The Lawsuits Against The Trump Administration

0:07President Trump has tested the limits of the law since the day he took office to start his second term. This includes signing an executive order to end birthright citizenship, terminating or freezing billions of dollars in federal funding, and enacting sweeping tariffs on foreign goods without congressional approval. But these actions have not been met with silence. Over the last eight months, hundreds of lawsuits have been filed by state attorneys, physicians, media organizations, international students, and others to challenge the Trump administration's policies. Now, it's difficult to keep track of it all, but today we're going to try.

0:42After the break, we check in on major lawsuits against the administration. Where do these lawsuits stand now? And what do they mean for our country's system of checks and balances? I'm Jen White. You're listening to the 1A podcast. We'll meet our panel and jump right in in just a moment. Stay with us.

1:03Let's meet our guests. Joining us in studio is Elliot Williams. He's a legal analyst for CNN and a guest host on 1A. He also served as Deputy Assistant Attorney General for Legislative Affairs at the Department of Justice from 2013 to 2017. Elliot, it's always great to have you. Always great to see you, Jen. Also with us is Mary McCord. She's the Executive Director of the Institute for Constitutional Advocacy and Protection at Georgetown University. She was also the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017. Mary, welcome back. Thanks for having me, Jen.

1:38So let's start with what we heard from one of you.

1:55Thanks for that message. Now, at least dozens of lawsuits have been filed against the administration since January, challenging its immigration policies. So starting with the Alien Enemies Act, this is an obscure wartime power. the president invoked in March to swiftly deport 250 Venezuelan immigrants to El Salvador. They were then held in that country's mega prison without due process. So first, what does this power allow the president to do? And why is the legality of how Trump uses power being challenged? Absolutely. So the president, the Alien Enemies Act ultimately allows the summary expulsion of people who are enemies of the United States from the United States.

2:39And the president has now broadly used this authority to any number of people, particularly in the context of a number of individuals from Venezuela. You know, to step back a little bit, Jen, and you're going to hear me say this a lot over the course of our hour of talking about this today. The president ran on immigration enforcement as a priority, said we're going to be aggressive on the borders and so on. I want to be clear that the fact that something might be politically popular or even a campaign promise does not ensure or guarantee its legality. And an argument that they have come back to repeatedly is that we said we were going to do this.

3:15The American people want this. They want tougher borders. They want violent criminals out of the country and so on. But he's taken aggressive steps that, quite frankly, may not comport with the law and merely waving a wand and suggesting that these folks are enemies of the United States and ought to be out of the United States without any sort of due process, access to hearings or anything else that we would afford even violent people in the United States. That's just not there. And that's a backdrop to all of these cases that touch on national security. So when we talk specifically about the Alien Enemies Act and how the Trump administration used that authority, how is it being challenged legally?

3:52Well, it's being challenged in the court saying that merely using this as a tool and deporting or removing people from the country without any process, access to hearings, access to speak to an attorney, access to question the conditions of their confinement is unlawful. And those have been brought – lawsuits have been brought to challenge that. Now, the 250 Venezuelan migrants have since been moved from El Salvador's mega prison, CICOT. They were sent to Venezuela. Mary, federal courts around the country are split over whether the Trump administration invoked this law properly. Where does the case stand now?

4:28Well, the most significant decision is the one out of the Fifth Circuit last week, and that was a two-to-one decision that actually took the case back from the Supreme Court. And the Supreme Court had intervened when people were being taken to planes to be deported to El Salvador. The Supreme Court told the Fifth Circuit to determine whether the Alien Enemies Act applied here, interpret it and interpret its constitutionality, and determine whether those people had had enough due process, the same due process you were just talking about. In this decision, the Fifth Circuit determined that there was no predatory incursion or invasion.

5:12Those are terms used in the Alien Enemies Act that supported use of that Alien Enemies Act. The Act says that when there's a declared war, which there's not, or an invasion or predatory incursion by a foreign nation, that's when it could be used. And the judge that wrote the majority opinion, Judge Southwick, a conservative judge, he based this in originalism. He looked at the definitions of those terms, invasion and predatory incursion, back in the late 1700s when the Alien Enemies Act was first enacted. He looked at constitutional use of those terms. He looked at what our founders, James Madison and others, had said about those terms and concluded that this had to be a hostile type of invasion, actually an act of war, and that there was just nothing, even deferring to the president's factual findings about Tranda Aragua, there's nothing that amounted to an invasion or predatory incursion.

6:09So that case has not yet been, the government has not yet sought to take that back to the Supreme Court. But that is the case that is the furthest along because it is a federal circuit court opinion. And I suspect we will see the Supreme Court answering that in due course. Now, we recently highlighted the stories of two families who've been directly affected by the Trump administration's crackdown on immigration. One of the men in these families was among those Venezuelans deported to El Salvador in March. He was seeking asylum in the U.S., had a pending immigration case. You can find that show on our website at the1a.org.

