Author: Reed Shaw

There is a powerful means to challenge executive action apart from the Administrative Procedure Act.

Agencies could conceivably use AI at numerous points in the rulemaking process, raising a host of legal and policy questions. AI tools of various stripes could be used to identify subjects for rulemaking or regulations in need of revision or elaboration. 

So-called “universal” injunctions—court orders that bar the government from enforcing a challenged policy against anyone, not just the plaintiffs in a case—have been a feature of litigation against the Trump administration. Or at least they were. In last Friday’s decision in Trump v. CASA, the Supreme Court limited the availability of such injunctions, paring back the universal relief that had been provided by three district courts in challenges to President Donald Trump’s executive order on birthright citizenship. Still, CASA leaves plaintiffs with several avenues to obtain relief that approximates the scope of the erstwhile universal injunction.

 Over the last several months, the administration has sought to shrink the federal government by slashing the federal workforce and by dismantling entire agencies. Those efforts have repeatedly run aground in the courts before judges appointed by presidents of both parties (including by President Trump himself).

With the adults long since dismissed and Congress missing in action, resistance to this Trump power grab could come from an unlikely source: federal judges.

Federal employees seeking to challenge the Trump Administration’s unprecedented efforts to dismantle federal agencies and decimate the civil service have faced a dilemma. The federal Civil Service Reform Act (CSRA) generally permits employees to contest serious adverse personnel actions only before an administrative body, the Merit Systems Protection Board (MSPB), rather than in federal district court, with eventual judicial review in the Federal Circuit. At the same time, the Trump Administration has removed the MSPB’s former chair, a move the Supreme Court has preliminarily upheld despite MSPB members’ statutory removal protections. Deprived of a quorum, the MSPB cannot adjudicate federal employees’ appeals, and, in many cases, employees will be unable to obtain judicial review.

The Trump Administration, using a range of means, has sought to decimate the federal civil service. That has included efforts to fire probationary employees, initiate large-scale reductions in force at multiple agencies, and place large groups of employees on administrative leave. At the same time, the administration has hampered the Merit Systems Protection Board (MSPB), the agency responsible for adjudicating federal workers’ employment rights, by depriving it of a working quorum—a step that threatens to impede judicial review of the administration’s personnel policies. Nevertheless, federal workers have options, both for seeking relief from a compromised MSPB and for arguing that they should be entitled to vindicate their rights in federal district court instead.