The lawyers are getting louder – and they’re getting results

9 ways advocacy groups are trying to block Trump

You can’t do that.

That’s the message that lawyers for the progressive advocacy community are sending Donald Trump loud and clear about at least nine things he’s trying to do.

Let’s start with the huge win on Tuesday night, as Democracy Forward won a court order temporarily blocking a White House freeze on billions of dollars in federal grants and loans.

The freeze, announced in a confusing memo issued by the Office of Management and Budget (OMB) on Monday night, was ostensibly intended to give the Trump administration time to weed out “[t]he use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies.”

But the net effect was to create mass confusion among government agencies and nonprofits, leaving millions of people worried they would lose access to jobs, housing, health care and other services.

Democracy Forward filed suit early Tuesday on behalf of a coalition of nonprofits, arguing that the memo “fails to explain the source of OMB’s purported legal authority to gut every grant program in the federal government; it fails to consider the reliance interest of the many grant recipients, including those to whom money had already been promised; and it announces a policy of targeting grant recipients based in part on those recipients’ First Amendment rights and with no bearing on the recipients’ eligibility to receive federal funds.”

The plaintiffs included the National Council of Nonprofits, the American Public Health Association, Main Street Alliance, and SAGE, a national organization that provide supportive services to LGBTQ+ older people.

During a short hearing held by videoconference on Tuesday afternoon, Democracy Forward senior counsel Jessica Morton argued that the freeze on funding would "create unequivocal, imminent and serious harm."

U.S. District Judge Loren AliKhan then temporarily blocked the freeze at least until further proceedings on Feb. 3.

[UPDATE at 1:04 p.m. ET, Jan. 29: OMB has rescinded the memo. Victory!]

In other legal news:

• The American Civil Liberties Union (ACLU) on Jan. 22 sued the Trump administration over its plan to massively expand fast-track deportations without a fair legal process. The new rule would allow immigration officers to “summarily deport individuals from the United States without any meaningful review, much less court review” and “dramatically expands the reach of expedited removal to individuals located anywhere in the country who cannot prove they have been continuously present in the United States for more than two years.” The lawsuit cites violations of the Fifth Amendment’s due process clause, the Immigration and Nationality Act, and the Administrative Procedure Act.

• Lawyers from GLAD Law and the National Center for Lesbian Rights filed suit on Monday on behalf of several transgender service members, arguing that Trump’s ban on transgender people serving in the military “discriminates against Plaintiffs based on their sex and based on their transgender status, without lawful justification, in violation of the Equal Protection component of the Due Process Clause of the Fifth Amendment.” The lawsuit also notes that the order “was issued without any study of the effectiveness of transgender service members during the past four years or of any problems that may have arisen from their service, without any assessment of whether their service entailed greater costs, or without any assessment of whether any legitimate governmental concerns could be addressed by means other than a categorical ban.”

• Those same two groups also filed suit on Jan. 26 on behalf of an anonymous transgender prisoner, arguing that Trump’s executive order defining “sex” – and mandating that trans women be housed in men’s prisons – violates the Constitution's ban on cruel and unusual punishment, is “motivated by a sex-based discriminatory purpose and animus against transgender people,” and would be extremely dangerous for their client.

• Quaker meetings, represented by Democracy Forward, filed suit on Monday to keep ICE out of houses of worship, after the Trump administration issued a statement last week that reversed policies that had restricted officials from carrying out immigration enforcement in churches and schools. The suit argues that the new policy, which has already “sown fear within... migrant friendly congregations,” violates the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedures Act.

• Lawyers representing Raise the Floor Alliance and three other immigration-related groups filed a lawsuit on Jan. 25 against the Trump administration’s plans to carry out immigration raids in Chicago, which is a sanctuary city. The plaintiffs allege that the administration’s plan “to use Chicago-based immigration raids to quash the Sanctuary City Movement is a clear and obvious violation of the First Amendment.”

• Public Employees for Environmental Responsibility (PEER), represented by Citizens for Responsibility and Ethics in Washington (CREW) and Democracy Forward, filed suit on Tuesday to block Trump’s executive order that would strip job protections from many career federal employees — allowing them to be arbitrarily fired and replaced with political appointees. (As I wrote last week, the National Treasury Employees Union was first out of the gates with its lawsuit against that executive order, filed on Jan. 20.)

• As I also noted last week, several groups have sued to block Trump’s attempt to overturn birthright citizenship – with one of the lawsuits resulting in an injunction. And several other groups, including Public Citizen, have sued to block the operation of the so-called “department” of government efficiency until it comes into compliance with transparency and membership laws.

