The Outstanding Cases Against The Trump Administration

0:07The first year of the Trump administration brought a lot of change. The president undid longstanding practices around immigration enforcement, introduced sweeping tariffs, withdrew federal funding for universities, and tried to remake the federal workforce. And he and his administration were met with fierce backlash in the courts. This may be the big one. The administration of Donald Trump versus one of the most significant cultural institutions in the United States, academic institution, Harvard University. Have some of these raids gone too far? No, I think they haven't gone far enough because we've been held back by the judges, by the liberal judges.

0:44We have this unelected, fourth unconstitutional branch of government, which is the bureaucracy. Suing the Department of Justice to halt, steps toward the mass unlawful termination of bureau employees and what they claim is unlawful retaliation for doing their jobs to investigate the January 6th cases. How successful has the administration been in the courts and what cases from 2025 remain up in the air? We get into it after the break. I'm Jen White. You're listening to the 1A Podcast. Stay with us. We've got a lot to get to.

1:23Joining us is Josh Gerstein. He's a senior legal affairs reporter at Politico, and he joins us from Alexandria, Virginia. Josh, welcome back to the program. Hey, Jen. Good to be with you again. And with us from Washington, D.C. is Mary McCord. She's executive director of Georgetown University's Institute for Constitutional Advocacy and Protection. She's also a visiting law professor at the Georgetown University Law Center. Mary, it's great to have you back. It's nice to be with you, Jen. First, I just want your reads on how successful the Department of Justice has been in winning the more than 350 cases that have challenged the administration's executive actions so far.

2:00Mary? So this is sort of a tale of two levels of courts, I would say. The challengers to administration's executive overreach have been overwhelmingly successful in the lower courts. They've obtained many, many injunctions against mass firings, dismantling of agencies, immigration-related rulings, including the deportation of people under the auspices of the Alien Enemies Act, etc., etc. But unfortunately, a number of these decisions that were made to preserve the status quo while the cases are litigated were stayed by the Supreme Court. Not everything, but a number of things. And that means rather than the Supreme Court preserving the status quo during litigation over things such as the mass firings, the dismantling of federal agencies, et cetera, we have the administration being allowed to go forward with those actions.

2:58And that's a really difficult thing then to sort of like remedy after the fact if the Supreme Court were to ultimately rule in favor of the challenger. So we've really seen some big distinctions between the lower court and the Supreme Court. I will say, though, in a couple of areas, the Supreme Court has delivered the challengers some significant wins, including at the very early part of the administration in areas involving due process. So we'll get more into that in just a bit. But, Josh, I want to hear from you as well. What's your read on how the DOJ has fared so far? I tend to think that they've been pretty successful overall at defending Trump's policies, particularly you mentioned at the outset, Jen, in areas like reshaping the federal workforce, which I guess is sort of a euphemism for firing large numbers of workers from federal agencies and sort of dramatically shifting the way funds are allocated through grants and contracts.

4:01Obviously, there was the very high profile shutdown of USAID. You know, those sorts of moves, they did encounter problems in the courts. But ultimately, Trump was able to do virtually everything he wanted to do in those areas. That said, in some areas, like Mary was saying, we have seen some resistance from the courts to what the Trump administration has been trying to carry out. And we should just note here, outside interest groups or states suing the U.S. government over its policy decisions, this isn't a new phenomenon. Mary, how have the number of lawsuits in 2025 against the Trump administration compared to those against previous presidential administrations?

4:42Well, that that is new. I mean, the numbers are really staggering. I don't even know what we're up to yet. I think it's over 500 lawsuits against the administration. And as you say, Jen, and I spent a long career at the Department of Justice, you know, suing the government is not, you know, particularly novel, but you've just never seen it in these kind of numbers. And in fact, the administration itself, in some of its early emergency appeals to the Supreme Court to stay lower court rulings, was actually using the statistic of this administration having its policies and executive actions enjoined so much more than any other president.

