Executive Orders Face Tough Legal Challenges from the States (Court Report)

When the new presidential administration entered the White House on January 20, drastic policy changes were expected. What many were not prepared for was the speed at which these policy changes would occur. President Trump has already signed over eighty executive orders, an unprecedented number so early in a presidency. The number becomes even more astounding when you consider that during President Trump’s first presidency, he averaged only 55 Executive Orders per year, and even that was an amount greater than any president since Jimmy Carter. 

Legal Challenges from States Abound

It is no surprise, then, that these policy changes have resulted in over a hundred legal challenges. Approximately 30% of these cases address President Trump’s immigration policies, 20% address the powers of Elon Musk’s Department of Government Efficiency (DOGE), and 20% challenge the administration’s federal funding and employment policies. Despite the speed with which the Trump Administration’s policies were issued, a significant number of the cases have stalled out in the court system, due, in no small part, to the actions of states. 

Birthright Citizenship

States have brought two of the most prominent lawsuits challenging the constitutionality of President Trump’s “Protecting the Meaning and Value of American Citizenship” order. The executive order prohibits citizenship documents from being issued to a child born within the United States either when both parents are illegally present within the country or when the child’s mother is a lawful permanent resident, but the father is not. Between two separate suits, twenty-one states and the District of Columbia have challenged the order as a clear violation of the 14th Amendment and a contradiction of over 200 years worth of precedent. Preliminary injunctions have been imposed in both the State of Washington et. al. v. Trump et. al. and the State of New Jersey et. al. v. Trump et. al. as the case works its way through the legal system.

Power of the Department of Government Efficiency

A significant number of states have joined cases challenging the authority of the newly established DOGE led by Special Government Employee Elon Musk. DOGE was established by Donald Trump through an executive order on the first day of his presidency to modernize “federal technology and software to maximize government efficiency and productivity.” However, the powers of DOGE have been expanded drastically through three additional orders. These orders have resulted in an organization with wide-reaching powers regarding federal employment and budget, as well as extensive access to government records. In New Mexico et. al. v Musk, nineteen states assert that Elon Musk does not have the authority to exercise such broad-reaching governmental powers through DOGE as he was not formally confirmed by the Senate as required by the Constitution’s Appointments Clause. Plaintiffs’ request for a temporary restraining order has been rejected, however, and DOGE’s actions continue unimpeded. In New York et. al. v. Donald J. Trump et. al., fourteen states are contesting DOGE’s access to sensitive personal and financial information in the Treasury Department. Plaintiffs argue that giving political appointees and special government employees such access violates the Administrative Procedure Act and preempts congressional authority. On February 8, an emergency restraining order was granted and on February 21 a preliminary injunction was instituted. 

Pause of Government Activities

On January 27, the Office of Management and Budget issued a memo directing all federal agencies to temporarily pause all activities requiring federal financial assistance and conduct an audit of their programs to identify any programs that might be affected by the president’s executive orders. The memo caused widespread confusion on its implications and interfered with the administration of innumerable government programs. A team of twenty-three states and DC brought the case of New York et al v. Donald J. Trump et al to challenge the policy as a violation of First Amendment rights and the Administrative Procedure Act. A temporary restraining order was immediately ordered on January 28 and a preliminary injunction was granted on March 6. 

Mass Firings

Most recently, twenty states and DC filed a claim against a litany of federal agencies for the mass firing of thousands of federal probationary workers. The plaintiffs argue that the Trump Administration falsely claimed that these workers were fired for performance issues when, in actuality, they were dismissed because of their probationary status, which does not afford them the same civil service protections of employees who have spent longer on the job. The states contend that the mass firings will cause a surge in unemployment, placing an undue economic burden on the states. The court has yet to take any action on this case.

What Happens Next?

It is no surprise that the roster of state plaintiffs in these lawsuits falls along party lines, however, several purple states, like Michigan and Wisconsin, have also joined these cases. Even a few red states are pushing back on the president’s policies, including Tennessee in a case against changes to birthright citizenship, like North Carolina, which is also involved in a challenge to DOGE powers. Additionally, North Carolina is a plaintiff in a case against the mass firing of federal workers along with the traditionally conservative Kentucky. States have been successful in obtaining at least temporary relief in the majority of their cases, possibly encouraging future litigation. The pace of these cases will only continue as President Trump starts to pursue more of his policy objectives, and will likely expand to include more conservative states as those policies impact states’ federal funding.