO, the States continue to face substantial uncertainty about whether Defendants will meet their contractual obligations under several statutorily appropriated programs, including those under the IIJA and IRA. ECF Nos. 68-93; 68-105; 68-34; 68-101; 68-100; 68-114; 68-39; 68-80; 68-28; 68-40; 68-35; 68-61; 68-95; 68-23; 68-49; 68-60; 68-51; 68-48; 68-106; 68-108; 68-52; 68-83; 68-72; 68-59; 68-42; 68-85; 68-56.
In light of the unrebutted evidence that the States and their citizens are currently facing and will continue to face a significant disruption in health, education, and other public services that are integral to their daily lives due to this overly broad pause in federal funding, the Court finds that the public interest lies in maintaining the status quo and enjoining any categorical funding freeze.
IV. PRELIMINARY INJUNCTION
A preliminary injunction is appropriate, and the Court ORDERS as follows:
1. The Agency Defendants16 are enjoined from reissuing, adopting, implementing, giving effect to, or reinstating under a different name the directives in OMB Memorandum M-25-13 (the “OMB Directive”) with respect to the disbursement and transmission of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations.
2. The Agency Defendants are enjoined from pausing, freezing, blocking, canceling, suspending, terminating, or otherwise impeding the disbursement of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations based on the OMB Directive, including funding freezes dictated, described, or implied by Executive Orders issued by the President before rescission of the OMB Directive or any other materially similar order, memorandum, directive, policy, or practice under which the federal government imposes or applies a categorical pause or freeze of funding appropriated by Congress. This includes, but is by no means not limited to, Section 7(a) of Executive Order 14154, Unleashing American Energy.
3. The Defendants must provide written notice of this Order to all federal departments and agencies to which the OMB Directive was addressed. The written notice shall instruct those departments and agencies that they may not take any steps to implement, give effect to, or reinstate under a different name or through other means the directives in the OMB Directive with respect to the disbursement or transmission of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations.
4. The foregoing written notice shall also instruct those agencies to release and transmit any disbursements to the States on awarded grants, executed contracts, or other executed financial obligations that were paused on the grounds of the OMB Directive and Executive Orders included by reference therein or issued before the rescission of the OMB Directive.
5. In light of the States’ second motion to enforce the TRO, ECF No. 160, Defendant Federal Emergency Management Agency (“FEMA”) shall file a status report on or before March 14, 2025, informing the Court of the status of their compliance with this order.
Additionally, based on its findings that the States: (1) are entitled to a preliminary injunction; and (2) will be irreparably harmed without this Order, the Court DENIES the Defendants’ request to stay this Order pending appeal to the First Circuit. See ECF No. 113 at 65-66. Further, the Court DENIES as moot the Plaintiffs’ motion to enforce the TRO because this Order’s issuance renders the TRO expired. ECF No. 160.
IT IS SO ORDERED.
_________________________________
John J. McConnell, Jr.
Chief Judge
United States District Court for the District of Rhode Island
March 6, 2025
Notes:
1 “This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or, we may ignore these things at our . . . peril.” A.C. v. Raimondo, 494 F. Supp. 3d 170, 181 (D.R.I. 2020), aff'd sub nom. A.C. by Waithe v. McKee, 23 F.4th 37 (1st Cir. 2022).
2 The Court later issued an order on February 10, making clear that the TRO also applied to funds paused under the Unleashing EO and the Unleashing Guidance. See ECF No. 96.
3 The States filed another motion to enforce the TRO on February 28, 2025 relating to FEMA funds that continue to be frozen despite the Court’s TRO and subsequent clarifying orders. ECF No. 160. The Court will address that motion later in this Order.
4 After the Defendants responded to the States’ preliminary injunction motion, the States filed an Amended Complaint to explicitly include challenges to the Unleashing Guidance, the related Unleashing EO, and the general implementation of funding freezes based on the President’s EO. See ECF No. 114 ¶¶ 192, 203-04, 208-09, 215-17, 225-26, 231-32, 237-38, 244-46.
5 The injunction referenced in the Press Secretary’s statement is the administrative stay another federal court issued against the OMB Directive’s instructions to agencies to “pause ... disbursement of Federal funds under all open awards.” See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 314433, at *2 (D.D.C. Jan. 28, 2025).
6 Additionally, various funding disruptions that occurred after the Court’s TRO—and that continue to the present day—underscore how the Directive’s rescission does not suffice as “voluntarily” providing the States all the prospective relief they request. See ECF No. 96 at 3.
7 Even if the States’ claims were targeted at these “thousands” of funding streams, their inability to feasibly take a program-by-program, grant-by-grant approach to raising their challenges is the consequence of the Defendants’ broad, sweeping efforts to indefinitely stop nearly all faucets of federal funding from flowing to carry out the President’s policy priorities, without regard to Congressional authorizations. One cannot set one’s house on fire and then complain that the firefighters smashed all the windows and put a hole in the roof trying to put it out.
8 See e.g., ECF Nos. 68-99 ¶ 11, 12; 68-18 ¶¶ 17-19; 68-102 ¶¶ 4-6 (effects on public safety and emergency management services); 68-31 ¶¶ 6, 7; 68-32 ¶ 13 (effects on health care services); 68-75 ¶¶ 6-8; 68-76 ¶ 5; 68-89 ¶ 5 (effects on State education services); 68-113 ¶¶ 45, 60-61; 68-95 ¶¶ 8-13; 66-123 ¶¶ 5, 29 (effects on environmental safety and energy development); 68-76 ¶¶ 7-19; 68-86 ¶¶ 9-10; 68-116 ¶¶ 15-16, 21 (effects on childcare services and child welfare).
9 “Agency Defendants” refers to the federal executive agencies and departments that are parties in this suit.
10 See e.g., ECF Nos. 68-100 ¶ 8 (Oregon unable to access Medicaid federal funding system for entire day on January 28); 68-93 ¶ 6 (New York State Comptroller Office unable to draw over $70 million in obligated federal funds); 68-118 ¶ 18 (Washington’s DCYF unable to draw down funds on morning of January 28—faced with message from federal payment system stating, “Temporary Pause on Disbursement of Federal Financial Assistance”); 68-55 ¶¶ 27-28 (New York’s DCFS unable to draw down funds from PMS on morning January 28—faced with message stating: “Due to [EOs] regarding potentially unallowable grant payments, PMS is taking additional measures to process payments. Reviews of applicable programs and payments will result in delays and/or rejections of payments.”).
11 While the Defendants claim that the Directive and the EOs required the agencies to pause funding and impose restriction on obligated funds consistent with the law, the undisputed evidence before the Court is that adding the “consistent with the law” caveat was nothing more than window dressing on an unconstitutional directive by the Executive. This is clear because when the Court clarified its TRO, when faced with evidence that the Defendants continued to freeze obligated funding, the money flowed once again.
12 The most that the Unleashing Guidance advances is an attempt to limit the pause of IRA/IIRA to only to “funds supporting programs, projects, or activities that may be implicated by the policy established in section 2 of the [Unleashing] order.” See ECF No. 68-13.
13 The Defendants assert that because the ICA does not provide for a private right of action, the statute is “generally not enforceable through an APA suit.” ECF No. 113 at 44 (citing Gen. Land Off. v. Biden, 722 F. Supp. 3d 710, 734-35 (S.D. Tex. 2024)). The Court declines to adopt such a narrow view of what it may consider when determining whether an agency has acted “not in accordance with law” under the APA. In the Court’s view, “not in accordance with law,” refers to “any law.” F.C.C. v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 300 (2003).
14 The Honorable Bruce M. Selya’s body of over 1800 written opinions, passim.
15 Under the constitutional avoidance doctrine, “federal courts are not to reach constitutional issues where alternative grounds for resolution are available.” Vaquería Tres Monjitas, Inc. v. Pagan, 748 F.3d 21, 26 (1st Cir. 2014) (quoting Am. Civil Liberties Union v. U.S. Conference of Cath. Bishops, 705 F.3d 44, 52 (1st Cir. 2013)). Thus, because the Court finds the challenged agency actions violate the APA, the Court will not decide the States’ constitutional claims (Counts IV-VIII), although the Court has noted in its introduction to this decision that the constitutional balance of powers issues that arise from the Executive’s actions in this case are serious.
16 “Agency Defendants” refers to the federal executive Agencies and Departments that are parties in this suit.
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Sat Mar 08, 2025 1:01 am
JAMES COMER, KENTUCKY
CHAIRMAN
GERALD E. CONNOLLY, VIRGINIA
RANKING MINORITY MEMBER
ONE HUNDRED NINETEENTH CONGRESS
Congress of the United States
House of Representatives
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
2157 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 20515-6143
February 25, 2025
Mr. Edward R. Martin Jr.
Interim United States Attorney for the District of Columbia
601 D Street NW
Washington, DC 20004
Dear Mr. Martin:
I write concerning several recent public communications you have made in your official capacity asserting that certain critics of the Trump Administration or policies that it favors—including two Democratic Members of Congress—have violated the law and/or are subject to “inquiry” or other investigative activity by your office.1 These include your shocking post on X yesterday stating that “[a]s President Trumps’ [sic] lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put America first.”2 As you have announced, these communications are connected to your office’s recently-launched “Operation Whirlwind,” which you have reportedly described as intended to “hold accountable those who threaten [federal] workers.”3
The safety of federal employees and officials is self-evidently paramount and emphatically must remain an ironclad priority for the Department of Justice. Your recent public statements, however—which are directed exclusively at opponents of and express support for the Trump Administration, explicitly criticize the Biden Administration, publicize pending investigative activity by your office, and make assertions of fact for which there exists no evidence—raise serious concerns that your new initiative is a pretext for misusing your office for political ends, threatening and intimidating critics of the Administration, and chilling constitutionally protected speech. Your post on X yesterday appears to confirm that these are in fact your aims.
Indeed, as the Washington Post reported, legal experts have observed that your communications “would be more credible but for [your] own actions in the three weeks since taking office and [President] Trump’s long pattern of sowing falsehood-laden attacks and encouraging violence against political critics.”4 The latter include more than 100 threats by Donald Trump to prosecute or punish perceived enemies, including against former President Biden, legislators, judges, and members of the Biden family—precisely none of which are mentioned in your communications.5 While professing concern for the safety of all federal workers and officials, you have personally moved to dismiss criminal cases in which rioters at the U.S. Capitol on January 6, 2021, were convicted of or pled guilty to attacking Capitol Police Officers and presided over the firing of the career prosecutors who pursued those cases.6 And notably, your communications make no mention of the continuing threat to Capitol Police Officers and other federal workers by the January 6 rioters whom Donald Trump pardoned, exemplified last week by the arrest of former Proud Boys leader Enrique Tarrio outside the Capitol on a charge of assaulting a female protester.7
Your communications are also conspicuously silent on Elon Musk’s pattern of targeting career federal civil servants by name on X and reportedly “sparking his online army of followers to launch blistering critiques of ordinary federal employees,” and his now deleted post stating that “no one is even trying to assassinate” former President Biden or former Vice President Harris.8 Nor do your statements reflect any concern whatsoever about the publication of the names of 10 employees at the Department of Homeland Security by a Heritage Foundation-funded group, which called them “America’s most subversive immigration bureaucrats,” or that group’s publication earlier this month of the names of more than 50 other federal employees on what it labelled a “DEI Watchlist.”9
It thus appears that your stated commitment to protect federal employees and officials extends only to President Trump and his allies. As discussed below, your politically selective approach to law enforcement violates DOJ policies, breaches your ethical obligations, and constitutes a misuse of your office—and most alarmingly, as a leading expert on legal ethics has observed, is “undermining the prosecutorial independence of the Justice Department.” 10 Your post on X yesterday, moreover, appears to reflect your deeply disturbing and grossly erroneous view that the office of United States Attorney exists to further the personal interests of Donald Trump, rather than those of the American people, and may be used to target elements of the media that scrutinize or are critical of his Administration—a view that is fundamentally antithetical to, and represents a direct threat to, the rule of law in this country.
February 3, 2025, Letter to Elon Musk
On February 3, 2025, you posted on your X account a letter, also dated February 3, on your office’s letterhead to Elon Musk, with the salutation “Dear Elon,” and stating: “It was good to work with the DOGE team this weekend. … At this time, I ask that you utilize me and my staff to assist in protecting the DOGE work and the DOGE workers. … Let me assure you of this: we will pursue any and all legal action against anyone who impedes your work or threatens your people. We will not act like the previous administration who looked the other way as the Antifa and BLM rioters as well as thugs with guns trashed our capital [sic] city.”11
As the New York Times noted, your letter to Mr. Musk “was unusual, not least because criminal investigations are generally not announced in a public forum, let alone before any facts or evidence have been collected.”12 It thus appears to have violated DOJ’s own policies, which provide unambiguously that “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.”13
Moreover, a leading criminal justice scholar and former U.S. Attorney commented that your communications suggest that you are “all-in in President Trump’s camp” and are “going to exercise [your] power in a way that is favorable politically[.]”14 Such overt political favoritism by a senior law enforcement official is blatantly improper on several grounds. It is flatly inconsistent with DOJ’s Principles of Federal Prosecution, which are premised on “the fair, evenhanded administration of the federal criminal laws.”15 It also violates the Standards of Ethical Conduct for Employees of the Executive Branch, which require all employees to “act impartially and not give preferential treatment to any private organization or individual” and to “endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards.”16 And your explicit support for DOGE’s mission likewise runs afoul of the American Bar Association’s Criminal Justice Standards for the Prosecution Function, which provide that a prosecutor “should not use … improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion” and that it is improper for a prosecutor to make “public statement[s] that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused.”17
February 3, 2025, Post on X
Also on February 3, 2025, you posted a statement on X asserting that your office’s “initial review of the evidence presented to us indicates that certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees.”18 You further stated: “We are in contact with the FBI and other law-enforcement partners to proceed rapidly. We also have our prosecutors preparing.”19 As the Washington Post observed, your statement was “atypical in alleging violations of law before any charges were filed.”20 Furthermore, by publicly announcing the existence of, and commenting upon, your investigation on social media, your statement, yet again, appears to have violated DOJ’s express policy prohibiting such communications.
Letters to Members of Congress
You also sent letters dated January 21, 2025, February 6, 2025, and February 11, 2025, to the current U.S. Senate Minority Leader concerning statements he reportedly made at a rally in opposition to the U.S. Supreme Court’s reproductive rights case law.21 In the first of those letters, you requested “clarification” concerning those comments, which you asserted were made “clearly and in a way that many found threatening.”22 In your February 3 letter, you asserted that the Minority Leader’s comments “were not just strong language born of a Brooklyn upbringing” and that “any reasonable person would hear your words as threatening.”23 And even after the Minority Leader’s staff confirmed in a written response to you that the Senator’s words were neither intended as nor constituted a physical threat to any person, you sent a further letter to him in which you wrote: “Your cooperation is more important than ever to complete this inquiry before any action is taken. I remind you: no one is above the law.”24
Even setting aside your superfluous and unprofessional ad hominem commentary on the Minority Leader’s personal background, these letters were extraordinary, in that, as one legal expert noted, “[p]rosecutors typically leave it to agents to investigate cases so they do not themselves become witnesses.”25 The highly unusual nature of these communications led the same expert to conclude that they “are designed more to chill free speech than to seek clarification, as they purport to do,” while another noted that their “ingratiating and self-promotional tone makes [them] read more like a job application than the customary way that nonpolitical federal prosecutors speak.”26
February 19, 2025, Office-Wide Email
On February 19, 2025, you reportedly issued an office-wide email announcing an investigation into what you described as a potential attack on Secretary of Defense Pete Hegseth and the formation of “Operation Whirlwind.”27 That email, which was subsequently posted on social media, further stated: “Our office has been flooded with threats against those who helped free the January 6th prisoners . . . . We must protect our cops, our prosecutors, our DOGE workers, the President, and all other government employees from threats against our nation.”28 You also cited the Senate Minority Leader’s words, which you described as “threats” and noted: “It is particularly disturbing that other politicians have followed his words with threats of their own.”29 Once again, by focusing solely on potential threats against members and supporters of the Trump Administration and expressing solidarity with the criminal defendants convicted for their roles in the January 6, 2021, attack on the United States Capitol, your email violated both DOJ policy and your ethical obligations as a prosecutor.
Your statements also highlight your blatant conflict of interest as Interim U.S. Attorney. You moved to dismiss your office’s prosecution of one of the January 6 defendants convicted of assaulting police with a dangerous weapon and obstructing Congress, despite having represented that same individual at trial while you were still in private practice—and, astonishingly, while you were simultaneously listed as counsel of record for both that individual and DOJ.30 Exacerbating this conflict, at the time you moved to dismiss those charges, you had also been an organizer, participant, and witness to the “Stop the Steal” rally on January 6 and made posts on X confirming your attendance at that rally-turned-insurrection and expressing support for the Oath Keepers.31 Moreover, prior to holding your current office, you hosted a podcast promoting the use of DOJ to exact “retribution” against Donald Trump’s political enemies through law enforcement.32 Notably, you are currently facing a complaint before the District of Columbia Bar based upon this conflict, which appears to violate both federal ethics rules and the state Rules of Professional Conduct applicable to you.33
Mischaracterization of Protected Political Speech as Criminal Activity
Underlying each of your communications discussed above is the false assumption that mere opposition to, or criticism of, the Trump Administration and policies that it supports may constitute a federal crime. That suggestion is baseless and contrary to the law. While genuine “threats” are not protected speech under the First Amendment, words and actions opposing or criticizing DOGE or other administration actions—such as “imped[ing]” DOGE’s work and “confrontations, or other actions in any way that impact [DOGE employees’ work]”—are entirely lawful and qualify as speech protected by the First Amendment to the U.S. Constitution. The U.S. Supreme Court has repeatedly affirmed the fundamental principle that, while the government can prosecute unlawful threats, “[w]hat [it] cannot do … is use the power of the State to punish or suppress disfavored expression.”34
[quote]The Court has likewise recognized that even indirect threats by government officials—such as the type of “thinly veiled threats to institute criminal proceedings” contained in your communications—may also chill protected speech and violate the First Amendment.35 Moreover, your singling out of speakers with specific viewpoints, raise the threat of unconstitutional viewpoint discrimination.36 Because your communications are aimed solely at speakers opposed to DOGE or other Trump Administration policies and appear to target unquestionably protected speech, I am deeply concerned that your “Operation Whirlwind” and associated activities that you are undertaking may violate the First Amendment and chill legitimate political expression. They also raise the concern that you are using your office to carry out Elon Musk’s evident goal to silence media and other commentators who criticize him or DOGE.37
Requests for Information
In order to investigate whether your office is effectively and evenhandedly protecting federal employees and officials and complies with the U.S. Constitution, DOJ policies, and other applicable laws, regulations, and rules, we request that you provide written responses to the following no later than March 11, 2025:
1. Please identify, respectively, the number of initial leads, preliminary inquiries, and full investigations that your office has undertaken concerning violence or threats of violence against: (a) current or former Democratic officials; (b) individuals known to your office as opponents of DOGE or other Trump Administration policies; (c) current or former attorneys and other staff in your office who were involved in the prosecution of defendants charged with criminal offenses in connection with the events at the U.S. Capitol on January 6, 2021; and (d) current or former U.S. Capitol Police officers and other personnel who were involved in the events at the U.S. Capitol on January 6, 2021.
2. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect the safety of current or former attorneys and other staff in your office who were involved in the prosecution of defendants charged with crimes in connection with the events at the U.S. Capitol on January 6, 2021.
3. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect the safety of current or former U.S. Capitol Police officers and other U.S. Capitol Police personnel who were involved in the events at the U.S. Capitol on January 6, 2021.
4. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect current or former federal employees targeted individually by social media posts or other media by Elon Musk or any other individuals or groups.
5. Please confirm your belief that the Department of Justice represents the United States of America and its citizens, and not the personal and individual political or business interests of the President.
6. Please confirm your belief that the Department of Justice may not, consistent with the law and Constitution of the United States, take investigative, enforcement, or other action against any individual or entity based upon that individual’s or entity’s criticism of, dissent from, or other non-violent opposition to, the policies or members of a given presidential administration.
7. Please state whether you believe criticism of, or opposition to, DOGE, Elon Musk, or any other policy or action of, or individual associated with, the Trump Administration, constitutes protected speech under the First Amendment of the U.S. Constitution, as defined by the U.S. Supreme Court.
8. Please confirm that your office does not intend to investigate or prosecute any individual or entity based upon criticism of, or opposition to, DOGE, Elon Musk, or any other policy or action of, or individual associated with, the Trump Administration, for making protected speech under the First Amendment of the U.S. Constitution, as defined by the U.S. Supreme Court.
The Committee on Oversight and Government Reform is the principal oversight committee of the House of Representatives and has broad authority to investigate “any matter” at “any time” under House Rule X.
If you have any questions regarding this request, please contact Democratic Committee staff at (202) 225-5051.
Sincerely,
_________________________
Gerald E. Connolly
Ranking Member
Cc: The Honorable James Comer, Chairman
_______________
Notes:
1 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n)); Read Interim U.S. Attorney Ed Martin’s Letters to Democratic Lawmakers, Washington Post (Feb. 19, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... er-garcia/).
2 U.S. Attorney Ed Martin (@USAEdMartin), X (Feb. 24, 2025) (online at https://x.com/USAEdMartin/status/1894117113834488072).
3 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n).
4 D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, Washington Post (Feb. 20, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... democrats/).
5 Trump Makes More Than 100 Threats to Prosecute or Punish Perceived Enemies, NPR (Oct. 22, 2024) (online at www.npr.org/2024/10/22/nx-s1-5155032/tr ... ed-enemies).
6 What to Know about Ed Martin, the Right-Wing Activist Trump Tapped to be DC’s Top Prosecutor, CNN (Feb. 19, 2025) (online at www.cnn.com/2025/02/19/politics/ed-mart ... index.html).
7 Ex-Proud Boys Leader Enrique Tarrio Arrested on Assault Charge Outside U.S. Capitol, NBC News (Feb. 21, 2025) (online at www.nbcnews.com/politics/politics-news/ ... rcna193246).
8 Musk Unleashes Online Army on Federal Workers. “A Tough Way to Find Out She’s Losing Her Job,” Wall Street Journal (Nov. 22, 2024) (online at www.wsj.com/tech/musk-unleashes-online- ... b-f57a2e94); Elon Musk Deletes X Post About ‘No One’ Attempting to Assassinate Biden or Harris, NBC News (Sept. 16, 2024) (online at www.nbcnews.com/tech/elon-musk-deletes- ... rcna171260).
9 How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing,’ New York Times (Feb. 12, 2025) (online at www.nytimes.com/2025/02/12/business/med ... -elez.html).
10 In Podcasts, D.C. U.S. Attorney Discussed Investigating Trump Foes, Washington Post (Feb. 21, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... r-podcast/).
11 Ed Martin (@EagleEdMartin), X (Feb. 3, 2025) (online at https://x.com/EagleEdMartin/status/1886456136032817488).
12 In Fiery Words, the Federal Prosecutor in Washington Promises an Inquiry Into Allegations Raised by Musk, New York Times (Feb. 7, 2025) (online at www.nytimes.com/2025/02/07/us/politics/ ... -musk.html).
13 U.S. Department of Justice, Justice Manual § 1-7.400 (2024) (online at https://www.justice.gov/jm/jm-1-7000-me ... ns#1-7.540).
14 U.S. Attorney Hints at Prosecutions Over ‘Targeting’ of DOGE Employees, Washington Post (Feb. 3, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... musk-doge/).
15 U.S. Department of Justice, Principles of Federal Prosecution § 9-27.001 (online at www.justice.gov/jm/jm-9-27000-principle ... n#9-27.001).
16 5 C.F.R. § 2635.101(b) (online at www.law.cornell.edu/cfr/text/5/2635.101).
17 American Bar Association, Criminal Justice Standards for the Prosecution Function (4th ed.), Standards 3-1.6(a) and 3-1.10(c) (online at www.americanbar.org/groups/criminal_jus ... -function/).
18 Ed Martin (@EagleEdMartin), X (Feb. 3, 2025) (online at https://x.com/EagleEdMartin/status/1886538976145891408).
19 Id.
20 U.S. Attorney Hints at Prosecutions Over ‘Targeting’ of DOGE Employees, Washington Post (Feb. 3, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... musk-doge/).
21 Read Interim U.S. Attorney Ed Martin’s Letters to Democratic Lawmakers, Washington Post (Feb. 19, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... er-garcia/).
22 Id.
23 Id.
24 Id.
25 D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, Washington Post (Feb. 20, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... democrats/).
26 Id.
27 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n).
28 Id.
29 Id.
30 See Letter from Reps. Dan Goldman, Hillary Scholten, Stacey Plaskett, Mikie Sherrill, Glenn Ivey, Maggie Goodlander & Shomari Figures to Inspector General Michael Horowitz (Feb. 12, 2025) (online at https://goldman.house.gov/sites/evo-sub ... rowitz.pdf).
31 See id.
32 In Podcasts, D.C. U.S. Attorney Discussed Investigating Trump Foes, Washington Post (Feb. 21, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... r-podcast/).
33 See id.; The 65 Project, Bar Complaint Against Edward Martin (Feb. 6, 2025) (online at https://the65project.com/bar-complaint- ... rd-martin/).
34 See Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024).
35 Id. at 189-90; see also Letter from ACLU of the District of Columbia to Edward R. Martin, Jr. (Feb. 4, 2025) (online at www.acludc.org/sites/default/files/2025 ... rtin65.pdf).
36 See Iancu v. Brunelli, 588 U.S. 388, 393 (2019) (“A core postulate of free speech law” is that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.”).
37 See How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing,’ New York Times (Feb. 12, 2025) (online at www.nytimes.com/2025/02/12/business/med ... -elez.html).
CHAIRMAN
GERALD E. CONNOLLY, VIRGINIA
RANKING MINORITY MEMBER
ONE HUNDRED NINETEENTH CONGRESS
Congress of the United States
House of Representatives
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
2157 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 20515-6143
February 25, 2025
Mr. Edward R. Martin Jr.
Interim United States Attorney for the District of Columbia
601 D Street NW
Washington, DC 20004
Dear Mr. Martin:
I write concerning several recent public communications you have made in your official capacity asserting that certain critics of the Trump Administration or policies that it favors—including two Democratic Members of Congress—have violated the law and/or are subject to “inquiry” or other investigative activity by your office.1 These include your shocking post on X yesterday stating that “[a]s President Trumps’ [sic] lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put America first.”2 As you have announced, these communications are connected to your office’s recently-launched “Operation Whirlwind,” which you have reportedly described as intended to “hold accountable those who threaten [federal] workers.”3
The safety of federal employees and officials is self-evidently paramount and emphatically must remain an ironclad priority for the Department of Justice. Your recent public statements, however—which are directed exclusively at opponents of and express support for the Trump Administration, explicitly criticize the Biden Administration, publicize pending investigative activity by your office, and make assertions of fact for which there exists no evidence—raise serious concerns that your new initiative is a pretext for misusing your office for political ends, threatening and intimidating critics of the Administration, and chilling constitutionally protected speech. Your post on X yesterday appears to confirm that these are in fact your aims.
Indeed, as the Washington Post reported, legal experts have observed that your communications “would be more credible but for [your] own actions in the three weeks since taking office and [President] Trump’s long pattern of sowing falsehood-laden attacks and encouraging violence against political critics.”4 The latter include more than 100 threats by Donald Trump to prosecute or punish perceived enemies, including against former President Biden, legislators, judges, and members of the Biden family—precisely none of which are mentioned in your communications.5 While professing concern for the safety of all federal workers and officials, you have personally moved to dismiss criminal cases in which rioters at the U.S. Capitol on January 6, 2021, were convicted of or pled guilty to attacking Capitol Police Officers and presided over the firing of the career prosecutors who pursued those cases.6 And notably, your communications make no mention of the continuing threat to Capitol Police Officers and other federal workers by the January 6 rioters whom Donald Trump pardoned, exemplified last week by the arrest of former Proud Boys leader Enrique Tarrio outside the Capitol on a charge of assaulting a female protester.7
Your communications are also conspicuously silent on Elon Musk’s pattern of targeting career federal civil servants by name on X and reportedly “sparking his online army of followers to launch blistering critiques of ordinary federal employees,” and his now deleted post stating that “no one is even trying to assassinate” former President Biden or former Vice President Harris.8 Nor do your statements reflect any concern whatsoever about the publication of the names of 10 employees at the Department of Homeland Security by a Heritage Foundation-funded group, which called them “America’s most subversive immigration bureaucrats,” or that group’s publication earlier this month of the names of more than 50 other federal employees on what it labelled a “DEI Watchlist.”9
It thus appears that your stated commitment to protect federal employees and officials extends only to President Trump and his allies. As discussed below, your politically selective approach to law enforcement violates DOJ policies, breaches your ethical obligations, and constitutes a misuse of your office—and most alarmingly, as a leading expert on legal ethics has observed, is “undermining the prosecutorial independence of the Justice Department.” 10 Your post on X yesterday, moreover, appears to reflect your deeply disturbing and grossly erroneous view that the office of United States Attorney exists to further the personal interests of Donald Trump, rather than those of the American people, and may be used to target elements of the media that scrutinize or are critical of his Administration—a view that is fundamentally antithetical to, and represents a direct threat to, the rule of law in this country.
