Blizzard of lawsuits

Even for lawyers, keeping up with all the litigation filed against the Trump Executive Branch is hard. For nonlawyers, I imagine it is harder, especially because many of the suits make similar claims, seeking similar relief: injunctions – specific commands - to halt the conduct complained about. With the caveat that even ultimately successful suits may not produce compliance, I'm going to explain why individuals, unions, consumer advocacy associations, and the states are filing so many similar suits. The short answer is that those opposing Trump's turnover of the executive branch to Musk and the resultant mass firings, threats to data privacy and security, funding halts, and so forth are trying to bring the legal questions at stake to a head and soon.

Litigation takes time, even when the parties and the courts act as swiftly as possible. Complaints have to be drafted and supported by briefs; defendants must prepare responses which plaintiffs then may reply to; trial courts must schedule and hold hearings and then deliberate opinions and orders. In the context of cases seeking injunctive relief, executive branch defendants may appeal decisions that stop them. In the federal system, these appeals go to intermediate appellate courts - the twelve regional federal circuit courts - and may go on to the U.S. Supreme Court. At the intermediate appellate level, appeals are generally heard by a subset of the circuit court judges - a panel of the full circuit - but parties may petition for "en banc" review of a panel decision, review by the full complement of the circuit's judges. At every level of appeal, there is the cycle of briefs, responses, and replies to responses. When courts issue orders, there is often ongoing wrangling over whether defendants are in compliance. Usually, definitive judicial positions on the underlying issues and questions of defendants' obedience to orders take time to emerge. In usual times, a working resolution is sometimes achieved when the federal appellate circuits reach a consensus among all or many of them. A more formal resolution occurs when the Supreme Court decides an issue or question. But the Supreme Court is not required to hear most appeals, so typically a consensus at the circuits suffices to clarify the law. The Supreme Court usually waits before taking a case to see if the issues it raises can be handled through circuit court consensus. The Supreme Court tends to step in only when there is disagreement among the federal circuits.

Those litigating against the Trump regime are trying to speed up this entire process. This is why they seek emergency injunctions (temporary restraining orders (TROs)). Courts try to hear such requests speedily, to avoid irreparable harm being done. Even when a TRO is denied, a court may try to quickly process cases seeking injunctive relief, because of nature and scale of the harm the plaintiff is alleging. But whatever happens in a single federal trial court or even a single federal circuit - no matter how quickly any single trial proceeds or how quickly an appellate court hears an appeal and issues a decision - a single trial or single appellate decision can't produce a consensus among the federal judiciary. Moreover, until enough cases generate appeals to the intermediate courts, nobody knows whether the federal circuits will largely agree or split over what the law requires. Thus, those trying to use the courts to counter Trump need to bring as many suits as possible to drive the entire judicial process to generate a clear outcome. Hence, a blizzard of lawsuits filed in trial courts across the federal circuits.

Believe it or not, I've just oversimplified what is going on. Because of uncertainty over whether trial courts will permit certain parties to proceed with complaints, attorneys opposing executive branch conduct bring substantively similar cases on behalf of different kinds of plaintiffs. For example, cases alleging invasions of data privacy and security have been brought by unions, by states, and by consumer groups; cases objecting to halts in federal funding have been brought by grant recipients and by the states; cases arguing against the mass firings of federal employees have been brought by unions and by individual government workers. It behooves all of these kinds of plaintiffs to advance their claims in as many federal circuits as possible.

If, like me, you want some overall sense of how all this litigation is going, you have to keep up with many dockets (records of court proceedings in different lawsuits). You need to see which courts are allowing which kinds of plaintiffs to proceed with their causes of action; you have to read plaintiffs' and defendants' motions and briefs and then the courts' opinions and orders on the questions raised by the parties. By carefully tracking and absorbing as much litigation activity as possible, one can begin to see trends emerge: when and why the courts tend to grant or deny TROs; which plaintiffs courts think are appropriate parties to bring suits; and eventually, the substantive arguments that do or do not persuade courts one way or the other. But remember, emerging trends do not equal legal clarity. That comes only from multiple appellate court decisions on the same legal point or a definitive Supreme Court decision.