The fighting back begins

The advocacy community is suing to block key elements of the Trump agenda

Hello and welcome to the first edition of Heads Up News, where every Wednesday I’ll be writing about the people and organizations that aren’t bending the knee. This is a free newsletter, but if you value it and can afford a paid subscription, please hit the subscribe button and choose one of the paid options.

The battle to defend birthright citizenship is on.

In the most blatantly unconstitutional executive order Donald Trump issued on his first day in office, Trump instructed federal government agencies to stop recognizing the citizenship of children born in the U.S. of either undocumented parents or temporary residents.

The 14^th amendment of the Constitution, by contrast, is pretty clear: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (The only exception is the children of diplomats.)

An executive order cannot overrule the Constitution.

The lawsuits began to fly almost instantly.

“Denying citizenship to U.S.-born children is not only unconstitutional — it’s also a reckless and ruthless repudiation of American values,” said Anthony Romero, executive director of the American Civil Liberties Union (ACLU), in announcing a lawsuit his group filed Monday night in federal district court on behalf of organizations with members whose babies born on U.S. soil will be denied citizenship under the order.

“Birthright citizenship is part of what makes the United States the strong and dynamic nation that it is,” Romero continued. “We will not let this attack on newborns and future generations of Americans go unchallenged. The Trump administration's overreach is so egregious that we are confident we will ultimately prevail.”

The ACLU lawsuit asks the court to declare the executive order unconstitutional and unlawful, and to permanently enjoin the government from enforcing it.

New Jersey Democratic Attorney General Matt Platkin filed a similar lawsuit on behalf of 18 states, the District of Columbia and the city of San Francisco, calling to block Trump’s order. And Washington State Attorney General Nick Brown, on behalf of four states, filed yet another. Chris Geidner, in his Law Dork newsletter, has a good roundup of the lawsuits, one of which is to get its first hearing on Thursday.

This fact sheet from the American Immigration Council explain that “Revoking this right would require amending the U.S. Constitution, or for the U.S. Supreme Court to diverge from centuries of established precedent and legal principles that date back to before the founding of this country.”

The Nation’s Elie Mystal also has a scorching line-by-line breakdown of the EO.

So Many Actions All at Once

The dozens of executive actions Trump took on Monday – including 26 executive orders, proclamations, memos, and one massive grant of pardons and commutations to J6 criminals -- have galvanized opposition from progressive, civil-liberty, and civil-rights groups.

But the first step in fighting back is understanding what all those actions really mean. Some are more consequential than others.

• The Democracy 2025 coalition, has spun up an excellent response center, with individual articles on the executive actions the coalition is “monitoring especially closely given their potential impact to people and communities throughout the United States.” The coalition, founded by Democracy Forward, now includes over 280 organizations committed to taking legal action to defend against Trumpian assaults on our rights, our freedoms, and our democracy.

• The National Immigration Law Center has a powerful guide to immigration-related executive actions, which it describes as a “slew of executive orders designed to terrify and devastate immigrants, their families, and communities across the United States.”

• Lambda Legal offers an overview of the executive actions targeting the LGBTQ+ community, especially youth – along with a promise of imminent legal action. A backgrounder from Human Rights First notes that “many of these orders will be difficult, if not impossible, to implement, and efforts to do so will be challenged through litigation.”

• “If you can keep it,” the blog published by Protect Democracy, has a superb if disturbing guide to executive actions on the federal workforce. They are in big trouble.

The DOGE Dodge

The so-called “department” of government efficiency (DOGE) has been advertised as a hallmark of Trump’s second term, a star chamber of tech titans led by Elon Musk charged with reinventing government and cutting “at least $2 trillion” from the $6.75 trillion federal budget.

The “department”, however, is not an actual department. (Those have to be established by Congress.) It’s effectively a federal advisory committee. And there are strict rules for advisory committees that require transparency and membership balance, none of which DOGE has shown the slightest interest in following.

So at 12:01 p.m. on Monday – one minute into Trump’s presidency – a coalition of groups led by Democracy Forward and CREW filed a lawsuit asking a judge to block the operation of DOGE until it comes into compliance with the law.

Not long after, Public Citizen, the State Democracy Defenders Fund, and the American Federation of Government Employees filed a similar suit.

Later on Monday evening, Trump signed an executive order ostensibly establishing the “department,” but severely limiting its remit to “modernizing Federal technology and software to maximize governmental efficiency and productivity.”

It also crammed DOGE into an existing White House structure – the United States Digital Service (USDS), an Obama-era White House initiative that hires outside professionals into term-limited “tours of civic service” in order to “develop human-centered solutions to the federal government’s most pressing technical challenges.”

This may sound like a retreat at first. But the Washington Post reports this is all going according to Musk’s plans. The Post said that Musk believes the new structure will both give him access to highly sensitive information he craves – and will “avoid lawsuits attempting to force disclosure of its meetings and minutes.”

But the lawsuits are still on. “From our perspective, the EO does not meaningfully change what had been reported,” Public Citizen co-president Lisa Gilbert wrote in an email Tuesday night. “Apart from transforming the ‘USDS,’ it mostly codified elements of DOGE that had been reported or indicated – that it would be part of the White House complex, that it would deploy staff to agencies, etc.”