5:21And it sort of begs the question, well, why is that? It's because there's so much executive overreach that is being challenged. But the numbers are really staggering. I've never seen this much in my lifetime. Well, let's get into some specifics. Immigration is a central policy focus of this administration. Its aggressive deportation policies have come under scrutiny. Mary, broadly speaking, what kinds of questions have the courts grappled with in the past year when it comes specifically to immigration? So, you know, as I started to say earlier, one of the initial success stories for the challengers was in cases that the cases that originally involved the president's ostensible use of the Alien Enemies Act to deport, you know, well over 100 Venezuelans, mostly Venezuelans alleged to be members of Tranda Aragua to an El Salvadoran terrorist detention center.

6:16And this was done without any due process. In other words, without any notice that they were going to be deported under the Alien Enemies Act, without any opportunity to challenge that deportation or to challenge that they were even members of Trandayragua. And this is where this all happened sort of on an emergency basis over a weekend in March, March 14th and 15th, when the lower court enjoined, you know, tried to enjoin this. The planes had already taken off. The men had already been deported. But this still went up to the Supreme Court because the lower court was demanding answers, demanding them to be returned.

6:51And all nine justices of the Supreme Court agreed that these people had a right to due process notice and an opportunity to be heard before they were deported. Now, of course, that hadn't happened. They'd already been deported. But that really set a standard for cases going forward after that, that they needed to have that notice before deportation. So that's been a big issue and one of the places where there's agreement in so many areas where there hasn't been. So that makes me wonder, again, this question of remedy, Josh. More than 280 people were deported before the Supreme Court made this decision.

7:28What happened to them? Well, depending on what country they were from, they're basically all virtually all outside the United States now. And there's still litigation going on about what should happen with the men that Mary referred to. The men who were designated under the Alien Enemies Act as suspected gang members, but not given a trial or any sort of process to dispute that. We have a judge in Washington who is continuing to examine that issue, Judge James Bosberg, in terms of what can be done to give them either a process or an opportunity to come back to the United States. And that situation has, frankly, become even more complicated just in the last week, Jen, because of the Trump administration's military action in Venezuela and deposing the president there.

8:20It's now not even entirely clear where these people are or what process would be used to allow them to come back to the U.S. if that's what the courts ultimately conclude is required. Now, one immigration case that captured a lot of attention in 2025 was the court's deportation of Kilmar Abrego Garcia. He's originally from El Salvador. He was residing in Maryland with his wife and child. They're both U.S. citizens. He had applied for asylum and an immigration court said in 2019 he could not be deported specifically to El Salvador because he had a credible fear of persecution if he returned there.

8:58Mary, where does his case stand now? This has been the most Kafkaesque case of the entire administration. I mean, we are, you know, he was originally on one of those planes to the terrorist detention center in El Salvador, the place he could not be deported to. The administration came in through lawyers at the time who have been relieved of their positions at the Department of Justice, and they admitted that this was an administrative error. This was a mistake. This happened in March. Early April, his wife sued for him to be brought back. And this ruling out of a district court judge in Maryland said that the government needed to bring him back.

9:39That went to the U.S. Supreme Court. The U.S. Supreme Court said that the government needed to facilitate his return. The government made an excuse after excuse after excuse about how they couldn't do that. This was up to El Salvador in the months of April and May. And by late May, lo and behold, the government had reopened a traffic stop from 2022 in the state of Tennessee and created a criminal case that they charged at the end of May, charging up Rego Garcia with transporting undocumented persons and human trafficking and other crimes like this. So then suddenly, because this criminal indictment had been filed, they said they were able to bring Mr.

10:27Abrego Garcia back. So at this point, he had two cases, a criminal case in Tennessee and his challenge to his removal in Maryland. In the criminal case, the judge there has determined that there is sufficient and significant evidence of vindictiveness in this bringing of this criminal case that he has put off any trial of the matter and instead is going to be having an evidentiary hearing at the end of this month over whether this was a vindictively brought criminal case. in Maryland. The judge there has said you cannot continue to detain him pending removal because you haven't shown there was a valid removal order.

