Where will Trump be sued?
Previewing the litigation in store for the coming years
Transitions in presidential administrations bring a host of changes to Washington, D.C. The executive branch—which in ideal circumstances struggles to have the maneuverability of a cargo ship—will attempt to turn on a dime at noon on January 20. Policies and personnel will change, executive orders will be signed, and nominees will be confirmed by the Senate.
Judging by the last two administrations, one thing won’t change: states will continue to sue the federal government faster than their printers can put ink to paper.
But where will they file?
Trump’s judicial appointments made substantial changes to the composition and ideology of the lower courts, but the effect was not evenly distributed. For example, the Ninth Circuit today is not nearly as liberal as it was when it blocked the three iterations of the immigration entry ban in 2017. The Fourth Circuit, on the other hand, has roughly the same composition and may be a touch more liberal than it was in 2017 due to Democratic appointees having taken senior status and still hearing cases (the Republican appointees have retired from the bench).
Biden had less success making meaningful changes to the ideology of the courts of appeals, with the possible exception being the Seventh Circuit, but I would not characterize it as a particularly polarized court either now or in 2017.
The district courts were where both presidents did succeed in leaving a mark. In part because senators of both parties used blue slips to hold vacancies open into a new administration, trial courts around the country are far more polarized now than in the past, and able plaintiffs will have no trouble finding their preferred venue.
A few things will change the practice of administrative law litigation in the second Trump administration. First, universal injunctions, as a matter of equitable relief, are on the way out the door. If the emergency application in the Texas Top Cop Shop case pending at the Supreme Court doesn’t change the practice, the Department of Justice will find another vehicle to nip them in the bud once and for all. Plaintiffs will respond by trying to rush cases to final judgment, because unlike universal preliminary injunctions, the Supreme Court does not seem to want to limit universal vacatur under Section 706 of the Administrative Procedure Act. I think this is a positive development to the extent it allows administrations of both parties to enforce their priorities and attain certainty about the legality of their chosen policies sooner.
Second, the Supreme Court issued a series of decisions during the Biden administration that contracted Article III standing, limiting who can file suit against regulations and executive orders in the first place. These cases include TransUnion v. Ramirez, United States v. Texas, Alliance for Hippocratic Medicine v. FDA, and Murthy v. Missouri.
Texas has some significance when it comes to states and organizations suing the federal government for not enforcing a law. For example, if ATF loosens regulations under federal firearms laws over the next four years, blue states may struggle to show standing because they are asking the government to prosecute and imprison more people, similar to how the state in Texas wanted the government to deport more migrants from the country.
But the more outsized effect of Texas may be to limit the most outlandish arguments states have employed to enter the federal courthouse. In the coming years the Supreme Court will likely reconsider the state standing holding of Massachusetts v. EPA and consign its “special solicitude” to the past. Consider what happens if Maryland, where many federal employees reside, challenges reforms to the civil service or a return to office mandate. The Supreme Court may use a case like that to cut back on state standing.
Alliance for Hippocratic Medicine (AHM) was a shot across the bow of associational standing and the “diversion of resources” theory interest groups have used to challenge regulations in recent decades. We’ve already seen multiple circuits recognize the import of this change, including a major decision from the Ninth Circuit that severely limited associational standing in the election context. AHM matters a lot for immigration litigation. During the first Trump administration, groups often showed harm from regulations restricting asylum because they had to spend more time and money to help migrants fill out applications.
Justice Thomas’s concurrence in AHM sought to get rid of associational standing in its entirety. I’m not sure the court will go that far, but it may require organizations to name their members in order for them to receive the benefit of an injunction. The Department of Justice has taken this position in many cases recently, including the Corporate Transparency Act litigation and the challenges to the FTC’s noncompete ban.
I also expect the Department of Justice and other litigating components across the government to aggressively attack the venues plaintiffs choose to file lawsuits in. During the Biden administration, the Department frequently questioned the particular courts Texas and other states challenged policies in, arguing they should be heard in the federal court closest to the state capital, as that is where states “reside” for purposes of federal law.
In other cases brought by multistate coalitions, the government argued that only those plaintiffs residing in a particular circuit should be able to sue there. This is an important argument to watch because it may force states to break up into multiple groups to challenge agency actions, rather than pooling their resources together. Under the status quo, state attorneys general combine forces to challenge regulations but only one attorney general’s office takes point on the case.
Alternatively, the Department of Justice may seek to transfer challenges to immigration regulations to courts along the southern border, arguing that any modification of asylum eligibility predominantly affects those presenting at the border, not the small fraction of asylum seekers who fly into airports across the country or immigrant rights groups headquartered in Oakland, California, 500 miles from the border.
As another example, agencies defending infrastructure projects may seek to transfer cases challenging their approval from the D.C. Circuit, which has read NEPA’s procedural requirements very broadly, to the regional circuit where the project is located.
Finally, I think the fairly obscure doctrine prohibiting claim-splitting will gather some attention during Trump’s second term. The general principle of claim-splitting prohibits a party from filing multiple separate lawsuits based on the same underlying dispute.