February 3, 2025, Letter to Elon Musk
On February 3, 2025, you posted on your X account a letter, also dated February 3, on your office’s letterhead to Elon Musk, with the salutation “Dear Elon,” and stating: “It was good to work with the DOGE team this weekend. … At this time, I ask that you utilize me and my staff to assist in protecting the DOGE work and the DOGE workers. … Let me assure you of this: we will pursue any and all legal action against anyone who impedes your work or threatens your people. We will not act like the previous administration who looked the other way as the Antifa and BLM rioters as well as thugs with guns trashed our capital [sic] city.”11
As the New York Times noted, your letter to Mr. Musk “was unusual, not least because criminal investigations are generally not announced in a public forum, let alone before any facts or evidence have been collected.”12 It thus appears to have violated DOJ’s own policies, which provide unambiguously that “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.”13
Moreover, a leading criminal justice scholar and former U.S. Attorney commented that your communications suggest that you are “all-in in President Trump’s camp” and are “going to exercise [your] power in a way that is favorable politically[.]”14 Such overt political favoritism by a senior law enforcement official is blatantly improper on several grounds. It is flatly inconsistent with DOJ’s Principles of Federal Prosecution, which are premised on “the fair, evenhanded administration of the federal criminal laws.”15 It also violates the Standards of Ethical Conduct for Employees of the Executive Branch, which require all employees to “act impartially and not give preferential treatment to any private organization or individual” and to “endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards.”16 And your explicit support for DOGE’s mission likewise runs afoul of the American Bar Association’s Criminal Justice Standards for the Prosecution Function, which provide that a prosecutor “should not use … improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion” and that it is improper for a prosecutor to make “public statement[s] that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused.”17
February 3, 2025, Post on X
Also on February 3, 2025, you posted a statement on X asserting that your office’s “initial review of the evidence presented to us indicates that certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees.”18 You further stated: “We are in contact with the FBI and other law-enforcement partners to proceed rapidly. We also have our prosecutors preparing.”19 As the Washington Post observed, your statement was “atypical in alleging violations of law before any charges were filed.”20 Furthermore, by publicly announcing the existence of, and commenting upon, your investigation on social media, your statement, yet again, appears to have violated DOJ’s express policy prohibiting such communications.
Letters to Members of Congress
You also sent letters dated January 21, 2025, February 6, 2025, and February 11, 2025, to the current U.S. Senate Minority Leader concerning statements he reportedly made at a rally in opposition to the U.S. Supreme Court’s reproductive rights case law.21 In the first of those letters, you requested “clarification” concerning those comments, which you asserted were made “clearly and in a way that many found threatening.”22 In your February 3 letter, you asserted that the Minority Leader’s comments “were not just strong language born of a Brooklyn upbringing” and that “any reasonable person would hear your words as threatening.”23 And even after the Minority Leader’s staff confirmed in a written response to you that the Senator’s words were neither intended as nor constituted a physical threat to any person, you sent a further letter to him in which you wrote: “Your cooperation is more important than ever to complete this inquiry before any action is taken. I remind you: no one is above the law.”24
Even setting aside your superfluous and unprofessional ad hominem commentary on the Minority Leader’s personal background, these letters were extraordinary, in that, as one legal expert noted, “[p]rosecutors typically leave it to agents to investigate cases so they do not themselves become witnesses.”25 The highly unusual nature of these communications led the same expert to conclude that they “are designed more to chill free speech than to seek clarification, as they purport to do,” while another noted that their “ingratiating and self-promotional tone makes [them] read more like a job application than the customary way that nonpolitical federal prosecutors speak.”26
February 19, 2025, Office-Wide Email
On February 19, 2025, you reportedly issued an office-wide email announcing an investigation into what you described as a potential attack on Secretary of Defense Pete Hegseth and the formation of “Operation Whirlwind.”27 That email, which was subsequently posted on social media, further stated: “Our office has been flooded with threats against those who helped free the January 6th prisoners . . . . We must protect our cops, our prosecutors, our DOGE workers, the President, and all other government employees from threats against our nation.”28 You also cited the Senate Minority Leader’s words, which you described as “threats” and noted: “It is particularly disturbing that other politicians have followed his words with threats of their own.”29 Once again, by focusing solely on potential threats against members and supporters of the Trump Administration and expressing solidarity with the criminal defendants convicted for their roles in the January 6, 2021, attack on the United States Capitol, your email violated both DOJ policy and your ethical obligations as a prosecutor.
Your statements also highlight your blatant conflict of interest as Interim U.S. Attorney. You moved to dismiss your office’s prosecution of one of the January 6 defendants convicted of assaulting police with a dangerous weapon and obstructing Congress, despite having represented that same individual at trial while you were still in private practice—and, astonishingly, while you were simultaneously listed as counsel of record for both that individual and DOJ.30 Exacerbating this conflict, at the time you moved to dismiss those charges, you had also been an organizer, participant, and witness to the “Stop the Steal” rally on January 6 and made posts on X confirming your attendance at that rally-turned-insurrection and expressing support for the Oath Keepers.31 Moreover, prior to holding your current office, you hosted a podcast promoting the use of DOJ to exact “retribution” against Donald Trump’s political enemies through law enforcement.32 Notably, you are currently facing a complaint before the District of Columbia Bar based upon this conflict, which appears to violate both federal ethics rules and the state Rules of Professional Conduct applicable to you.33
Mischaracterization of Protected Political Speech as Criminal Activity
Underlying each of your communications discussed above is the false assumption that mere opposition to, or criticism of, the Trump Administration and policies that it supports may constitute a federal crime. That suggestion is baseless and contrary to the law. While genuine “threats” are not protected speech under the First Amendment, words and actions opposing or criticizing DOGE or other administration actions—such as “imped[ing]” DOGE’s work and “confrontations, or other actions in any way that impact [DOGE employees’ work]”—are entirely lawful and qualify as speech protected by the First Amendment to the U.S. Constitution. The U.S. Supreme Court has repeatedly affirmed the fundamental principle that, while the government can prosecute unlawful threats, “[w]hat [it] cannot do … is use the power of the State to punish or suppress disfavored expression.”34
[quote]The Court has likewise recognized that even indirect threats by government officials—such as the type of “thinly veiled threats to institute criminal proceedings” contained in your communications—may also chill protected speech and violate the First Amendment.35 Moreover, your singling out of speakers with specific viewpoints, raise the threat of unconstitutional viewpoint discrimination.36 Because your communications are aimed solely at speakers opposed to DOGE or other Trump Administration policies and appear to target unquestionably protected speech, I am deeply concerned that your “Operation Whirlwind” and associated activities that you are undertaking may violate the First Amendment and chill legitimate political expression. They also raise the concern that you are using your office to carry out Elon Musk’s evident goal to silence media and other commentators who criticize him or DOGE.37
Requests for Information
In order to investigate whether your office is effectively and evenhandedly protecting federal employees and officials and complies with the U.S. Constitution, DOJ policies, and other applicable laws, regulations, and rules, we request that you provide written responses to the following no later than March 11, 2025:
1. Please identify, respectively, the number of initial leads, preliminary inquiries, and full investigations that your office has undertaken concerning violence or threats of violence against: (a) current or former Democratic officials; (b) individuals known to your office as opponents of DOGE or other Trump Administration policies; (c) current or former attorneys and other staff in your office who were involved in the prosecution of defendants charged with criminal offenses in connection with the events at the U.S. Capitol on January 6, 2021; and (d) current or former U.S. Capitol Police officers and other personnel who were involved in the events at the U.S. Capitol on January 6, 2021.
2. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect the safety of current or former attorneys and other staff in your office who were involved in the prosecution of defendants charged with crimes in connection with the events at the U.S. Capitol on January 6, 2021.
3. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect the safety of current or former U.S. Capitol Police officers and other U.S. Capitol Police personnel who were involved in the events at the U.S. Capitol on January 6, 2021.
4. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect current or former federal employees targeted individually by social media posts or other media by Elon Musk or any other individuals or groups.
5. Please confirm your belief that the Department of Justice represents the United States of America and its citizens, and not the personal and individual political or business interests of the President.
6. Please confirm your belief that the Department of Justice may not, consistent with the law and Constitution of the United States, take investigative, enforcement, or other action against any individual or entity based upon that individual’s or entity’s criticism of, dissent from, or other non-violent opposition to, the policies or members of a given presidential administration.
7. Please state whether you believe criticism of, or opposition to, DOGE, Elon Musk, or any other policy or action of, or individual associated with, the Trump Administration, constitutes protected speech under the First Amendment of the U.S. Constitution, as defined by the U.S. Supreme Court.
8. Please confirm that your office does not intend to investigate or prosecute any individual or entity based upon criticism of, or opposition to, DOGE, Elon Musk, or any other policy or action of, or individual associated with, the Trump Administration, for making protected speech under the First Amendment of the U.S. Constitution, as defined by the U.S. Supreme Court.
The Committee on Oversight and Government Reform is the principal oversight committee of the House of Representatives and has broad authority to investigate “any matter” at “any time” under House Rule X.
If you have any questions regarding this request, please contact Democratic Committee staff at (202) 225-5051.
Sincerely,
_________________________
Gerald E. Connolly
Ranking Member
Cc: The Honorable James Comer, Chairman
_______________
Notes:
1 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n)); Read Interim U.S. Attorney Ed Martin’s Letters to Democratic Lawmakers, Washington Post (Feb. 19, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... er-garcia/).
2 U.S. Attorney Ed Martin (@USAEdMartin), X (Feb. 24, 2025) (online at https://x.com/USAEdMartin/status/1894117113834488072).
3 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n).
4 D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, Washington Post (Feb. 20, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... democrats/).
5 Trump Makes More Than 100 Threats to Prosecute or Punish Perceived Enemies, NPR (Oct. 22, 2024) (online at www.npr.org/2024/10/22/nx-s1-5155032/tr ... ed-enemies).
6 What to Know about Ed Martin, the Right-Wing Activist Trump Tapped to be DC’s Top Prosecutor, CNN (Feb. 19, 2025) (online at www.cnn.com/2025/02/19/politics/ed-mart ... index.html).
7 Ex-Proud Boys Leader Enrique Tarrio Arrested on Assault Charge Outside U.S. Capitol, NBC News (Feb. 21, 2025) (online at www.nbcnews.com/politics/politics-news/ ... rcna193246).
8 Musk Unleashes Online Army on Federal Workers. “A Tough Way to Find Out She’s Losing Her Job,” Wall Street Journal (Nov. 22, 2024) (online at www.wsj.com/tech/musk-unleashes-online- ... b-f57a2e94); Elon Musk Deletes X Post About ‘No One’ Attempting to Assassinate Biden or Harris, NBC News (Sept. 16, 2024) (online at www.nbcnews.com/tech/elon-musk-deletes- ... rcna171260).
9 How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing,’ New York Times (Feb. 12, 2025) (online at www.nytimes.com/2025/02/12/business/med ... -elez.html).
10 In Podcasts, D.C. U.S. Attorney Discussed Investigating Trump Foes, Washington Post (Feb. 21, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... r-podcast/).
11 Ed Martin (@EagleEdMartin), X (Feb. 3, 2025) (online at https://x.com/EagleEdMartin/status/1886456136032817488).
12 In Fiery Words, the Federal Prosecutor in Washington Promises an Inquiry Into Allegations Raised by Musk, New York Times (Feb. 7, 2025) (online at www.nytimes.com/2025/02/07/us/politics/ ... -musk.html).
13 U.S. Department of Justice, Justice Manual § 1-7.400 (2024) (online at https://www.justice.gov/jm/jm-1-7000-me ... ns#1-7.540).
14 U.S. Attorney Hints at Prosecutions Over ‘Targeting’ of DOGE Employees, Washington Post (Feb. 3, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... musk-doge/).
15 U.S. Department of Justice, Principles of Federal Prosecution § 9-27.001 (online at www.justice.gov/jm/jm-9-27000-principle ... n#9-27.001).
16 5 C.F.R. § 2635.101(b) (online at www.law.cornell.edu/cfr/text/5/2635.101).
17 American Bar Association, Criminal Justice Standards for the Prosecution Function (4th ed.), Standards 3-1.6(a) and 3-1.10(c) (online at www.americanbar.org/groups/criminal_jus ... -function/).
18 Ed Martin (@EagleEdMartin), X (Feb. 3, 2025) (online at https://x.com/EagleEdMartin/status/1886538976145891408).
19 Id.
20 U.S. Attorney Hints at Prosecutions Over ‘Targeting’ of DOGE Employees, Washington Post (Feb. 3, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... musk-doge/).
21 Read Interim U.S. Attorney Ed Martin’s Letters to Democratic Lawmakers, Washington Post (Feb. 19, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... er-garcia/).
22 Id.
23 Id.
24 Id.
25 D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, Washington Post (Feb. 20, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... democrats/).
26 Id.
27 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n).
28 Id.
29 Id.
30 See Letter from Reps. Dan Goldman, Hillary Scholten, Stacey Plaskett, Mikie Sherrill, Glenn Ivey, Maggie Goodlander & Shomari Figures to Inspector General Michael Horowitz (Feb. 12, 2025) (online at https://goldman.house.gov/sites/evo-sub ... rowitz.pdf).
31 See id.
32 In Podcasts, D.C. U.S. Attorney Discussed Investigating Trump Foes, Washington Post (Feb. 21, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... r-podcast/).
33 See id.; The 65 Project, Bar Complaint Against Edward Martin (Feb. 6, 2025) (online at https://the65project.com/bar-complaint- ... rd-martin/).
34 See Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024).
35 Id. at 189-90; see also Letter from ACLU of the District of Columbia to Edward R. Martin, Jr. (Feb. 4, 2025) (online at www.acludc.org/sites/default/files/2025 ... rtin65.pdf).
36 See Iancu v. Brunelli, 588 U.S. 388, 393 (2019) (“A core postulate of free speech law” is that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.”).
37 See How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing,’ New York Times (Feb. 12, 2025) (online at www.nytimes.com/2025/02/12/business/med ... -elez.html).
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Sat Mar 08, 2025 1:09 am
Trump SCREWS OVER 12 Cases AGAINST HIM in 10 SECONDS
by Michael Popok
MeidasTouch
Mar 7, 2025 Legal AF Podcast
Trump just screwed his own DOJ and their legal positions that Musk doesn’t run DOGE and is not responsible for the mass firings of federal workers and turning off the lights of billions in federal funding, as Trump puts a lie to all those positions by declaring in his public speech last night that Musk “runs DOGE.” Michael Popok takes a look at how the lawyers handling 12 different cases against Trump are using this new evidence against his Administration, including a new legal filing minutes before the speech was even over!
Transcript
well Donald Trump just solved a problem
during his speech last night that's been
vexing federal judges and even his own
Department of Justice for quite some
time what is Doge who's in charge of
Doge who's responsible for all the
federal filing firings and all of the
defunding that's going on well Donald
Trump made it a lot easier last night as
he just heard where he did a shout out
to Elon Musk and said he is the quote
unquote head of Doge are you listening
Carolyn levette the press secretary
where she constantly says that she
doesn't know who the head is or it's
this new person from Tennessee or um
Elon Musk is just the special advisor
not according to the president of the
United States he's not and this will now
be new evidence in the courts of law I'm
Michael pook with a smile on my face and
a whistle on my lips here on the midest
touch Network so let's uh let's break it
all down you may recall that Carolyn
levette the world's youngest press
secretary I think that's her title she
got into a whole snit with the Press she
thinks her job as press secretary is not
to do the the work of the American
people but it's the fight with the
hounds of the media because they have
the tarity to ask
questions about about Trump policy and
cases and that annoys her
because she doesn't have the answers to
these things and so when she was asked
about who is the head of Doge because
it's important because federal judges
have said out loud in their recent um
orders that it is so opaque the
structure the relationship between the
office of personal management the uh
Department of government Efficiency
Services or whatever it's called Elon
Musk um and they can't get to the bottom
of it and so they've started to order
sworn statements under oath and
depositions under oath and evidence to
be provided and presented because judges
are getting annoyed and pissed off that
they can't figure out which should be a
simple a simple analysis and so Carolyn
levette was asked who is the head of DOA
why do you keep asking me this let me
show let me run that clip thanks
Caroline I wanted to ask about a federal
judge yesterday was saying that they
didn't know who the Doge administrator
was and was asking the the lawyer for
the administration who it was and the
lawyer responded I don't know the answer
that can you tell us who the
administrator of Doge is again I've been
asked and answered this question Elon
Musk is overseeing Doge there are career
there are no Elon Musk is a special
government employee which I've also been
asked and have answered that question as
well there are career officials at Doge
there are political appointees at Doge
I'm not going to reveal the name of that
individual from this Podium I'm happy to
follow up and provide that to you um but
we've been incredibly transparent about
the way that doge is working John
well if she was sitting in the joint
session yesterday which I assume she was
I mean I doubt she was there for the
whole hour and
40-minute rambling mental collapse of
Donald Trump but if she was there for
any part of it she may have seen the
part where Elon Musk got to jump up and
down again because he was shouted out by
the president as the head of
Doge already there are filings in
federal courts from that speech that's
why I love plaintiff's lawyers and I
love the plaintiff's lawyers are up
against Donald Trump right now because I
never thought I would say this they are
outnumbering and outmatching the
Department of Justice the Department of
Justice used to have unlimited resources
it used to have I used to be very I used
to be very concerned when I had clients
that had cases against the Department of
Justice not that I was going to lose but
I'd be very concerned just about the
asymmetrical resources against me that's
over when you cut your federal Workforce
in half and you hollow out the
Department of Justice and you send away
all the prosecutors and the civil
lawyers not just prosecutors on the
Civil side of the Department of Justice
the Civil Division you know the ones
that are headed by I'm not even sure who
right now maybe Todd blanch not yet
maybe uh Emil B for the moment um all
those lawyers they're all gone too and
funding is gone as well so now you got
now you've got the lawyers of the plaff
side working together you know they're
sort of linked together like Skynet on
Terminator to try to take down this this
this guy named president Trump and so
when they hear as did my ears every time
I hear Donald Trump say a version of I
probably shouldn't say this I'm like oh
fire away fire away o sir uh and that
got turned into evidence that got
submitted. that's the part
that Donald Trump never learned from his
first goar around with the criminal
court system that anything he said and
did in social media in speeches at press
conferences could end up in real time
back in the courtroom he would take a
break during the New York trials whether
it was the uh fraud case civile the
egene Carol Case about sex abuse or the
uh Federal Criminal uh the state
criminal conviction case trial and he
would go out and do these press
conferences at lunchtime pissing off the
court staff because they wanted to get
him back in uh to try the case in front
of the jury or the judge and any of the
statements that he made the BR would all
be listening they'd have whole teams
ready they would like record it print it
out trans get a transcript hand it in
mark it as an exhibit and and that's
what just happened we already have the
filing um which I'm if I if you give me
a minute I'm going to put it up on the
screen um so in I'll tell you one this
one in particular in a we have a notice
of new evidence that it's been filed in
a case and here's what it says in the
federal case it says in in support of
their motion for expedited Discovery um
the National Security councilor submit
new evidence which conclusively
demonstrates that expedited discovery
which means this exploration of facts
through sworn statements under oath and
document exchange that we need in order
to prove matters and to bring up
evidence in cases that it's urgently
needed to ascertain the nature of the
Department of government efficiency and
its relationship to the United States
Doge service of which Amy Gleason is the
acting administrator she's that woman
that used to work in Doge in the digital
service the first time when she did
covid response for Donald Trump and now
works for a Tennessee Healthcare
entrepreneur that's also with Doge with
with with Elon Musk and while she was on
vacation in Mexico they made her the
acting director of Doge so that Carolyn
levette could say it's it's Amy gon you
know that okay so here's what the filing
says at approximately 9 46 p.m.
president Trump stated the following in
his joint address address the Congress
to further combat inflation we will not
only be reducing the cost of energy but
will be the but we will be ending the
flagrant waste of taxpayer dollars and
to they and to that end I have
created the brand new Department of
government efficiency Doge perhaps
you've heard of it perhaps which is
headed by Elon Musk who is in the
gallery tonight and then sites back to
YouTube on that particular Point see
real world consequences for running your
mouth at the um in public Donald Trump
so I think we now know the answer that
we've always suspected let me let me let
me lay this out on a board without you
know red red string it's not that big of
a conspiracy Elon Musk from his perch in
Doge controls the decisionmaking about
what the office of personal management
is going to do what kind of emails they
send out to Federal workers he dictates
which federal workers get fired he has
his people on his team go into Payment
Systems to ensure that payments don't
get made and funding gets cut all
through Elon Musk this person that they
trotted out as the acting director she's
she's a figurehead she's a meat puppet
she does she has no power wait till they
get her under oath about what her powers
are there're zero the only one that has
the superpowers given to him by the
executive branch is Elon Musk and he
just said it out loud
this is going to help and strengthen the
hand in about 12 different cases that
Elon Musk has been sued or Doge has been
sued and or the Administration has been
sued in because of Elon Musk because now
he's answered the question it is Elon
Musk and then with the Constitutional
battle that's going to happen next is
when they triy to get Elon Musk under
oath in a deposition they're going to
argue some sort of executive privilege
he oh he doesn't work in Doge he's he's
an executive officer he's a special
adviser to the president he's a we have
executive privilege you he can't he
can't tell you about anything that he's
doing so there's so in other words
there's no transparency even though
Donald Trump looks the American people
in the eye and says all the things he's
doing to destroy uh Independence and uh
uh independent bipartisan commissions
and take all the different uh agencies
and departments that Congress created as
bipartisan and put them under his greasy
thumb that was for transparency that's a
lie they don't want transparency they
want the opposite of transparency
you know I'm going to do another hot
take soon about them trying to
manipulate and cook the books from the
Commerce Department about the slowing of
the American economy they're just going
to change the numbers I'll do that in
another hot TI I want to F continue to
focus here so um we'll continue to mine
all of the transcript from last night
I'm sure there's other things that that
the lawyers will continue to use against
Donald Trump submit it to judges as
evidence just as we saw in that
particular case um and I'll I'll cover
it all right here on the mest touch
network and on legal AF so till my next
reporting I'm Michael popuk in
collaboration with the mest touch
Network we just launched the legal AF
YouTube channel help us build this
pro-democracy channel where I'll be
curating the top stories the
intersection of Law and politics go to
YouTube now and free subscribe at legal
aftn that's @ legal aftn
[Music]
_________________________
https://www.courtlistener.com/docket/69 ... fficiency/
LENTINI v. DEPARTMENT OF GOVERNMENT EFFICIENCY (1:25-cv-00166)
District Court, District of Columbia
12: Feb 18, 2025. MINUTE ORDER: The parties are hereby notified that, earlier today, this case was consolidated with 25-cv-164 and 25-cv-167. See Feb. 18, 2025 Minute Order, Public Citizen, Inc. v. Trump, No. 25-cv-164. The parties shall make all future filings in the lead case, 25-cv-164, and shall not "spread text." The Court understands that these three cases are not identical, and has accounted for that by allowing each set of Plaintiffs to file its own briefs and pleadings unless the Court orders otherwise. Signed by Judge Jia M. Cobb on February 18, 2025. (lcjmc2)
Order
12: Feb 18, 2025. Order
12: Feb 18, 2025. Cases Consolidated. This case has been consolidated with case 25cv164 pursuant to Order. From this date forward, all pleadings shall be filed ONLY in the lead case, 25cv164. Parties are advised NOT to elect the SPREAD TEXT option when filing in ECF, as this will result in repetitive docketing. (zdp)
12: Feb 19, 2025. Create Case Association
https://www.courtlistener.com/docket/69 ... fficiency/
PUBLIC CITIZEN, INC. v. TRUMP (1:25-cv-00164)
District Court, District of Columbia
25: Feb 18, 2025. MINUTE ORDER: The parties are hereby notified that, earlier today, this case was consolidated with 25-cv-164 and 25-cv-167. See Feb. 18, 2025 Minute Order, Public Citizen, Inc. v. Trump, No. 25-cv-164. The parties shall make all future filings in the lead case, 25-cv-164, and shall not "spread text." The Court understands that these three cases are not identical, and has accounted for that by allowing each set of Plaintiffs to file its own briefs and pleadings unless the Court orders otherwise. Signed by Judge Jia M. Cobb on February 18, 2025. (lcjmc2)
Order
25: Feb 18, 2025. Order
25: Feb 18, 2025. Cases Consolidated. This case has been consolidated with case 25cv164 pursuant to Order,,. From this date forward, all pleadings shall be filed ONLY in the lead case, 25cv164. Parties are advised NOT to elect the SPREAD TEXT option when filing in ECF, as this will result in repetitive docketing. (zdp)
25: Feb 19, 2025
Create Case Association
***************************
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JERALD LENTINI, et al.,
Plaintiffs,
v.
DEPARTMENT OF GOVERNMENT EFFICIENCY, et al.,
Defendants.
*************************************
AMERICAN PUBLIC HEALTH ASSOCIATION, et al.,
Plaintiffs,
v.
OFFICE OF MANAGEMENT AND BUDGET, et al.,
Defendants.
Civil Action No. 1:25-cv-00167 (JMC)
NOTICE OF NEW EVIDENCE
In support of their Motion for Expedited Discovery, Dkt. #20, Plaintiffs Jerald Lentini, Joshua Erlich, and National Security Counselors, Inc. hereby submit new evidence which conclusively demonstrates that expedited discovery is urgently needed to ascertain the nature of the Department of Government Efficiency and its relationship to the United States DOGE Service, of which Amy Gleason is the Acting Administrator. At approximately 9:46 PM, President Trump stated the following in his Joint Address to Congress:
Live: Donald Trump delivers speech to Congress, Assoc. Press (Mar. 4, 2025), at https://www.youtube.com/watch?v=LEygBVr1neI (last accessed Mar. 4, 2025) (emphasis added).
Date: March 4, 2025
Respectfully submitted,
/s/ Kelly B. McClanahan
Kelly B. McClanahan, Esq.
D.C. Bar #984704
National Security Counselors
1451 Rockville Pike
Suite 250
Rockville, MD 20852
501-301-4672
240-681-2189 fax
[email protected]
Counsel for Plaintiffs Lentini, Erlich, and NSC
by Michael Popok
MeidasTouch
Mar 7, 2025 Legal AF Podcast
Trump just screwed his own DOJ and their legal positions that Musk doesn’t run DOGE and is not responsible for the mass firings of federal workers and turning off the lights of billions in federal funding, as Trump puts a lie to all those positions by declaring in his public speech last night that Musk “runs DOGE.” Michael Popok takes a look at how the lawyers handling 12 different cases against Trump are using this new evidence against his Administration, including a new legal filing minutes before the speech was even over!
Transcript
To further combat inflation, we will not only be reducing the cost of energy, but will be ending the flagrant waste of taxpayer dollars. And to that end, I have created the brand new Department of Government Efficiency, DOGE. Perhaps you’ve heard of it. Perhaps. Which is headed by Elon Musk, who is in the gallery tonight.