So all told that makes nine different things Trump is trying do to that could be held up in court – so far.

The next major lawsuit — which may even have been filed by the time your read this — is likely to be against Trump’s controversial and tricky new offer to pay federal employees through Sept. 30 if they are willing to resign now. The executive branch appears to lack authority to do any such thing, and the move appears to violate several rules and laws, including a cap on incentive packages and a 10-day-a-year limit on administrative leave.

(On Monday, even before the offer was issued, the nonprofit National Security Counselors group filed a complaint on behalf of two anonymous U.S. government employees against the establishment of the new email server that the Office of Personnel Management used to send it out, saying it was set up without a required privacy assessment.)

Immigration Groups Are Ready to Act

Despite the Trump administration’s insistence that they are engaging in “targeted raids” aimed a undocumented people with criminal records, NBC News reports that nearly half of those detained on one recent day didn’t have criminal records.

And a raid of a seafood wholesaler in Newark, N.J., last week sparked outrage from the city’s mayor and the state’s two senators when it was reported that ICE briefly detained several citizens, including a veteran.

So, although we’re not seeing any signs of large-scale raids and mass deportations yet, immigration groups have reason to be on high alert. And they are.

Groups in Chicago, for instance, are ready, as Pascal Sabino reports for Bolts Magazine. As one example, Sabino wrote:

Antonio Guttierez, co-founder of the group Organized Communities Against Deportation, says his group has worked with the Illinois Coalition for Immigrant and Refugee Rights to set up 18 hyper-local rapid response networks that send volunteers to investigate tips about ICE activity. Despite being inactive for years, the network has grown to over 1000 participants, he said; and while some are new volunteers, some teams are being reawakened after initially forming during the first Trump administration.

In fact, Trump immigration czar Tom Homan complained on CNN on Monday night that outreach efforts by immigration advocates in Chicago are causing trouble for ICE.

“Sanctuary cities are making it very difficult to arrest the criminals,” he said. “For instance, Chicago, very well-educated. They've been educated how to defy ICE, how to -- how to hide from ICE. And I've seen many pamphlets from many NGOs, ‘Here's how you escape ICE from arresting you, Here's what you need to do.’ They call it, ‘Know your rights.’ I call it, ‘How to escape arrest’.”

Here, for good measure, are some “Know Your Rights” resources from the ACLU, the National Immigrant Justice Center, and the National Immigration Law Center. And here are some print-your-own “red cards” from the Immigrant Legal Resource Center.

Whither the Resistance 2.0?

Ross Barkan, a writer who loves baiting liberals, wrote a controversial essay for the New York Times Magazine on Sunday headlined ”Goodbye, ‘Resistance.’ The Era of Hyperpolitics Is Over.” Subhead: “Where has the anti-Trump energy gone?”

His view is that “accommodation and acceptance are the new watchwords.” He writes:

Democrats do not seem as anguished or animated by this Trump Restoration as they were by his ascension; neither are they howling about their own party’s future. The left — looking up after eight years of resisting Trump and finding that in fact, he has expanded his vote share in each general election — is recalibrating. Some progressives have signaled their willingness to work with Trump if he embraces their policy aims, while centrists fret that the Republicans have outflanked them on too many cultural issues. Border policies that were decried as fascistic in Trump’s first term are gradually being embraced, or at least no longer resisted. The old discourse around the “normalization” of Trump is dead; businesses that once stood at a remove from Trump giddily treat him as an ordinary president now.

In Barkan’s opinion, “All flames — even the hottest and most spectacular — eventually burn out.” He concludes:

What lies ahead, it seems, is a cooling, characterized less by dejection than by a sober realization that whatever was tried before simply didn’t work. It is challenging, after all, to maintain a perpetual state of alarm and tell voters that every election might be the last one. The anti-Trump resistance, on its own terms, was a failure. Trump is here, yet again, and he’s a popular vote champion this time.

But a more progressive writer, Micah Sifry, fired back in his The Connector newsletter under the headline “Is the ‘Resistance’ Over? It's Just Getting Started.”

He writes:

[T]he biggest flaw in Barkan’s analysis is his assumption that a lack of visible protest means that the 75 million Americans who voted for Kamala Harris, or, to take a harder more committed core, the 7 million who made $1.5 billion in campaign contributions in the last three months before the election, have now disappeared or turned into Trump fans.