During Trump’s first term, Democratic cities and counties filed many lawsuits against immigration policies separately from the attorneys general of their states. For example, both Illinois and its subdivision Cook County challenged the 2019 public charge rule, as did California and San Francisco. The Maryland Attorney General joined a multistate challenge to the Title X rule in Oregon federal court, which he lost, but the state obtained relief from the rule anyway because Baltimore convinced a Maryland federal district judge to vacate the rule statewide. During the Biden administration, both the Texas Attorney General and Texas Land Commissioner challenged the delay in using appropriated funds to build the border fence, and the Department unsuccessfully raised this argument in those cases.
It’s easy to see how this seems unfair. Without adherence to this doctrine, multiple counties in a state can challenge a federal regulation in different districts, seeking to increase the chance of drawing a favorable district judge.
[As a matter of first principles, I’ve never understood why subdivisions of states can sue to challenge garden-variety federal agency action. State attorneys general typically have authority to sue because their legislature affirmatively gave them authority to do so. Did the legislatures do the same for every county and town, no matter their numbers or size? The sole exception may be Spending Clause cases where the subdivision is losing federal funds it previously enjoyed.]
My predictions for particular courts where lawsuits will be filed against Trump administration policies are below.
First Circuit
The First Circuit is one of the most liberal federal appellate courts in the country, but it doesn’t get much attention because of its size and because there aren’t any conservative judges to write dissents. (Also, Courier is an eyesore and doesn’t encourage people to read the court’s opinions). Democrats and interest groups aligned with them will take advantage of the Massachusetts and Rhode Island district courts to sue the Trump administration, as there are almost no unfriendly district judges there.
Second Circuit
Many Trump administration regulations were challenged in the Southern and Eastern Districts of New York last term because it is easy to find a plaintiff who resides in New York City. But multistate coalitions may have a harder time suing here if the Department of Justice is successful in pressing its state capital venue argument. If that happens, they may look to the Northern District of New York and the Connecticut and Vermont district courts.
Third Circuit
Republican Dave Sunday’s election as Pennsylvania Attorney General makes it unlikely that many challenges to Trump administration policies will be filed in Pennsylvania, which saw some litigation in Philadelphia the last term. Democrats will look to the New Jersey district court, which is a very unfavorable venue for conservative causes.
Fourth Circuit
Last term, the Fourth Circuit saw a significant amount of litigation because it was one of the most liberal courts in the country. I think it is the most liberal court of appeals today. Unlike the Ninth Circuit, whose mini en banc process does not guarantee the composition of a 11-judge panel, there is no doubt about which judges will sit on the Fourth Circuit’s en banc court.
Plaintiffs will sue the government here because many federal agencies are headquartered in Maryland or Virginia. District courts in Maryland and Virginia will be very favorable to them. Jason Miyares, the current Virginia Attorney General, is a Republican, so fewer cases will be filed in Virginia for now.
Sixth Circuit
Democrats will challenge federal policies in the Eastern District of Michigan, where the vast majority of sitting judges were appointed by Presidents Obama and Biden. Look to Ann Arbor, Detroit, and Flint.
Seventh Circuit
Illinois, particularly Cook County, challenged many immigration policies during Trump’s last term. They will file again this time in the Central and Northern Districts of Illinois.
Plaintiffs will also file in the Western District of Wisconsin.
Eighth Circuit
Minnesota is the only blue state in the Eighth Circuit. It’s possible that the state will challenge Trump administration policies here to try to create circuit splits in coordination with other attorneys general. I think it’s more likely, however, that the state will join litigation elsewhere.
Ninth Circuit
The Ninth Circuit has moderated since 2017 due to the 10 circuit judges Trump appointed. But the district courts have become more liberal since then with Biden’s many appointments filling longstanding vacancies.
Every state with a Democratic attorney general will attempt to sue wherever possible. The state capital venue argument, however, may limit California’s ability to sue in the state’s Central, Northern, and Southern Districts. And the Eastern District, which includes Sacramento, has a significant caseload which may delay the adjudication of challenges to Trump administration policies.
The same venue argument may put the Eastern District of Washington out of commission.
Until Trump is able to fill the district court vacancies in Alaska, I expect a lot of environmental litigation to unfold there.
Tenth Circuit
Colorado Attorney General Phil Weiser is running for governor. He will likely challenge many administration policies, particularly those that relate to public lands and the environment. Similarly, many immigration suits may be filed in New Mexico.
D.C. Circuit
The first Trump administration lost many cases in the D.C. Circuit. Some laws like the Clean Air Act and IIRIRA mandate all cases brought under them be filed in D.C. In other cases, plaintiffs will often choose to file here because the government generally chooses to comply with any loss on a nationwide basis (as opposed to a loss in a numbered circuit, which may be limited to the states within its jurisdiction alone).
The D.C. Circuit today is also more liberal than it has been in decades. Judges appointed by Ronald Reagan have retired or died since 2017, while Biden replaced appointees of Bill Clinton who are still hearing cases on senior status.
Federal Circuit
The Federal Circuit is known for hearing appeals in patent and veterans benefits cases, but it also has exclusive jurisdiction over most appeals from the Merit Systems Protection Board, which will implicate any civil service reforms the Trump administration implements.