[Applause]
[Music]
[Applause]
well Donald Trump just solved a problem
during his speech last night that's been
vexing federal judges and even his own
Department of Justice for quite some
time what is Doge who's in charge of
Doge who's responsible for all the
federal filing firings and all of the
defunding that's going on well Donald
Trump made it a lot easier last night as
he just heard where he did a shout out
to Elon Musk and said he is the quote
unquote head of Doge are you listening
Carolyn levette the press secretary
where she constantly says that she
doesn't know who the head is or it's
this new person from Tennessee or um
Elon Musk is just the special advisor
not according to the president of the
United States he's not and this will now
be new evidence in the courts of law I'm
Michael pook with a smile on my face and
a whistle on my lips here on the midest
touch Network so let's uh let's break it
all down you may recall that Carolyn
levette the world's youngest press
secretary I think that's her title she
got into a whole snit with the Press she
thinks her job as press secretary is not
to do the the work of the American
people but it's the fight with the
hounds of the media because they have
the tarity to ask
questions about about Trump policy and
cases and that annoys her
because she doesn't have the answers to
these things and so when she was asked
about who is the head of Doge because
it's important because federal judges
have said out loud in their recent um
orders that it is so opaque the
structure the relationship between the
office of personal management the uh
Department of government Efficiency
Services or whatever it's called Elon
Musk um and they can't get to the bottom
of it and so they've started to order
sworn statements under oath and
depositions under oath and evidence to
be provided and presented because judges
are getting annoyed and pissed off that
they can't figure out which should be a
simple a simple analysis and so Carolyn
levette was asked who is the head of DOA
why do you keep asking me this let me
show let me run that clip thanks
Caroline I wanted to ask about a federal
judge yesterday was saying that they
didn't know who the Doge administrator
was and was asking the the lawyer for
the administration who it was and the
lawyer responded I don't know the answer
that can you tell us who the
administrator of Doge is again I've been
asked and answered this question Elon
Musk is overseeing Doge there are career
there are no Elon Musk is a special
government employee which I've also been
asked and have answered that question as
well there are career officials at Doge
there are political appointees at Doge
I'm not going to reveal the name of that
individual from this Podium I'm happy to
follow up and provide that to you um but
we've been incredibly transparent about
the way that doge is working John
well if she was sitting in the joint
session yesterday which I assume she was
I mean I doubt she was there for the
whole hour and
40-minute rambling mental collapse of
Donald Trump but if she was there for
any part of it she may have seen the
part where Elon Musk got to jump up and
down again because he was shouted out by
the president as the head of
Doge already there are filings in
federal courts from that speech that's
why I love plaintiff's lawyers and I
love the plaintiff's lawyers are up
against Donald Trump right now because I
never thought I would say this they are
outnumbering and outmatching the
Department of Justice the Department of
Justice used to have unlimited resources
it used to have I used to be very I used
to be very concerned when I had clients
that had cases against the Department of
Justice not that I was going to lose but
I'd be very concerned just about the
asymmetrical resources against me that's
over when you cut your federal Workforce
in half and you hollow out the
Department of Justice and you send away
all the prosecutors and the civil
lawyers not just prosecutors on the
Civil side of the Department of Justice
the Civil Division you know the ones
that are headed by I'm not even sure who
right now maybe Todd blanch not yet
maybe uh Emil B for the moment um all
those lawyers they're all gone too and
funding is gone as well so now you got
now you've got the lawyers of the plaff
side working together you know they're
sort of linked together like Skynet on
Terminator to try to take down this this
this guy named president Trump and so
when they hear as did my ears every time
I hear Donald Trump say a version of I
probably shouldn't say this I'm like oh
fire away fire away o sir uh and that
got turned into evidence that got
submitted. that's the part
that Donald Trump never learned from his
first goar around with the criminal
court system that anything he said and
did in social media in speeches at press
conferences could end up in real time
back in the courtroom he would take a
break during the New York trials whether
it was the uh fraud case civile the
egene Carol Case about sex abuse or the
uh Federal Criminal uh the state
criminal conviction case trial and he
would go out and do these press
conferences at lunchtime pissing off the
court staff because they wanted to get
him back in uh to try the case in front
of the jury or the judge and any of the
statements that he made the BR would all
be listening they'd have whole teams
ready they would like record it print it
out trans get a transcript hand it in
mark it as an exhibit and and that's
what just happened we already have the
filing um which I'm if I if you give me
a minute I'm going to put it up on the
screen um so in I'll tell you one this
one in particular in a we have a notice
of new evidence that it's been filed in
a case and here's what it says in the
federal case it says in in support of
their motion for expedited Discovery um
the National Security councilor submit
new evidence which conclusively
demonstrates that expedited discovery
which means this exploration of facts
through sworn statements under oath and
document exchange that we need in order
to prove matters and to bring up
evidence in cases that it's urgently
needed to ascertain the nature of the
Department of government efficiency and
its relationship to the United States
Doge service of which Amy Gleason is the
acting administrator she's that woman
that used to work in Doge in the digital
service the first time when she did
covid response for Donald Trump and now
works for a Tennessee Healthcare
entrepreneur that's also with Doge with
with with Elon Musk and while she was on
vacation in Mexico they made her the
acting director of Doge so that Carolyn
levette could say it's it's Amy gon you
know that okay so here's what the filing
says at approximately 9 46 p.m.
president Trump stated the following in
his joint address address the Congress
to further combat inflation we will not
only be reducing the cost of energy but
will be the but we will be ending the
flagrant waste of taxpayer dollars and
to they and to that end I have
created the brand new Department of
government efficiency Doge perhaps
you've heard of it perhaps which is
headed by Elon Musk who is in the
gallery tonight and then sites back to
YouTube on that particular Point see
real world consequences for running your
mouth at the um in public Donald Trump
so I think we now know the answer that
we've always suspected let me let me let
me lay this out on a board without you
know red red string it's not that big of
a conspiracy Elon Musk from his perch in
Doge controls the decisionmaking about
what the office of personal management
is going to do what kind of emails they
send out to Federal workers he dictates
which federal workers get fired he has
his people on his team go into Payment
Systems to ensure that payments don't
get made and funding gets cut all
through Elon Musk this person that they
trotted out as the acting director she's
she's a figurehead she's a meat puppet
she does she has no power wait till they
get her under oath about what her powers
are there're zero the only one that has
the superpowers given to him by the
executive branch is Elon Musk and he
just said it out loud
this is going to help and strengthen the
hand in about 12 different cases that
Elon Musk has been sued or Doge has been
sued and or the Administration has been
sued in because of Elon Musk because now
he's answered the question it is Elon
Musk and then with the Constitutional
battle that's going to happen next is
when they triy to get Elon Musk under
oath in a deposition they're going to
argue some sort of executive privilege
he oh he doesn't work in Doge he's he's
an executive officer he's a special
adviser to the president he's a we have
executive privilege you he can't he
can't tell you about anything that he's
doing so there's so in other words
there's no transparency even though
Donald Trump looks the American people
in the eye and says all the things he's
doing to destroy uh Independence and uh
uh independent bipartisan commissions
and take all the different uh agencies
and departments that Congress created as
bipartisan and put them under his greasy
thumb that was for transparency that's a
lie they don't want transparency they
want the opposite of transparency
you know I'm going to do another hot
take soon about them trying to
manipulate and cook the books from the
Commerce Department about the slowing of
the American economy they're just going
to change the numbers I'll do that in
another hot TI I want to F continue to
focus here so um we'll continue to mine
all of the transcript from last night
I'm sure there's other things that that
the lawyers will continue to use against
Donald Trump submit it to judges as
evidence just as we saw in that
particular case um and I'll I'll cover
it all right here on the mest touch
network and on legal AF so till my next
reporting I'm Michael popuk in
collaboration with the mest touch
Network we just launched the legal AF
YouTube channel help us build this
pro-democracy channel where I'll be
curating the top stories the
intersection of Law and politics go to
YouTube now and free subscribe at legal
aftn that's @ legal aftn
[Music]
_________________________
https://www.courtlistener.com/docket/69 ... fficiency/
LENTINI v. DEPARTMENT OF GOVERNMENT EFFICIENCY (1:25-cv-00166)
District Court, District of Columbia
12: Feb 18, 2025. MINUTE ORDER: The parties are hereby notified that, earlier today, this case was consolidated with 25-cv-164 and 25-cv-167. See Feb. 18, 2025 Minute Order, Public Citizen, Inc. v. Trump, No. 25-cv-164. The parties shall make all future filings in the lead case, 25-cv-164, and shall not "spread text." The Court understands that these three cases are not identical, and has accounted for that by allowing each set of Plaintiffs to file its own briefs and pleadings unless the Court orders otherwise. Signed by Judge Jia M. Cobb on February 18, 2025. (lcjmc2)
Order
12: Feb 18, 2025. Order
12: Feb 18, 2025. Cases Consolidated. This case has been consolidated with case 25cv164 pursuant to Order. From this date forward, all pleadings shall be filed ONLY in the lead case, 25cv164. Parties are advised NOT to elect the SPREAD TEXT option when filing in ECF, as this will result in repetitive docketing. (zdp)
12: Feb 19, 2025. Create Case Association
https://www.courtlistener.com/docket/69 ... fficiency/
PUBLIC CITIZEN, INC. v. TRUMP (1:25-cv-00164)
District Court, District of Columbia
25: Feb 18, 2025. MINUTE ORDER: The parties are hereby notified that, earlier today, this case was consolidated with 25-cv-164 and 25-cv-167. See Feb. 18, 2025 Minute Order, Public Citizen, Inc. v. Trump, No. 25-cv-164. The parties shall make all future filings in the lead case, 25-cv-164, and shall not "spread text." The Court understands that these three cases are not identical, and has accounted for that by allowing each set of Plaintiffs to file its own briefs and pleadings unless the Court orders otherwise. Signed by Judge Jia M. Cobb on February 18, 2025. (lcjmc2)
Order
25: Feb 18, 2025. Order
25: Feb 18, 2025. Cases Consolidated. This case has been consolidated with case 25cv164 pursuant to Order,,. From this date forward, all pleadings shall be filed ONLY in the lead case, 25cv164. Parties are advised NOT to elect the SPREAD TEXT option when filing in ECF, as this will result in repetitive docketing. (zdp)
25: Feb 19, 2025
Create Case Association
***************************
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JERALD LENTINI, et al.,
Plaintiffs,
v.
DEPARTMENT OF GOVERNMENT EFFICIENCY, et al.,
Defendants.
*************************************
AMERICAN PUBLIC HEALTH ASSOCIATION, et al.,
Plaintiffs,
v.
OFFICE OF MANAGEMENT AND BUDGET, et al.,
Defendants.
Civil Action No. 1:25-cv-00167 (JMC)
NOTICE OF NEW EVIDENCE
In support of their Motion for Expedited Discovery, Dkt. #20, Plaintiffs Jerald Lentini, Joshua Erlich, and National Security Counselors, Inc. hereby submit new evidence which conclusively demonstrates that expedited discovery is urgently needed to ascertain the nature of the Department of Government Efficiency and its relationship to the United States DOGE Service, of which Amy Gleason is the Acting Administrator. At approximately 9:46 PM, President Trump stated the following in his Joint Address to Congress:
To further combat inflation, we will not only be reducing the cost of energy, but will be ending the flagrant waste of taxpayer dollars. And to that end, I have created the brand new Department of Government Efficiency, DOGE. Perhaps you’ve heard of it. Perhaps. Which is headed by Elon Musk, who is in the gallery tonight.
Live: Donald Trump delivers speech to Congress, Assoc. Press (Mar. 4, 2025), at https://www.youtube.com/watch?v=LEygBVr1neI (last accessed Mar. 4, 2025) (emphasis added).
Date: March 4, 2025
Respectfully submitted,
/s/ Kelly B. McClanahan
Kelly B. McClanahan, Esq.
D.C. Bar #984704
National Security Counselors
1451 Rockville Pike
Suite 250
Rockville, MD 20852
501-301-4672
240-681-2189 fax
[email protected]
Counsel for Plaintiffs Lentini, Erlich, and NSC
- admin
- Site Admin
- Posts: 37075
- Joined: Thu Aug 01, 2013 5:21 am
Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Sat Mar 08, 2025 2:45 am
'An American President Is Not a King': Judge Reinstates Labor Regulator Illegally Fired by Trump: "The president seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme."
by Jessica Corbett
Common Dreams
Mar 06, 2025
A federal judge on Thursday reinstated Gwynne Wilcox, a Democratic member of the National Labor Relations Board, and suggested that U.S. President Donald Trump's attempt to fire her was an example of the Republican testing how much he can exceed his constitutional powers.
Wilcox filed a federal lawsuit in February, after Trump ousted her and NLRB General Counsel Jennifer Abruzzo. On Thursday, U.S. District Judge Beryl Howell—who was appointed by former President Barack Obama to serve in the District of Columbia—declared Wilcox's dismissal "unlawful and void."
"The Constitution and case law are clear in allowing Congress to limit the president's removal power and in allowing the courts to enjoin the executive branch from unlawful action," Howell wrote in a 36-page opinion. She also sounded the alarm about arguments made by lawyers for the defendants, Trump and Marvin Kaplan, chair of the NLRB.
"Defendants' hyperbolic characterization that legislative and judicial checks on executive authority, as invoked by plaintiff, present 'extraordinary intrusion[s] on the executive branch,' ...is both incorrect and troubling," the judge wrote. "Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy."
She stressed that "an American president is not a king—not even an 'elected' one—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here."
"A president who touts an image of himself as a 'king' or a 'dictator,' perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution," Howell asserted. "In our constitutional order, the president is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the judiciary."
The judge cited a widely criticized February 19 social media post from the White House, which features an image of Trump in a crown, with text that states, "Long live the king."
"The president seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme," Howell warned. "The courts are now again forced to determine how much encroachment on the legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that is untouchable by the law."
The president's attempt to fire Wilcox halted federal labor law enforcement in the United States. AFL-CIO president Liz Shuler celebrated Howell's ruling in a Thursday statement, saying that "more than a month after Trump effectively shut down the NLRB by illegally firing Gwynne Wilcox, denying it the quorum it needs to hold union-busters accountable, the court ordered Wilcox immediately returned to her seat, allowing the NLRB to get back to its essential work."
"The court also sent an important message that a president cannot undermine an independent agency by simply removing a member of the board because he disagrees with her decisions," she said. "Working people around the country count on equal justice and fair decision-making from an independent NLRB—and today, because of Wilcox's commitment to the mission of the NLRB and her refusal to stand by as Trump illegally removed her from the board, the NLRB can get back to work."
Wilcox isn't the only federal worker who has challenged the president's power to fire her. As Politico detailed:
On Thursday, a federal workplace watchdog fired by Trump—Special Counsel Hampton Dellinger—dropped his legal bid to reclaim his post after a federal appeals court permitted his termination. Cathy Harris, a member of the Merit Systems Protection Board, which oversees the grievance process for many federal employees, is also resisting Trump’s effort to remove her and was reinstated last month by a federal judge.
The Supreme Court likely will soon weigh in on Congress' ability to insulate executive branch officials from being fired by the president without cause. With Dellinger's decision to drop his legal fight, Harris' case appears likeliest to reach the high court in the near-term. It’s possible Wilcox's case will get folded into that ongoing fight.
The nation's highest court has a right-wing supermajority that includes three Trump appointees, though they have at times ruled against the president—including on Wednesday, when five justices refused to overturn a lower court order about foreign aid.
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Part 1 of 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GWYNNE A. WILCOX,
Plaintiff,
v.
DONALD J. TRUMP, in his official capacity as President of the United States
and
MARVIN E. KAPLAN, in his official capacity as Chairman of the National Labor Relations Board,
Defendants.
Civil Action No. 25-334 (BAH)
Judge Beryl A. Howell
MEMORANDUM OPINION
Scholars have long debated the degree to which the Framers intended to consolidate executive power in the President. The “unitary executive theory”—the theory, in its purest form, that, under our tri-partite constitutional framework, executive power lodges in a single individual, the President, who may thus exercise complete control over all executive branch subordinates without interference by Congress—has been lauded by some as the hallmark of an energetic, politically accountable government, while rebuked by others as “anti-American,” a “myth,” and “invented history.”1 Both sides of the debate raise valid concerns, but this is no mere academic exercise.2 The outcome of this debate has profound consequences for how we Americans are governed. On the one hand, democratic principles militate against a “headless fourth branch”3 made up of politically unaccountable, independent government entities that might become agents of corrupt factions or private interest groups instead of the voting public. Additionally, at least theoretically, empowering a President with absolute control over how the Executive branch operates, including the power to “clean house” of federal employees, would promote efficient [???]implementation of presidential policies and campaign promises that are responsive to the national electorate. On the other hand, the advantages of impartial, expert-driven decision-making and congressional checks on executive authority favor some agency independence from political changes in presidential administrations, with the concomitant benefits of stability, reliability, and moderation in government actions. No matter where these pros and cons may lead, the crucial question here is, what does the U.S. Constitution allow?
To start, the Framers made clear that no one in our system of government was meant to be king—the President included—and not just in name only. See U.S. CONST. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States.”). Indeed, the very structure of the Constitution was designed to ensure no one branch of government had absolute power, despite the perceived inefficiencies, inevitable delays, and seemingly anti-democratic consequences that may flow from the checks and balances foundational to our constitutional system of governance.
The Constitution provides guideposts to govern inter-branch relations but does not fully delineate the contours of the executive power or the degree to which the other two branches may place checks on the President’s execution of the laws. As pertinent here, the Constitution does not, even once, mention “removal” of executive branch officers. The only process to end federal service provided in the Constitution is impeachment, applicable to limited offices (like judges and the President) after a burdensome political process. See, e.g., id. art. II, § 4 (impeachment of President); id. art. III, § 1 (impeachment of federal judges). This constitutional silence on removal perplexed the First Congress, bedeviled a President shortly thereafter and a second President after the Civil War during Reconstruction (leading to condemnation of the former and impeachment proceedings against the latter), and has beset jurists and scholars in our modern era. See infra Part III.A.3.b.4
Yet, in assessing separation of powers, the Constitution itself is not the only available guide. Historical practice and a body of case law are, respectively, instructive and binding. See infra Part III.A.1; e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 23 (2015) (“In separation of powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting NLRB v. Noel Canning, 573 U.S. 513, 524 (2014))). Both make clear that textual silence regarding removal does not confer absolute authority on a President to willy-nilly override a congressional judgment that expertise and insulation from direct presidential control take priority when a federal officer is tasked with carrying out certain adjudicative or administrative functions. As Justice Louis Brandeis eloquently opined, “[c]hecks and balances were established in order that this should be ‘a government of laws and not of men,’” observing further that the separation of powers was not adopted “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, 292-93 (1926) (Brandeis, J., dissenting).
A President who touts an image of himself as a “king” or a “dictator,”5 perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution. In our constitutional order, the President is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the Judiciary. U.S. CONST. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”). At issue in this case, is the President’s insistence that he has authority to fire whomever he wants within the Executive branch, overriding any congressionally mandated law in his way. 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 (“Letter from Acting SG”) (Feb. 12, 2025), https://perma.cc/D67G-FKK4 (describing the Trump administration’s view of the removal power). Luckily, the Framers, anticipating such a power grab, vested in Article III, not Article II, the power to interpret the law, including resolving conflicts about congressional checks on presidential authority. The President’s interpretation of the scope of his constitutional power—or, more aptly, his aspiration—is flat wrong.
The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law. Defendants concede that removal of plaintiff as a Board Member violates the terms of the applicable statute, see Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:12-13, and because this statute is a valid exercise of congressional power, the President’s excuse for his illegal act cannot be sustained.
I. BACKGROUND
The statutory and procedural background relevant to resolving this dispute is summarized below.
A. Statutory Background
The National Labor Relations Board (“NLRB”) was established ninety years ago by Congress in the National Labor Relations Act (“NLRA”) in response to a long and violent struggle for workers’ rights. See generally, J. Warren Madden, Origin and Early Years of the National Labor Relations Act, 18 HASTINGS L.J. 571 (1967); Arnold Ordman, Fifty Years of the NLRA: An Overview, 88 W. VA. L. REV. 15, 15-16 (1985). Congress sought to protect industrial peace and stability in labor relations and thus created a board to resolve efficiently labor disputes and protect the rights of employees to “self-organization, to form, join, or assist labor organizations [and] to bargain collectively through representatives of their own choosing.” 29 U.S.C. §157; see also id. § 151; Crey v. Westinghouse Elec. Corp., 375 U.S. 261, 271 (1964) (describing these goals); Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362 (1949) (same).
The NLRB is a “bifurcated agency” consisting, on one side, of a five-member, quasi-judicial “Board” that adjudicates appeals of labor disputes from administrative law judges (“ALJs”), and on the other, of a General Counsel (“GC”) and several Regional Directors who prosecute unfair labor practices and enforce labor law and policy. See NLRB, Who We Are, https://perma.cc/9RLA-FSYL; 29 U.S.C. §§ 153(a), (d), 160; Starbucks v. McKinney, 602 U.S. 339, 357 (2024) (Jackson, J., concurring in part and dissenting in part). The two sides operate independently, with the GC independent of the Board’s control. NLRB v. United Food & Com. Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 117-18 (1987) (describing how the Labor Management Relations Act of 1947 amended the NLRA to separate the prosecutorial and adjudicatory functions between the Board and General Counsel).
The NLRB generally addresses labor disputes as follows: Upon the filing of a “charge” by an employer, employee, or labor union, a team working under the Regional Director will investigate and decide whether to pursue the allegation as a formal complaint. See NLRB, Investigate Charges, https://perma.cc/CU82-KU4V.6 If the parties do not settle and the Director formally pursues the complaint, the Director will issue notice of a hearing before an ALJ. Id.; 29 U.S.C. § 160(b); 29 C.F.R. § 101.10; Starbucks, 602 U.S. at 342-43.7 If necessary, after issuance of a complaint, the Board may seek temporary injunctive relief in federal district court while the dispute is pending at the NLRB. 29 U.S.C. § 160(j); Starbucks, 602 U.S. at 342. The ALJ then gathers evidence and presents “a proposed report, together with a recommended order to the Board.” 29 U.S.C. § 160(c). That order will become the order of the Board unless the parties file “exceptions.” Id.; 29 C.F.R. §§ 101.11-.12. If the parties file exceptions requesting the Board’s review, the Board will consider the ALJ’s recommendation, gather additional facts as necessary, and issue a decision. 29 U.S.C. § 160(c); 29 C.F.R. § 101.12. The Board may craft relief, such as a cease-and-desist order to halt unfair labor practices or an order requiring reinstatement of terminated employees. 29 U.S.C. § 160(c). These orders, however, are not independently enforceable; the Board must seek enforcement in a federal court of appeals (and may appoint attorneys to do so). Id. §§ 154, 160(e); In re NLRB, 304 U.S. 486, 495 (1938) (noting compliance with a Board order is not obligatory until entered as a decree by a court). Aside from adjudicating disputes, the Board may also conduct and certify the outcome of union elections, 29 U.S.C. § 159, and promulgate rules and regulations to carry out its statutory duties, id. § 156.
Although both the Board members and the GC are appointed by the President with “advice and consent” from the Senate, id. §§ 153(a), (d), only the Board is protected from removal at-will by the President, who is authorized to remove a Board member “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause,” id. § 153(a). Such restrictions were intentional; much like many other multimember entities, the Board was designed to be an independent panel of experts that could impartially adjudicate disputes. See 29 U.S.C. § 153(a); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 CORNELL L. REV. 76, 770-71 (2013) (describing the NLRB as a classic example of an agency designed to be independent). Board members serve staggered five-year terms, and the President is authorized to designate one board member as Chairman. 29 U.S.C. § 153(a). In practice, the Board is partisan-balanced based on longstanding norms, though such a balance is not statutorily mandated. See Brian D. Feinstein & Daniel J. Hemel, Partisan Balance with Bite, 118 COLUM. L. REV. 9, 54-55 (2018).
B. Factual Background
As set out in plaintiff’s complaint and statement of material facts, and undisputed by defendants, plaintiff Gwynne Wilcox was nominated by President Biden and confirmed by the U.S. Senate to a second five-year term as member of the NLRB in September 2023. Pl.’s Mot. for Expedited Summ. J. (“Pl.’s Mot.”), Statement of Material Facts (“Pl.’s SMF”) ¶ 2, ECF No. 10-1; Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J., Statement of Undisputed Material Facts (“Defs.’ SUMF”) ¶ 2, ECF No. 23-2. She was designated Chair of the Board in December 2024. Complaint ¶ 12, ECF No. 1.
Shortly after taking office, President Trump moved Marvin Kaplan, a then-sitting Board member and a defendant in this case, into the position of Chair, replacing plaintiff. Id. ¶ 13. President Trump then, on January 27, 2025, terminated plaintiff from her position on the Board via an email sent shortly before 11:00 PM, by the Deputy Director of the White House Presidential Personnel Office. Pl.’s Decl., Ex. A, ECF No. 10-4; Pl.’s SMF ¶ 3; Defs.’ SUMF ¶ 3. The termination was not preceded by “notice and hearing,” nor was any “neglect of duty or malfeasance” identified, despite the explicit restrictions to removal of a Board member in the NLRA. Pl.’s Decl. ¶¶ 3-4; Pl.’s SMF ¶¶ 4-5; Defs.’ SUMF ¶ 5 (regarding lack of notice and hearing); Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:10-17. The email instead cited only political motivations—that plaintiff does not share the objectives of the President’s administration—and asserted, in a footnote, that the restriction on the President’s removal authority is unconstitutional as “inconsistent with the vesting of the executive Power in the President.” Pl.’s Decl. ¶ 3; Ex. A.
The NLRB’s Director of Administration, who reports directly to Mr. Kaplan, began the termination process, cutting off plaintiff’s access to her accounts and instructing her to clean out her office. Pl.’s Decl. ¶¶ 5-6. The Board already had two vacancies, and now, without plaintiff, it is reduced to only two sitting members—one short of the three-member quorum required to operate. [!!!] Compl. ¶ 18; 29 U.S.C. § 153(b). Removal of plaintiff has thus stymied the functioning of the Board.
Plaintiff filed the instant suit, challenging her removal and requesting injunctive relief against Mr. Kaplan so that she may resume her congressionally mandated role. See Compl. ¶¶ 21-22. Recognizing that this case involves a pure question of law, plaintiff moved for expedited summary judgment, on February 10, 2025, Pl.’s Mot., ECF No. 10, and defendants responded with a cross-motion for summary judgment, with briefing completed on a condensed schedule. See Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J. (“Defs.’ Opp’n”), ECF No. 23; Pl.’s Opp’n to Defs.’ Cross-Mot. and Reply in Supp. of Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 27; Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Reply”), ECF No. 30. Interested parties also weighed in as amici.8 Following a hearing, held on March 5, 2025, the parties’ cross-motions for summary judgement are ready for resolution.
II. LEGAL STANDARD
Summary judgment shall be granted “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). A fact is only “‘material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. (quoting Anderson, 477 U.S. at 248).
A plaintiff “seeking a permanent injunction . . . 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.” Monsanto Co v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
III. DISCUSSION
In the ninety years since the NLRB’s founding, the President has never removed a member of the Board. Pl.’s Mem. in Supp. of Pl.’s Mot. (“Pl.’s Mem.”) at 4, ECF No. 10-2. His attempt to do so here is blatantly illegal, and his constitutional arguments to excuse this illegal act are contrary to Supreme Court precedent and over a century of practice. For the reasons explained below, plaintiff’s motion is granted. Plaintiff’s termination from the Board was unlawful, and Mr. Kaplan and his subordinates are ordered to permit plaintiff to carry out all of her duties as a rightful, presidentially-appointed, Senate-confirmed member of the Board.
A. Humphrey’s Executor and its Progeny are Binding on this Court.
The Board is a paradigmatic example of a multimember group of experts who lead an independent federal office. Since the early days of the founding of this country, Congress, the President, and the Supreme Court all understood that Congress could craft executive offices with some independence, as a check on presidential authority. That understanding has not changed over the 150-year history of independent, multimember commissions, nor over the 90-year history of the NLRB. The Supreme Court recognized this history and tradition in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), in upholding removal protections for such boards or commissions, and this precedent remains not only binding law, but also a well-reasoned reflection of the balance of power between the political branches sanctioned by the Constitution.
1. Removal Restrictions on Board Members are Well-Grounded in History and Binding Precedent.
As a textual matter, the Constitution is silent as to removals. See In re Hennen, 38 U.S. 230, 258 (1839). Consequently, though Article II grants the President authority over some appointments—with advice and consent of the Senate—and vests in him the “executive power,” Article II contains no express authority from which to infer an absolute removal power. Compare U.S. CONST. art. II, § 1, cl. 1 (vesting clause), and id., § 2, cl. 2 (appointments clause); to id. art. I, § 8, cl. 18 (clause granting Congress the authority “to make all laws” “necessary and proper” for carrying out its powers and “all other Powers vested . . . in the Government”). The Supreme Court has held that a general power to remove executive officers can be inferred from Article II, see Myers, 272 U.S. at 163-64, yet the contours of that removal power and the extent to which Congress may impose constraints are nowhere clearly laid out.
The courts in such cases must therefore turn to established precedent—judicial decisions as well as general practice and tradition. The Supreme Court has repeatedly recognized that “‘traditional ways of conducting government . . . give meaning’ to the Constitution.” Mistretta v. United States, 488 U.S. 361, 401 (1989) (alteration in original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring)). Thus, “[ i]n separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” Zivotofsky, 576 U.S. at 23 (quoting Noel Canning, 573 U.S. at 524). Even when the validity of a particular power is in question, the Court will, “in determining the . . . existence of [that] power,” give weight to “the usage itself,” United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915), and “hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached,” Noel Canning, 573 U.S. at 526. Justice Frankfurter in his seminal concurring opinion in Youngstown declared that “systematic, unbroken” practice could even “be treated as a gloss on ‘executive Power’ vested in the President.” 343 U.S. at 610-11.
Not only are the removal protections on members of the independent, multimember boards like the NLRB supported by over a century of unbroken practice, but they have also been expressly upheld in clear Supreme Court precedent. Since 1887, Congress has created multiple independent offices led by panels whose members are appointed by the President but removable only for cause. See, e.g., Interstate Commerce Act, Pub. L. No. 49-41, ch. 104, § 11, 24 Stat. 379, 383 (1887) (creating the Interstate Commerce Commission, with restrictions on officers’ removal except for “inefficiency, neglect of duty, or malfeasance”); Federal Reserve Act, Pub. L. No. 63-64, ch. 6, § 10, 38 Stat. 251, 260-61 (1913) (creating the Federal Reserve Board, whose members are removable only “for cause”). In 1914, Congress established the Federal Trade Commission (“FTC”) with an “inefficiency, neglect of duty, or malfeasance in office” removal restriction for its five commissioners. FTC Act, Pub. L. No. 63-203, ch. 311, § 1, 38 Stat. 717, 717-18 (1914).
The Supreme Court explicitly upheld removal restrictions for such boards when considering removal protections for the commissioners of the FTC in Humphrey’s Executor in 1935, while also recognizing the President’s general authority over removal of executive branch officials. The Court noted that commissioners of the FTC, “like the Interstate Commerce Commission” “are called upon to exercise the trained judgment of a body of experts ‘appointed by law and informed by experience.’” Id. at 624 (quoting Ill. Cent. R.R. Co. v. Interstate Com. Comm’n, 206 U.S. 441, 454 (1907)). Congress, having the power to create such expert commissions with quasi-legislative and quasi-judicial authority, must also have, “as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal for except for cause in the meantime.” Id. at 629.
Two months later, with the guidance supplied in Humphrey’s Executor and following the model of the FTC as endorsed by the Supreme Court there, Congress established the National Labor Relations Board. See Madden, supra, at 572-73; Yapp USA Auto. Sys., Inc. v. NLRB, --F. Supp. 3d--, No. 24-cv-12173, 2024 WL 4119058, at *5 (E.D. Mich. Sep. 9, 2024). Both entities—the FTC and NLRB—have five-member leadership boards with staggered terms of several years, minimizing instability and allowing for expertise to accrue. See 29 U.S.C. § 153(a); Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 216 (2020). Both were intended to exercise impartial judgment. See Datla & Revesz, supra, at 770-71 (describing independence of the NLRB); Seila L., 591 U.S. at 215-16 (describing the FTC as “designed to be ‘non-partisan’ and ‘to act with entire impartiality’” (quoting Humphrey’s Ex’r, 295 U.S. at 624)). The Board, like the FTC, is “predominately quasi judicial and quasi legislative” in nature, with the primary responsibility of impartially reviewing decisions made by ALJs. Humphrey’s Ex’r, 292 U.S. at 624; see 29 U.S.C. § 160. In fact, the Board does not prosecute labor cases nor enforce its rulings. The side of the NLRB managed by the General Counsel—who is removable at-will by the President—carries out those more “executive” powers. See 29 U.S.C. § 153(d) (describing the General Counsel’s “final authority, on behalf of the Board” over “the investigation of charges and issuance of complaints . . . and . . . the prosecution of such complaints before the Board”). As plaintiff correctly states, the Board closely resembles the FTC and is thus “squarely at the heart of the rule adopted in Humphrey’s Executor.” Pl.’s Mem. at 9.