6:44But, Elliot, I'm curious what the implications of a case like this are, not just for immigrants in the U.S., but for the question of presidential power more broadly. Considering it's done, these 250 Venezuelans are out of the country. Yes, the case is still pending, but they're already gone. Right. And the question is, what's the remedy? And when the administration takes a particularly aggressive action that might not comport with the law, certainly people can sue, people can challenge. But the harm has occurred to these individuals. They have suffered some sort of harm. Now, OK, could they be brought back to the United States?

7:26Possibly. But in practice, that's simply not going to happen. And so there are any number of areas in this aggressive period of litigation in the United States. There are a number of areas in which, yes, the courts might be able to provide some remedy, but the person on the other side of it has lost in practical terms, even if they may ultimately win in legal terms. On his first day in office, in his second term, President Trump signed an executive order to end birthright citizenship. It's a right established by the 14th Amendment. It was ratified by Congress in 1868. And the order would mean that any child born in the U.S.

8:00to parents without legal status or who are in the country legally but temporarily would no longer be considered a U.S. citizen. Mary, you're co-counsel in the case challenging this executive order in Casa v. Trump. Tell us about the case and where it stands right now. Sure. So this is the case that was one of three that went up to the Supreme Court after the litigants in these three separate cases had obtained universal injunctions against that executive order. And that means an injunction barring it anywhere in the country. And that's significant, right? Because every court to have ruled on this has held that by the plain terms of the 14th Amendment, as well as a congressional statute that was enacted thereafter, birthright citizen applies to everyone that is born here and subject to the jurisdiction of this country.

8:53When our case resulted in a universal injunction and two other cases brought by groups of states resulted in a universal injunction, the government went to the Supreme Court not to challenge the merits of the decision about birthright citizenship, but to only challenge the scope of the relief, universal injunctions. That resulted in an opinion that has had some pretty significant consequences, not just for this case, but for so many other cases, because the Supreme Court held that district courts cannot issue nationwide universal injunctions unless it's necessary for complete relief to the plaintiffs, which is something that's almost too complicated for us to get into this morning, but they did leave open other alternatives like class action lawsuits.

9:40And that is one of the things that our case, right after the Supreme Court's opinion, we then refiled an amended complaint alleging a class action of all those babies born or who will be born who would be subject to this executive order. We then obtained a class-wide relief, which then applies nationwide in joining that birthright citizenship order. The states who brought other cases, they went back to court and said, we need this for complete relief because people move between states and we've got to be able to know who is a citizen and who's not. And there's no way to do that without this applying to the entire country.

10:19So these are the cases and there's some several others where those decisions have been made. And we're waiting to see which one the Solicitor General of the United States will seek to take back to the Supreme Court to actually have the court issue a decision on the merits of the birthright citizenship executive order. We'll head to a quick break here and be back with more of the conversation in just a moment. Stay with us.

10:48Let's get back to the conversation. This August, the Trump administration deployed thousands of National Guard members to Washington, D.C. The president says they were deployed to combat crime in the city. D.C. officials point to the fact that violent crime in the district is at a 30-year low. In June, the administration deployed the National Guard to Los Angeles during protests against ICE raids. Now, both cities have since sued the administration. Elliot, let's start with Los Angeles. Last week, a federal judge found that Trump's deployment of the National Guard violated the Posse Comitatus Act.

11:21Just really briefly, what is the act and how is the judge saying the administration violated it? The Posse Comitatus Act says, in effect, that military cannot do law enforcement functions. Our military are not the police. And most importantly, an enduring question of our time is where law enforcement ends and where national security begins and immigration begins. And all of this is being blurred together by the Trump administration right now. Now, the judge had ruled, as you said, that by deploying military National Guard to Los Angeles, the Trump administration had violated the Posse Comitatus Act by having these law enforcement – pardon me, military officials engaging in law enforcement functions, basic street functions.

12:04that violated the law. Now, the judge has paused that order to give the administration time to appeal it, which they certainly will, given the critical stakes for all sides in the case. Mary, how far do you expect this case to go? Because as we've seen, lower court judges don't always or even often have the final word. Sure. So this case already has been to the Ninth Circuit once. That was on Judge Breyer, the district court judge's original order that sort of enjoined the entire federalization of the National Guard and the deployment of the military. But that was stayed by the Ninth Circuit. He then had a full trial on the issue Elliot just mentioned, whether there was a violation of the Posse Comitatus Act by the federalized National Guard.

