John Lewis

Out today in Just Security - Aaron Baum and I on how the Trump administration is using consent decrees to try to enact policy changes outside the regulatory and legislative processes. Courts should refrain from rubber-stamping these improper and collusive agreements.

Generally, that seems right, but isn’t it a little different given that the case centers on the legality of her service rather than a more general case concerning government action? It seems more analogous to a tort or criminal case involving a friend.

And just like that -- a court has now held that Alina Habba's appointment was unlawful, relying upon the broader theory alluded to in the Cuccinelli decision (that post-vacancy first assistants are impermissible under the FVRA). Back to the drawing board for DOJ!

An essential piece on the use of Section 705 to obtain universal preliminary relief in the wake of Trump v. CASA.

U.S. Department of Education Places Five Northern Virginia School Districts on High-Risk Status and Reimbursement Payment Status for Violating Title IX The U.S. Department of Education announced it is placing five Northern Virginia School Divisions on high-risk status with the condition that all federal funding flowing to these districts is done by r...

It’s so gracious of the administration to provide a final agency action in a circuit that has already ruled against their interpretation of Title IX. The districts shouldn’t back down.

I’m not sure it’s right to say that the order would terminate the proceedings. Katsas says the TRO was too ambiguous, but he’s just writing for himself; Rao says that the purge option made the order an unlawful attempt to coerce compliance, and leaves open that Boasberg could continue without that.

I’m not sure it’s right to say that the order would “end” the proceedings. Katsas says the TRO was too ambiguous, but he’s just writing for himself; Rao says that the purge option made the order an unlawful attempt to coerce compliance, and leaves open that Boasberg could continue without that.

In any event, the Trump administration's attempts to circumvent Senate confirmation are going to keep leading to problems for it, just like they did in Trump I.

The court also declined to address another argument against Cuccinelli's appointment -- whether "the first-assistant default rule applies only to individuals serving as first assistants at the time the vacancy arises." Habba may have a problem there too, although unclear when the vacancy "arose."

It seems like the same result should apply here. Habba was never in any meaningful sense the first assistant to the U.S. Attorney -- it was all just a workaround. And the FVRA's requirements have real teeth -- the court ended up invalidating several of Cuccinelli's anti-immigrant directives.

L.M.-M., et al., Plaintiffs, v. KENNETH T. CUCCINELLI II, in his purported official capacity as acting Director of U.S. Citizenship and Immigration Services, et al.,

But a district court ultimately held that these machinations failed to comply with the FVRA for a "fundamental and clear-cut reason": Cuccinelli "never did and never will serve in a subordinate role—that is, as an 'assistant'—to any other USCIS official."

That's important because, under the Federal Vacancies Reform Act, 5 U.S.C. § 3345(a)(1), the "first assistant" to a role can serve in an acting capacity, subject to various restrictions and time limits.

It's complicated, but in short, the administration allowed Cuccinelli to "leapfrog" the existing first assistant by creating an entirely new position ("Principal Deputy Director"), designating that office as the first assistant, and appointing Cuccinelli -- all just to make him the acting head.

To add another: if the administration created a new position for her ("special attorney"), designated that position as the first assistant, and allowed her to immediately ascend to the acting role, those machinations seem similar to the unlawful steps used to appoint Cuccinelli at USCIS in Trump I.

This raises a number of important questions and legal concerns relating to Habba's appointment that will almost certainly be raised by criminal defendants and others challenging actions taken by the D.N.J. USAO (indeed, they already are).

The Trump administration has made clear that it is going to use AI to supercharge deregulation. What do the doctrines of administrative law have to say about AI? A new Issue Brief from me and GFI explores that question.
governingforimpact.org/wp-content/u...

This also came up in the litigation over the sanctuary cities EO in Trump I, with the Ninth Circuit at least holding that these sorts of ambiguous savings clauses can't override clear and specific provisions that are unconstitutional.

A third option is that it’s governing like it thinks that Democrats won’t use the same tools as aggressively if they ever manage to return to power, which is…not entirely unfounded.

Can you unpack that a little? Even setting aside the rule-of-law and legitimacy issues, an opinion that made bad law would still give litigators an opportunity to navigate around whatever principles the court laid out—as in the California funding case where litigators have found ways to distinguish.

Affirmative action for conservatives is apparently the only form of affirmative action that’s still permitted.

Pathways to “Universal” Relief After Trump v. CASA CASA’s reasoning left open multiple avenues for litigants seeking to obtain broad relief against unlawful executive actions

It misses several pathways — vacatur and stays under the APA, for sure, but also suits by associations, organizations, states, and broad coalitions of plaintiffs. www.justsecurity.org/116162/unive...

It looks like Cooper & Kirk is actually just representing an amicus, so that must be an error. storage.courtlistener.com/recap/gov.us...

And vacates the rule nationwide, without even mentioning CASA’s restrictions on universal injunctions. What’s good for the goose is good for the gander, so expect challengers to Trump administration rules to continue seeking the same relief.

Unforgivable.

Terminated NIH grants are being reinstated almost entirely in blue states Researchers in Democratic congressional districts stand to have $2.1 billion in NIH grants reinstated, compared to $62 million in Republican districts.

Republican-led states may also come to regret CASA, to the extent it makes it less likely that Democrat-led states will obtain nationwide injunctions that they can free-ride off of. See this great STAT piece: www.statnews.com/2025/07/03/n...

Too late to include in our piece, but add this decision by Judge Bates to the list of post-CASA vacatur.

Out this morning, my colleague @j-p-a.bsky.social and I explain how plaintiffs can still seek universal relief after CASA, including through the Administrative Procedure Act's remedies and/or by framing broad injunctions as necessary to provide "complete relief" to specific plaintiff types.

By curbing injunctive relief, but signaling that vacatur may present a different question, the decision might just encourage further direct presidential action to which the APA doesn’t apply. That also seems somewhat asymmetric since progressive priorities tend to require action through agencies.

Checks and Balances: Deregulation Based on Supreme Court Rulings Among the points emphasized by the second Trump administration has been a major push for deregulatio...

ICYMI, I was on this panel earlier this month to discuss President Trump's unlawful memorandum directing agencies to immediately repeal rules that they believe are unlawful - video now available.

But the preceding text contains the interpretation that the quoted post was responding to—that ICE has determined that field offices categorically don’t qualify as detention facilities. Granted, that issue maybe isn’t clear cut, but it does seem true that they’re barring members from them.