11:07And I want to add one more thing to this. Mr. Obrego Garcia has now said for months that he would be willing to self-deport to Costa Rica, a country that has said repeatedly, we would be willing to take him in and treat him as a refugee. The government won't do that. They have proposed Uganda, Liberia, Eswatini, Ghana, all of those places, I think, except Liberia, have said, no, no, no, we're not going to take him. And every time they go to court, they come up with some new place that they want to send him to that is not the place that he said he would go. So this is still pending. And why has his case been such a focus for the administration?

11:48So that's a great question that you should ask them. But what it seems to be is that even though it was their mistake to begin with, they just could not accept that. And when the Supreme Court ruled against the administration, said you do need to facilitate his return here, that's when they started some of the president, the secretary of the Department of Homeland Security and others started making extra judicial public statements, really, really convicting Mr. Obrego Garcia before he had had any due process, accusing him of being a member of MS-13, a drug cartel that has been newlywashed. designated as a foreign terrorist organization, accusing him of sexual assaults and trafficking in children and things that have not been proven up.

12:38And so this seems to me that all of this vindictive action, if you really want to get rid of him, let him go to Costa Rica, but they're not doing that. So it's hard to fathom why the government has put so many resources into this case, because this is nine months of litigation, et cetera, et cetera, that has costed them so much more than if they would have just let him remove to Costa Rica. Well, Josh, Mary alludes there to the rhetoric we hear from the White House and cabinet secretaries about the president's policies and why they should be allowed, whether it's about immigration cases or it's about tariffs or federal firings.

13:21But how do the DOJ's arguments compare to the public arguments we hear from the Trump administration? Well, I mean, oftentimes they're at odds, at least for a period of time. I mean, in the Ebrigo Garcia case that we're just discussing, we saw that happen where we had a lawyer in court admit that there had basically been a mistake, that there's a bureaucracy here and that he shouldn't have been deported, and he was deported. And within, you know, a day or so of that, we had the White House insisting both that there had been a mistake and that there had not been a mistake and that any media organization that said that was lying and so forth, even though their own lawyer had said that in court.

14:07Of course, that lawyer was later fired by the Justice Department. But we often see tension between the legal arguments or the statements that are made in court and these sort of very boisterous kind of chest-puffing statements that you get from Trump administration officials who, at least in that Abrego Garcia case, have vowed that he would never walk the streets of the United States freely again, which has turned out to be what has happened because of the way the administration has dragged this process out. He is maybe not walking the streets, but he's back at home in Maryland, waiting for the next chapters in this saga to continue.

14:47But it's a constant dance we see back and forth between the administration making statements often on outlets like Fox News, and then their lawyers having to sort of grapple with and reinterpret those statements in the courtroom to sort of try to make them pass legal muster. Well, and Mary, do the DOJ's lawyers find themselves sometimes undercut in front of a judge by what's been said publicly by the administration? They absolutely do. And judges have questioned them on this. You're telling me X, but here I've got the plaintiffs who have got example after example after example of what the high-level officials, including the president, have said about this.

15:26So why should I believe what you're telling me in court? They've also been in the horrible position of making representations to the court that end up just to be false, just turn out to be just plain false. Now, I don't know in each case whether it is the fault of the lawyer, like who's making a false statement or the information they're getting from their client, the department or agency is false. But there, you know, this happened with respect to the turning the planes around, you know, on that weekend that they were sent that the Venezuelans were sent to El Salvador. It happened much more recently over the Labor Day weekend when the president, not the president, but the Department of Homeland Security attempted to remove children, unaccompanied minor Guatemalan children, back to Guatemala in the middle of the night.

16:13And when a judge held an emergency hearing, the Department of Justice lawyers said every one of those children on that plane, their parents had requested that they be reunited. Turned out within a few days, by the time we get to the preliminary injunction, they had to walk that back because not one parent, not one parent had requested it and most had never even been contacted. Let's head to a quick break. But first, we got this message from Melissa who says, talk about waste and abuse. how much is all this extraneous litigation costing the American public? Still to come, federal workers' tariffs and other cases.

16:47That's just ahead.