Numerous other offices have followed the mold of the NLRB and FTC with multimember independent leadership boards protected from at-will removal by the President. See Pl.’s Mem. at 7 n.2 (listing, e.g., the Merit Systems Protection Board, 5 U.S.C. § 1202(d); the Federal Labor Relations Authority, 5 U.S.C. § 7104(b); and the Federal Energy Regulatory Commission, 42 U.S.C. § 7171(b)(1)). “Since the Supreme Court's decision in Humphrey’s Executor, the constitutionality of independent [multimember] agencies, whose officials possess some degree of removal protection that insulates them from unlimited and instantaneous political control, has been uncontroversial.” Leachco, Inc. v. Consumer Prod. Safety Comm’n, 103 F.4th 748, 760 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025); see also The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional” issues of separation of powers.).9
Recent consideration of the constitutionality of the removal protections for NLRB members have accordingly upheld those constraints on presidential removal authority under Humphrey’s Executor. See, e.g., Overstreet v. Lucid USA Inc., No. 24-cv-1356, 2024 WL 5200484, at *10 (D. Ariz. Dec. 23, 2024); Company v. NLRB, No. 24-cv-3277, 2024 WL 5004534, at *6 (W.D. Mo. Nov. 27, 2024); Kerwin v. Trinity Health Grand Haven Hosp., No. 24-cv-445, 2024 WL 4594709, at *7 (W.D. Mich. Oct. 25, 2024); Alivio Med. Ctr. v. Abruzzo, No. 24-cv-2717, 2024 WL 4188068, at *9 (N.D. Ill. Sep. 13, 2024); YAPP USA Automotive Sys., 2024 WL 4119058, at *7. Courts have also recently upheld restrictions on removal under Humphrey’s Executor for other multimember boards, such as the Consumer Product Safety Commission (“CPSC”). See, e.g., Leachco, 103 F.4th at 761-62; Consumers’ Rsch. v. CPSC, 91 F.4th 342, 352 (5th Cir. 2024); United States v. SunSetter Prods. LP, No. 23-cv-10744, 2024 WL 1116062, at *4 (D. Mass. Mar. 14, 2024). The same has been true for the FTC. See, e.g., Illumina, Inc. v. FTC, 88 F.4th 1036, 1046-47 (5th Cir. 2023); Meta Platforms, Inc. v. FTC, 723 F. Supp. 3d 64, 87 (D.D.C. 2024). A court in this district has also upheld removal protections for the Merit Systems Protection Board. See Harris v. Bessent, No. 25-cv-412 (RC), 2025 WL 679303, at *7 (D.D.C. Mar. 4, 2025). The 150-year history and tradition of multimember boards or commissions and 90-year precedent from the Supreme Court approving of removal protections for their officers dictates the same outcome for the NLRB here.
2. Defendants’ Argument that Humphrey’s Executor Does Not Control Fails.
Discounting this robust history, defendants posit that the President’s removal power is fundamentally “unrestricted” and that only two, narrow “exceptions” have been recognized: one for “inferior officers with narrowly defined duties,” as established in Morrison v. Olson, 487 U.S. 654 (1988), and the other for “multimember bod[ies] of experts, balanced along partisan lines, that performed legislative and judicial functions and [do not] exercise any executive power,” as established in Humphrey’s Executor. Defs.’ Opp’n at 5-6 (second passage quoting Seila L., 591 U.S. at 216). According to defendants, neither exception applies to the Board. Id. at 6. Putting aside to address later whether congressional authority to constrain the President’s removal authority is characterized fairly by defendants as a narrow “exception” to the rule of “unrestricted” removal power, see infra Part III.A.3.b, Humphrey’s Executor plainly controls.
Defendants emphasize that Humphrey’s Executor understood the FTC at the time not to exercise any “executive power,” which was key to its “exception,” and that the NLRB today clearly “wield[s] substantial executive power.” Defs.’ Opp’n at 6-8 (relying on Seila L., 591 U.S. at 216 n.2, 218); see also Defs.’ Reply at 3. They do not, however, meaningfully distinguish between the authority of the FTC in 1935, as recognized in Humphrey’s Executor, and the authority of the NLRB today. The FTC in 1935 had powers mimicking those of both the Board and the NLRB’s GC. The FTC had broad powers of investigation and could issue a complaint and hold a hearing for potential unfair methods of competition. See Humphrey’s Ex’r, 295 U.S. at 620, 621; see also 15 U.S.C. § 49 (authorizing the FTC’s subpoena power). The FTC, upon finding a violation, could issue a cease-and-desist order and then go to the Court of Appeals for enforcement. Humphrey’s Ex’r, 295 U.S. at 620-21; see also FTC Act, ch. 311, § 5, 38 Stat. at 719-20. The party subject to the order could also appeal to that court. Humphrey’s Ex’r, 295 U.S. at 621. Further, the FTC could issue rules and regulations regarding unfair and deceptive acts. See FTC Act, § 6, 38 Stat. at 722; Hon. R. E. Freer, Member of the FTC, Remarks on the FTC, its Powers and Duties at 2 (1940), https://www.ftc.gov/system/files/docume ... welers.pdf.
The NLRB’s collective authority, though comparable, see supra Part I.A (describing the NLRB’s GC’s authority to investigate and pursue enforcement against unfair labor practices and the Board’s adjudicatory authority and power to issue unenforceable cease-and-desist orders), is, if anything, less extensive than that of the FTC. The NLRB hardly engages in rulemaking (other than to establish its own procedures), instead relying on adjudications for the setting of precedential guidance. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (“The [NLRB], uniquely among major federal administrative agencies, has chosen to promulgate virtually all the legal rules in its field through adjudication rather than rulemaking.”). Moreover, the aspects of the NLRB’s authority most executive in nature—prosecutorial authority to investigate and bring civil enforcement actions—are tasks assigned to the GC instead of the Board itself. See 29 U.S.C. § 153(d).10
Even though the Supreme Court of 1935 may have not referred to these classic administrative powers as “executive” and the Supreme Court today would, see, e.g., Seila Law, 591 U.S. at 216 n.2, the substantive nature of authority granted to these two independent government entities does not significantly differ. If the Supreme Court has determined that removal restrictions on officers exercising substantially the same authority do not impermissibly intrude upon presidential authority, Humphrey’s Executor cannot be read to allow a different outcome here. That is especially true considering that the Supreme Court, in its next major decision addressing removal protections for executive branch officers, rejected the notion that the permissibility of “‘good cause’-type restriction[s] . . . turn[s] on whether or not th[e] official” is classified as “purely executive” or exercising quasi-legislative or quasi-judicial functions. See Morrison, 487 U.S. at 689.11
Defendants make a final, superficial distinction between the NLRB and the FTC to argue that the precedent of Humphrey’s Executor should not apply. Defs.’ Opp’n at 10. The NLRB, they note, has stricter removal protections because its members cannot be removed for “inefficiency,” whereas FTC members can. Id. In both Consumers’ Research, 91 F.4th at 346, 355-56, and Leachco, 103 F.4th at 761-63, however, courts of appeals upheld removal protections that did not include an exception for “inefficiency.” “Inefficiency” does not differ in substance from “neglect of duty,” so omitting “inefficiency” as a grounds for removal cannot be a dispositive difference in the President’s ability to exercise his Article II powers over the NLRB. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 COLUM. L. REV. 1, 8, 69 (2021) (explaining that the absence of “inefficiency” as a ground for removal does not unconstitutionally interfere with the President's authority). Defendants offer no reason to suggest otherwise. The NLRB fits well within the scope of Humphrey’s Executor.
by Jessica Corbett
Common Dreams
Mar 06, 2025
A federal judge on Thursday reinstated Gwynne Wilcox, a Democratic member of the National Labor Relations Board, and suggested that U.S. President Donald Trump's attempt to fire her was an example of the Republican testing how much he can exceed his constitutional powers.
Wilcox filed a federal lawsuit in February, after Trump ousted her and NLRB General Counsel Jennifer Abruzzo. On Thursday, U.S. District Judge Beryl Howell—who was appointed by former President Barack Obama to serve in the District of Columbia—declared Wilcox's dismissal "unlawful and void."
"The Constitution and case law are clear in allowing Congress to limit the president's removal power and in allowing the courts to enjoin the executive branch from unlawful action," Howell wrote in a 36-page opinion. She also sounded the alarm about arguments made by lawyers for the defendants, Trump and Marvin Kaplan, chair of the NLRB.
"A president who touts an image of himself as a 'king' or a 'dictator,' perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution."
12:31 PM · Feb 19, 2025
"Defendants' hyperbolic characterization that legislative and judicial checks on executive authority, as invoked by plaintiff, present 'extraordinary intrusion[s] on the executive branch,' ...is both incorrect and troubling," the judge wrote. "Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy."
She stressed that "an American president is not a king—not even an 'elected' one—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here."
"A president who touts an image of himself as a 'king' or a 'dictator,' perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution," Howell asserted. "In our constitutional order, the president is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the judiciary."
The judge cited a widely criticized February 19 social media post from the White House, which features an image of Trump in a crown, with text that states, "Long live the king."
"The president seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme," Howell warned. "The courts are now again forced to determine how much encroachment on the legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that is untouchable by the law."
The president's attempt to fire Wilcox halted federal labor law enforcement in the United States. AFL-CIO president Liz Shuler celebrated Howell's ruling in a Thursday statement, saying that "more than a month after Trump effectively shut down the NLRB by illegally firing Gwynne Wilcox, denying it the quorum it needs to hold union-busters accountable, the court ordered Wilcox immediately returned to her seat, allowing the NLRB to get back to its essential work."
"The court also sent an important message that a president cannot undermine an independent agency by simply removing a member of the board because he disagrees with her decisions," she said. "Working people around the country count on equal justice and fair decision-making from an independent NLRB—and today, because of Wilcox's commitment to the mission of the NLRB and her refusal to stand by as Trump illegally removed her from the board, the NLRB can get back to work."
Wilcox isn't the only federal worker who has challenged the president's power to fire her. As Politico detailed:
On Thursday, a federal workplace watchdog fired by Trump—Special Counsel Hampton Dellinger—dropped his legal bid to reclaim his post after a federal appeals court permitted his termination. Cathy Harris, a member of the Merit Systems Protection Board, which oversees the grievance process for many federal employees, is also resisting Trump’s effort to remove her and was reinstated last month by a federal judge.
The Supreme Court likely will soon weigh in on Congress' ability to insulate executive branch officials from being fired by the president without cause. With Dellinger's decision to drop his legal fight, Harris' case appears likeliest to reach the high court in the near-term. It’s possible Wilcox's case will get folded into that ongoing fight.
The nation's highest court has a right-wing supermajority that includes three Trump appointees, though they have at times ruled against the president—including on Wednesday, when five justices refused to overturn a lower court order about foreign aid.
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Part 1 of 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GWYNNE A. WILCOX,
Plaintiff,
v.
DONALD J. TRUMP, in his official capacity as President of the United States
and
MARVIN E. KAPLAN, in his official capacity as Chairman of the National Labor Relations Board,
Defendants.
Civil Action No. 25-334 (BAH)
Judge Beryl A. Howell
MEMORANDUM OPINION
Scholars have long debated the degree to which the Framers intended to consolidate executive power in the President. The “unitary executive theory”—the theory, in its purest form, that, under our tri-partite constitutional framework, executive power lodges in a single individual, the President, who may thus exercise complete control over all executive branch subordinates without interference by Congress—has been lauded by some as the hallmark of an energetic, politically accountable government, while rebuked by others as “anti-American,” a “myth,” and “invented history.”1 Both sides of the debate raise valid concerns, but this is no mere academic exercise.2 The outcome of this debate has profound consequences for how we Americans are governed. On the one hand, democratic principles militate against a “headless fourth branch”3 made up of politically unaccountable, independent government entities that might become agents of corrupt factions or private interest groups instead of the voting public. Additionally, at least theoretically, empowering a President with absolute control over how the Executive branch operates, including the power to “clean house” of federal employees, would promote efficient [???]implementation of presidential policies and campaign promises that are responsive to the national electorate. On the other hand, the advantages of impartial, expert-driven decision-making and congressional checks on executive authority favor some agency independence from political changes in presidential administrations, with the concomitant benefits of stability, reliability, and moderation in government actions. No matter where these pros and cons may lead, the crucial question here is, what does the U.S. Constitution allow?
To start, the Framers made clear that no one in our system of government was meant to be king—the President included—and not just in name only. See U.S. CONST. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States.”). Indeed, the very structure of the Constitution was designed to ensure no one branch of government had absolute power, despite the perceived inefficiencies, inevitable delays, and seemingly anti-democratic consequences that may flow from the checks and balances foundational to our constitutional system of governance.
The Constitution provides guideposts to govern inter-branch relations but does not fully delineate the contours of the executive power or the degree to which the other two branches may place checks on the President’s execution of the laws. As pertinent here, the Constitution does not, even once, mention “removal” of executive branch officers. The only process to end federal service provided in the Constitution is impeachment, applicable to limited offices (like judges and the President) after a burdensome political process. See, e.g., id. art. II, § 4 (impeachment of President); id. art. III, § 1 (impeachment of federal judges). This constitutional silence on removal perplexed the First Congress, bedeviled a President shortly thereafter and a second President after the Civil War during Reconstruction (leading to condemnation of the former and impeachment proceedings against the latter), and has beset jurists and scholars in our modern era. See infra Part III.A.3.b.4
Yet, in assessing separation of powers, the Constitution itself is not the only available guide. Historical practice and a body of case law are, respectively, instructive and binding. See infra Part III.A.1; e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 23 (2015) (“In separation of powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting NLRB v. Noel Canning, 573 U.S. 513, 524 (2014))). Both make clear that textual silence regarding removal does not confer absolute authority on a President to willy-nilly override a congressional judgment that expertise and insulation from direct presidential control take priority when a federal officer is tasked with carrying out certain adjudicative or administrative functions. As Justice Louis Brandeis eloquently opined, “[c]hecks and balances were established in order that this should be ‘a government of laws and not of men,’” observing further that the separation of powers was not adopted “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, 292-93 (1926) (Brandeis, J., dissenting).
A President who touts an image of himself as a “king” or a “dictator,”5 perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution. In our constitutional order, the President is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the Judiciary. U.S. CONST. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”). At issue in this case, is the President’s insistence that he has authority to fire whomever he wants within the Executive branch, overriding any congressionally mandated law in his way. 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 (“Letter from Acting SG”) (Feb. 12, 2025), https://perma.cc/D67G-FKK4 (describing the Trump administration’s view of the removal power). Luckily, the Framers, anticipating such a power grab, vested in Article III, not Article II, the power to interpret the law, including resolving conflicts about congressional checks on presidential authority. The President’s interpretation of the scope of his constitutional power—or, more aptly, his aspiration—is flat wrong.
The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law. Defendants concede that removal of plaintiff as a Board Member violates the terms of the applicable statute, see Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:12-13, and because this statute is a valid exercise of congressional power, the President’s excuse for his illegal act cannot be sustained.
I. BACKGROUND
The statutory and procedural background relevant to resolving this dispute is summarized below.
A. Statutory Background
The National Labor Relations Board (“NLRB”) was established ninety years ago by Congress in the National Labor Relations Act (“NLRA”) in response to a long and violent struggle for workers’ rights. See generally, J. Warren Madden, Origin and Early Years of the National Labor Relations Act, 18 HASTINGS L.J. 571 (1967); Arnold Ordman, Fifty Years of the NLRA: An Overview, 88 W. VA. L. REV. 15, 15-16 (1985). Congress sought to protect industrial peace and stability in labor relations and thus created a board to resolve efficiently labor disputes and protect the rights of employees to “self-organization, to form, join, or assist labor organizations [and] to bargain collectively through representatives of their own choosing.” 29 U.S.C. §157; see also id. § 151; Crey v. Westinghouse Elec. Corp., 375 U.S. 261, 271 (1964) (describing these goals); Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362 (1949) (same).
The NLRB is a “bifurcated agency” consisting, on one side, of a five-member, quasi-judicial “Board” that adjudicates appeals of labor disputes from administrative law judges (“ALJs”), and on the other, of a General Counsel (“GC”) and several Regional Directors who prosecute unfair labor practices and enforce labor law and policy. See NLRB, Who We Are, https://perma.cc/9RLA-FSYL; 29 U.S.C. §§ 153(a), (d), 160; Starbucks v. McKinney, 602 U.S. 339, 357 (2024) (Jackson, J., concurring in part and dissenting in part). The two sides operate independently, with the GC independent of the Board’s control. NLRB v. United Food & Com. Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 117-18 (1987) (describing how the Labor Management Relations Act of 1947 amended the NLRA to separate the prosecutorial and adjudicatory functions between the Board and General Counsel).
The NLRB generally addresses labor disputes as follows: Upon the filing of a “charge” by an employer, employee, or labor union, a team working under the Regional Director will investigate and decide whether to pursue the allegation as a formal complaint. See NLRB, Investigate Charges, https://perma.cc/CU82-KU4V.6 If the parties do not settle and the Director formally pursues the complaint, the Director will issue notice of a hearing before an ALJ. Id.; 29 U.S.C. § 160(b); 29 C.F.R. § 101.10; Starbucks, 602 U.S. at 342-43.7 If necessary, after issuance of a complaint, the Board may seek temporary injunctive relief in federal district court while the dispute is pending at the NLRB. 29 U.S.C. § 160(j); Starbucks, 602 U.S. at 342. The ALJ then gathers evidence and presents “a proposed report, together with a recommended order to the Board.” 29 U.S.C. § 160(c). That order will become the order of the Board unless the parties file “exceptions.” Id.; 29 C.F.R. §§ 101.11-.12. If the parties file exceptions requesting the Board’s review, the Board will consider the ALJ’s recommendation, gather additional facts as necessary, and issue a decision. 29 U.S.C. § 160(c); 29 C.F.R. § 101.12. The Board may craft relief, such as a cease-and-desist order to halt unfair labor practices or an order requiring reinstatement of terminated employees. 29 U.S.C. § 160(c). These orders, however, are not independently enforceable; the Board must seek enforcement in a federal court of appeals (and may appoint attorneys to do so). Id. §§ 154, 160(e); In re NLRB, 304 U.S. 486, 495 (1938) (noting compliance with a Board order is not obligatory until entered as a decree by a court). Aside from adjudicating disputes, the Board may also conduct and certify the outcome of union elections, 29 U.S.C. § 159, and promulgate rules and regulations to carry out its statutory duties, id. § 156.
Although both the Board members and the GC are appointed by the President with “advice and consent” from the Senate, id. §§ 153(a), (d), only the Board is protected from removal at-will by the President, who is authorized to remove a Board member “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause,” id. § 153(a). Such restrictions were intentional; much like many other multimember entities, the Board was designed to be an independent panel of experts that could impartially adjudicate disputes. See 29 U.S.C. § 153(a); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 CORNELL L. REV. 76, 770-71 (2013) (describing the NLRB as a classic example of an agency designed to be independent). Board members serve staggered five-year terms, and the President is authorized to designate one board member as Chairman. 29 U.S.C. § 153(a). In practice, the Board is partisan-balanced based on longstanding norms, though such a balance is not statutorily mandated. See Brian D. Feinstein & Daniel J. Hemel, Partisan Balance with Bite, 118 COLUM. L. REV. 9, 54-55 (2018).
B. Factual Background
As set out in plaintiff’s complaint and statement of material facts, and undisputed by defendants, plaintiff Gwynne Wilcox was nominated by President Biden and confirmed by the U.S. Senate to a second five-year term as member of the NLRB in September 2023. Pl.’s Mot. for Expedited Summ. J. (“Pl.’s Mot.”), Statement of Material Facts (“Pl.’s SMF”) ¶ 2, ECF No. 10-1; Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J., Statement of Undisputed Material Facts (“Defs.’ SUMF”) ¶ 2, ECF No. 23-2. She was designated Chair of the Board in December 2024. Complaint ¶ 12, ECF No. 1.
Shortly after taking office, President Trump moved Marvin Kaplan, a then-sitting Board member and a defendant in this case, into the position of Chair, replacing plaintiff. Id. ¶ 13. President Trump then, on January 27, 2025, terminated plaintiff from her position on the Board via an email sent shortly before 11:00 PM, by the Deputy Director of the White House Presidential Personnel Office. Pl.’s Decl., Ex. A, ECF No. 10-4; Pl.’s SMF ¶ 3; Defs.’ SUMF ¶ 3. The termination was not preceded by “notice and hearing,” nor was any “neglect of duty or malfeasance” identified, despite the explicit restrictions to removal of a Board member in the NLRA. Pl.’s Decl. ¶¶ 3-4; Pl.’s SMF ¶¶ 4-5; Defs.’ SUMF ¶ 5 (regarding lack of notice and hearing); Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:10-17. The email instead cited only political motivations—that plaintiff does not share the objectives of the President’s administration—and asserted, in a footnote, that the restriction on the President’s removal authority is unconstitutional as “inconsistent with the vesting of the executive Power in the President.” Pl.’s Decl. ¶ 3; Ex. A.
The NLRB’s Director of Administration, who reports directly to Mr. Kaplan, began the termination process, cutting off plaintiff’s access to her accounts and instructing her to clean out her office. Pl.’s Decl. ¶¶ 5-6. The Board already had two vacancies, and now, without plaintiff, it is reduced to only two sitting members—one short of the three-member quorum required to operate. [!!!] Compl. ¶ 18; 29 U.S.C. § 153(b). Removal of plaintiff has thus stymied the functioning of the Board.
Plaintiff filed the instant suit, challenging her removal and requesting injunctive relief against Mr. Kaplan so that she may resume her congressionally mandated role. See Compl. ¶¶ 21-22. Recognizing that this case involves a pure question of law, plaintiff moved for expedited summary judgment, on February 10, 2025, Pl.’s Mot., ECF No. 10, and defendants responded with a cross-motion for summary judgment, with briefing completed on a condensed schedule. See Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J. (“Defs.’ Opp’n”), ECF No. 23; Pl.’s Opp’n to Defs.’ Cross-Mot. and Reply in Supp. of Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 27; Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Reply”), ECF No. 30. Interested parties also weighed in as amici.8 Following a hearing, held on March 5, 2025, the parties’ cross-motions for summary judgement are ready for resolution.
II. LEGAL STANDARD
Summary judgment shall be granted “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). A fact is only “‘material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. (quoting Anderson, 477 U.S. at 248).
A plaintiff “seeking a permanent injunction . . . 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.” Monsanto Co v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
III. DISCUSSION
In the ninety years since the NLRB’s founding, the President has never removed a member of the Board. Pl.’s Mem. in Supp. of Pl.’s Mot. (“Pl.’s Mem.”) at 4, ECF No. 10-2. His attempt to do so here is blatantly illegal, and his constitutional arguments to excuse this illegal act are contrary to Supreme Court precedent and over a century of practice. For the reasons explained below, plaintiff’s motion is granted. Plaintiff’s termination from the Board was unlawful, and Mr. Kaplan and his subordinates are ordered to permit plaintiff to carry out all of her duties as a rightful, presidentially-appointed, Senate-confirmed member of the Board.
A. Humphrey’s Executor and its Progeny are Binding on this Court.
The Board is a paradigmatic example of a multimember group of experts who lead an independent federal office. Since the early days of the founding of this country, Congress, the President, and the Supreme Court all understood that Congress could craft executive offices with some independence, as a check on presidential authority. That understanding has not changed over the 150-year history of independent, multimember commissions, nor over the 90-year history of the NLRB. The Supreme Court recognized this history and tradition in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), in upholding removal protections for such boards or commissions, and this precedent remains not only binding law, but also a well-reasoned reflection of the balance of power between the political branches sanctioned by the Constitution.
1. Removal Restrictions on Board Members are Well-Grounded in History and Binding Precedent.
As a textual matter, the Constitution is silent as to removals. See In re Hennen, 38 U.S. 230, 258 (1839). Consequently, though Article II grants the President authority over some appointments—with advice and consent of the Senate—and vests in him the “executive power,” Article II contains no express authority from which to infer an absolute removal power. Compare U.S. CONST. art. II, § 1, cl. 1 (vesting clause), and id., § 2, cl. 2 (appointments clause); to id. art. I, § 8, cl. 18 (clause granting Congress the authority “to make all laws” “necessary and proper” for carrying out its powers and “all other Powers vested . . . in the Government”). The Supreme Court has held that a general power to remove executive officers can be inferred from Article II, see Myers, 272 U.S. at 163-64, yet the contours of that removal power and the extent to which Congress may impose constraints are nowhere clearly laid out.
The courts in such cases must therefore turn to established precedent—judicial decisions as well as general practice and tradition. The Supreme Court has repeatedly recognized that “‘traditional ways of conducting government . . . give meaning’ to the Constitution.” Mistretta v. United States, 488 U.S. 361, 401 (1989) (alteration in original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring)). Thus, “[ i]n separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” Zivotofsky, 576 U.S. at 23 (quoting Noel Canning, 573 U.S. at 524). Even when the validity of a particular power is in question, the Court will, “in determining the . . . existence of [that] power,” give weight to “the usage itself,” United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915), and “hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached,” Noel Canning, 573 U.S. at 526. Justice Frankfurter in his seminal concurring opinion in Youngstown declared that “systematic, unbroken” practice could even “be treated as a gloss on ‘executive Power’ vested in the President.” 343 U.S. at 610-11.
Not only are the removal protections on members of the independent, multimember boards like the NLRB supported by over a century of unbroken practice, but they have also been expressly upheld in clear Supreme Court precedent. Since 1887, Congress has created multiple independent offices led by panels whose members are appointed by the President but removable only for cause. See, e.g., Interstate Commerce Act, Pub. L. No. 49-41, ch. 104, § 11, 24 Stat. 379, 383 (1887) (creating the Interstate Commerce Commission, with restrictions on officers’ removal except for “inefficiency, neglect of duty, or malfeasance”); Federal Reserve Act, Pub. L. No. 63-64, ch. 6, § 10, 38 Stat. 251, 260-61 (1913) (creating the Federal Reserve Board, whose members are removable only “for cause”). In 1914, Congress established the Federal Trade Commission (“FTC”) with an “inefficiency, neglect of duty, or malfeasance in office” removal restriction for its five commissioners. FTC Act, Pub. L. No. 63-203, ch. 311, § 1, 38 Stat. 717, 717-18 (1914).
The Supreme Court explicitly upheld removal restrictions for such boards when considering removal protections for the commissioners of the FTC in Humphrey’s Executor in 1935, while also recognizing the President’s general authority over removal of executive branch officials. The Court noted that commissioners of the FTC, “like the Interstate Commerce Commission” “are called upon to exercise the trained judgment of a body of experts ‘appointed by law and informed by experience.’” Id. at 624 (quoting Ill. Cent. R.R. Co. v. Interstate Com. Comm’n, 206 U.S. 441, 454 (1907)). Congress, having the power to create such expert commissions with quasi-legislative and quasi-judicial authority, must also have, “as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal for except for cause in the meantime.” Id. at 629.
Two months later, with the guidance supplied in Humphrey’s Executor and following the model of the FTC as endorsed by the Supreme Court there, Congress established the National Labor Relations Board. See Madden, supra, at 572-73; Yapp USA Auto. Sys., Inc. v. NLRB, --F. Supp. 3d--, No. 24-cv-12173, 2024 WL 4119058, at *5 (E.D. Mich. Sep. 9, 2024). Both entities—the FTC and NLRB—have five-member leadership boards with staggered terms of several years, minimizing instability and allowing for expertise to accrue. See 29 U.S.C. § 153(a); Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 216 (2020). Both were intended to exercise impartial judgment. See Datla & Revesz, supra, at 770-71 (describing independence of the NLRB); Seila L., 591 U.S. at 215-16 (describing the FTC as “designed to be ‘non-partisan’ and ‘to act with entire impartiality’” (quoting Humphrey’s Ex’r, 295 U.S. at 624)). The Board, like the FTC, is “predominately quasi judicial and quasi legislative” in nature, with the primary responsibility of impartially reviewing decisions made by ALJs. Humphrey’s Ex’r, 292 U.S. at 624; see 29 U.S.C. § 160. In fact, the Board does not prosecute labor cases nor enforce its rulings. The side of the NLRB managed by the General Counsel—who is removable at-will by the President—carries out those more “executive” powers. See 29 U.S.C. § 153(d) (describing the General Counsel’s “final authority, on behalf of the Board” over “the investigation of charges and issuance of complaints . . . and . . . the prosecution of such complaints before the Board”). As plaintiff correctly states, the Board closely resembles the FTC and is thus “squarely at the heart of the rule adopted in Humphrey’s Executor.” Pl.’s Mem. at 9.