In short, DOGE “still appears to be” an advisory committee subject to disclosure and other rules, Gilbert wrote.

What Are You Doing to Fight Back?

I need your help to make this newsletter the best it can be. Are you or your group fighting back against the Trump agenda in effective ways? I want to hear about it! Email me at froomkin@gmail.com.

Protecting Civil Servants

The National Treasury Employees Union (NTEU) was first out of the gates with a lawsuit against the Trump executive order that would strip job protections from many career federal employees — allowing them to be arbitrarily fired and replaced with political appointees.

NTEU president Doreen Greenwald said in a statement that the order “is a dangerous step backward to a political spoils system that Congress expressly rejected 142 years ago, which is why we are suing to have the order declared unlawful.”

The Blow to Undocumented Immigrants

No large raids or mass deportations had come to public notice by mid-day Wednesday, but Trump’s executive orders nevertheless have already had a profound effect.

“The immediate impact across the country is absolute terror,” Kica Matos, president of the National Immigration Law Center, told me on Tuesday. “The executive orders are really comprehensive. They are cruel. And they are shocking in scope.”

Trump’s initial push is allegedly to deport criminals who are undocumented, but there’s no reason to think that federal agents will stop there.

(Indeed, Trump immigration czar Tom Homan told CNN on Tuesday that when ICE goes out to arrest people with criminal convictions, if they come across “others that don't have a criminal conviction but are in the country illegally, they will be arrested too.”)

Immigration-rights groups across the country are prepared for the worst. Some communities already have rapid-response networks, Matos said. “They can respond with support for impacted families, and legal support. If a raid happens and a parent is taken away, they can offer support for the children who are left behind.”

When ICE starts carrying out raids – including workplace raids – “I think that is when people across the country are going to witness the horrors of deportation,” Matos said.

Congressional Democrats Cave

The first legislative test of Trump’s immigration agenda is going Trump’s way, after 12 Senate Democrats joined Republicans in passing the Laken Riley Act, which already passed the House with similar bipartisan support.

As the Leadership Conference on Civil and Human Rights explained in a letter to senators asking them to vote no:

S. 5 would require the mandatory detention – without any possibility of bond – of undocumented persons who are merely arrested for or charged with certain offenses, including misdemeanor shoplifting. It does not require conviction. There is no statute of limitations, and the bill does not specify any process by which a person might contest either their immigration detention or the underlying criminal charges (if charges are even pursued). Mandatory immigration detention on the basis of a mere arrest is unprecedented, and it would invite abuses that almost certainly would disproportionately impact people of color.

Before the vote, Indivisible co-executive director Ezra Levin had urged Democrats to hold the line:

Will they stand up and fight for our democracy, or will they let MAGA Republicans dictate the terms? Democrats can’t afford to cower behind half-measures or excuses. If they don’t have the guts to fight this now, when it’s all on the line, they’ll be handing Trump and MAGA Republicans exactly what they want: a propaganda victory that will embolden their assault on our freedoms.

The bill is expected to hit Trump’s desk within days.

Your Reading List

• Even before Trump won, the ACLU released a quite brilliant series of memos describing how it would respond to his policies on a number of topics: Immigration; LGBTQ+ rights; Abortion; DEI and anti-discrimination law; voting rights; surveillance, protests and free speech; and the criminal legal system. They’re available either separately or as a compilation. Their response for each topic includes a litigation plan, a legislative plan, and a mobilization plan.

• Shortly after the election, Indivisible published a guide that is a must read. It’s called Practical strategies, tactics, and tips for how everyday Americans can fight back against Trump 2.0. I’ll have more about it in later editions.

• Protect Democracy in December published How You Can Protect Democracy, which includes “29 concrete actions you can take right now to protect democracy” like “Invest in local news,” “Organize people who agree with you,” and “Connect on democracy issues with your local religious leaders.”

Trump Gets an Earful

No one that I can think of has ever had the guts to give Trump a dressing down in public. Not, that is, until Tuesday morning, when the Right Rev. Mariann Edgar Budde, the Episcopal bishop leading the inaugural prayer service at the National Cathedral, made an appeal to the man in the front row.

Here's the video. And here’s how she ended her remarks:

Let me make one final plea, Mr. President.

Millions have put their trust in you, and as you told the nation yesterday, you have felt the providential hand of a loving God.

In the name of our God, I ask you to have mercy upon the people in our country who are scared now. There are gay, lesbian, and transgender children in Democratic, Republican, and independent families, some who fear for their lives.

And the people – the people who pick our crops, and clean our office buildings, who labor in poultry farms and meatpacking plants, who wash the dishes after we eat in restaurants, and work the night shifts in hospitals, they may not be citizens or have the proper documentation, but the vast majority of immigrants are not criminals. They pay taxes and are good neighbors. They are faithful members of our churches and mosques, synagogues, vihara and temples.

I ask you to have mercy, Mr. President, on those in our communities whose children fear that their parents will be taken away.

And that you help those who are fleeing war zones and persecution in their own lands to find compassion and welcome here.

Our God teaches us that we are to be merciful to the stranger for we were all once strangers in this land.

Trump was not at all pleased. “I didn’t think it was a good service, no,” he told reporters when he got back to the White House. He later requested an apology.

But I say: Amen.