16:53Let's get back to the conversation with this message we got from a TexClub member who says, the most consequential thing this administration has done is the widespread downsizing of federal departments and agencies carried out by DOGE and by cabinet members misguided by Project 2025. This is impacting key institutions like FEMA, HHS, NOAA, the entire intelligence community, and the Justice Department. Thanks for that message. You can still share your questions about these cases. What do you want to know about the administration's efforts to fire federal workers, keep tariffs in place, and more?

17:25Email us at 1a at wamu.org. Now, early in 2025, the administration's efforts to fire workers from federal agencies and sometimes shutter agencies altogether were front and center in the news. And those efforts spawned dozens of court challenges. Josh, what types of lawsuits emerged as a result? Oh, I mean, we saw lawsuits over almost all of that, those cuts. I mean, we saw lawsuits brought by employee unions. We saw lawsuits brought by people who used some of the services that were going to be shut down, for example, through the dramatic downsizing of the education department. Across the board, there were dozens and dozens of lawsuits focused on these issues.

18:13issues, and many of them in their initial stages were pretty successful in getting sort of temporary blocks on some of the firings, which are called in government parlance rifts or reductions in force. On the grants, I think it was in the contracts that were terminated at places like AID, it was much more of a mixed bag. However, when these issues reached the Supreme Court, I think in virtually all the cases, they've allowed these cuts and reductions both in spending and also in the ranks of employees to go forward, at least on an interim basis. But if you're one of the people that has been fired or laid off to be told, well, maybe in a year or two, the courts might ultimately rule in your favor, that's not much reassurance.

19:06And as a result, we've seen a lot of those people sort of move on from their federal jobs and look for work elsewhere. Mary, there are some cases still pending that involve firing people in executive roles at independent government agencies. That includes a federal trade commissioner, Rebecca Kelly Slaughter. She sued the president after he tried to fire her. And there's the case involving Federal Reserve Board member Lisa Cook, a Democrat. What do you think is likely to happen in those cases? So the Supreme Court has actually been signaling for the last several years, It's skepticism that Congress really can create truly independent agencies because it is it has at least a number of the justices have a very expansive view about executive power and that the executive has to be in control of the entire executive branch and that Congress can't create that truly independent agencies.

19:57And those are the agencies we're talking about, agencies that are headed either by a single person or a bipartisan commission or board that then can't be fired by the president at will. It would have to be for cause. And so they've been signaling their skepticism of that, particularly with respect to single agency heads. But until this year, the law, which had said that these independent agencies could stay in place, this is something that Congress could restrict the government from or restrict the president from firing people without cause. This year, though, they've signaled that they're likely to reverse that long ago ruling, I think from the 1930s, called Humphrey's Executor, if anybody is interested in the name of it, and say that even these bipartisan boards are something where the president has the authority as the head of the executive branch to fire.

20:54I think things are different when it comes to the Federal Reserve Board, because in one of the cases this year, the Supreme Court kind of put in a couple of sentences suggesting things might be different on the Federal Reserve Board because for historical reasons, going back to sort of why that board exists. That would be something that they just create because sort of as a matter of legal rationale and legal principle, there really shouldn't be a distinction because between some of these others like the Federal Labor Relations Board or the Federal Trade Commission and the Federal Reserve Board.

21:27But I think, and we'll see because the argument will be next week on Governor Cook, Lisa Cook, I think that, you know, they recognize how dramatic it would be to allow a president to just fire members of the Federal Reserve Board without any cause. And just when it comes to the Reserve Board specifically, this carve out could be to try to protect the board from political influence when it comes to policymaking around the U.S. economy. Absolutely. And, you know, let's face it, our financial policy and our policy that is established by the Federal Reserve Board doesn't just impact the U.S., right?

22:07the global economy is also tied to our monetary policy. And I think that, you know, we'll see what the Supreme Court says and how they rationalize if they do, in fact, make a carve-out. But the tea leaves suggest that they may draw a line when it comes to the Federal Reserve Board. Josh, there are also lawsuits where former employees at the FBI and the Department of Justice who worked on January 6th prosecutions say the administration fired them in a campaign of retribution. What are we seeing in these cases about firings for allegedly political reasons? Well, these are probably the most legally suspect of the firings that have taken place because, you know, while there have been sort of longstanding arguments, I think, about the issues Mary was mentioning in terms of leaders of agencies, and generally presidents have had pretty broad authority to restructure federal agencies, maybe not to shut them down completely, but to realign the way they deliver their services.

