Ordinary Judging in Extraordinary Times
Notes on law, governance, and other matters from Samuel Bagenstos.
Yesterday, Judge Casey Cooper of the District Court for the District of Columbia issued an order denying an injunction that would have stopped the Trump Administration’s mass firings of so-called “probationary” government employees. (“Probationary” employees are just those workers who are relatively new in their positions, and thus have fewer due process rights under federal civil service law. The term does not in any way imply that these workers have done anything wrong or are “on probation” in a colloquial sense.)
The mass firings are likely to devastate government agencies and impair their functioning in significant ways. The plaintiffs–several unions that represent government employees–argued that the firings are illegal, both for the constitutional reason that they violate Congress’s power to create and fund agencies (by refusing to spend appropriated money and effectively shutting down key programs) and for the statutory reason that they violate civil service laws.
These are very substantial arguments. But Judge Cooper, an Obama appointee, rejected the request for an immediate temporary restraining order or preliminary injunction. He did not address the legality of the Trump Administration’s actions. Instead, he concluded that the federal courts “likely lack[] jurisdiction” over the case. He said that the unions had an administrative remedy–filing unfair labor practice charges before the Federal Labor Relations Authority–and that they must pursue their claims through that process. If the unions are ultimately dissatisfied with how the FLRA addresses their claims–or if the claims are ones the administrative process cannot address, like perhaps the unions’ constitutional claims–Judge Cooper said that the unions can take those issues up on appeal from the FLRA’s decision.
Judge Cooper is a very good judge, with a well-deserved reputation for playing things straight. And his decision reflects a perfectly respectable interpretation of Supreme Court precedent. The union had good arguments on the other side. But I would say that, although you could quarrel with Judge Cooper’s decision (as I will in a second), it’s not at all out of bounds of ordinary adjudication.
This was not an ordinary case, though. The mass firings come as a part of a broad unilateral assault by the Trump Administration on programs and agencies established and funded by Congress–an assault that has provoked multiple, well-grounded challenges in court, many of which are still pending. The incredibly large number of firings threatens to swamp the FLRA and make it impossible for that agency to adjudicate the issues in a timely way–even if unions can consolidate some of their challenges to those firings.
And, perhaps most important, Trump has already acted directly to hobble the operations of the FLRA. On February 10, Trump fired the Biden-appointed Chair of the FLRA, Susan Tsui Grundmann. He fired her summarily and without cause from both her Chair role and her position as a member of the Authority, even though the statute creating the FLRA says that a member may be removed “only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” By firing Grundmann, Trump left the normally three-member FLRA divided one-to-one between a Democratic Biden appointee and a Republican Trump appointee, whom he named the chair. That split is a sure invitation to impasse within the agency.
Grundmann is challenging her firing (in the same court in which Judge Cooper sits, though before a different judge). And that firing doesn’t stand alone. Trump has acted, in an unprecedentedly aggressive way, to hobble all of the agencies that could provide relief against improper treatment of federal workers. As Government Executive reports, “Grundmann’s removal comes amidst a governmentwide push to oust officials across federal oversight agencies. Since returning to office, Trump has fired more than a dozen inspectors general, Democratic appointees to the Merit System Protections Board and National Labor Relations Board, as well as the heads of the offices of Special Counsel and Government Ethics.” Several of these officials, like Grundmann, are suing to challenge their firings, and Special Counsel Hampton Dellinger has obtained a temporary restraining order reinstating him for the time being. As of this writing, the Supreme Court is still considering the Trump Administration’s motion to stay that order and once again oust Dellinger from his Special Counsel position.
Should any of this have mattered to Judge Cooper? In the opening paragraph of his opinion, he basically said no:
“The first month of President Trump’s second administration has been defined by an onslaught of executive actions that have caused, some say by design, disruption and even chaos in widespread quarters of American society. Affected citizens and their advocates have challenged many of these actions on an emergency basis in this Court and others across the country. Certain of the President’s actions have been temporarily halted; others have been permitted to proceed, at least for the time being. These mixed results should surprise no one. Federal district judges are duty-bound to decide legal issues based on even-handed application of law and precedent—no matter the identity of the litigants or, regrettably at times, the consequences of their rulings for average people.”
There is much to be said for Judge Cooper’s approach. Just a month into the second Trump Administration, federal courts have already found themselves in significant confrontations with the President. And those confrontations are likely to escalate. Judges might legitimately think that the courts will be on stronger footing in those confrontations if they can show that their actions are typical of the things courts have always done. Many judges are likely to be acutely sensitive to Hamilton’s famous line from Federalist 78–that courts “have neither FORCE nor WILL, but merely judgment” (yes, it’s Hamilton’s all-caps)–and will want to cultivate public support by showing that they have meticulously applied the law.