12:52And he concluded there had been. So that case, as he indicated, will probably go back to the Ninth Circuit. And then depending on what the Ninth Circuit rules, you could see the U.S. government going up to the Supreme Court again. So, for example, if the Ninth Circuit were to, say, uphold Judge Breyer's decision about the Posse Comitatus Act, I would expect the government to seek review in the Supreme Court. And this is important because the president is, of course, threatening to deploy National Guard or the military to other cities, including Chicago and Baltimore and Portland and New Orleans and several others that he's mentioned.

13:31And it's not entirely clear what authority he will use. In Los Angeles, he federalized the National Guard, put them under the control of the federal military, which means they would be violating Posse Comitatus Act if they were engaging in law enforcement functions, which is what Judge Breyer concluded. There are other authorities he could try to use, though, where national guards could voluntarily, governors could voluntarily send their national guards into other states under what's called Title 32, where they stay under the control of the governor and they're not federalized and under the control of the U.S.

14:07military. But that raises other complications, because if the receiving state, let's say Illinois, and of course, Governor Pritzker has been vocal about this, if they are objecting and another state sends their National Guard in to perform law enforcement functions, that really feels something like an invasion of one state into another. So that will raise all kinds of additional issues involving state sovereignty and other things like that. So it remains to be seen exactly what the Trump administration will rely on and how these cases will make their way up through the courts. But I assure you that they will.

14:42And Illinois Governor J.B. Pritzker, a Democrat, and we should mention that most of these cities the president is pointing to are Democratic cities or Democratic-run cities. But he has said that this amounts to an invasion. Elliot, when we look at D.C., that's a unique case because it's not a state. Therefore, the federal government has authority over the city's National Guard. Trump is allowed to deploy the Guard for 30 days. Anything beyond that requires congressional approval. The 30 days ends Wednesday. So according to two White House officials, the National Guard plans to extend its stay to November 30th.

15:18Congress has not voted on this. D.C. officials have filed a lawsuit against the administration. They did that at the end of last month. So what is the city arguing in this lawsuit and where does this stand? The city is arguing a few things in the lawsuit, Jen. Number one, that the deployment is illegal on its face for the reasons you said, that this question of is D.C. a state, is D.C. a city, is D.C. under federal control is at the center of it. And unlike Chicago or other places, there is ambiguity as to D.C.'s status, and that has given the president a slightly longer leash to behave in the way that he has with respect there.

15:50Number one, so the deployment itself is illegal. Number two, that by doing so, the president has violated or infringed on the district's autonomy. It is still under home rule, you know, the terms you've heard being a D.C. radio station. That's violated by the president's action. And then most importantly, also as we've been talking about throughout the program, that the president has infringed on the constitutional prohibition against using the military for domestic law enforcement. So all of these questions, and it was in the district attorney general's interest to list all of these different bases so that the courts have different avenues they could follow in deciding to rule in the district's favor.

16:36They've given a few different arguments. Now, which of them stick, we don't know. And again, it's trickier here solely on account of D.C.'s unique status. Mary, just to contextualize for us, the amount of legal action we've seen against the Trump administration, every presidential administration ends up having lawsuits issued against it. But are we seeing more of that during this second Trump term? Oh, gosh, yes. I mean, it's just staggering. I mean, well over 100 lawsuits in the district courts. The challengers to executive overreach have been overwhelmingly winning those cases. Even in the federal courts of appeals, many of those have resulted in wins.

17:22on emergency motions taken up to the Supreme Court, the Trump administration has had a real significant run of success, not across the board, as we talked earlier, particularly when it came to issues of due process related to summary removals of immigrants from the country. The Supreme Court stepped in against the Trump administration and said all nine justices agreed that people must have a right to due process notice and an opportunity to be heard before they're deported. But in other cases, and this is one of the reasons I think that many people are frustrated, litigants as well as courts, including the lower courts, is because the Trump administration is running to the Supreme Court on an emergency docket when it loses in the lower courts and asking the Supreme Court to stay those rulings.

18:13And the Supreme Court is sometimes doing that with zero or very little explanation. So lower courts are left not knowing exactly what to do on remand because they don't have an exact reason for the court's rulings. And that makes it very difficult for our system of justice. And it also, I think, is really impacting the legitimacy of the Supreme Court when they do not have transparency into the reasons why they are intervening and staying well-thought-out, well-reasoned decisions of the lower federal district courts and courts of appeals. I want to be sure to get to this story, Mary. Last week, the U.S.

18:51carried out a military strike on a Venezuelan boat in the Caribbean, killing 11 people aboard. The administration says the boat was carrying illegal narcotics. Now, Vice President J.D. Vance wrote over the weekend on X, and I'll quote him here, killing cartel members who poison our fellow citizens is the highest and best use of our military, end quote. Now, there isn't a lawsuit, but the legality of this attack is being questioned by some experts in the law of war. Tell us why. Sure. I actually think this is one of the most shocking things that happened in the last couple of weeks, notwithstanding a lot of shocking things.