Numerous other offices have followed the mold of the NLRB and FTC with multimember independent leadership boards protected from at-will removal by the President. See Pl.’s Mem. at 7 n.2 (listing, e.g., the Merit Systems Protection Board, 5 U.S.C. § 1202(d); the Federal Labor Relations Authority, 5 U.S.C. § 7104(b); and the Federal Energy Regulatory Commission, 42 U.S.C. § 7171(b)(1)). “Since the Supreme Court's decision in Humphrey’s Executor, the constitutionality of independent [multimember] agencies, whose officials possess some degree of removal protection that insulates them from unlimited and instantaneous political control, has been uncontroversial.” Leachco, Inc. v. Consumer Prod. Safety Comm’n, 103 F.4th 748, 760 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025); see also The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional” issues of separation of powers.).9
Recent consideration of the constitutionality of the removal protections for NLRB members have accordingly upheld those constraints on presidential removal authority under Humphrey’s Executor. See, e.g., Overstreet v. Lucid USA Inc., No. 24-cv-1356, 2024 WL 5200484, at *10 (D. Ariz. Dec. 23, 2024); Company v. NLRB, No. 24-cv-3277, 2024 WL 5004534, at *6 (W.D. Mo. Nov. 27, 2024); Kerwin v. Trinity Health Grand Haven Hosp., No. 24-cv-445, 2024 WL 4594709, at *7 (W.D. Mich. Oct. 25, 2024); Alivio Med. Ctr. v. Abruzzo, No. 24-cv-2717, 2024 WL 4188068, at *9 (N.D. Ill. Sep. 13, 2024); YAPP USA Automotive Sys., 2024 WL 4119058, at *7. Courts have also recently upheld restrictions on removal under Humphrey’s Executor for other multimember boards, such as the Consumer Product Safety Commission (“CPSC”). See, e.g., Leachco, 103 F.4th at 761-62; Consumers’ Rsch. v. CPSC, 91 F.4th 342, 352 (5th Cir. 2024); United States v. SunSetter Prods. LP, No. 23-cv-10744, 2024 WL 1116062, at *4 (D. Mass. Mar. 14, 2024). The same has been true for the FTC. See, e.g., Illumina, Inc. v. FTC, 88 F.4th 1036, 1046-47 (5th Cir. 2023); Meta Platforms, Inc. v. FTC, 723 F. Supp. 3d 64, 87 (D.D.C. 2024). A court in this district has also upheld removal protections for the Merit Systems Protection Board. See Harris v. Bessent, No. 25-cv-412 (RC), 2025 WL 679303, at *7 (D.D.C. Mar. 4, 2025). The 150-year history and tradition of multimember boards or commissions and 90-year precedent from the Supreme Court approving of removal protections for their officers dictates the same outcome for the NLRB here.
2. Defendants’ Argument that Humphrey’s Executor Does Not Control Fails.
Discounting this robust history, defendants posit that the President’s removal power is fundamentally “unrestricted” and that only two, narrow “exceptions” have been recognized: one for “inferior officers with narrowly defined duties,” as established in Morrison v. Olson, 487 U.S. 654 (1988), and the other for “multimember bod[ies] of experts, balanced along partisan lines, that performed legislative and judicial functions and [do not] exercise any executive power,” as established in Humphrey’s Executor. Defs.’ Opp’n at 5-6 (second passage quoting Seila L., 591 U.S. at 216). According to defendants, neither exception applies to the Board. Id. at 6. Putting aside to address later whether congressional authority to constrain the President’s removal authority is characterized fairly by defendants as a narrow “exception” to the rule of “unrestricted” removal power, see infra Part III.A.3.b, Humphrey’s Executor plainly controls.
Defendants emphasize that Humphrey’s Executor understood the FTC at the time not to exercise any “executive power,” which was key to its “exception,” and that the NLRB today clearly “wield[s] substantial executive power.” Defs.’ Opp’n at 6-8 (relying on Seila L., 591 U.S. at 216 n.2, 218); see also Defs.’ Reply at 3. They do not, however, meaningfully distinguish between the authority of the FTC in 1935, as recognized in Humphrey’s Executor, and the authority of the NLRB today. The FTC in 1935 had powers mimicking those of both the Board and the NLRB’s GC. The FTC had broad powers of investigation and could issue a complaint and hold a hearing for potential unfair methods of competition. See Humphrey’s Ex’r, 295 U.S. at 620, 621; see also 15 U.S.C. § 49 (authorizing the FTC’s subpoena power). The FTC, upon finding a violation, could issue a cease-and-desist order and then go to the Court of Appeals for enforcement. Humphrey’s Ex’r, 295 U.S. at 620-21; see also FTC Act, ch. 311, § 5, 38 Stat. at 719-20. The party subject to the order could also appeal to that court. Humphrey’s Ex’r, 295 U.S. at 621. Further, the FTC could issue rules and regulations regarding unfair and deceptive acts. See FTC Act, § 6, 38 Stat. at 722; Hon. R. E. Freer, Member of the FTC, Remarks on the FTC, its Powers and Duties at 2 (1940), https://www.ftc.gov/system/files/docume ... welers.pdf.
The NLRB’s collective authority, though comparable, see supra Part I.A (describing the NLRB’s GC’s authority to investigate and pursue enforcement against unfair labor practices and the Board’s adjudicatory authority and power to issue unenforceable cease-and-desist orders), is, if anything, less extensive than that of the FTC. The NLRB hardly engages in rulemaking (other than to establish its own procedures), instead relying on adjudications for the setting of precedential guidance. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (“The [NLRB], uniquely among major federal administrative agencies, has chosen to promulgate virtually all the legal rules in its field through adjudication rather than rulemaking.”). Moreover, the aspects of the NLRB’s authority most executive in nature—prosecutorial authority to investigate and bring civil enforcement actions—are tasks assigned to the GC instead of the Board itself. See 29 U.S.C. § 153(d).10
Even though the Supreme Court of 1935 may have not referred to these classic administrative powers as “executive” and the Supreme Court today would, see, e.g., Seila Law, 591 U.S. at 216 n.2, the substantive nature of authority granted to these two independent government entities does not significantly differ. If the Supreme Court has determined that removal restrictions on officers exercising substantially the same authority do not impermissibly intrude upon presidential authority, Humphrey’s Executor cannot be read to allow a different outcome here. That is especially true considering that the Supreme Court, in its next major decision addressing removal protections for executive branch officers, rejected the notion that the permissibility of “‘good cause’-type restriction[s] . . . turn[s] on whether or not th[e] official” is classified as “purely executive” or exercising quasi-legislative or quasi-judicial functions. See Morrison, 487 U.S. at 689.11
Defendants make a final, superficial distinction between the NLRB and the FTC to argue that the precedent of Humphrey’s Executor should not apply. Defs.’ Opp’n at 10. The NLRB, they note, has stricter removal protections because its members cannot be removed for “inefficiency,” whereas FTC members can. Id. In both Consumers’ Research, 91 F.4th at 346, 355-56, and Leachco, 103 F.4th at 761-63, however, courts of appeals upheld removal protections that did not include an exception for “inefficiency.” “Inefficiency” does not differ in substance from “neglect of duty,” so omitting “inefficiency” as a grounds for removal cannot be a dispositive difference in the President’s ability to exercise his Article II powers over the NLRB. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 COLUM. L. REV. 1, 8, 69 (2021) (explaining that the absence of “inefficiency” as a ground for removal does not unconstitutionally interfere with the President's authority). Defendants offer no reason to suggest otherwise. The NLRB fits well within the scope of Humphrey’s Executor.
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Part 2 of 2
3. Defendants’ Argument that Humphrey’s Executor Has Been “Repudiated” and is No Longer Good Law Is Not Persuasive.
Fundamentally, the position of defendants and their supporting state amici urging this Court not to apply Humphrey’s Executor stems from a reading of the Supreme Court’s subsequent case law as “repudiat[ing]” the precedent. Defs.’ Opp’n at 9 (quoting Seila L., 591 U.S. at 239 (Thomas, J., concurring in part)); Tennessee’s Amicus Br. at 7-10, ECF No. 18 (arguing forcefully that Humphrey’s Executor was wrongly decided and has been “narrowed . . . nearly out of existence”); Twenty States’ Amicus Br. at 3-8, ECF No. 26. Defendants therefore argue that Humphrey’s Executor must be read extremely narrowly, despite that “whatever little remains” is binding on this Court. Defs.’ Opp’n at 8 n.2. To the contrary, an unbroken line of cases since Humphrey’s Executor has reinforced the constitutionality of removal restrictions on multimember expert boards, and the pre-Humphrey’s Executor history demonstrates that this decision was well-grounded in accepted principles of checks and balances.
a. Post-Humphrey’s Executor Case Law Reinforces its Central Holding.
In every case following Humphrey’s Executor, the Supreme Court has preserved the constitutionality of removal protections on independent, multimember boards and commissions. Shortly following Humphrey’s Executor, in Wiener v. United States, 357 U.S. 349 (1958), the Court held that the Constitution did not grant the President authority to remove members of the multimember War Claims Commission “for no reason other than that he preferred to have on that Commission men of his own choosing.” Id. at 355-56. Thirty years later, in Morrison, the Court again recognized the exception to the President’s removal power for officers with adjudicatory powers, but further explained that the permissibility of removal restrictions did not turn on whether the officers’ functions were “quasi-legislative and quasi-judicial,” as opposed to executive in nature, instead looking to the degree to which they impeded the President’s ability to execute the laws. See 487 U.S. at 691-93 (upholding removal protections for independent counsel contained in the Ethics in Government Act).
Then, in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010), the Court reiterated its holding in Humphrey’s Executor that “Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause” and declined to reexamine that precedent. Id. at 483 (striking down double for-cause removal protections); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d 667, 686 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (describing the defendants as attempting to compare the office’s removal protections to that of “the FCC, the FTC, and the NLRB,” which were understood to be “permissible under the Supreme Court's 1935 decision in Humphrey’s Executor”).
Most recently, in Seila Law, the Supreme Court likewise declined to “revisit [its] prior decisions allowing certain limitations on the President’s removal power.” 591 U.S. at 204. While defendants make much of dicta in this decision, such as that the FTC’s powers would now be considered executive, Defs.’ Opp’n at 9; see also Tennessee’s Amicus Br. at 9, Seila Law made key distinctions between single-head offices and multimember boards or commissions that reinforce why placing restrictions on removal of leaders of the latter is not problematic under our Constitution, see 591 U.S. at 224-26. Despite restrictions on removal, the President can exercise more control over a multimember board through his appointment power as vacancies arise, and with staggered terms, some Board vacancies arise during each administration. See id. at 225. Those new appointees can restrain the Board member the President might otherwise prefer to remove, and no President will be “saddled” with a single “holdover Director from a competing political party who is dead set against” his agenda. Id. at 225 (emphasis in original). That is particularly the case here, where President Trump could exercise near total control over the NLRB by appointing two members of his choosing to the Board to join Mr. Kaplan, whom the President appointed during his first term and recently elevated to Chairman, creating a majority of Trump appointees, and by appointing a General Counsel of his choice. See NLRB, Members of the NLRB Since 1935, https://www.nlrb.gov/about-nlrb/who-we- ... since-1935 (last visited Mar. 5, 2025); 29 U.S.C. § 153(d) (allowing the General Counsel to be removed at will).12
Moreover, the multimember structure prevents the public from being subject to decisions made unilaterally by an unelected official, who could become captured by private interests. The distribution of power among several individuals on the Board “avoids concentrating power in the hands of any single individual.” Seila L., 591 U.S. at 222-23. Lastly, unlike single-head offices, entities led by multimember boards have a robust basis—more than even a “foothold”—in “history [and] tradition.” Id. at 222. For these reasons, when the Court ultimately invalidated the removal restrictions on the CFPB’s director as a single head of the bureau, Chief Justice Roberts expressly suggested that “converting the CFPB into a multimember agency” would solve “the problem.” Id. at 237.13
Finally, two months ago, the Supreme Court denied certiorari in Leachco, where the Tenth Circuit upheld removal protections for commissioners on the Consumer Product Safety Commission under Humphrey’s Executor—once again, declining to revisit that precedent. See 103 F.4th 748 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025).
b. Presidential Removal Power Has Never Been Viewed as Unrestricted.
Defendants and their supporting states’ amici go even further in suggesting that not only has Humphrey’s Executor been repudiated over time but the opinion was also wrong at the time it was decided. Defs.’ Opp’n at 8 n.2, 9; Tennessee’s Amicus Br. at 7; see Twenty States’ Amicus Br. at 6-7. Defendants read Humphrey’s predecessor, Myers v. United States, 272 U.S. 52 (1926), as formalizing the President’s “unrestricted removal power,” which ultimately derives from the “vesting” clause in Article II establishing a “unitary” executive. Defs.’ Reply at 1-2 (first passage quoting Seila L., 591 U.S. at 215); Motions H’rg (Mar. 5, 2025), Rough Tr. at 30:22-31:4 (plaintiff’s counsel describing Myers as a “building block” in the unitary executive theory). They are again misguided. While the Myers Court made clear that the President has a general removal power for executive officials, defendants’ myopic focus on this case loses sight of the limitations in its holding, a point driven home in Humphrey’s Executor decided less than a decade later. Nothing in the Constitution or the historical development of the removal power has suggested the President’s removal power is absolute. In fact, the history upon which Myers relies and the immediately following Supreme Court decisions undercut any view that Congress, when exercising its constitutional authority to shape executive offices, is completely barred from conditioning the President’s exercise of his removal authority.
In Myers, Chief Justice Taft—the only person to have served both as the President and a Justice of the Supreme Court—recounted and relied on the history of the Decision of 1789, a congressional debate about the President’s removal powers during the First Congress, to declare unconstitutional a statute requiring the “advice and consent of the Senate” for both appointment and removal of federal postmasters. See 272 U.S. at 107, 111-36, 176-77.14 The First Congress had created the first three executive departments, the Departments of Foreign Affairs, War, and Treasury, and after much debate, ultimately granted plenary removal power to the President over the Secretary of Foreign Affairs and crafted that agency to be an arm of the President. Id. at 145; see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 25-29 (1994). The First Congress did not make clear whether that decision—to grant the President plenary removal authority over the Secretary of Foreign Affairs—derived from the Constitution or rather was granted by Congress’s own prerogative. See Myers, 272 U.S. at 285 n.75 (Brandeis, J., dissenting); Lessig & Sunstein, 94 COLUM. L. REV. at 26-28; Seila L., 591 U.S. at 271 (Kagan, J., dissenting in part and concurring in part) (“The summer of 1789 thus ended without resolution of the critical question: Was the removal power ‘beyond the reach of congressional regulation’?” (quoting Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1072 (2006))). Some clarity in the First Congress’s view may be gleaned, however, by the disparate approach that the Congress took with respect to the Department of the Treasury. Seeing the Treasury as a department less intrinsically tied to core executive powers enumerated in Article II like that over foreign policy, Congress gave far more direction to the structure of that department, specifying in detail its offices and functions and granting independence from unfettered presidential removal power to the Comptroller. See Lessig & Sunstein, supra, at 27-28. In short, the executive branch was not treated as strictly unitary, but rather as a branch with units of varying degrees of independence and generally subject to congressional direction through checks and balances—including on its personnel. See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1964 n.135 (2011).
Chief Justice Taft in Myers cherry-picked only one portion of that 1789 story by highlighting what the First Congress did with the Department of Foreign Affairs. See 272 U.S. at 113-36; Seila L., 591 U.S. at 277 (Kagan, J., dissenting in part and concurring in part) (describing how scholars have “rejected Taft’s one-sided history”). Despite the structure of the Post Office far more closely resembling the Treasury Department of 1789 than the Department of Foreign Affairs, Chief Justice Taft ignored the actual nuances reflected in the Decision of 1789 as to congressional power to condition the President’s removal power reflected in the treatment of the new Treasury Department and instead read this history “through executive-colored glasses” to support “his strong preconceptions” as former President “about presidential removal power,” to reach the conclusion that a regional postmaster could not be subject to removal protections. Robert Post, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, 45 J. SUP. CT. HIST. 167, 172 & n.56 (2020) (first passage quoting Hayden Smith to William H. Taft (Sep. 1, 1925) (Taft Papers)); Myers, 272 U.S. at 176; Lessig & Sunstein, supra, at 25-30.15 Dicta in the lengthy Myers majority opinion made broad pronouncements about the importance of the presidential removal power that were both contradictory and inapposite: While Chief Justice Taft promoted the benefits of recognizing vast presidential removal authority on one hand, he recognized that Congress could legislate around appointment and removal of principal officers, in some circumstances, and inferior officers, refusing to threaten protections for the civil service, on the other. Id. at 127, 134-35, 161-62, 183, 186 (“[T]here may be duties of a quasi judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. . . . [Moreover,] [the appointments clause] give[s] to Congress the power to limit and regulate removal of such inferior officers by heads of departments when it exercises its constitutional power to lodge the power of appointment with them.”).16
Only nine years later, in Humphrey’s Executor, the Supreme Court—consisting of six of the same justices who participated in the Myers decision (i.e., Justices Sutherland, Van Devanter, Brandeis, Stone, McReynolds, and Butler)—unanimously retreated, denouncing the idea of “illimitable” removal authority and disavowing Myers’ abundant dicta. Morrison, 487 U.S. at 687 (“In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies.” (quoting 292 U.S. at 629)). Justice Sutherland, who authored Humphrey’s despite joining the majority opinion in Myers, limited Myers to “the narrow point” that “the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress” and wrote that other “expressions . . . are beyond the point involved and therefore do not come within the rule of stare decisis. In so far as they are out of harmony with the views here set forth, these expressions are disapproved.” Humphrey’s Ex’r, 292 U.S. at 626-27. Humphrey’s Executor, consistent with the dissents in Myers, did not foreclose that the President may have total authority over removal of some officials (like “high political officers,” Myers, 272 U.S. at 241 (Brandeis, J., dissenting)), but it made clear that his removal authority may certainly be limited by Congress in other circumstances.17 Humphrey’s Ex’r, 292 U.S. at 629-32.
The takeaway from Myers is therefore discrete and uncontroversial: While Congress may structure executive branch offices via statute and legislate about the roles of executive branch officers, including standards for their removal, Congress cannot reserve for itself an active role in the removal decision. The problem in Myers was that the statute required Senate advice and consent to remove postmasters and that encroached on the presidential power of removal. 272 U.S. at 107. It cannot be gainsaid that the President has the power of removal of executive branch officers. When Congress has statutorily provided a for-cause removal requirement, this means that the President has the authority to determine whether the for-cause requirement prescribed by Congress has been met. As the Supreme Court has since repeatedly articulated, “the essence” of “Myers was the judgment that the Constitution prevents Congress from draw[ing] to itself the” power to remove. Morrison, 487 U.S. at 686 (citing Bowsher v. Synar, 478 U.S. 714 (1986), for that interpretation). That holding is completely compatible with Humphrey’s Executor. Little more can be gleaned from the unreliable historical retelling and prolix Myers majority opinion.18
In short, neither the Founding-era history nor Myers can carry the heavy weight that the current President has thrust upon it. See Letter from Acting SG (“In Myers . . ., the Supreme Court recognized that Article II of the Constitution gives the President an ‘unrestricted’ power of ‘removing executive officers.’”). Neither supports the view that the President’s removal power is “illimitable.” Whatever the benefits of unrestricted removal authority under certain circumstances, “[t]he Framers did not constitutionalize presidential control over all that is now considered ‘executive’; they did not believe that the President must have plenary power over all we now think of as administration,” Lessig & Sunstein, supra, at 118, and neither did the early twentieth century Supreme Court.
The holding in Humphrey’s Executor, that Congress could create boards or commissions with elements of independence from the President, was therefore not at all a “fiction” or an aberration, as defendants have supposed. Defs.’ Opp’n at 9.19 Humphrey’s Executor, and thus NLRB Board members’ removal protections, are consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements. That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence.
c. Humphrey’s Executor Remains Binding.
In any case, Humphrey’s Executor remains binding on this Court, as defendants rightly acknowledge. See Defs.’ Opp’n at 8 n.2; Illumina, 88 F.4th at 1047 (“[T]he question of whether . . . Humphrey’s Executor [is] no longer binding” is for the Supreme Court alone to answer.). As the Supreme Court has made clear, “[ i]f a precedent . . . has direct application in a case, yet appears to rely on reasons rejected in some other line of decisions,” the lower courts should still “leav[e] to the [Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also Nat’l Sec. Archive v. CIA, 104 F.4th 267, 272 n.1 (D.C. Cir. 2024) (“This court is charged with following case law that directly controls a particular issue, ‘leaving to [the Supreme] Court the prerogative of overruling its own decisions.’” (alterations in original) (quoting Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023))); Meta Platforms, 723 F. Supp. 3d at 87 (“It is certainly not this Court’s place to deem a long-standing Supreme Court precedent obsolete . . . and thus no longer binding.” (internal quotation marks and citation omitted)). This Court would be bound to conclude that plaintiff’s termination was unlawful even were the conclusion reached—and this Court adamantly has not—that Humphrey’s Executor was, by today’s measure, ill-reasoned or wrongly decided.
B. Plaintiff is Entitled to Permanent Declaratory and Injunctive Relief.
For all of these reasons, plaintiff prevails on the merits and is therefore entitled to a declaratory ruling that she was unlawfully terminated from her position as a member of the Board. Defendants concede as much. Motions H’rg (Mar. 5, 2025), Rough Tr. at 71:23-72:1 (defense counsel stating, “We are not fighting this requested declaratory judgment.”).
Plaintiff further requests injunctive relief against Mr. Kaplan, ordering him to allow plaintiff to carry out all of her duties. Compl. at 7. To demonstrate that injunctive relief is warranted, a plaintiff must show that (1) she has suffered an irreparable injury, (2) remedies available at law are inadequate to compensate, (3) a remedy in equity is warranted considering the balance of the hardships to each party, and (4) the public interest is not disserved. eBay Inc. v. MercExchange LLC, 547 U.S. 388, 391 (2006). Notwithstanding plaintiff’s success on the merits, defendants contest her entitlement to injunctive relief. Defs.’ Opp’n at 10.
1. Plaintiff’s Irreparable Harm and Inadequate Remedies at Law
Plaintiff is suffering irreparable harm that cannot be repaired in the absence of an injunction.20 Courts have recognized as irreparable harms the “unlawful removal from office by the President” and “the obviously disruptive effect” that such removal has on the organization’s functioning. 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). In Berry, terminated members of the Civil Rights Commission challenged President Reagan’s decision to remove them. Id. at *1. The Commission was “left without a quorum,” and the court recognized as an irreparable injury both the commission’s inability to “fulfill its mandate” and the individuals’ inability to serve “Congress in the furtherance of civil rights.” Id. at *5. Likewise here, plaintiff has been deprived of a presidentially appointed and congressionally confirmed position of high importance, and both she and, by consequence, the NLRB have been deprived of the ability to carry out their congressional mandate in protecting labor rights—which cannot be retroactively cured by monetary damages. See id.; Dellinger v. Bessent, No. 25-cv-385 (ABJ), 2025 WL 471022, at *11-13 (D.D.C. Feb. 12, 2025) (“[T]he loss of the ability to do what Congress specifically directed [her] to do cannot be remediated with anything other than equitable relief.”); Harris v. Bessent, --F. Supp.3d--, No. 25-cv-412 (RC), 2025 WL 521027, at *7 (D.D.C. Feb. 18, 2025) (“By vindicating [her] right to occupy th[at] office, th[is] plaintiff[] act[s] as much in [her] own interests as those of [her] agenc[y’s]. . . . Striking at the independence of these officials accrues harm to their offices, as well.”).21
Furthermore, plaintiff and the NLRB suffer an injury due to the loss of the office’s independence. As an entity entrusted with making impartial decisions about sensitive labor disputes, the NLRB’s character and perception as neutral and expert-driven is damaged by plaintiff’s unlawful removal. See Humphrey’s Ex’r, 295 U.S. at 630 (“[The] coercive influence [of the removal power] threatens the independence of a commission.”); Harris, 2025 WL 679303, at *13 (“[T]he MSPB's independence would evaporate if the President could terminate its members without cause, even if a court could later order them reinstated.”). Money likewise cannot make up for that kind of intangible and reputational harm.
Defendants argue that, regardless of the injury, plaintiff’s requested remedy—reinstatement to her position—is one the Court cannot grant. Defs.’ Opp’n at 11. Not only have all previous cases sought back pay instead of reinstatement, defendants point out, but also reinstatement is not a remedy historically available at equity, which constrains the relief available to the Court today. Id. at 12 (citing Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 319 (1999)). Plaintiff counters, however, that she does not request the remedy of “reappointment” and does not need to be reinstated: She requests only a declaration that the President lacked authority to remove her—making the termination email void ab initio—and injunctive relief to enable her to carry out her position as before. See Pl.’s Reply at 9.
Defendants do not challenge the Court’s ability to afford declaratory relief, but they do challenge an injunction running against the executive branch, even against the President’s subordinates, to permit plaintiff to carry out her duties. Defs.’ Opp’n at 11, 13. They contend that such relief would effectively “compel[]” the President “to retain the services of a principal officer whom he no longer believes should be entrusted with the exercise of executive power.” Defs.’ Opp’n at 11; see also Defs.’ Reply at 7-8. At most, however, this argument simply restates defendants’ position on the merits, because, as a general matter, courts undoubtedly have authority to constrain unlawful presidential action by enjoining the President’s subordinates. See, e.g., Youngstown, 343 U.S. at 582, 589 (holding a presidential act unconstitutional and affirming the district court judgment which restrained Secretary of Commerce); Chamber of Com. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“[ I]t is now well established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive.’ Franklin v. Massachusetts, 505 U.S. 788, 815 (1992) (Scalia, J., concurring in part and concurring in the judgment). Even if the Secretary were acting at the behest of the President, this ‘does not leave the courts without power to review the legality [of the action], for courts have power to compel subordinate executive officials to disobey illegal Presidential commands.’ Soucie v. David, 448 F.2d 1067, 1072 n. 12 (D.C. Cir. 1971).” (alterations in original)); Dellinger v. Bessent, No. 25-5028, 2025 WL 559669, at *6 n.1 (D.C. Cir. Feb. 15, 2025) (noting that a court “can unquestionably review the legality of the President’s action by enjoining the officers who would attempt to enforce the President’s order”).
Moreover, the D.C. Circuit has held such relief is appropriate in this type of employment context: A court may, by targeting a President’s subordinates, “reinstate a wrongly terminated official ‘de facto,’ even without a formal presidential reappointment” that would require injunctive relief against the President himself. Severino v. Biden, 71 F.4th 1038, 1042-43 (D.C. Cir. 2023) (holding that the plaintiff’s injury was therefore redressable); cf. Swan v. Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996) (holding that plaintiff’s claim was redressable because injunctive relief against inferior officials, who could de facto reinstate plaintiff by allowing him to exercise the privileges of his office, would remedy plaintiff’s harm); see also Harris, 2025 WL 679303, at *10-12 (holding that the court can order such relief to remedy an unlawful termination and relying on Swan and Severino); Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ), 2025 WL 665041, at *29-31 (D.D.C. Mar. 1, 2025) (same). The Court therefore has the authority to issue both the declaratory and injunctive remedies that plaintiff seeks.22
2. Balance of the Equities and the Public Interest
The balance of the equities and the public interest also favor injunctive relief here. See Nken v. Holder, 556 U.S. 418, 435 (2009) (noting that, where the government is a party, “[t]hese two factors merge”). The public has an interest in efficient and peaceful resolution of labor conflicts, and the Board’s functioning is crucial to that goal. In 2024, the NLRB received 20,000 to 30,000 unfair labor practice charges, and the Board reviewed 144 unfair labor practice cases and 115 election certification cases. See Nineteen States & D.C.’s Br. at 7, ECF No. 31 (citing NLRB, Investigate Charges, https://perma.cc/CU82-KU4V; NLRB, Board Decisions Issued, https:www.nlrb.gov/reports/agency-performance/board-decisions-issued (last visited Feb. 24, 2025)). Without a functioning NLRB, unfair labor practices go unchallenged, union elections go unrecognized, and pending labor disputes go unreviewed. See Pl.’s Mem. at 12 (providing one example where Whole Foods has refused to recognize a union election because it claims the NLRB lacks the authority to certify it); Pl.’s Reply at 12 (citing an additional example where CVS has refused to recognize a majority elected union). Incentives to comply with national labor law may be severely undercut if no agency is available for enforcement. Employees, employers, and bargaining units all suffer as a result. The public also has an interest in the protection of duly enacted, constitutional laws—like the NLRA—from encroachment from other branches. See League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“[T]here is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.’” (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994))). Reinstating plaintiff would allow the NLRB to reach a quorum, thereby allowing the Board to carry out the important work in promoting labor stability, adjudicating labor disputes, and protecting workers’ rights, without inflicting any measurable harm on defendants.23
Defendants protest that the President will indeed experience harm—by virtue of retaining “a principal officer whom the President no longer believes should be entrusted with the exercise of executive power,” resulting in the executive branch “slip[ping] from the Executive’s control, and thus from that of the people.” Defs.’ Opp’n at 15 (second passage quoting Free Enter. Fund, 561 U.S. at 499). Yet, President Trump can exercise control over the NLRB by appointing two members of his choosing to the vacant seats and appointing a General Counsel who will adopt his enforcement priorities; he simply has chosen not to do so. In any case, whether the public will benefit more from the balance Congress has struck in preserving some independence from political whims in the administration of our national labor laws or from complete executive control goes to the core of the constitutional question underlying the merits—and thus the answer is dictated by binding precedent.
Finally, defendants predict their ultimate success before the Supreme Court, warning that if plaintiff is allowed to resume her duties on the Board now, any NLRB decisions in the meantime may be voidable, and “the NLRB will be under a heavy cloud of illegitimacy.” Defs.’ Reply at 9; see also Defs.’ Opp’n at 16; Twenty States’ Amicus Br. at 16 (suggesting that “reinstatement hampers effective governance” by causing “intra-office ‘chaos’” and questions about the fitness of the official). The possibility of future changes in the law is not enough, however, to permit an unlawful termination and the halting of all Board activity in the meantime. Plaintiff’s wrongful termination has caused “chaos” enough and shall not be allowed to stand based on defendants’ self-serving speculation.
IV. CONCLUSION
The President seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme. Defendants cite in their briefing Trump v. United States, 603 U.S. 593, 608-09 (2024) (granting the President absolute and presumptive immunity from criminal liability for “official acts”), to argue that the removal power is “conclusive and preclusive,” with the result that the President need not be subject to criminal or civil legislative constraints. Defs.’ Reply at 7. The courts are now again forced to determine how much encroachment on the legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that is untouchable by the law. The President has given no sufficient reason to accept that path here.
