Good News: Two Governors, Two Judges Say No to Trump 

Four good news stories for the weekend, from Maine, Wisconsin, the District of Columbia, and Texas. The common thread: big wins over Trump’s illegal and unconstitutional bullying.

Maine Gov. Janet Mills stood up to bullying by Trump in a public meeting in January, telling him Maine would follow state law and the Constitution. When he continued threatening reprisals, she responded, “We’ll see you in court.” 

That day in court came, with a lawsuit over the Trump administrations cuts to Maine school lunch programs. Mills and Maine won in court with a temporary restraining order on April 11, and now the Trump administration has backed down and agreed to a settlement that restores the funding.

[Portland Press Herald] “’It’s good to feel a victory like this,’ Mills said, appearing exuberant as she declared that the state had won this court battle with the Trump administration.

“’I stood in the White House and when confronted by the president of the United States, I told him I’d see him in court. Well we did see him in court, and we won.'”

Another lawsuit brought by Trump’s Attorney General Pam Bondi threatens to pull future funding and claw back already granted aid to schools for students with disabilities and low-income students. 

[Portland Press Herald] “’That’s a separate complaint they filed a few weeks ago, it’s only a one-page complaint that cites no authority, no case, no law. We’ll see them in court on that one as well,’ Mills said.” 

Now the Trump administration is threatening elected officials. Wisconsin Gov. Tony Evers joins Maine Gov. Janet Mills in standing strong and rejecting unconstitutional edicts.

Evers issued a guidance to Wisconsin state employees, advising them to contact an attorney immediately if ICE agents show up at their office demanding paper files or access to computers. The guidance said that state employees should not turn over paper files or give ICE access to their computers or answer questions without first consulting their state agency’s attorneys. 

[WSAW TV] “Wisconsin Gov. Tony Evers said Friday that every American should be concerned about “chilling” suggestions from President Donald Trump’s top border adviser that he could be arrested over guidance the Democrat issued to state employees about what to do if confronted by federal immigration agents.

“’I’m not afraid,’ Evers said in the extraordinary video posted on YouTube. ‘I’ve never once been discouraged from doing the right thing and I will not start today.’

And the judges

This week, two judges ruled that major Trump actions are illegal. In Washington DC, Judge Beryl Howard, who was nominated by President Obama, ruled that Trump’s executive orders targeting law firms are unconstitutional. In Texas, Judge Fernando Rodriguez, Jr., who was nominated by Trump in his first term, ruled that Trump’s invocation of the Alien Enemies Act was unlawful.  

Friday, May 2, in the federal district court for the District of Columbia, Judge Beryl Howard ruled that Trump’s attack on law firm Perkins Coie was unconstitutional. 

A few excerpts from the introduction give the flavor of her 102 page opinion: 

“No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’ When Shakespeare’s character, a rebel leader intent on becoming king, hears this suggestion, he promptly incorporates this tactic as part of his plan to assume power, leading in the same scene to the rebel leader demanding ‘[a]way with him,’ referring to an educated clerk, who ‘can make obligations and write court hand.’ Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power. …

“By its terms, this [Trump Executive] Order stigmatizes and penalizes a particular law firm and its employees—from its partners to its associate attorneys, secretaries, and mailroom attendants—due to the Firm’s representation, both in the past and currently, of clients pursuing claims and taking positions with which the current President disagrees, as well as the Firm’s own speech. In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’ EO 14230 takes the approach of ‘Let’s kill the lawyers I don’t like,’ sending the clear message: lawyers must stick to the party line, or else….

“Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with ‘tolerance, not coercion.’” [Citations omitted]

In a footnote, Judge Howard notes the bravery of Perkins Coie and other firms who stood up to government bullying and the weakness of those who caved in to the Trump administration’s “stick to the party line, or else” bullying:

“This message has been heard and heeded by some targeted law firms, as reflected in their choice, after reportedly direct dealings with the current White House, to agree to demand terms, perhaps viewing this choice as the best alternative for their clients and employees. Yet, some clients may harbor reservations about the implications of such deals for the vigorous and zealous representation to which they are entitled from ethically responsible counsel, since at least the publicized deal terms appear only to forestall, rather than eliminate, the threat of being targeted in an Executive Order. As amici former and current general counsel caution, a ‘fundamental premise of the rule of law’ is that ‘when parties challenge the government, their lawyers ‘oppose[] the designated representatives of the State,’ and ‘[t]he system assumes that adversarial testing will ultimately advance the public interest in truth and fairness.’ This safeguard against government overreach fails when attorneys cannot ‘advanc[e] the undivided interests of [their] client[s]’ for fear of reprisal from the government.’ 

“Only when lawyers make the choice to challenge rather than back down when confronted with government action raising non-trivial constitutional issues can a case be brought to court for judicial review of the legal merits, as was done in this case by plaintiff Perkins Coie LLP, plaintiff’s counsel Williams & Connolly, and the lawyers, firms, organizations, and individuals who submitted amicus briefs in this case. As one amicus aptly put it, ‘[o]ur judicial system is under serious threat when determining whether to file an Amicus Curiae brief could be a career ending decision. But, when lawyers are apprehensive about retribution simply for filing a brief adverse to the government, there is no other choice but to do so.’ If the founding history of this country is any guide, those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.” [Citations omitted]

Howard concludes with an unambiguous order:

“The U.S. Constitution affords critical protections against Executive action like that ordered in EO 14230. Government officials, including the President, may not ‘subject[] individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech.’ They may neither ‘use the power of the State to punish or suppress disfavored expression,’ nor engage in the use of ‘purely personal and arbitrary power.’ In this case, these and other foundational protections were violated by EO 14230. On that basis, this Court has found that EO 14230 violates the Constitution and is thus null and void. For the reasons explained, plaintiff is entitled to summary judgment and declaratory and permanent injunctive relief on Counts II through IX of the Amended Complaint. The government’s motion to dismiss is denied.” [Citations omitted]

On Thursday, May 1, in the southern district of Texas, Judge Fernando Rodriguez, Jr. ruled that Trump’s invocation of the Alien Enemies Act is unlawful and permanently enjoined any deportations under that law. 

“The question that this lawsuit presents is whether the President can utilize a specific statute, the AEA, to detain and remove Venezuelan aliens who are members of TdA. As to that question, the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.” 

District courts in the Southern District of New York, District of Colorado, and Western District of Pennsylvania have entered temporary rulings against Alien Enemies Act deportations. The Northen District of Texas refused to bar deportations under the AEA, but the Supreme Court then blocked the deportations. These ruling focused on the process of the AEA deportations: the denial of any meaningful right to a hearing or to present facts to disprove the claimed membership in Tren de Aragua. Since the March 15 deportations, numerous investigations have shown that the vast majority of those deported had no criminal records and that evidence of gang membership was slim to non-existent.

While Rodriguez’s ruling applies only in the Southern District of Texas, its significance is much broader. This is the first final and definitive ruling on Trump’s invocation of the Alien Enemies Act. Judge Rodriguez’s ruling clearly finds the invocation of the AEA illegal. That sets the stage for an appeal that directly pits the president against the courts.