Jon Greenbaum
Like tens of millions of Americans, the election of Donald Trump as President for a second time has filled me with dread, based on the policies he has already announced – many of which would violate the Constitution, federal law, and basic democratic principles. But unlike some others, I have not felt a sense of powerlessness. The election has given me a new sense of purpose, as I am fortunate to have a role in planning the legal resistance to the upcoming Trump Administration overreaches. This article sets forth in broad strokes who is in the resistance and what the resistance will look like.
What the second Trump Administration will try to impose and how they will do it
Unlike eight years ago, Donald Trump and his supporters are prepared for a Trump presidency. Trump’s rightwing base fits well with a cadre of conservatives, like Russ Vought, who want to transform the federal government by putting plenary power in the Presidency with the goal of making the United States a Christian nationalist state. They developed a plan this time, Project 2025, that includes a nearly 900 hundred page playbook, the Project 2025 Mandate for Leadership, and a database of people who will carry out the playbook. Trump has already named several Project 2025 contributors as nominees to his next administration. This includes Vought, who if confirmed as the director of the Office of Management and Budget, would be in a prime position to carry out the aims of Project 2025.
A foundational precept of this vision is that the President has sole authority over all aspects of the executive branch, a concept known as Unitary Executive Theory. According to this theory, the President, among other things, would have the ability to fire independent agency heads or employees within the executive branch without cause, shift responsibilities in government between agencies, withhold expenditure of funds allocated by Congress, or transfer funds allocated by Congress for one purpose and use them for another. Trump and his supporters are planning to reclassify many federal employees so they can be fired without cause, which would enable them to be replaced by conservative activists. Trump and his supporters want to give the President’s monarch-like power.
What are some of the things the Trump administration will likely attempt to impose?
Based on the Project 2025 playbook and statements from the President-elect and his appointees, just a few of the policies we are anticipating include:
- Mass deportations
- The firing of federal employees because they do not conform to conservative ideological views
- The weakening of environmental standards
- Attacks on reproductive rights and access to health care
- Rollbacks of civil rights and diversity, equity, and inclusion initiatives, including the elimination of Title VI disparate impact standard
- The diminution of federal support for public schools
- The weaponization of law enforcement against ideological opponents
- The evictions of families with undocumented household members from federal housing
- Enabling parents to sue over curriculum content and limiting academic freedom
The Trump Administration will be ready on day one to transform federal government. In August, Vought said that “[w]e’ve got about 350 different documents that are regulations and things of that nature that are, we’re planning for the next administration.” Similarly, Brooke Rollins the President and CEO of the America First Policy Institute (AFPI), and Trump’s nominee for the Secretary of the Department of Agriculture, said before the election that AFPI had drafted about 300 executive orders for a second Trump Administration. These executive orders will essentially serve as directives to executive branch agencies to implement through formal rules and other action.
Who will be part of the legal resistance
Before getting to those outside of the federal government, who are the focus of this post, I want to briefly address those inside of the government. Federal employees, who will be under constant pressure to bend to the whim of the President and his political appointees, will be important players over the next four years. To what degree will they be willing to stay in government? To what degree will they be willing to resist illegal orders? Conversely, to what degree will they carry them out? The answers to these questions will dictate how far the Trump Administration is willing to go.
Also critical is what Congress will do. Under the Constitution and current law, the President will have significant constraints as to what he can do in certain areas without the help of Congress. Will the Republican majorities in Congress resist policies that undermine the rule of law and the separation of powers?
There are two major sets of “outside” resistors who will be active in filing lawsuits. The first are state and local government. Over the years we have seen an increase in Republican-led states challenging actions taken by Democratic Presidents and Democratic-led states challenge actions taken by Republican Presidents. Sometimes these state and local officials work in coalition and sometimes alone. Governors and Attorneys General will again be active in the second Trump Administration.
The second are progressive nonprofits. One of my clients, Democracy Forward (DF), is extremely active in the legal resistance on two levels. DF is coordinating a coalition of more than 800 lawyers at 280 organizations in developing legal challenges. DF is not just engaging in a coordinating role but seeking to litigate itself. There are other organizations that will be providing direct assistance to those most affected, such as organizations created to help federal employees under attack with pro bono legal support and job assistance. There will also be engagement by the private bar, the degree to which we will know more about in the coming months.
There will likely be a flood of lawsuits during the Trump Administration if the President and his appointees follow through on the goals of Project 2025. Some could be filed within days after President Trump issues Executive Orders. Others will be filed after agencies act. The anticipated actions the Trump administration takes directly against federal employees will, to a significant degree, first go through an administration process before the Merit Systems Protection Board. The employees will have the right to appeal to the federal courts.
What will be the bases for the legal challenges?
Depending on specific circumstances, the challenges will involve a combination of constitutional, statutory, and equitable theories.