Humphrey’s Executor and its progeny control the outcome of this case and require that plaintiff be permitted to continue her role as Board member of the NLRB and her termination declared unlawful and void. The Constitution and caselaw are clear in allowing Congress to limit the President’s removal power and in allowing the courts to enjoin the executive branch from unlawful action. Defendants’ hyperbolic characterization that legislative and judicial checks on executive authority, as invoked by plaintiff, present “extraordinary intrusion[s] on the executive branch,” Defs.’ Opp’n at 1, is both incorrect and troubling. Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy. See Myers, 272 U.S. at 293 (Brandeis, J., dissenting). An American President is not a king—not even an “elected” one24—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: March 6, 2025
__________________________
BERYL A. HOWELL
United States District Judge
_______________
Notes:
1 Compare, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008), Saikrishna B. Prakash, Imperial from the Beginning: The Constitution of the Original Executive (2015), and Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 597 (1994); with, e.g., Allen Shoenberger, The Unitary Executive Theory is Plainly Wrong and Anti-American: “Presidents are Not Kings,” 85 ALB. L. REV. 837, 837 (2022), Christine Kexel Chabot, Interring the Unitary Executive, 98 NOTRE DAME L. REV. 129 (2022), and Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 4 (1994) (“Any faithful reader of history must conclude that the unitary executive . . . is just myth.”); Cass R. Sunstein, This Theory is Behind Trump’s Power Grab, N.Y. TIMES (Feb. 26, 2025), https://www.nytimes.com/2025/02/26/opin ... eory.html; see also Julian Davis Mortenson, The Executive Power Clause, 168 U. PA. L. REV. 1269, 1334 (2020) (describing “the exercise of executive power” as “fully subordinate to instructions by its legislative principal” at the founding).
2 The academy has provided various formulations of the “unitary executive” theory. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1158 (1992) (“Unitary executive theorists claim that all federal officers exercising executive power must be subject to the direct control of the President.”); Lessig & Sunstein, supra, at 2 (“Many think that under our constitutional system, the President must have the authority to control all government officials who implement the laws.”); Chabot, supra, at 129 (2022) (describing the “unitary executive” theory as the idea that the Constitution gave the President “plenary removal power” affording him “‘exclusive control over subordinates’ exercise of executive power”).
3 Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 578 (1974) (quoting The President’s Comm. on Admin. Mgmt., Administrative Management in the Government of the United States 30 (1937)).
4 In 1834, President Andrew Jackson fired two Secretaries of the Treasury when each refused his order to remove U.S. funds from the Second National Bank, which Jackson viewed as having “resist[ed] his reelection in part with bank funds,” and these removal actions triggered a congressional condemnation resolution for an abuse of power. See Lessig & Sunstein, supra n.1, at 78-80. Jackson’s replacement as Secretary at Treasury, Roger Taney, did as ordered and was later appointed Chief Justice. Id. at 79. The resolution condemning President Jackson was ultimately expunged, in 1837, but not without significant debate and Jackson’s reputational decline. See id. at 81-83.
Over thirty years later, in 1867, President Andrew Johnson’s removal of the Secretary of War in defiance of a congressional statute led to his impeachment and near conviction. Richard Murphy, 32 FED. PRAC. & PROC. JUD. REV. § 8128 (2d ed.) (2024).
5 See @WhiteHouse, X (Feb. 19, 2025, 1:58 PM), https://perma.cc/V9Y2-SWRD (“LONG LIVE THE KING!”); WSJ News, Trump Says He Won’t Be a Dictator “Except for Day One” if Re-Elected, YOUTUBE (DEC. 6, 2023), https://www.youtube.com/watch?v=dQkrWL7YuGk; see also @realDonaldTrump, X (Feb. 15, 2025, 1:32 PM), https://perma.cc/S5GR-BXF5 (“He who saves his Country does not violate any Law.”). Some of defendants’ supporting amici also draw analogies to the British monarchy; Tennessee has described the tradition of the British king’s “‘prerogative power to remove’ executive officers ‘at will,’” which “carried into the United States.” Tennessee’s Amicus Br. at 5-6 (quoting Michael W. Connell, The President Who Would Not Be King 162 (2020)). In a democracy created to repudiate that very regime, that analogy has little purchase.
6 The initial request made by the employee, union, or employer is referred to as a “charge”; only the Director issues a “complaint.” NLRB, What We Do, https://perma.cc/CU82-KU4V.
7 If the parties do formally settle after issuance of a complaint, Board approval is required. NLRB, 484 U.S. at 120.
8 Amici include: the Constitutional Accountability Center (“CAC”) and a cohort of nineteen states and the District of Columbia, led by Minnesota, writing in support of plaintiff, see CAC’s Amicus Br., ECF No. 15; Nineteen States & D.C.’s Amicus Br., ECF No. 31; and Tennessee and a cohort of twenty states, led by Florida, writing in support of defendants, see Tennessee’s Amicus Br., ECF No. 18; Twenty States’ Amicus Br., ECF No. 26.
9 Defendants protest the reliance on history and tradition because independent multimember commissions date back only to the late 1880s. Defs.’ Reply at 4-5. “[S]uch a practice comes far too late to provide reliable evidence of the original public meaning of Article II or the Constitution’s separation of powers,” in defendants’ view. Defs.’ Reply at 4-5. That in no way invalidates the significance of longstanding tradition, however, which is probative “[e]ven when the nature of or longevity of [the] practice is subject to dispute, and even when that practice began after the founding era.” Noel Canning, 573 U.S. at 525; see id. at 528-29 (relying on a post-Civil War practice of intra-recess appointments); CAC’s Amicus Br. at 11, ECF No. 15 (making this point).
10 Defendants suggest that because the NLRB makes “significant decisions shaping the rights and obligations of Americans” and “set[ting] federal labor policy,” the “constitutional calculus” is different, and the Humphrey’s Executor “exception” cannot apply. Defs.’ Reply at 3, 5; Motions H’rg (Mar. 5, 2025), Rough Tr. at 54:1-7 (citing NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990) (“[T]he NLRB has the primary responsibility for developing and applying national labor policy.”)). Defendants do not, however, explain how applying federal law in individual adjudications establishes “federal labor policy” any more than the rulemaking and adjudications of the FTC in Humphrey’s Executor do, nor do they explain why subsequent caselaw—see supra Part III.A.3.a—should be read as putting such a gloss on the holding of Humphrey’s. Plaintiff contributed little to the debate about the scope of the NLRB’s powers that may be considered “executive,” simply tying its authorities closely to the FTC in 1935, despite the NLRB’s bifurcated structure, resulting in a more cabined exercise of any executive authority by the Board itself. See Pl.’s Reply at 3-5; see also Motions H’rg (Mar. 5, 2025), Tr. at 23:5-13 (plaintiff’s counsel stating, “answering the question about exactly what ‘executive’ means and what those terms ‘quasi-legislative’ and ‘quasijudicial’ mean, it’s not the easiest thing in the world. I think, for purposes of this motion that’s before you, I think what matters is that . . . Humphrey’s Executor is binding.”).
11 Defendants’ argument about the exercise of “executive power” is ultimately tautological and leaves Humphrey’s Executor completely devoid of force. They reason that because the NLRB is housed within the executive branch, the Board inherently exercises “executive power.” Defs.’ Opp’n at 7 (citing Seila L., 591 U.S. at 216 n.2 (quoting City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013))). Reading Humphrey’s Executor to allow removal protections only for offices that do not exercise “executive power,” defendants then conclude that the NLRB does not fit within Humphrey’s Executor. The necessary implication of such reasoning is that no board or commission placed with the executive branch could, as a constitutional matter, be legally subject to removal protections duly enacted by Congress. Yet, defendants dodge that extraordinary result and contradictorily suggest that removal protections on the Federal Reserve Board are acceptable because that Board does not exercise an “executive function.” Defs.’ Reply at 5; see also Motions H’rg (Mar. 5, 2025), Rough Tr. at 59-60 (defense counsel declining to discuss Federal Reserve Board or the Federal Open Market Committee or why these entities should be treated differently than the NLRB as to presidential removal power).
Recognizing that the exercise of “executive power” could not be dispositive, the Fifth Circuit in Consumers’ Research agreed with the plaintiffs there that the CPSC “wields substantial executive power” but still held that the CPSC was constitutional under Humphrey’s Executor. 91 F.4th at 353-55 (“Having concluded that the Commission exercises substantial executive power (in the modern sense), we must next consider whether that characteristic—standing alone—removes the Commission from the Humphrey's exception. We conclude that it does not . . . .”). The Fifth Circuit examined the other factors in Seila Law to conclude that the removal protections for CPSC members were constitutionally sound: The CPSC does not have a novel structure or present a historically unprecedented situation; the CPSC does not have a single director but rather a multimember board; and the CPSC does not have any of the other features that concerned the Court in Seila Law, such as the receipt of funds outside the appropriation process or the inability of the President to influence the office’s leadership through the appointment power. See id.
Regardless whether the NLRB exercises “substantial executive power,” “executive power,” or “quasi-legislative and quasi-judicial power,” the NLRB does not sufficiently differ from the FTC to warrant a departure from Humphrey’s Executor.
12 Instead, by bringing the Board to a complete halt, the President has foreclosed his own ability to see his Board appointees effectuate his agenda and has frozen the functioning of an important government office.
13 The Supreme Court’s most recent removal protections case, Collins v. Yellen, 594 U.S. 220 (2021), was likewise about an office led by a single director, and the Court there reaffirmed it “did ‘not revisit [its] prior decisions allowing certain limitations on the President’s removal power’” in Seila Law. Id. at 250-51 (quoting Seila L., 591 U.S. at 204).
14 The statute regarding removal of the postmasters read: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.” Myers, 272 U.S. at 107.
15 Notably, Chief Justice Taft reached this conclusion over three dissents, including from Justices Holmes and Brandeis. Myers, 272 U.S. at 178-295. Justice Brandeis, in particular, espoused a view of checks and balances that emphasized the interdependence of the executive and legislative branches, vindicated in Justice Jackson’s concurring opinion in Youngstown, 343 U.S. at 634. See Myers, 272 U.S. at 240-95.
16 The bold position taken by the current administration, see Exec. Order No. 14215, 90 Fed. Reg. 10447 (2025), that the President has supreme control over all of his subordinates threatens to upend limits on the removal power over inferior officers, expressly acknowledged in Myers.
17 Justice Brandeis’s dissent in Myers was not so broad as to authorize Congress to restrict presidential authority over removal of anyone in the executive branch. See Myers, 272 U.S. at 240-42 (Brandise, J., dissenting). Rather, he focused on the fact that the postmaster was an inferior officer, very unlike that of the Secretary of Foreign Affairs, and the mischief that would result if the majority decision were read to endorse absolute presidential removal authority for all officials. Id. at 241, 247, 257 (“Power to remove, as well as to suspend, a high political officer, might conceivably be deemed indispensable to democratic government and, hence, inherent in the President. But power to remove an inferior administrative officer appointed for a fixed term cannot conceivably be deemed an essential of government.”); see also id. at 181-82, 187, 193 (McReynolds, dissenting) (resisting Myers’ overbroad dicta suggesting that all executive officers must serve at the pleasure of the President). In the dissenters’ views, a functional analysis into an office’s role and responsibilities—like that in Humphrey’s Executor—was necessary, but only for principal officers.
In the face of the current administration’s push for a more absolutist presidential removal power, history provides significant cautions: Protections for inferior federal officers came about to counter the extensive “spoils system” that characterized the executive branch in the early 1800s—particularly during the presidency of Andrew Jackson, whose controversial legacy is due in part to his association with widespread corruption. See Myers, 272 U.S. at 276-83 (McReynolds, J., dissenting); id. at 272 U.S. at 250-52 (Brandeis, J., dissenting). Congress having a hand in executive appointments and removal was seen as an antidote to corruption. Such provisions set the stage for the development of the modern civil service system. See id.; Katherine Shaw, Partisanship Creep, 118 NW. UNIV. L. REV. 1563, 1573 & n. 48 (“[A] few decades after Andrew Jackson's administration, strong discontent with the corruption and inefficiency of the patronage system of public employment eventuated in the Pendleton Act, the foundation of modern civil service.” (quoting Elrod v. Burns, 427 U.S. 347, 354 (1976))).
18 At the motions hearing, defense counsel argued that this interpretation of both Myers and Humphrey’s Executor had been rejected by the Supreme Court in Seila Law, 591 U.S. at 228. Motions H’rg (Mar. 5, 2025), Rough Tr. at 62:1-17. That is not so. In Seila Law, amicus had distilled the Court’s precedent as follows:
Seila L., 591 U.S. at 228 (emphasis in original) (internal citations omitted). Rather than reject that reconciliation of Myers and Humphrey’s Executor, the Court simply restated the principle, uncontroverted in either precedent, that “the President’s removal power is the rule, not the exception,” id., and then declined to revisit these precedents or to “elevate [Humphrey’s Executor] into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority,” id. In other words, the Supreme Court neither constrained Humphrey’s Executor by expanding Myers beyond its holding nor endorsed an expansion of Humphrey’s Executor itself. In short, Seila Law, on this matter, had frankly little to add.
19 Nor can Humphrey’s Executor be fairly described as an “exception[]” to the general rule of presidential removal authority. Contra Seila L., 591 U.S. at 198. As explained, a careful reading of the history and the scope of the dispute in Myers confirms that Humphrey’s Executor was not some exception to an otherwise absolute presidential removal power previously established in Myers. To the extent Myers extolled such an absolute presidential removal power in overbroad dicta, it was in short order rejected by a unanimous Supreme Court. Myers simply established that the President alone may exercise removal authority over principal officers, and Humphrey’s Executor explained that Congress can set standards, without conferring the exercise of that power to itself, to cabin the President’s singular exercise of that authority in the circumstances presented.
20 These two factors are often considered together. See, e.g., Ridgley v. Lew, 55 F. Supp. 3d 89, 98 (D.D.C. 2014); Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ), 2025 WL 665041, at *32 (D.D.C. Mar. 1, 2025).
21 Defendants argue that because President Trump could restore the NLRB’s quorum by appointing members to fill the vacant seats, the harm here is not irreparable. Defs.’ Opp’n at 14. While filling the open seats would halt the ongoing harm and prevent future harm, restoration of the NLRB’s quorum would not do anything to repair the past harm—the backlog of cases, the months employers and employees have spent waiting for adjudications, the practical ramifications felt across the country (from workers’ rights violations to workplace unrest) of labor disputes left unresolved, delayed union recognition, and so forth. The possibility that the NLRB could once again operate may be one difference between this case and the situation of the Civil Rights Commission in Berry, where the Commission was set to expire before it could fulfill its statutory mandate, see 1983 WL 538, at *5, but that possibility does not make the harm here somehow reparable. The NLRB’s statutory mandate is not to—at some point in time—operate, contrary to defendants’ suggestion, Defs.’ Opp’n at 14-15, but rather to have an ongoing, efficient administration of the country’s labor laws.
22 Defendants’ arguments that plaintiff may not be “reinstated” or “reappointed” because reinstatement was not a remedy originally available at equity are not only inconsequential because relief need not be fashioned in that form, as described above, but they are also flawed. Defendants’ argument ultimately boils down to a technical distinction: Historically, requests for reinstatement were styled as writs of mandamus or quo warranto before courts of law instead of requests for injunctions before courts of equity, as defendants’ cited cases reflect. Defs.’ Opp’n at 12; Twenty States’ Amicus Br. at 3; see In re Sawyer, 124 U.S. 200, 212 (1888) (noting that while a court of equity does not have “jurisdiction over the appointment and removal of public officers, . . . the courts of law, . . . either by certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto” do); White v. Berry, 171 U.S. 366, 377 (1898) (same). After the merger of law and equity in the federal courts over eighty years ago, however, that distinction makes no difference and does not render improper the injunctive relief plaintiff requests.
Unsurprisingly, many courts have, therefore, reinstated federal employees to their positions or prevented their removals from taking effect. See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 546 (1959) (“[P]etitioner is entitled to the reinstatement which he seeks.”); Pelicone v. Hodges, 320 F.2d 754, 757 (D.C. Cir. 1963) (holding that plaintiff was “entitled to reinstatement”); Paroczay v. Hodges, 219 F. Supp. 89, 94 (D.D.C. 1963) (holding that, because plaintiff “was never legally separated,” the court “will therefore order plaintiff’s reinstatement”); Berry, 1983 WL 538, at *6 (enjoining removal of members of the U.S. Commission on Civil Rights); cf. Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974) (acknowledging that “[u]se of the court’s injunctive power” may be appropriate in certain cases regarding discharge of employees). The other cases cited by defendants for the principle that reinstatement is not available as equitable relief, Defs.’ Opp’n at 12, involve the unique situation of federal courts presiding over questions about state officers’ entitlement to their positions, which is wholly inapplicable here. See Baker v. Carr, 369 U.S. 186, 231 (1962) (citing cases about “enjoin[ing] a state proceeding to remove a public officer”); Walton v. House of Representatives of Okla., 265 U.S. 487, 489-90 (1924) (holding that the district court did not have “jurisdiction over the appointment and removal of state officers”); Harkrader v. Wadley, 172 U.S. 148, 165-70 (1898) (declining to enjoin a state criminal proceeding); see also Twenty States’ Amicus Br. at 16-17 (making the inapposite argument that imposing a remedy of reinstatement of state officers invades state sovereignty).
In any case, the D.C. Circuit has “note[d] that a request for an injunction based on the general federal question statute is essentially a request for a writ of mandamus in this context, where the injunction is sought to compel federal officials to perform a statutorily required ministerial duty.” Swan, 100 F.3d at 976 n.1. Indeed, plaintiff made a last-minute request in her Notice of Supplemental Authority, ECF No. 33 at 4, for a writ of mandamus in the alternative. A writ of mandamus requires that “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” Id. at 4 n.1 (alteration accepted) (quoting In re Nat’l Nurses United, 47 F.4th 746, 752 n.4 (D.C. Cir. 2022) (citation omitted)). Accordingly, if injunctive relief were not available here because of adherence to the historical dividing lines of law and equity, a writ of mandamus would likely be available, and the effective relief provided to plaintiff would be the same. See Harris, 2025 WL 679303, at *11.
23 As plaintiff’s supporting state amici point out, a less partisan Board, insulated from at-will removal, is less likely to whipsaw the public by taking completely disparate approaches every four years, which has concomitant public benefits in greater stability and predictability in administration of the law. See Nineteen States & D.C. Br. at 9 n.21.
24 Motions H’rg (Mar. 5, 2025), Rough Tr. at 43:9 (plaintiff’s counsel highlighting the constitutional role of other branches in checking President’s authority).
3. Defendants’ Argument that Humphrey’s Executor Has Been “Repudiated” and is No Longer Good Law Is Not Persuasive.
Fundamentally, the position of defendants and their supporting state amici urging this Court not to apply Humphrey’s Executor stems from a reading of the Supreme Court’s subsequent case law as “repudiat[ing]” the precedent. Defs.’ Opp’n at 9 (quoting Seila L., 591 U.S. at 239 (Thomas, J., concurring in part)); Tennessee’s Amicus Br. at 7-10, ECF No. 18 (arguing forcefully that Humphrey’s Executor was wrongly decided and has been “narrowed . . . nearly out of existence”); Twenty States’ Amicus Br. at 3-8, ECF No. 26. Defendants therefore argue that Humphrey’s Executor must be read extremely narrowly, despite that “whatever little remains” is binding on this Court. Defs.’ Opp’n at 8 n.2. To the contrary, an unbroken line of cases since Humphrey’s Executor has reinforced the constitutionality of removal restrictions on multimember expert boards, and the pre-Humphrey’s Executor history demonstrates that this decision was well-grounded in accepted principles of checks and balances.
a. Post-Humphrey’s Executor Case Law Reinforces its Central Holding.
In every case following Humphrey’s Executor, the Supreme Court has preserved the constitutionality of removal protections on independent, multimember boards and commissions. Shortly following Humphrey’s Executor, in Wiener v. United States, 357 U.S. 349 (1958), the Court held that the Constitution did not grant the President authority to remove members of the multimember War Claims Commission “for no reason other than that he preferred to have on that Commission men of his own choosing.” Id. at 355-56. Thirty years later, in Morrison, the Court again recognized the exception to the President’s removal power for officers with adjudicatory powers, but further explained that the permissibility of removal restrictions did not turn on whether the officers’ functions were “quasi-legislative and quasi-judicial,” as opposed to executive in nature, instead looking to the degree to which they impeded the President’s ability to execute the laws. See 487 U.S. at 691-93 (upholding removal protections for independent counsel contained in the Ethics in Government Act).
Then, in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010), the Court reiterated its holding in Humphrey’s Executor that “Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause” and declined to reexamine that precedent. Id. at 483 (striking down double for-cause removal protections); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d 667, 686 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (describing the defendants as attempting to compare the office’s removal protections to that of “the FCC, the FTC, and the NLRB,” which were understood to be “permissible under the Supreme Court's 1935 decision in Humphrey’s Executor”).
Most recently, in Seila Law, the Supreme Court likewise declined to “revisit [its] prior decisions allowing certain limitations on the President’s removal power.” 591 U.S. at 204. While defendants make much of dicta in this decision, such as that the FTC’s powers would now be considered executive, Defs.’ Opp’n at 9; see also Tennessee’s Amicus Br. at 9, Seila Law made key distinctions between single-head offices and multimember boards or commissions that reinforce why placing restrictions on removal of leaders of the latter is not problematic under our Constitution, see 591 U.S. at 224-26. Despite restrictions on removal, the President can exercise more control over a multimember board through his appointment power as vacancies arise, and with staggered terms, some Board vacancies arise during each administration. See id. at 225. Those new appointees can restrain the Board member the President might otherwise prefer to remove, and no President will be “saddled” with a single “holdover Director from a competing political party who is dead set against” his agenda. Id. at 225 (emphasis in original). That is particularly the case here, where President Trump could exercise near total control over the NLRB by appointing two members of his choosing to the Board to join Mr. Kaplan, whom the President appointed during his first term and recently elevated to Chairman, creating a majority of Trump appointees, and by appointing a General Counsel of his choice. See NLRB, Members of the NLRB Since 1935, https://www.nlrb.gov/about-nlrb/who-we- ... since-1935 (last visited Mar. 5, 2025); 29 U.S.C. § 153(d) (allowing the General Counsel to be removed at will).12
Moreover, the multimember structure prevents the public from being subject to decisions made unilaterally by an unelected official, who could become captured by private interests. The distribution of power among several individuals on the Board “avoids concentrating power in the hands of any single individual.” Seila L., 591 U.S. at 222-23. Lastly, unlike single-head offices, entities led by multimember boards have a robust basis—more than even a “foothold”—in “history [and] tradition.” Id. at 222. For these reasons, when the Court ultimately invalidated the removal restrictions on the CFPB’s director as a single head of the bureau, Chief Justice Roberts expressly suggested that “converting the CFPB into a multimember agency” would solve “the problem.” Id. at 237.13
Finally, two months ago, the Supreme Court denied certiorari in Leachco, where the Tenth Circuit upheld removal protections for commissioners on the Consumer Product Safety Commission under Humphrey’s Executor—once again, declining to revisit that precedent. See 103 F.4th 748 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025).
b. Presidential Removal Power Has Never Been Viewed as Unrestricted.
Defendants and their supporting states’ amici go even further in suggesting that not only has Humphrey’s Executor been repudiated over time but the opinion was also wrong at the time it was decided. Defs.’ Opp’n at 8 n.2, 9; Tennessee’s Amicus Br. at 7; see Twenty States’ Amicus Br. at 6-7. Defendants read Humphrey’s predecessor, Myers v. United States, 272 U.S. 52 (1926), as formalizing the President’s “unrestricted removal power,” which ultimately derives from the “vesting” clause in Article II establishing a “unitary” executive. Defs.’ Reply at 1-2 (first passage quoting Seila L., 591 U.S. at 215); Motions H’rg (Mar. 5, 2025), Rough Tr. at 30:22-31:4 (plaintiff’s counsel describing Myers as a “building block” in the unitary executive theory). They are again misguided. While the Myers Court made clear that the President has a general removal power for executive officials, defendants’ myopic focus on this case loses sight of the limitations in its holding, a point driven home in Humphrey’s Executor decided less than a decade later. Nothing in the Constitution or the historical development of the removal power has suggested the President’s removal power is absolute. In fact, the history upon which Myers relies and the immediately following Supreme Court decisions undercut any view that Congress, when exercising its constitutional authority to shape executive offices, is completely barred from conditioning the President’s exercise of his removal authority.
In Myers, Chief Justice Taft—the only person to have served both as the President and a Justice of the Supreme Court—recounted and relied on the history of the Decision of 1789, a congressional debate about the President’s removal powers during the First Congress, to declare unconstitutional a statute requiring the “advice and consent of the Senate” for both appointment and removal of federal postmasters. See 272 U.S. at 107, 111-36, 176-77.14 The First Congress had created the first three executive departments, the Departments of Foreign Affairs, War, and Treasury, and after much debate, ultimately granted plenary removal power to the President over the Secretary of Foreign Affairs and crafted that agency to be an arm of the President. Id. at 145; see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 25-29 (1994). The First Congress did not make clear whether that decision—to grant the President plenary removal authority over the Secretary of Foreign Affairs—derived from the Constitution or rather was granted by Congress’s own prerogative. See Myers, 272 U.S. at 285 n.75 (Brandeis, J., dissenting); Lessig & Sunstein, 94 COLUM. L. REV. at 26-28; Seila L., 591 U.S. at 271 (Kagan, J., dissenting in part and concurring in part) (“The summer of 1789 thus ended without resolution of the critical question: Was the removal power ‘beyond the reach of congressional regulation’?” (quoting Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1072 (2006))). Some clarity in the First Congress’s view may be gleaned, however, by the disparate approach that the Congress took with respect to the Department of the Treasury. Seeing the Treasury as a department less intrinsically tied to core executive powers enumerated in Article II like that over foreign policy, Congress gave far more direction to the structure of that department, specifying in detail its offices and functions and granting independence from unfettered presidential removal power to the Comptroller. See Lessig & Sunstein, supra, at 27-28. In short, the executive branch was not treated as strictly unitary, but rather as a branch with units of varying degrees of independence and generally subject to congressional direction through checks and balances—including on its personnel. See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1964 n.135 (2011).
Chief Justice Taft in Myers cherry-picked only one portion of that 1789 story by highlighting what the First Congress did with the Department of Foreign Affairs. See 272 U.S. at 113-36; Seila L., 591 U.S. at 277 (Kagan, J., dissenting in part and concurring in part) (describing how scholars have “rejected Taft’s one-sided history”). Despite the structure of the Post Office far more closely resembling the Treasury Department of 1789 than the Department of Foreign Affairs, Chief Justice Taft ignored the actual nuances reflected in the Decision of 1789 as to congressional power to condition the President’s removal power reflected in the treatment of the new Treasury Department and instead read this history “through executive-colored glasses” to support “his strong preconceptions” as former President “about presidential removal power,” to reach the conclusion that a regional postmaster could not be subject to removal protections. Robert Post, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, 45 J. SUP. CT. HIST. 167, 172 & n.56 (2020) (first passage quoting Hayden Smith to William H. Taft (Sep. 1, 1925) (Taft Papers)); Myers, 272 U.S. at 176; Lessig & Sunstein, supra, at 25-30.15 Dicta in the lengthy Myers majority opinion made broad pronouncements about the importance of the presidential removal power that were both contradictory and inapposite: While Chief Justice Taft promoted the benefits of recognizing vast presidential removal authority on one hand, he recognized that Congress could legislate around appointment and removal of principal officers, in some circumstances, and inferior officers, refusing to threaten protections for the civil service, on the other. Id. at 127, 134-35, 161-62, 183, 186 (“[T]here may be duties of a quasi judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. . . . [Moreover,] [the appointments clause] give[s] to Congress the power to limit and regulate removal of such inferior officers by heads of departments when it exercises its constitutional power to lodge the power of appointment with them.”).16
Only nine years later, in Humphrey’s Executor, the Supreme Court—consisting of six of the same justices who participated in the Myers decision (i.e., Justices Sutherland, Van Devanter, Brandeis, Stone, McReynolds, and Butler)—unanimously retreated, denouncing the idea of “illimitable” removal authority and disavowing Myers’ abundant dicta. Morrison, 487 U.S. at 687 (“In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies.” (quoting 292 U.S. at 629)). Justice Sutherland, who authored Humphrey’s despite joining the majority opinion in Myers, limited Myers to “the narrow point” that “the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress” and wrote that other “expressions . . . are beyond the point involved and therefore do not come within the rule of stare decisis. In so far as they are out of harmony with the views here set forth, these expressions are disapproved.” Humphrey’s Ex’r, 292 U.S. at 626-27. Humphrey’s Executor, consistent with the dissents in Myers, did not foreclose that the President may have total authority over removal of some officials (like “high political officers,” Myers, 272 U.S. at 241 (Brandeis, J., dissenting)), but it made clear that his removal authority may certainly be limited by Congress in other circumstances.17 Humphrey’s Ex’r, 292 U.S. at 629-32.
The takeaway from Myers is therefore discrete and uncontroversial: While Congress may structure executive branch offices via statute and legislate about the roles of executive branch officers, including standards for their removal, Congress cannot reserve for itself an active role in the removal decision. The problem in Myers was that the statute required Senate advice and consent to remove postmasters and that encroached on the presidential power of removal. 272 U.S. at 107. It cannot be gainsaid that the President has the power of removal of executive branch officers. When Congress has statutorily provided a for-cause removal requirement, this means that the President has the authority to determine whether the for-cause requirement prescribed by Congress has been met. As the Supreme Court has since repeatedly articulated, “the essence” of “Myers was the judgment that the Constitution prevents Congress from draw[ing] to itself the” power to remove. Morrison, 487 U.S. at 686 (citing Bowsher v. Synar, 478 U.S. 714 (1986), for that interpretation). That holding is completely compatible with Humphrey’s Executor. Little more can be gleaned from the unreliable historical retelling and prolix Myers majority opinion.18
In short, neither the Founding-era history nor Myers can carry the heavy weight that the current President has thrust upon it. See Letter from Acting SG (“In Myers . . ., the Supreme Court recognized that Article II of the Constitution gives the President an ‘unrestricted’ power of ‘removing executive officers.’”). Neither supports the view that the President’s removal power is “illimitable.” Whatever the benefits of unrestricted removal authority under certain circumstances, “[t]he Framers did not constitutionalize presidential control over all that is now considered ‘executive’; they did not believe that the President must have plenary power over all we now think of as administration,” Lessig & Sunstein, supra, at 118, and neither did the early twentieth century Supreme Court.