19:28And, you know, there has to be legal authority, domestic and international, to take a strike on a boat coming up through the waters from another country. And the domestic law right now does not support that strike. The most you could come, Congress has to authorize that. We don't get to just kill people because we think they might be members of a drug cartel. So the president may claim that this was his inherent constitutional authority. But that really stretches things because, again, we have no idea what evidence the president may have had about the occupants of that boat, whether they were cartel members.

20:10And even if they were, U.S. law does not allow a strike. Like use of inherent authority would be for things like emergencies and self-defense. And it's hard to imagine when the administration has admitted that our Coast Guard in its normal law enforcement functions could have interdicted this vote like it has done many times before, could have searched it, could have obtained the drugs if there were drugs, etc. And that was not the choice made. And then international law raises a number of additional legal issues. So this is a very, very, very serious incident. and remains to be seen whether this will be attempted again.

20:48And, you know, what kind of, I mean, it's tough here on litigation, right? Because the people in the boat are no longer living. Elliot, you had something to add. Oh, just a brief point I would add to all the wonderful things Mary noted there, that a few times the administration has made the point that, well, if there were a boat of Al-Qaeda members carrying bombs into the United States, we would not hesitate to drop bombs on them. And it's just a faulty analogy given effectively the declaration of war against al-Qaeda in 2001 as a global terrorist organization. No one is suggesting that anybody wants drug smugglers in the United States.

21:25But the equation of one to the other where there was a clear legal distinction made by Congress is just a faulty comparison. But it gets back to this issue of accountability and remedy that you pointed to earlier when we were talking about the case of the Venezuelan immigrants who were expelled from the country without any legal recourse. And what we've seen in this administration is a willingness to what the kids would say. I think it's like, don't ask, just apologize later, right? But the legal system in this country works pretty slowly. And so the administration is moving forward on certain actions.

22:10And then these things work their way through the court. But the remedy for it is still very unclear. And like I said about the political popularity, the gut feeling is, well, you know, ultimately they did a good thing. They're making Americans safer. To your point, perhaps the people in this boat were Trendy Aragua members and arms of the Venezuelan government and potentially engaged in terrorist acts against the United States. OK, perhaps that's the case. That doesn't mean that international law empowers or enables the government to simply without any – engage in an extrajudicial killing. And so, yeah, the vibes are great on it, but that doesn't mean that it comports with the law.

22:50We're rounding up some of the major legal challenges against the Trump administration. Unfortunately, we have to let Mary go. Mary McCord is the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University. Mary, thanks so much for joining us. Thanks for having me, Jen. Back with more in a moment.

23:12Let's get back to the conversation and add another voice. Kate Shaw is a professor of law at the University of Pennsylvania Law School. She's also a Supreme Court contributor for ABC News and co-host of the podcast, Strict Scrutiny. Kate, welcome back. Thank you so much for having me. So let's start with the latest Supreme Court news. On Monday, the court blocked a federal court's ruling that barred federal agents from conducting immigration stops in Los Angeles based solely on an individual's race, language, job, or location. Now, the Constitution's Fourth Amendment protects people from unlawful searches and seizure.

23:45So Kate, tell us more about this case and what the Supreme Court said about it. Sure. So this case grows out of these very aggressive immigration raids in Los Angeles the administration was conducting earlier this summer. And in response to challenges to some of those raids, lower courts found, just as you said, that some of these mass detentions and stops were being conducted unlawfully. They were essentially stops without individualized suspicion and based rather on criteria like ethnicity, type of employment, right, where individuals working at a site like a car wash or like a landscaping outfit, where individuals speaking Spanish.

24:24And in response to those kinds of criteria, immigration officials were conducting these mass detentions. And lower courts found that that was likely a violation of the Fourth Amendment and barred the federal government from continuing to engage in these mass detentions or mass stops. And the Supreme Court yesterday, without a word of explanation from the majority, put on hold that lower court ruling, meaning the administration is again free to engage in the kind of immigration enforcement and stops that it was engaging in, even though a lower court found that that likely violated the Constitution.

24:57I believe Justice Sonia Sotomayor wrote the dissent. What did she say? She did. I mean, this was a scathing dissent in which she essentially said, we are now, we, the Supreme Court, is greenlighting a state of affairs in which we are living in a country in which the government can seize anyone who looks Latino, who speaks Spanish, or who appears to work in a low-wage job. So you've essentially told a class of Americans, they have to be affirmatively ready at any moment to prove their lawful status in this country simply because they may be perceived to be here out of lawful status. And the Supreme Court has essentially allowed that again.