Here’s the thing: People learn. And movements learn. Collectively, we’re not doing the same thing as in 2017 because we all went through those years, saw what worked or didn’t, and we’re adjusting. Also, the conditions for effective organizing are also changing. Massing outside the White House right now as a cranky old man who pardons violent insurrectionists and cancels the security details of some of his political enemies pumps his chest wouldn’t be the smartest move, would it? Likewise, much of the frenzy of activity that Barkan recalls from 2017 as “hyperpolitics” was generated by newly activated people who were desperate for “something to do.” It took a while, but many eventually found very effective uses for their time and energy. Why should we assume that things are different now?

In Sifry’s view, “what is happening now in response to Trump’s return is, yes, quieter, but in no way represents acquiescence”:

People aren’t marching in the streets or wearing pink pussy hats, but they are meeting in living rooms and in Signal groups, watching closely and organizing actions that can most immediately respond and offer relief, if not pushback, to the worst of the new administration’s initiatives.

Who’s right? Share your thoughts in comments below, or email me at froomkin@gmail.com.

The Purge of the Inspectors General

Late Friday night, in a brazen move to pave the way for corruption, incompetence and abuse of power in federal agencies, Trump illegally fired 18 inspectors general.

Inspectors general, who report to both their agency heads and Congress, are intended to be independent, nonpartisan officials who prevent and detect waste, fraud, and abuse.

“IGs are the best articulation of the theory of checks and balances that our government is based on,” Danielle Brian, the head of the Project on Government Oversight, explained to me. (I also wrote about this in my Press Watch newsletter yesterday.)

“Firing IGs makes it far easier for corruption and the abuse of power because you don’t have that check anymore.”

The message to federal employees is clear. “It’s the most chilling action I’ve seen so far,” she said. “Who would want to be a whistle-blower under these circumstances?”

As it happens, in one of the few attempts to Trump-proof the executive branch, Congress in 2022 required the president to give it 30 days’ notice of any intent to fire a Senate-confirmed inspector general, along with an explanation of the substantive reasons behind the dismissal. So it’s not even clear that the firings are legal.

Sen. Lindsay Graham (R-S.C.) called the moves “technically” illegal on NBC’s “Meet the Press” on Sunday, adding “But he has the authority to do it.”

A group of inspectors general is pushing back, challenging the firings. “At this point, we do not believe the actions taken are legally sufficient to dismiss Presidentially Appointed, Senate Confirmed Inspectors General,” Small Business Administration Inspector General Hannibal “Mike” Ware wrote in a letter to the head of presidential personnel, on behalf of the Council of the Inspectors General on Integrity and Efficiency.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) — historically a champion of IGs — joined ranking member Dick Durbin (D-Ill.) in requesting President Trump provide the substantive rationale behind his decision.

And House Democrats on the Oversight and Government Reform Committee urged Trump to “withdraw your unlawful action.”

Whistle-blower advocates Mark S. Zaid and Andrew P. Bakaj write in a New York Times op-ed this morning: “The voices of whistle-blowers must continue to be heard. And if the federal government will no longer provide them a haven, then private and nonprofit legal groups must step up to protect them in every way possible.”

Inspiring Words From a Messaging Guru

Anat Shenker-Osorio is a political strategist and messaging consultant who recently published a marvelous Freedom Over Fascism Toolkit.

It starts with a moving call to arms:

Generations of Americans before us have faced and fought oppression, confronting forces determined to harm their lives and endanger their livelihoods while still forging ahead toward the unrealized promise of liberty and justice for all. Now, it is our turn to pick up the baton and show up – marching, striking, voting and protecting each other – for our freedoms, our families, and our futures. We have won fights against exploitation by a wealthy, White few before, and by joining together, we will again.

I asked Shenker-Osorio what she thinks ordinary people can do to help right now. Her response:

No one can do everything, and I think attempting to stay on top of all the things is just a way to drive yourself mad. So you should pick a lane. You should pick a thing that you are just absolutely passionate and incensed about -- that could be attacks on immigrants, that could be attacks on queer people, that could be attacks on the civil service. It could be -- you know, it's a smorgasbord of evil, so, you can eat your fill.

And first and foremost, make sure that you are getting the best possible, correct, accurate information from trusted sources and not falling prey to, you know, disinformation -- which is hard.

And then be as local as possible. So in the place that you live, there is going to be -- I'll just take immigrant rights as a for-instance -- there is going to be a local immigrant-led immigrant rights group, and they are going to be organizing people to protect their people. And there is going to be a moment where you can actually physically show up … and it’s going to matter as a witness.

And so I would say, look as locally as possible, inside of the issue that you are most passionate about, and find a credible organization that is actually doing action -- as opposed to just like, please sign this petition.

What Are You Doing to Fight Back?

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