The holding in Humphrey’s Executor, that Congress could create boards or commissions with elements of independence from the President, was therefore not at all a “fiction” or an aberration, as defendants have supposed. Defs.’ Opp’n at 9.19 Humphrey’s Executor, and thus NLRB Board members’ removal protections, are consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements. That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence.
c. Humphrey’s Executor Remains Binding.
In any case, Humphrey’s Executor remains binding on this Court, as defendants rightly acknowledge. See Defs.’ Opp’n at 8 n.2; Illumina, 88 F.4th at 1047 (“[T]he question of whether . . . Humphrey’s Executor [is] no longer binding” is for the Supreme Court alone to answer.). As the Supreme Court has made clear, “[ i]f a precedent . . . has direct application in a case, yet appears to rely on reasons rejected in some other line of decisions,” the lower courts should still “leav[e] to the [Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also Nat’l Sec. Archive v. CIA, 104 F.4th 267, 272 n.1 (D.C. Cir. 2024) (“This court is charged with following case law that directly controls a particular issue, ‘leaving to [the Supreme] Court the prerogative of overruling its own decisions.’” (alterations in original) (quoting Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023))); Meta Platforms, 723 F. Supp. 3d at 87 (“It is certainly not this Court’s place to deem a long-standing Supreme Court precedent obsolete . . . and thus no longer binding.” (internal quotation marks and citation omitted)). This Court would be bound to conclude that plaintiff’s termination was unlawful even were the conclusion reached—and this Court adamantly has not—that Humphrey’s Executor was, by today’s measure, ill-reasoned or wrongly decided.
B. Plaintiff is Entitled to Permanent Declaratory and Injunctive Relief.
For all of these reasons, plaintiff prevails on the merits and is therefore entitled to a declaratory ruling that she was unlawfully terminated from her position as a member of the Board. Defendants concede as much. Motions H’rg (Mar. 5, 2025), Rough Tr. at 71:23-72:1 (defense counsel stating, “We are not fighting this requested declaratory judgment.”).
Plaintiff further requests injunctive relief against Mr. Kaplan, ordering him to allow plaintiff to carry out all of her duties. Compl. at 7. To demonstrate that injunctive relief is warranted, a plaintiff must show that (1) she has suffered an irreparable injury, (2) remedies available at law are inadequate to compensate, (3) a remedy in equity is warranted considering the balance of the hardships to each party, and (4) the public interest is not disserved. eBay Inc. v. MercExchange LLC, 547 U.S. 388, 391 (2006). Notwithstanding plaintiff’s success on the merits, defendants contest her entitlement to injunctive relief. Defs.’ Opp’n at 10.
1. Plaintiff’s Irreparable Harm and Inadequate Remedies at Law
Plaintiff is suffering irreparable harm that cannot be repaired in the absence of an injunction.20 Courts have recognized as irreparable harms the “unlawful removal from office by the President” and “the obviously disruptive effect” that such removal has on the organization’s functioning. 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). In Berry, terminated members of the Civil Rights Commission challenged President Reagan’s decision to remove them. Id. at *1. The Commission was “left without a quorum,” and the court recognized as an irreparable injury both the commission’s inability to “fulfill its mandate” and the individuals’ inability to serve “Congress in the furtherance of civil rights.” Id. at *5. Likewise here, plaintiff has been deprived of a presidentially appointed and congressionally confirmed position of high importance, and both she and, by consequence, the NLRB have been deprived of the ability to carry out their congressional mandate in protecting labor rights—which cannot be retroactively cured by monetary damages. See id.; Dellinger v. Bessent, No. 25-cv-385 (ABJ), 2025 WL 471022, at *11-13 (D.D.C. Feb. 12, 2025) (“[T]he loss of the ability to do what Congress specifically directed [her] to do cannot be remediated with anything other than equitable relief.”); Harris v. Bessent, --F. Supp.3d--, No. 25-cv-412 (RC), 2025 WL 521027, at *7 (D.D.C. Feb. 18, 2025) (“By vindicating [her] right to occupy th[at] office, th[is] plaintiff[] act[s] as much in [her] own interests as those of [her] agenc[y’s]. . . . Striking at the independence of these officials accrues harm to their offices, as well.”).21
Furthermore, plaintiff and the NLRB suffer an injury due to the loss of the office’s independence. As an entity entrusted with making impartial decisions about sensitive labor disputes, the NLRB’s character and perception as neutral and expert-driven is damaged by plaintiff’s unlawful removal. See Humphrey’s Ex’r, 295 U.S. at 630 (“[The] coercive influence [of the removal power] threatens the independence of a commission.”); Harris, 2025 WL 679303, at *13 (“[T]he MSPB's independence would evaporate if the President could terminate its members without cause, even if a court could later order them reinstated.”). Money likewise cannot make up for that kind of intangible and reputational harm.
Defendants argue that, regardless of the injury, plaintiff’s requested remedy—reinstatement to her position—is one the Court cannot grant. Defs.’ Opp’n at 11. Not only have all previous cases sought back pay instead of reinstatement, defendants point out, but also reinstatement is not a remedy historically available at equity, which constrains the relief available to the Court today. Id. at 12 (citing Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 319 (1999)). Plaintiff counters, however, that she does not request the remedy of “reappointment” and does not need to be reinstated: She requests only a declaration that the President lacked authority to remove her—making the termination email void ab initio—and injunctive relief to enable her to carry out her position as before. See Pl.’s Reply at 9.
Defendants do not challenge the Court’s ability to afford declaratory relief, but they do challenge an injunction running against the executive branch, even against the President’s subordinates, to permit plaintiff to carry out her duties. Defs.’ Opp’n at 11, 13. They contend that such relief would effectively “compel[]” the President “to retain the services of a principal officer whom he no longer believes should be entrusted with the exercise of executive power.” Defs.’ Opp’n at 11; see also Defs.’ Reply at 7-8. At most, however, this argument simply restates defendants’ position on the merits, because, as a general matter, courts undoubtedly have authority to constrain unlawful presidential action by enjoining the President’s subordinates. See, e.g., Youngstown, 343 U.S. at 582, 589 (holding a presidential act unconstitutional and affirming the district court judgment which restrained Secretary of Commerce); Chamber of Com. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“[ I]t is now well established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive.’ Franklin v. Massachusetts, 505 U.S. 788, 815 (1992) (Scalia, J., concurring in part and concurring in the judgment). Even if the Secretary were acting at the behest of the President, this ‘does not leave the courts without power to review the legality [of the action], for courts have power to compel subordinate executive officials to disobey illegal Presidential commands.’ Soucie v. David, 448 F.2d 1067, 1072 n. 12 (D.C. Cir. 1971).” (alterations in original)); Dellinger v. Bessent, No. 25-5028, 2025 WL 559669, at *6 n.1 (D.C. Cir. Feb. 15, 2025) (noting that a court “can unquestionably review the legality of the President’s action by enjoining the officers who would attempt to enforce the President’s order”).
Moreover, the D.C. Circuit has held such relief is appropriate in this type of employment context: A court may, by targeting a President’s subordinates, “reinstate a wrongly terminated official ‘de facto,’ even without a formal presidential reappointment” that would require injunctive relief against the President himself. Severino v. Biden, 71 F.4th 1038, 1042-43 (D.C. Cir. 2023) (holding that the plaintiff’s injury was therefore redressable); cf. Swan v. Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996) (holding that plaintiff’s claim was redressable because injunctive relief against inferior officials, who could de facto reinstate plaintiff by allowing him to exercise the privileges of his office, would remedy plaintiff’s harm); see also Harris, 2025 WL 679303, at *10-12 (holding that the court can order such relief to remedy an unlawful termination and relying on Swan and Severino); Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ), 2025 WL 665041, at *29-31 (D.D.C. Mar. 1, 2025) (same). The Court therefore has the authority to issue both the declaratory and injunctive remedies that plaintiff seeks.22
2. Balance of the Equities and the Public Interest
The balance of the equities and the public interest also favor injunctive relief here. See Nken v. Holder, 556 U.S. 418, 435 (2009) (noting that, where the government is a party, “[t]hese two factors merge”). The public has an interest in efficient and peaceful resolution of labor conflicts, and the Board’s functioning is crucial to that goal. In 2024, the NLRB received 20,000 to 30,000 unfair labor practice charges, and the Board reviewed 144 unfair labor practice cases and 115 election certification cases. See Nineteen States & D.C.’s Br. at 7, ECF No. 31 (citing NLRB, Investigate Charges, https://perma.cc/CU82-KU4V; NLRB, Board Decisions Issued, https:www.nlrb.gov/reports/agency-performance/board-decisions-issued (last visited Feb. 24, 2025)). Without a functioning NLRB, unfair labor practices go unchallenged, union elections go unrecognized, and pending labor disputes go unreviewed. See Pl.’s Mem. at 12 (providing one example where Whole Foods has refused to recognize a union election because it claims the NLRB lacks the authority to certify it); Pl.’s Reply at 12 (citing an additional example where CVS has refused to recognize a majority elected union). Incentives to comply with national labor law may be severely undercut if no agency is available for enforcement. Employees, employers, and bargaining units all suffer as a result. The public also has an interest in the protection of duly enacted, constitutional laws—like the NLRA—from encroachment from other branches. See League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“[T]here is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.’” (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994))). Reinstating plaintiff would allow the NLRB to reach a quorum, thereby allowing the Board to carry out the important work in promoting labor stability, adjudicating labor disputes, and protecting workers’ rights, without inflicting any measurable harm on defendants.23
Defendants protest that the President will indeed experience harm—by virtue of retaining “a principal officer whom the President no longer believes should be entrusted with the exercise of executive power,” resulting in the executive branch “slip[ping] from the Executive’s control, and thus from that of the people.” Defs.’ Opp’n at 15 (second passage quoting Free Enter. Fund, 561 U.S. at 499). Yet, President Trump can exercise control over the NLRB by appointing two members of his choosing to the vacant seats and appointing a General Counsel who will adopt his enforcement priorities; he simply has chosen not to do so. In any case, whether the public will benefit more from the balance Congress has struck in preserving some independence from political whims in the administration of our national labor laws or from complete executive control goes to the core of the constitutional question underlying the merits—and thus the answer is dictated by binding precedent.
Finally, defendants predict their ultimate success before the Supreme Court, warning that if plaintiff is allowed to resume her duties on the Board now, any NLRB decisions in the meantime may be voidable, and “the NLRB will be under a heavy cloud of illegitimacy.” Defs.’ Reply at 9; see also Defs.’ Opp’n at 16; Twenty States’ Amicus Br. at 16 (suggesting that “reinstatement hampers effective governance” by causing “intra-office ‘chaos’” and questions about the fitness of the official). The possibility of future changes in the law is not enough, however, to permit an unlawful termination and the halting of all Board activity in the meantime. Plaintiff’s wrongful termination has caused “chaos” enough and shall not be allowed to stand based on defendants’ self-serving speculation.
IV. CONCLUSION
The President seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme. Defendants cite in their briefing Trump v. United States, 603 U.S. 593, 608-09 (2024) (granting the President absolute and presumptive immunity from criminal liability for “official acts”), to argue that the removal power is “conclusive and preclusive,” with the result that the President need not be subject to criminal or civil legislative constraints. Defs.’ Reply at 7. The courts are now again forced to determine how much encroachment on the legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that is untouchable by the law. The President has given no sufficient reason to accept that path here.
Humphrey’s Executor and its progeny control the outcome of this case and require that plaintiff be permitted to continue her role as Board member of the NLRB and her termination declared unlawful and void. The Constitution and caselaw are clear in allowing Congress to limit the President’s removal power and in allowing the courts to enjoin the executive branch from unlawful action. Defendants’ hyperbolic characterization that legislative and judicial checks on executive authority, as invoked by plaintiff, present “extraordinary intrusion[s] on the executive branch,” Defs.’ Opp’n at 1, is both incorrect and troubling. Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy. See Myers, 272 U.S. at 293 (Brandeis, J., dissenting). An American President is not a king—not even an “elected” one24—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: March 6, 2025
__________________________
BERYL A. HOWELL
United States District Judge
_______________
Notes:
1 Compare, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008), Saikrishna B. Prakash, Imperial from the Beginning: The Constitution of the Original Executive (2015), and Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 597 (1994); with, e.g., Allen Shoenberger, The Unitary Executive Theory is Plainly Wrong and Anti-American: “Presidents are Not Kings,” 85 ALB. L. REV. 837, 837 (2022), Christine Kexel Chabot, Interring the Unitary Executive, 98 NOTRE DAME L. REV. 129 (2022), and Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 4 (1994) (“Any faithful reader of history must conclude that the unitary executive . . . is just myth.”); Cass R. Sunstein, This Theory is Behind Trump’s Power Grab, N.Y. TIMES (Feb. 26, 2025), https://www.nytimes.com/2025/02/26/opin ... eory.html; see also Julian Davis Mortenson, The Executive Power Clause, 168 U. PA. L. REV. 1269, 1334 (2020) (describing “the exercise of executive power” as “fully subordinate to instructions by its legislative principal” at the founding).
2 The academy has provided various formulations of the “unitary executive” theory. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1158 (1992) (“Unitary executive theorists claim that all federal officers exercising executive power must be subject to the direct control of the President.”); Lessig & Sunstein, supra, at 2 (“Many think that under our constitutional system, the President must have the authority to control all government officials who implement the laws.”); Chabot, supra, at 129 (2022) (describing the “unitary executive” theory as the idea that the Constitution gave the President “plenary removal power” affording him “‘exclusive control over subordinates’ exercise of executive power”).
3 Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 578 (1974) (quoting The President’s Comm. on Admin. Mgmt., Administrative Management in the Government of the United States 30 (1937)).
4 In 1834, President Andrew Jackson fired two Secretaries of the Treasury when each refused his order to remove U.S. funds from the Second National Bank, which Jackson viewed as having “resist[ed] his reelection in part with bank funds,” and these removal actions triggered a congressional condemnation resolution for an abuse of power. See Lessig & Sunstein, supra n.1, at 78-80. Jackson’s replacement as Secretary at Treasury, Roger Taney, did as ordered and was later appointed Chief Justice. Id. at 79. The resolution condemning President Jackson was ultimately expunged, in 1837, but not without significant debate and Jackson’s reputational decline. See id. at 81-83.
Over thirty years later, in 1867, President Andrew Johnson’s removal of the Secretary of War in defiance of a congressional statute led to his impeachment and near conviction. Richard Murphy, 32 FED. PRAC. & PROC. JUD. REV. § 8128 (2d ed.) (2024).
5 See @WhiteHouse, X (Feb. 19, 2025, 1:58 PM), https://perma.cc/V9Y2-SWRD (“LONG LIVE THE KING!”); WSJ News, Trump Says He Won’t Be a Dictator “Except for Day One” if Re-Elected, YOUTUBE (DEC. 6, 2023), https://www.youtube.com/watch?v=dQkrWL7YuGk; see also @realDonaldTrump, X (Feb. 15, 2025, 1:32 PM), https://perma.cc/S5GR-BXF5 (“He who saves his Country does not violate any Law.”). Some of defendants’ supporting amici also draw analogies to the British monarchy; Tennessee has described the tradition of the British king’s “‘prerogative power to remove’ executive officers ‘at will,’” which “carried into the United States.” Tennessee’s Amicus Br. at 5-6 (quoting Michael W. Connell, The President Who Would Not Be King 162 (2020)). In a democracy created to repudiate that very regime, that analogy has little purchase.
6 The initial request made by the employee, union, or employer is referred to as a “charge”; only the Director issues a “complaint.” NLRB, What We Do, https://perma.cc/CU82-KU4V.
7 If the parties do formally settle after issuance of a complaint, Board approval is required. NLRB, 484 U.S. at 120.
8 Amici include: the Constitutional Accountability Center (“CAC”) and a cohort of nineteen states and the District of Columbia, led by Minnesota, writing in support of plaintiff, see CAC’s Amicus Br., ECF No. 15; Nineteen States & D.C.’s Amicus Br., ECF No. 31; and Tennessee and a cohort of twenty states, led by Florida, writing in support of defendants, see Tennessee’s Amicus Br., ECF No. 18; Twenty States’ Amicus Br., ECF No. 26.
9 Defendants protest the reliance on history and tradition because independent multimember commissions date back only to the late 1880s. Defs.’ Reply at 4-5. “[S]uch a practice comes far too late to provide reliable evidence of the original public meaning of Article II or the Constitution’s separation of powers,” in defendants’ view. Defs.’ Reply at 4-5. That in no way invalidates the significance of longstanding tradition, however, which is probative “[e]ven when the nature of or longevity of [the] practice is subject to dispute, and even when that practice began after the founding era.” Noel Canning, 573 U.S. at 525; see id. at 528-29 (relying on a post-Civil War practice of intra-recess appointments); CAC’s Amicus Br. at 11, ECF No. 15 (making this point).
10 Defendants suggest that because the NLRB makes “significant decisions shaping the rights and obligations of Americans” and “set[ting] federal labor policy,” the “constitutional calculus” is different, and the Humphrey’s Executor “exception” cannot apply. Defs.’ Reply at 3, 5; Motions H’rg (Mar. 5, 2025), Rough Tr. at 54:1-7 (citing NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990) (“[T]he NLRB has the primary responsibility for developing and applying national labor policy.”)). Defendants do not, however, explain how applying federal law in individual adjudications establishes “federal labor policy” any more than the rulemaking and adjudications of the FTC in Humphrey’s Executor do, nor do they explain why subsequent caselaw—see supra Part III.A.3.a—should be read as putting such a gloss on the holding of Humphrey’s. Plaintiff contributed little to the debate about the scope of the NLRB’s powers that may be considered “executive,” simply tying its authorities closely to the FTC in 1935, despite the NLRB’s bifurcated structure, resulting in a more cabined exercise of any executive authority by the Board itself. See Pl.’s Reply at 3-5; see also Motions H’rg (Mar. 5, 2025), Tr. at 23:5-13 (plaintiff’s counsel stating, “answering the question about exactly what ‘executive’ means and what those terms ‘quasi-legislative’ and ‘quasijudicial’ mean, it’s not the easiest thing in the world. I think, for purposes of this motion that’s before you, I think what matters is that . . . Humphrey’s Executor is binding.”).
11 Defendants’ argument about the exercise of “executive power” is ultimately tautological and leaves Humphrey’s Executor completely devoid of force. They reason that because the NLRB is housed within the executive branch, the Board inherently exercises “executive power.” Defs.’ Opp’n at 7 (citing Seila L., 591 U.S. at 216 n.2 (quoting City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013))). Reading Humphrey’s Executor to allow removal protections only for offices that do not exercise “executive power,” defendants then conclude that the NLRB does not fit within Humphrey’s Executor. The necessary implication of such reasoning is that no board or commission placed with the executive branch could, as a constitutional matter, be legally subject to removal protections duly enacted by Congress. Yet, defendants dodge that extraordinary result and contradictorily suggest that removal protections on the Federal Reserve Board are acceptable because that Board does not exercise an “executive function.” Defs.’ Reply at 5; see also Motions H’rg (Mar. 5, 2025), Rough Tr. at 59-60 (defense counsel declining to discuss Federal Reserve Board or the Federal Open Market Committee or why these entities should be treated differently than the NLRB as to presidential removal power).
Recognizing that the exercise of “executive power” could not be dispositive, the Fifth Circuit in Consumers’ Research agreed with the plaintiffs there that the CPSC “wields substantial executive power” but still held that the CPSC was constitutional under Humphrey’s Executor. 91 F.4th at 353-55 (“Having concluded that the Commission exercises substantial executive power (in the modern sense), we must next consider whether that characteristic—standing alone—removes the Commission from the Humphrey's exception. We conclude that it does not . . . .”). The Fifth Circuit examined the other factors in Seila Law to conclude that the removal protections for CPSC members were constitutionally sound: The CPSC does not have a novel structure or present a historically unprecedented situation; the CPSC does not have a single director but rather a multimember board; and the CPSC does not have any of the other features that concerned the Court in Seila Law, such as the receipt of funds outside the appropriation process or the inability of the President to influence the office’s leadership through the appointment power. See id.
Regardless whether the NLRB exercises “substantial executive power,” “executive power,” or “quasi-legislative and quasi-judicial power,” the NLRB does not sufficiently differ from the FTC to warrant a departure from Humphrey’s Executor.
12 Instead, by bringing the Board to a complete halt, the President has foreclosed his own ability to see his Board appointees effectuate his agenda and has frozen the functioning of an important government office.
13 The Supreme Court’s most recent removal protections case, Collins v. Yellen, 594 U.S. 220 (2021), was likewise about an office led by a single director, and the Court there reaffirmed it “did ‘not revisit [its] prior decisions allowing certain limitations on the President’s removal power’” in Seila Law. Id. at 250-51 (quoting Seila L., 591 U.S. at 204).
14 The statute regarding removal of the postmasters read: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.” Myers, 272 U.S. at 107.
15 Notably, Chief Justice Taft reached this conclusion over three dissents, including from Justices Holmes and Brandeis. Myers, 272 U.S. at 178-295. Justice Brandeis, in particular, espoused a view of checks and balances that emphasized the interdependence of the executive and legislative branches, vindicated in Justice Jackson’s concurring opinion in Youngstown, 343 U.S. at 634. See Myers, 272 U.S. at 240-95.
16 The bold position taken by the current administration, see Exec. Order No. 14215, 90 Fed. Reg. 10447 (2025), that the President has supreme control over all of his subordinates threatens to upend limits on the removal power over inferior officers, expressly acknowledged in Myers.
17 Justice Brandeis’s dissent in Myers was not so broad as to authorize Congress to restrict presidential authority over removal of anyone in the executive branch. See Myers, 272 U.S. at 240-42 (Brandise, J., dissenting). Rather, he focused on the fact that the postmaster was an inferior officer, very unlike that of the Secretary of Foreign Affairs, and the mischief that would result if the majority decision were read to endorse absolute presidential removal authority for all officials. Id. at 241, 247, 257 (“Power to remove, as well as to suspend, a high political officer, might conceivably be deemed indispensable to democratic government and, hence, inherent in the President. But power to remove an inferior administrative officer appointed for a fixed term cannot conceivably be deemed an essential of government.”); see also id. at 181-82, 187, 193 (McReynolds, dissenting) (resisting Myers’ overbroad dicta suggesting that all executive officers must serve at the pleasure of the President). In the dissenters’ views, a functional analysis into an office’s role and responsibilities—like that in Humphrey’s Executor—was necessary, but only for principal officers.
In the face of the current administration’s push for a more absolutist presidential removal power, history provides significant cautions: Protections for inferior federal officers came about to counter the extensive “spoils system” that characterized the executive branch in the early 1800s—particularly during the presidency of Andrew Jackson, whose controversial legacy is due in part to his association with widespread corruption. See Myers, 272 U.S. at 276-83 (McReynolds, J., dissenting); id. at 272 U.S. at 250-52 (Brandeis, J., dissenting). Congress having a hand in executive appointments and removal was seen as an antidote to corruption. Such provisions set the stage for the development of the modern civil service system. See id.; Katherine Shaw, Partisanship Creep, 118 NW. UNIV. L. REV. 1563, 1573 & n. 48 (“[A] few decades after Andrew Jackson's administration, strong discontent with the corruption and inefficiency of the patronage system of public employment eventuated in the Pendleton Act, the foundation of modern civil service.” (quoting Elrod v. Burns, 427 U.S. 347, 354 (1976))).
18 At the motions hearing, defense counsel argued that this interpretation of both Myers and Humphrey’s Executor had been rejected by the Supreme Court in Seila Law, 591 U.S. at 228. Motions H’rg (Mar. 5, 2025), Rough Tr. at 62:1-17. That is not so. In Seila Law, amicus had distilled the Court’s precedent as follows:
Humphrey’s Executor and Morrison establish a general rule that Congress may impose “modest” restrictions on the President’s removal power, with only two limited exceptions. . . . Congress may not reserve a role for itself in individual removal decisions (as it attempted to do in Myers and Bowsher). And it may not eliminate the President’s removal power altogether (as it effectively did in Free Enterprise Fund). Outside those two situations, amicus argues, Congress is generally free to constrain the President's removal power.
Seila L., 591 U.S. at 228 (emphasis in original) (internal citations omitted). Rather than reject that reconciliation of Myers and Humphrey’s Executor, the Court simply restated the principle, uncontroverted in either precedent, that “the President’s removal power is the rule, not the exception,” id., and then declined to revisit these precedents or to “elevate [Humphrey’s Executor] into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority,” id. In other words, the Supreme Court neither constrained Humphrey’s Executor by expanding Myers beyond its holding nor endorsed an expansion of Humphrey’s Executor itself. In short, Seila Law, on this matter, had frankly little to add.
19 Nor can Humphrey’s Executor be fairly described as an “exception[]” to the general rule of presidential removal authority. Contra Seila L., 591 U.S. at 198. As explained, a careful reading of the history and the scope of the dispute in Myers confirms that Humphrey’s Executor was not some exception to an otherwise absolute presidential removal power previously established in Myers. To the extent Myers extolled such an absolute presidential removal power in overbroad dicta, it was in short order rejected by a unanimous Supreme Court. Myers simply established that the President alone may exercise removal authority over principal officers, and Humphrey’s Executor explained that Congress can set standards, without conferring the exercise of that power to itself, to cabin the President’s singular exercise of that authority in the circumstances presented.
20 These two factors are often considered together. See, e.g., Ridgley v. Lew, 55 F. Supp. 3d 89, 98 (D.D.C. 2014); Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ), 2025 WL 665041, at *32 (D.D.C. Mar. 1, 2025).
21 Defendants argue that because President Trump could restore the NLRB’s quorum by appointing members to fill the vacant seats, the harm here is not irreparable. Defs.’ Opp’n at 14. While filling the open seats would halt the ongoing harm and prevent future harm, restoration of the NLRB’s quorum would not do anything to repair the past harm—the backlog of cases, the months employers and employees have spent waiting for adjudications, the practical ramifications felt across the country (from workers’ rights violations to workplace unrest) of labor disputes left unresolved, delayed union recognition, and so forth. The possibility that the NLRB could once again operate may be one difference between this case and the situation of the Civil Rights Commission in Berry, where the Commission was set to expire before it could fulfill its statutory mandate, see 1983 WL 538, at *5, but that possibility does not make the harm here somehow reparable. The NLRB’s statutory mandate is not to—at some point in time—operate, contrary to defendants’ suggestion, Defs.’ Opp’n at 14-15, but rather to have an ongoing, efficient administration of the country’s labor laws.
22 Defendants’ arguments that plaintiff may not be “reinstated” or “reappointed” because reinstatement was not a remedy originally available at equity are not only inconsequential because relief need not be fashioned in that form, as described above, but they are also flawed. Defendants’ argument ultimately boils down to a technical distinction: Historically, requests for reinstatement were styled as writs of mandamus or quo warranto before courts of law instead of requests for injunctions before courts of equity, as defendants’ cited cases reflect. Defs.’ Opp’n at 12; Twenty States’ Amicus Br. at 3; see In re Sawyer, 124 U.S. 200, 212 (1888) (noting that while a court of equity does not have “jurisdiction over the appointment and removal of public officers, . . . the courts of law, . . . either by certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto” do); White v. Berry, 171 U.S. 366, 377 (1898) (same). After the merger of law and equity in the federal courts over eighty years ago, however, that distinction makes no difference and does not render improper the injunctive relief plaintiff requests.
Unsurprisingly, many courts have, therefore, reinstated federal employees to their positions or prevented their removals from taking effect. See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 546 (1959) (“[P]etitioner is entitled to the reinstatement which he seeks.”); Pelicone v. Hodges, 320 F.2d 754, 757 (D.C. Cir. 1963) (holding that plaintiff was “entitled to reinstatement”); Paroczay v. Hodges, 219 F. Supp. 89, 94 (D.D.C. 1963) (holding that, because plaintiff “was never legally separated,” the court “will therefore order plaintiff’s reinstatement”); Berry, 1983 WL 538, at *6 (enjoining removal of members of the U.S. Commission on Civil Rights); cf. Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974) (acknowledging that “[u]se of the court’s injunctive power” may be appropriate in certain cases regarding discharge of employees). The other cases cited by defendants for the principle that reinstatement is not available as equitable relief, Defs.’ Opp’n at 12, involve the unique situation of federal courts presiding over questions about state officers’ entitlement to their positions, which is wholly inapplicable here. See Baker v. Carr, 369 U.S. 186, 231 (1962) (citing cases about “enjoin[ing] a state proceeding to remove a public officer”); Walton v. House of Representatives of Okla., 265 U.S. 487, 489-90 (1924) (holding that the district court did not have “jurisdiction over the appointment and removal of state officers”); Harkrader v. Wadley, 172 U.S. 148, 165-70 (1898) (declining to enjoin a state criminal proceeding); see also Twenty States’ Amicus Br. at 16-17 (making the inapposite argument that imposing a remedy of reinstatement of state officers invades state sovereignty).
In any case, the D.C. Circuit has “note[d] that a request for an injunction based on the general federal question statute is essentially a request for a writ of mandamus in this context, where the injunction is sought to compel federal officials to perform a statutorily required ministerial duty.” Swan, 100 F.3d at 976 n.1. Indeed, plaintiff made a last-minute request in her Notice of Supplemental Authority, ECF No. 33 at 4, for a writ of mandamus in the alternative. A writ of mandamus requires that “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” Id. at 4 n.1 (alteration accepted) (quoting In re Nat’l Nurses United, 47 F.4th 746, 752 n.4 (D.C. Cir. 2022) (citation omitted)). Accordingly, if injunctive relief were not available here because of adherence to the historical dividing lines of law and equity, a writ of mandamus would likely be available, and the effective relief provided to plaintiff would be the same. See Harris, 2025 WL 679303, at *11.