23:09These are really frontal attacks by the administration on the concept of the civil service and the concept of civil service protections. In other words, in the federal government, there are basically two kinds of jobs, politicals who are political appointees that the president or one of his top appointees designate to fill certain jobs. But most of the jobs are considered career civil service jobs. And what we've seen that's very unusual during this administration is particularly at the Justice Department among federal prosecutors and sort of the people that oversee federal prosecutors at the Justice Department and at the FBI, we've seen scores of people fired.

23:47And this is allegedly on a presidential order or presidential directive that they be removed from their jobs. In some cases, it's because they worked on January 6th related investigations. In some cases, it seems just because they're associated with someone that's viewed as hostile to the administration. For example, the former FBI director that President Trump fired has a strong dislike of James Comey. His daughter was a federal prosecutor in Manhattan, and she was fired on one of these presidential directives. Many of these people, close to all of them, probably have filed litigation challenging their firings.

24:29And, you know, for the moment, it's kind of tied up in court. The Trump administration is trying very, very hard to sort of shift these cases out of federal courts to another venue, to another board, which would probably result in a year or a year and a half of additional delay before these cases are resolved. and we really haven't gotten a definitive ruling one way or the other, I think the administration is taking the chance that, you know, even if they lose these cases, it will be in a year or two or three years. And maybe people won't get their jobs back. Maybe they will. Maybe they'll be compensated.

25:04It would be the taxpayer compensating them. But Trump basically wants these people out of his administration. And for the moment, the courts have basically rolled over and allowed him to get these people out of the administration. One of you writes, We have lost credibility with our allies and trading partners. Our internal wealth disparities are greater than ever and growing. We have a leader who would be king and freely pursues expansionist policies. Multiple states and small business groups have launched separate challenges to the president's tariffs against dozens of countries. They argue he needs approval from Congress to implement them.

25:37The Supreme Court recently heard a case on the president's tariff powers, and its decision could come out as soon as Friday. Mary, briefly, what questions arise for you? if the court says the president cannot issue tariffs unilaterally? Well, so this is a real separation of powers case because, you know, as the Supreme Court said back in 1952, the president's powers have to come either from the Constitution or from an act of Congress. And Congress has the power of the purse. It has the power to lay and collect taxes, and tariffs are a tax. Now, the Congress has given the president powers, you know, in certain areas to impose tariffs, But not what that's not what he relied on.

26:17He relied on emergency powers, saying the trade deficits, the trade imbalances are emergencies that allow him to issue these really, really enormous tariffs. And that's not permitted, say, the challengers by the actual text of that International Economic Emergency Powers Act, the act that he relied on. They say that's not what Congress said. And that means the president has gone beyond what he's authorized to do by Constitution or by act of Congress. That's a separation of powers issue. And, you know, he shouldn't be permitted to do that. I listened to that argument. Again, I hate ever speculating, but I do think there was quite a bit of skepticism about the president's argument of his vast powers to do this.

26:57And I think if this is if the ruling does come out in favor of the challengers, it will be about him going beyond these powers that Congress, you know, provided to him through legislation because he did not provide for this type of power. And that would be a very substantial rule of law ruling bringing us back into some sort of better understanding about, I think, where the president has overreached. It would raise all kinds of issues, though, with respect to refunds, right? We got this from Jay in Oklahoma, who says, how many of the cases where the Supreme Court sided with the Trump administration used the shadow docket?

27:38I'll come to you on that, Josh. This is the emergency docket the Supreme Court sometimes use. It's called the shadow docket. But what can you tell us? Well, I mean, virtually all the cases where they've sided with the administration have been in the shadow docket just because this administration's only been in office for less than a year. And that's the way the court's cases on its formal argued docket are set up. We usually know months ahead of time that they're going to be argued. And that means in this instance, some of those cases were already put onto the court's docket during the previous administration, and new ones may not yet have been argued.