In my view, the Unitary Executive Theory that underlies the Trumpian/Project 2025 view of the Presidency runs contrary to separation of powers principles both as set forth in the text of the Constitution and court decisions. The Constitution prioritizes Congress over the President in many respects. The Constitution starts with Article I, which sets forth the powers and duties of the legislative branch and Congress. Article I is followed by Article II, which sets forth the powers and duties of the executive branch and the President. Article I is twice the length of Article II. The order and length of the respective articles is telling regarding the Founders’ view of Congress vis-à-vis the President. The Constitution also explicitly provides Congress with substantial authority over the President. For example, the President cannot spend money unless Congress appropriates it. Congress, not the President, creates the agencies within the executive branch and funds them. The President cannot go to war unless Congress approves it.
The courts have been mindful of these separation of powers principles in several contexts. One context involves appropriations of funds. In Train v. EPA (1975), the administrator of the Environmental Protection Agency, upon direction of President Nixon, allocated only a portion of the funds for controlling and abating water pollution designated by Congress in the Federal Water Pollution Control Act Amendments of 1972. The Supreme Court held unanimously that the Administrator could not withhold the funds.
In the first Trump administration, the President tried to transfer Department of Defense funds allocated for different purposes to construction of the wall at the U.S.-Mexico border. States filed one suit against this transfer and nonprofit organizations filed another. The Ninth Circuit Court of Appeals, in separate decisions, found in favor of the plaintiffs. Between the two cases, the courts found that the transfer violated the Appropriations Clause of the Constitution and the Administrative Procedure Act. It also found that plaintiffs won under an equitable ultra vires theory which holds that a court can stop a federal official from acting outside of their authority. Thus, the plaintiffs prevailed under a constitutional theory, a statutory theory, and an equitable theory.
Another context is in the removal of commissioners of independent agencies. In Humphrey’s Executor v. United States (1935), the Supreme Court held that the President did not have the authority to remove a commissioner of the Federal Trade Commission without cause. The Court found that the Federal Trade Commission Act permitted removal for “inefficiency, neglect of duty, or malfeasance of office,” and the Commission was quasi-judicial and quasi-legislative. For these reasons, the President lacked the authority to remove the Commissioner. There is a high likelihood the second Trump Administration will challenge Humphrey’s Executor. The Project 2025 playbook mentions this in the chapter on the Department of Justice and there are independent agencies at the beginning of the Trump Presidency where a majority of the Commissioners will be Democratic appointees.
There are also avenues of challenge based on individual constitutional rights like the First Amendment, equal protection, and due process. For example, the first Trump Administration issued an executive order preventing trainings related to critical race theory and other so-called “divisive concepts.” Federal contractors that conducted trainings were able to obtain a court order blocking implementation of portions of the executive order on the ground that it violated the Free Speech Clause of the Constitution.
There are additional challenges that are available to final actions of administrative agencies. The Administrative Procedure Act contains procedural and substantive requirements for agencies to follow when they act. Substantial changes to regulations must go through a lengthy notice and comment process under most circumstances. Agency decisions can also be vacated if they are found to be “arbitrary and capricious.” Moreover, doctrines that the Roberts Supreme Court has applied in favor of conservative plaintiffs against administrative actions by the Biden administration will be employed. This includes the “major questions” doctrine first applied by the Supreme Court three years ago which states that if an agency implements an action that has major national significance, it must be supported by clear congressional direction. Another precedent that will be used is the Court’s 2024 decision in Loper Bright Enterprises v. Raimondo. In Loper Bright, the Court overruled a forty-year-old Supreme Court decision and eliminated court deference to administrative agencies when a statute is ambiguous as to whether an agency action is authorized by statute.
One final note is related to the Trump/Musk collaboration that they have entitled the “Department of Governmental Efficiency” (DOGE). This nongovernmental effort is subject to several limitations. It falls under the Federal Advisory Committee Act. FACA committees, consistent with the statutory name, are advisory. They do not wield actual authority. The membership of each committee must be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” and the committee must make its work product and communications available to the public. When a committee does not operate consistently with those requirements and others, they can be sued. During the last Trump Administration, I was actively involved an effort to sue over the work of the Trump administration’s “anti-voter fraud” initiative and the ensuing litigation led to Trump disbanding that committee.
There has been substantial effort in anticipating likely executive orders and agency actions, prioritizing which should be challenged, and researching viable legal theories and identifying plaintiffs for standing for each challenge. In other words, it is an active time for those engaged in the legal resistance.
What will happen?
It would be overly optimistic to think that we will be completely successful in stopping all the efforts of the Trump Administration to fundamentally transform the federal government. At the same time, I believe that we will achieve a fair amount of success, especially in the lower federal courts. I am concerned about the Supreme Court but I have some hope that at least two of the six conservatives on the Court (along with the three left-of-center justices) will recognize the short-term and long-term harm to our democracy from an all-out assault on the rule of law and the separation of powers.
Jon Greenbaum (jgreenbaum@justicels.com and https://justiceblog.substack.com/) is the founder of Justice Legal Strategies (www.justicelegalstrategies.com) and was also, until recently, Chief Counsel at the Lawyers’ Committee for Civil Rights Under Law.