23 As plaintiff’s supporting state amici point out, a less partisan Board, insulated from at-will removal, is less likely to whipsaw the public by taking completely disparate approaches every four years, which has concomitant public benefits in greater stability and predictability in administration of the law. See Nineteen States & D.C. Br. at 9 n.21.
24 Motions H’rg (Mar. 5, 2025), Rough Tr. at 43:9 (plaintiff’s counsel highlighting the constitutional role of other branches in checking President’s authority).
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Sat Mar 08, 2025 9:48 pm
Cite as: 604 U. S. ____ (2025)
SUPREME COURT OF THE UNITED STATES
No. 24A831
DEPARTMENT OF STATE, ET AL. v. AIDS VACCINE ADVOCACY COALITION, ET AL.
ON APPLICATION TO VACATE THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[March 5, 2025]
On February 13, the United States District Court for the District of Columbia entered a temporary restraining order enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds. The present application does not challenge the Government’s obligation to follow that order. On February 25, the District Court ordered the Government to issue payments for a portion of the paused disbursements—those owed for work already completed before the issuance of the District Court’s temporary restraining order—by 11:59 p.m. on February 26. Several hours before that deadline, the Government filed this application to vacate the District Court’s February 25 order and requested an immediate administrative stay. THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should 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. The order heretofore entered by THE CHIEF JUSTICE is vacated.
*****
ALITO, J., dissenting
JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, dissenting from the denial of the application to vacate order.
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic "No," but a majority of this Court apparently thinks otherwise. I am stunned.
I
In capsule form, this is what happened. Respondents are a group of American businesses and nonprofits that receive foreign-assistance funds from the State Department and the U.S. Agency for International Development. They brought suit and claimed that the current administration’s temporary pause of foreign-assistance payments is unlawful. On February 13, 2025, the District Court issued a temporary restraining order (TRO) requiring the Government to halt its funding pause. It based that decision on a finding that respondents are likely to succeed in showing that the Government violated the Administrative Procedure Act (APA). After issuing the TRO, the District Judge grew frustrated with the pace at which funds were being disbursed, and on February 25, he issued a second order requiring the Government to pay out approximately $2 billion. The judge brushed aside the Government’s argument that sovereign immunity barred this enforcement order, and he took two steps that, unless corrected, would prevent any higher court from reviewing and possibly stopping the payments. First, he labeled the order as a non-appealable TRO, and second, he demanded that the money be paid within 36 hours.
This left the Government little time to try to obtain some review of what it regarded as a lawless order. The Government moved for a stay pending appeal in the District Court. But the judge shrugged off the Government’s sovereign immunity argument and ignored the Government’s representation that most of the money in question, once disbursed, could probably not be recovered. See App. to Application to Vacate Order 93a.
The Government quickly filed an appeal in the United States Court of Appeals for the District of Columbia. But, with only four hours to spare before the payment deadline, the D.C. Circuit dismissed the Government’s appeal because it took the District Court’s "TRO" label at face value and determined it lacked appellate jurisdiction.
With nowhere else to turn and the deadline fast approaching, the Government asked this Court to intervene. At the last moment, THE CHIEF JUSTICE issued an administrative stay. Unfortunately, a majority has now undone that stay. As a result, the Government must apparently pay the $2 billion posthaste—not because the law requires it, but simply because a District Judge so ordered. [!!! ] As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility.
II
Time does not allow a lengthy discussion of the legal issues presented by this case, but a brief summary suffices to show that the District Court’s order should be vacated or, at the very least, stayed.
To start, it is clear that the District Court’s enforcement order should be construed as an appealable preliminary injunction, not a mere TRO. A TRO, as its name suggests, is "temporary," and its proper role is to "restrain" challenged conduct for a short time while the court considers whether more lasting relief is warranted. See 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3922.1 (3d ed. 2012). The order here, which commanded the payment of a vast sum that in all likelihood can never be fully recovered, is in no sense "temporary." Nor did the order merely "restrain" the Government’s challenged action in order to "preserve the status quo." Northeast Ohio Coalition for Homeless and Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F. 3d 999, 1006 (CA6 2006). Rather, it "act[s] as a mandatory injunction requiring affirmative action" by the Government. Ibid. And given its likely irreversibility, the District Court’s enforcement order effectively gave respondents a portion of the ultimate relief they seek.
For these reasons, the Court of Appeals had jurisdiction to consider the Government’s appeal, and we have jurisdiction to review and summarily vacate that court’s erroneous judgment.
III
Even if the majority is unwilling to vacate the District Court’s order, it should at least stay the District Court’s enforcement order until the Government is able to petition for a writ of certiorari. In considering whether to issue such a stay, we ask, at a minimum, (1) whether the moving party is likely to prevail on the merits and (2) whether that moving party is likely to suffer irreparable harm.* See Nken v. Holder, 556 U. S. 418, 425 (2009); Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 327 (1999). In "close cases," we also take into account other equitable considerations. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). Here, these factors weigh in favor of a stay.
Likelihood of success. The Government has shown a likelihood of success on the merits of its argument that sovereign immunity deprived the District Court of jurisdiction to enter its enforcement order.
Sovereign immunity bars "a suit by private parties seeking to impose a liability which must be paid from public funds in the . . . treasury." Edelman v. Jordan, 415 U. S. 651, 663 (1974). But that is exactly what the District Court ordered here. See App. to Application to Vacate Order 85a–86a ("[T]he restrained defendants shall pay all invoices and letter of credit drawdown requests on all contracts for work completed prior to the entry of the Court’s TRO on February13").
Sovereign immunity may be waived, but "[t]o sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims." Lane v. Peña, 518 U. S. 187, 192 (1996). Attempting to satisfy this strict requirement, respondents point to the APA’s waiver of sovereign immunity for certain actions "seeking relief other than money damages." 5 U. S. C. §702. That language, as we have explained, distinguishes "between specific relief," which is permitted under the APA, and "compensatory, or substitute, relief," which is not. Department of Army v. Blue Fox, Inc., 525 U. S. 255, 261 (1999). But the relief here more closely resembles a compensatory money judgment rather than an order for specific relief that might have been available in equity. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 210–211 (2002) ("[A]n injunction to compel the payment of money past due under a contract, or specific performance of a past due monetary obligation, was not typically available in equity"). Sovereign immunity thus appears to bar the sort of compensatory relief that the District Court ordered here.
Hoping to escape that conclusion, respondents point to Bowen v. Massachusetts, 487 U. S. 879 (1988). In that case, we held that the APA’s waiver of sovereign immunity covered a District Court’s judgment reversing a final order of the Secretary of Health and Human Services refusing to reimburse Massachusetts for certain Medicaid expenditures. Unlike the District Court’s order here, that "judgment did not purport to . . . order that any payment be made" by the United States. Id., at 888. Rather, Bowen simply recognized a basic reality of APA review: after a court sets aside an agency action, a natural consequence may be the release of funds to the plaintiff down the road. Indeed, we have since clarified that "Bowen has no bearing on the unavailability of an injunction to enforce a contractual obligation to pay money past due"—the sort of relief that appears to have been ordered here. Knudson, 534 U. S., at 212.
The District Court, however, failed to mention (much less reckon with) Bowen or Knudson before plowing ahead with its $2 billion order. Nor did it take account of our previous suggestion that the proper remedy for an agency’s recalcitrant failure to pay out may be to "seek specific sums already calculated" and "past due" in the Court of Federal Claims. Maine Community Health Options v. United States, 590 U. S. 296, 327 (2020); Bowen, 487 U. S., at 890, n. 13 (invoking the First Circuit’s suggestion that if an agency "‘persist[s] in withholding reimbursement for reasons inconsistent with our decision’" under the APA, the "‘remedy would be a suit for money past due under the Tucker Act in the Claims Court’"). The most that can be said is that in the District Court’s denial of the Government’s motion for a stay pending appeal, it cited but did not analyze a handful of cases echoing Bowen’s discussion of the APA’s conscribed waiver of sovereign immunity. One might expect more care from a federal court before it so blithely discards "sovereign dignity." Alden v. Maine, 527 U. S. 706, 715 (1999).
Finally, the Government has a stronger argument that the District Court’s order violates the principle that a federal court may not issue an equitable remedy that is "more burdensome to the defendant than necessary to" redress the plaintiff ’s injuries. Califano v. Yamasaki, 442 U. S. 682, 702 (1979). In this case, the District Court’s enforcement order functions as a "universal injunction def[ying] these foundational" limits on equitable jurisdiction. Labrador v. Poe, 601 U. S. ___, ___ (2024) (GORSUCH, J., concurring in grant of stay) (slip op., at 5). The District Court ordered the Government to "pay all invoices and letter of credit draw-down requests on all contracts" for pre-TRO work completed. App. to Application to Vacate Order 86a. That order encompasses more than just respondents, and the District Court offered no reason why universal relief to nonparties is appropriate here. And this is not the sort of case in which only universal relief is feasible. Even supposing the APA allows universal vacatur of rules in some circumstances, the District Court’s order of direct monetary payment bears no resemblance to that. Cf. Griffin v. HM Florida-Orl, LLC, 601 U. S. ___, ___, n. 1 (2023) (KAVANAUGH, J., respecting denial of application for stay) (slip op., at 3, n. 1.). And nobody has suggested that the Government is unable to identify respondents’ allegedly owed funds and pay out only to them. Limiting the scope of relief in that manner would be significant. Below, the Government represented respondents seek roughly $250 million—still a large figure, but a fraction of the $2 billion ordered. Emergency Motion for Immediate Administrative Stay and for Stay Pending Appeal in No. 25-5046 etc. (CADC), p. 9.
Harm to the parties and others. The Government has shown that it is likely to suffer irreparable harm if the District Court’s order is not stayed. The Government has represented that it would probably be unable to recover much of the money after it is paid because it would be quickly spent by the recipients or disbursed to third parties. Respondents did not credibly dispute this representation, and the District Court did not find that it is incorrect.
We usually "balance the equities and weigh the relative harms" in "close cases." Hollingsworth, 558 U. S., at 190. For the reasons I have explained, this is not such a case, and our analysis could end there. Nevertheless, respondents’ equitable arguments are insufficient to justify the denial of a stay. They contend that the failure to pay the money in question would cause them irreparable harm because without those funds, they could not continue to operate or would have to reduce the work they do. As a result, they claim, recipients of their services would suffer. These potential consequences are, of course, serious. But any harm resulting from the failure to pay amounts that the law requires would have been diminished, if not eliminated, if the Court of Appeals had promptly decided the merits of the Government’s appeal, which it should not have dismissed. If we sent this case back to the Court of Appeals, it could still render a prompt decision. If it decided in favor of respondents, the Government would be obligated to pay all the money that is due, and respondents would have suffered only a short delay in the receipt of payments. And if the Government prevailed on its sovereign-immunity argument, neither respondents nor any of the recipients of their services would have suffered any unlawful consequences.[!!!]
In sum, the factors we consider in deciding whether to issue a stay weigh strongly in favor of granting that relief.
* * *
Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.
SUPREME COURT OF THE UNITED STATES
No. 24A831
DEPARTMENT OF STATE, ET AL. v. AIDS VACCINE ADVOCACY COALITION, ET AL.
ON APPLICATION TO VACATE THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[March 5, 2025]
On February 13, the United States District Court for the District of Columbia entered a temporary restraining order enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds. The present application does not challenge the Government’s obligation to follow that order. On February 25, the District Court ordered the Government to issue payments for a portion of the paused disbursements—those owed for work already completed before the issuance of the District Court’s temporary restraining order—by 11:59 p.m. on February 26. Several hours before that deadline, the Government filed this application to vacate the District Court’s February 25 order and requested an immediate administrative stay. THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should 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. The order heretofore entered by THE CHIEF JUSTICE is vacated.
*****
ALITO, J., dissenting
JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, dissenting from the denial of the application to vacate order.
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic "No," but a majority of this Court apparently thinks otherwise. I am stunned.
I
In capsule form, this is what happened. Respondents are a group of American businesses and nonprofits that receive foreign-assistance funds from the State Department and the U.S. Agency for International Development. They brought suit and claimed that the current administration’s temporary pause of foreign-assistance payments is unlawful. On February 13, 2025, the District Court issued a temporary restraining order (TRO) requiring the Government to halt its funding pause. It based that decision on a finding that respondents are likely to succeed in showing that the Government violated the Administrative Procedure Act (APA). After issuing the TRO, the District Judge grew frustrated with the pace at which funds were being disbursed, and on February 25, he issued a second order requiring the Government to pay out approximately $2 billion. The judge brushed aside the Government’s argument that sovereign immunity barred this enforcement order, and he took two steps that, unless corrected, would prevent any higher court from reviewing and possibly stopping the payments. First, he labeled the order as a non-appealable TRO, and second, he demanded that the money be paid within 36 hours.
This left the Government little time to try to obtain some review of what it regarded as a lawless order. The Government moved for a stay pending appeal in the District Court. But the judge shrugged off the Government’s sovereign immunity argument and ignored the Government’s representation that most of the money in question, once disbursed, could probably not be recovered. See App. to Application to Vacate Order 93a.
The Government quickly filed an appeal in the United States Court of Appeals for the District of Columbia. But, with only four hours to spare before the payment deadline, the D.C. Circuit dismissed the Government’s appeal because it took the District Court’s "TRO" label at face value and determined it lacked appellate jurisdiction.
With nowhere else to turn and the deadline fast approaching, the Government asked this Court to intervene. At the last moment, THE CHIEF JUSTICE issued an administrative stay. Unfortunately, a majority has now undone that stay. As a result, the Government must apparently pay the $2 billion posthaste—not because the law requires it, but simply because a District Judge so ordered. [!!! ] As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility.
II
Time does not allow a lengthy discussion of the legal issues presented by this case, but a brief summary suffices to show that the District Court’s order should be vacated or, at the very least, stayed.
To start, it is clear that the District Court’s enforcement order should be construed as an appealable preliminary injunction, not a mere TRO. A TRO, as its name suggests, is "temporary," and its proper role is to "restrain" challenged conduct for a short time while the court considers whether more lasting relief is warranted. See 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3922.1 (3d ed. 2012). The order here, which commanded the payment of a vast sum that in all likelihood can never be fully recovered, is in no sense "temporary." Nor did the order merely "restrain" the Government’s challenged action in order to "preserve the status quo." Northeast Ohio Coalition for Homeless and Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F. 3d 999, 1006 (CA6 2006). Rather, it "act[s] as a mandatory injunction requiring affirmative action" by the Government. Ibid. And given its likely irreversibility, the District Court’s enforcement order effectively gave respondents a portion of the ultimate relief they seek.
For these reasons, the Court of Appeals had jurisdiction to consider the Government’s appeal, and we have jurisdiction to review and summarily vacate that court’s erroneous judgment.
III
Even if the majority is unwilling to vacate the District Court’s order, it should at least stay the District Court’s enforcement order until the Government is able to petition for a writ of certiorari. In considering whether to issue such a stay, we ask, at a minimum, (1) whether the moving party is likely to prevail on the merits and (2) whether that moving party is likely to suffer irreparable harm.* See Nken v. Holder, 556 U. S. 418, 425 (2009); Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 327 (1999). In "close cases," we also take into account other equitable considerations. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). Here, these factors weigh in favor of a stay.
FN: *To the extent that likelihood of certiorari is a relevant factor, John Does 1–3 v. Mills, 595 U. S ___, ___ (2021) (BARRETT, J., concurring in the denial of application for injunctive relief) (slip op., at 1), it is met here. Recent years have seen a sharp increase in district-court orders enjoining important Government initiatives, and some of these have been labeled as unappealable TROs. See Dellinger v. Bessent, 2025 WL 559669 (CADC, Feb. 15, 2025); id., at *10–*17 (Katsas, J., dissenting). Clarification of the standards for distinguishing between a TRO and a preliminary injunction is a matter that deserves this Court’s attention at the present time. The same is true regarding the scope of the APA’s waiver of sovereign immunity. End FN
Likelihood of success. The Government has shown a likelihood of success on the merits of its argument that sovereign immunity deprived the District Court of jurisdiction to enter its enforcement order.
Sovereign immunity bars "a suit by private parties seeking to impose a liability which must be paid from public funds in the . . . treasury." Edelman v. Jordan, 415 U. S. 651, 663 (1974). But that is exactly what the District Court ordered here. See App. to Application to Vacate Order 85a–86a ("[T]he restrained defendants shall pay all invoices and letter of credit drawdown requests on all contracts for work completed prior to the entry of the Court’s TRO on February13").
Sovereign immunity may be waived, but "[t]o sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims." Lane v. Peña, 518 U. S. 187, 192 (1996). Attempting to satisfy this strict requirement, respondents point to the APA’s waiver of sovereign immunity for certain actions "seeking relief other than money damages." 5 U. S. C. §702. That language, as we have explained, distinguishes "between specific relief," which is permitted under the APA, and "compensatory, or substitute, relief," which is not. Department of Army v. Blue Fox, Inc., 525 U. S. 255, 261 (1999). But the relief here more closely resembles a compensatory money judgment rather than an order for specific relief that might have been available in equity. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 210–211 (2002) ("[A]n injunction to compel the payment of money past due under a contract, or specific performance of a past due monetary obligation, was not typically available in equity"). Sovereign immunity thus appears to bar the sort of compensatory relief that the District Court ordered here.
Hoping to escape that conclusion, respondents point to Bowen v. Massachusetts, 487 U. S. 879 (1988). In that case, we held that the APA’s waiver of sovereign immunity covered a District Court’s judgment reversing a final order of the Secretary of Health and Human Services refusing to reimburse Massachusetts for certain Medicaid expenditures. Unlike the District Court’s order here, that "judgment did not purport to . . . order that any payment be made" by the United States. Id., at 888. Rather, Bowen simply recognized a basic reality of APA review: after a court sets aside an agency action, a natural consequence may be the release of funds to the plaintiff down the road. Indeed, we have since clarified that "Bowen has no bearing on the unavailability of an injunction to enforce a contractual obligation to pay money past due"—the sort of relief that appears to have been ordered here. Knudson, 534 U. S., at 212.
The District Court, however, failed to mention (much less reckon with) Bowen or Knudson before plowing ahead with its $2 billion order. Nor did it take account of our previous suggestion that the proper remedy for an agency’s recalcitrant failure to pay out may be to "seek specific sums already calculated" and "past due" in the Court of Federal Claims. Maine Community Health Options v. United States, 590 U. S. 296, 327 (2020); Bowen, 487 U. S., at 890, n. 13 (invoking the First Circuit’s suggestion that if an agency "‘persist[s] in withholding reimbursement for reasons inconsistent with our decision’" under the APA, the "‘remedy would be a suit for money past due under the Tucker Act in the Claims Court’"). The most that can be said is that in the District Court’s denial of the Government’s motion for a stay pending appeal, it cited but did not analyze a handful of cases echoing Bowen’s discussion of the APA’s conscribed waiver of sovereign immunity. One might expect more care from a federal court before it so blithely discards "sovereign dignity." Alden v. Maine, 527 U. S. 706, 715 (1999).
Finally, the Government has a stronger argument that the District Court’s order violates the principle that a federal court may not issue an equitable remedy that is "more burdensome to the defendant than necessary to" redress the plaintiff ’s injuries. Califano v. Yamasaki, 442 U. S. 682, 702 (1979). In this case, the District Court’s enforcement order functions as a "universal injunction def[ying] these foundational" limits on equitable jurisdiction. Labrador v. Poe, 601 U. S. ___, ___ (2024) (GORSUCH, J., concurring in grant of stay) (slip op., at 5). The District Court ordered the Government to "pay all invoices and letter of credit draw-down requests on all contracts" for pre-TRO work completed. App. to Application to Vacate Order 86a. That order encompasses more than just respondents, and the District Court offered no reason why universal relief to nonparties is appropriate here. And this is not the sort of case in which only universal relief is feasible. Even supposing the APA allows universal vacatur of rules in some circumstances, the District Court’s order of direct monetary payment bears no resemblance to that. Cf. Griffin v. HM Florida-Orl, LLC, 601 U. S. ___, ___, n. 1 (2023) (KAVANAUGH, J., respecting denial of application for stay) (slip op., at 3, n. 1.). And nobody has suggested that the Government is unable to identify respondents’ allegedly owed funds and pay out only to them. Limiting the scope of relief in that manner would be significant. Below, the Government represented respondents seek roughly $250 million—still a large figure, but a fraction of the $2 billion ordered. Emergency Motion for Immediate Administrative Stay and for Stay Pending Appeal in No. 25-5046 etc. (CADC), p. 9.
Harm to the parties and others. The Government has shown that it is likely to suffer irreparable harm if the District Court’s order is not stayed. The Government has represented that it would probably be unable to recover much of the money after it is paid because it would be quickly spent by the recipients or disbursed to third parties. Respondents did not credibly dispute this representation, and the District Court did not find that it is incorrect.
We usually "balance the equities and weigh the relative harms" in "close cases." Hollingsworth, 558 U. S., at 190. For the reasons I have explained, this is not such a case, and our analysis could end there. Nevertheless, respondents’ equitable arguments are insufficient to justify the denial of a stay. They contend that the failure to pay the money in question would cause them irreparable harm because without those funds, they could not continue to operate or would have to reduce the work they do. As a result, they claim, recipients of their services would suffer. These potential consequences are, of course, serious. But any harm resulting from the failure to pay amounts that the law requires would have been diminished, if not eliminated, if the Court of Appeals had promptly decided the merits of the Government’s appeal, which it should not have dismissed. If we sent this case back to the Court of Appeals, it could still render a prompt decision. If it decided in favor of respondents, the Government would be obligated to pay all the money that is due, and respondents would have suffered only a short delay in the receipt of payments. And if the Government prevailed on its sovereign-immunity argument, neither respondents nor any of the recipients of their services would have suffered any unlawful consequences.[!!!]
In sum, the factors we consider in deciding whether to issue a stay weigh strongly in favor of granting that relief.
* * *
Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Sun Mar 09, 2025 9:56 pm
Trump confirms retribution campaign against law firms that clash with his agenda: The president says his administration is ‘going after’ law firms he claims are ‘dishonest’ and ‘bad for the country’
by Alex Woodward
UKIndependent
Sunday 09 March 2025 21:11 GMT
https://www.independent.co.uk/news/worl ... 11843.html
Donald Trump is punishing law firms that have represented what he perceives as his political enemies by stripping their security clearances and access to government buildings, delivering severe legal retribution against people he believes are threatening his agenda.
“We have a lot of law firms that we’re going to be going after, because they were very dishonest people,” the president told Fox News host Maria Bartiromo in an interview that aired on Sunday Morning Features on Sunday.
“They were very, very dishonest. I could go point after point after point. And it was so bad for our country. And we have a lot of law firms we’re going after,” Trump said.
The interview aired days after he signed another executive order targeting a prominent law firm, which opponents fear is designed to cast a chilling effect that threatens representation for groups and individuals who are challenging the administration’s agenda in court.
Last month, Trump signed a similar measure attacking the firm Covington & Burling, which provided pro bono assistance to special counsel Jack Smith in his personal capacity as he handled federal criminal investigations into the president’s alleged election interference and unlawful retention of classified documents.
This time, the president went further by blocking lawyers with the firm Perkins Coie from federal buildings entirely and barring federal agencies and contractors from working with it.
His apparent beef with Perkins Coie dates back to a federal investigation into connections between Trump’s 2016 campaign and Russian agents to determine whether aides and officials had conspired to influence the outcome of that election. The firm represented Hillary Clinton’s campaign and the Democratic National Committee and worked with a research firm that produced the now-discredited dossier that alleged contacts between Trump and Russia.
Perkins Coie contracted Fusion GPS to conduct opposition research, which Fusion enlisted former British spy Christopher Steele to perform. Steele’s dossier, which was later turned over to the FBI, alleged Russia’s years-long campaign to compile compromising information against then-candidate Trump.
Now-former Perkins lawyers Marc Elias and Michael Sussman were both named in Trump’s order. Neither have worked for the firm in years. Since 2020, Elias has led the voting rights and civil rights litigation-tracking platform Democracy Docket, which has tracked hundreds of Trump-related cases.
Donald Trump has signed executive orders stripping two high-profile law firms of security clearances after their work with his opponents (EPA)
“This is an absolute honor to sign,” Trump said during a signing ceremony at the White House on Thursday. “What they’ve done is just terrible. It’s weaponization, you could say weaponization against a political opponent, and it should never be allowed to happen again.”
A spokesperson for the firm called the order “patently unlawful” and said it intends to challenge it.
Last month, Trump signed a similar measure suspending security clearances for outside lawyers who supported Smith in his personal capacity.
The memo suspends “any active security clearances held by Peter Koski and all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel.”
During a signing ceremony, Trump called the memo the “deranged Jack Smith signing.”
Trump’s targeting of lawyers follows his administration’s threats to members of the judiciary, with Elon Musk and Republican members of Congress repeatedly threatening to impeach or punish judges who issue decisions that brush against their agenda, which judges across the country and ideological spectrum are condemning as unconstitutional, discriminatory and illegal.
After a string of legal blows against his orders and policy maneuvers, Trump issued an executive order this week that calls on agency and department heads to press for monetary “security” payments from plaintiffs if an injunction against the administration is issued.
That would mean plaintiffs – which have included civil rights groups, pregnant immigrants, trans teenagers and aid workers — would be required to pay the government’s legal fees, upfront, if a judge issues an injunction.
The American Bar Association has warned against the “escalating governmental efforts to interfere with fair and impartial courts, the right to counsel and due process, and the freedoms of speech and association in our country.”
“We reject the notion that the government can punish lawyers who represent certain clients or punish judges who rule certain ways,” American Bar Association president Wiliam R. Bay said in a statement this week. “We cannot accept government actions that seek to tip the scales of justice in this manner.”
by Alex Woodward
UKIndependent
Sunday 09 March 2025 21:11 GMT
https://www.independent.co.uk/news/worl ... 11843.html
Donald Trump is punishing law firms that have represented what he perceives as his political enemies by stripping their security clearances and access to government buildings, delivering severe legal retribution against people he believes are threatening his agenda.
“We have a lot of law firms that we’re going to be going after, because they were very dishonest people,” the president told Fox News host Maria Bartiromo in an interview that aired on Sunday Morning Features on Sunday.
“They were very, very dishonest. I could go point after point after point. And it was so bad for our country. And we have a lot of law firms we’re going after,” Trump said.
SundayMorningFutures@SundayFutures
Today exclusively on @SundayFutures with @MariaBartiromo, President Trump @POTUS @realDonaldTrump spoke about expanding space exploration and the future of the Department of Education.
@FoxNews
9:36 AM · Mar 9, 2025
The interview aired days after he signed another executive order targeting a prominent law firm, which opponents fear is designed to cast a chilling effect that threatens representation for groups and individuals who are challenging the administration’s agenda in court.
Last month, Trump signed a similar measure attacking the firm Covington & Burling, which provided pro bono assistance to special counsel Jack Smith in his personal capacity as he handled federal criminal investigations into the president’s alleged election interference and unlawful retention of classified documents.
This time, the president went further by blocking lawyers with the firm Perkins Coie from federal buildings entirely and barring federal agencies and contractors from working with it.
His apparent beef with Perkins Coie dates back to a federal investigation into connections between Trump’s 2016 campaign and Russian agents to determine whether aides and officials had conspired to influence the outcome of that election. The firm represented Hillary Clinton’s campaign and the Democratic National Committee and worked with a research firm that produced the now-discredited dossier that alleged contacts between Trump and Russia.
Perkins Coie contracted Fusion GPS to conduct opposition research, which Fusion enlisted former British spy Christopher Steele to perform. Steele’s dossier, which was later turned over to the FBI, alleged Russia’s years-long campaign to compile compromising information against then-candidate Trump.
Now-former Perkins lawyers Marc Elias and Michael Sussman were both named in Trump’s order. Neither have worked for the firm in years. Since 2020, Elias has led the voting rights and civil rights litigation-tracking platform Democracy Docket, which has tracked hundreds of Trump-related cases.
Donald Trump has signed executive orders stripping two high-profile law firms of security clearances after their work with his opponents (EPA)
“This is an absolute honor to sign,” Trump said during a signing ceremony at the White House on Thursday. “What they’ve done is just terrible. It’s weaponization, you could say weaponization against a political opponent, and it should never be allowed to happen again.”
A spokesperson for the firm called the order “patently unlawful” and said it intends to challenge it.
Last month, Trump signed a similar measure suspending security clearances for outside lawyers who supported Smith in his personal capacity.
The memo suspends “any active security clearances held by Peter Koski and all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel.”
During a signing ceremony, Trump called the memo the “deranged Jack Smith signing.”
Trump’s targeting of lawyers follows his administration’s threats to members of the judiciary, with Elon Musk and Republican members of Congress repeatedly threatening to impeach or punish judges who issue decisions that brush against their agenda, which judges across the country and ideological spectrum are condemning as unconstitutional, discriminatory and illegal.
After a string of legal blows against his orders and policy maneuvers, Trump issued an executive order this week that calls on agency and department heads to press for monetary “security” payments from plaintiffs if an injunction against the administration is issued.
That would mean plaintiffs – which have included civil rights groups, pregnant immigrants, trans teenagers and aid workers — would be required to pay the government’s legal fees, upfront, if a judge issues an injunction.
The American Bar Association has warned against the “escalating governmental efforts to interfere with fair and impartial courts, the right to counsel and due process, and the freedoms of speech and association in our country.”
“We reject the notion that the government can punish lawyers who represent certain clients or punish judges who rule certain ways,” American Bar Association president Wiliam R. Bay said in a statement this week. “We cannot accept government actions that seek to tip the scales of justice in this manner.”
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