That’s understandable. But the law is–and should be–sensitive to context. In his opinion, Judge Cooper relied principally on the Supreme Court’s Thunder Basin Coal decision depriving federal district courts of jurisdiction in certain cases where an administrative process is available to the plaintiffs. But that decision itself said that the question whether an administrative scheme foreclosed district court jurisdiction would depend in part on “whether the claims can be afforded meaningful review” if plaintiffs are denied immediate access to court. The Supreme Court has made the same point in its more recent cases applying Thunder Basin. Judge Cooper is persuasive that the issues here are not the same as those that led the Supreme Court to allow immediate access to federal court in prior cases. But Trump’s multipronged assault itself represents an unprecedented challenge to federal workers who would employ ordinary administrative processes to impose a check on actions that violate their rights as government employees. In determining what would foreclose meaningful review in the present context, it would be perfectly appropriate for the courts to take account of that assault.
I do not mean, principally, to criticize Judge Cooper’s opinion–though I think he could, and perhaps should, have gone the other way. I highlight the opinion because it should help set our expectations–and inform our actions–as we oppose Trump’s abuses.
First and foremost, we should not expect courts to intervene to stop all of those abuses–even when Trump is very plausibly, or even clearly, violating the law. Courts operate according to jurisdictional limitations that do not allow them to reach every violation of law. Many of the most pressing legal and constitutional questions will never be finally decided on the merits by a court–and that may be especially true of the basic separation-of-powers questions that Trump and his administration are teeing up with their widespread refusal to consider themselves bound by congressional mandates.
And even when there is a plausible argument for a more expansive reading of a court’s jurisdiction, we can expect judges to respond with great caution out of fear for their own legitimacy. Judge Cooper is a down-the-middle Obama appointee with no particular love for Trump or his administration. But he was not willing to go beyond the ordinary use of the Thunder Basin doctrine barring federal court jurisdiction, even in the face of an extraordinary situation that plausibly rendered that doctrine inapplicable. Some judges will likely go the other way on questions like this. But in the main, we should not expect judges to reach unconventional results in these cases. And we should really temper our expectations as cases are appealed to a very conservative Supreme Court–one that has delivered Donald Trump some signature wins.
Many judges are providing temporary relief against particular Trump abuses–though it remains to be seen how many of those temporary orders will be extended after courts have an opportunity to more fully review the merits of the cases in front of them. And I predict that the courts, including the Supreme Court, will ultimately invalidate some of the significant illegal actions of the Trump Administration. (I think it’s overwhelmingly likely the Court will reaffirm birthright citizenship, for example, and I think it’s likely they will uphold the Impoundment Control Act as well.) But, to repeat, I think it’s likely that in many, many cases of Trump abuses–including many cases of illegal Trump abuses–the courts won’t provide ultimate relief, if only because of the jurisdictional limitations of the judicial branch and judges’ caution in interpreting those limitations.
So that should, once again, counsel those of us who oppose Trump’s abuses to be strategic in our litigation. That doesn’t mean pulling our punches. Particularly in default of effective action by Congress, litigation remains essential. The reckless actions by the Trump Administration are causing serious harm right now, and it makes sense to go to court to stop the bleeding. But litigation is not an end in itself. We need to see it as a focal point for a broader political mobilization against the Administration.
And we need to make sure we don’t talk as if the courts will settle the legal questions about Trump’s conduct. In many cases, as in Judge Cooper’s opinion about the mass firings, a court might rule for the Administration without weighing in one way or the other on whether what the Administration is doing is legal. We cannot set up a discourse in which a win like that is seen as a vindication of the legality of Trump’s actions. Nor can we set up a discourse in which a Trump win on the merits in a very conservative Supreme Court is seen as the last word for purposes of our broader understanding of the law and the Constitution. Judges have to follow Supreme Court opinions, and Executive Branch officials, like all of us, have to comply with their judgments. But We the People don’t have to agree with the Supreme Court’s interpretations of the law, and ultimately the Constitution belongs to us all. The litigation against Trump’s abuses is an opportunity to catalyze support for a truly democratic understanding of our Constitution. And we need to understand it as part of a long-term process of strengthening our constitutional culture, not just a short-term effort to stop immediate abuses.