Supreme Court scuttled one way judges blocked Trump policies but others remain
But at least seven judges − four appointed by Republican presidents, including one by Trump − have continued to block Trump policies under legal strategies that the high-court justices suggested in their landmark ruling.
From New Hampshire to Texas, judges with lifetime appointments to the federal bench have temporarily blocked Trump's policies through two bedrock legal strategies that allow a president's opponents to challenge federal polices: class-action lawsuits and administrative challenges. The latest blocks hit the Republican chief executive's restrictions on birthright citizenship, deportations under the Alien Enemies Act and layoffs at the Department of Health and Human Services.
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Those orders came after the Supreme Court changed the litigation landscape on June 27 with a decision in a dispute over Trump's executive order restricting birthright citizenship. In the case called Trump v. CASA, the justices limited nationwide injunctions that individual judges had been issuing − a ruling that the president and his top Department of Justice appointees celebrated at the White House soon after.
But even the Supreme Court justices suggested class actions or administrative challenges could take their place − and judges around the country were listening.
"The short answer," according to Nicholas Bagley, a law professor at the University of Michigan, is that the impact of the court's decision "is likely to be muted."
"Look, there's lots of other ways to get widespread relief," Bagley told USA TODAY. "The fact is they are available now."
Under class actions, judges can broaden a case from a handful of people to thousands or even millions who argue they were all harmed by a Trump policy. Decisions then carry widespread and potentially nationwide impact.
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Another strategy is to challenge a regulation under the Administrative Procedure Act, a perennial workhorse since 1946 ‒ after the expansion of federal agencies under President Franklin Delano Roosevelt ‒ which allows legal opponents to argue that government policies are irrational or without justification. A judge who agrees with people or groups challenging a policy can then 'set aside' the regulation, which traditionally invalidated it for the whole country.
Both legal strategies have drawbacks and experts said the Supreme Court may eventually put limits on these sorts of lawsuits, too. But the associate justices who work alongside Chief Justice John Roberts just laid out a roadmap for them to challenge government policies and lower court federal judges have already begun certifying class actions and upholding administrative challenges.
Presidents of both parties complained about judges blocking policies nationwide
Nationwide injunctions have been a thorn in the side of presidential administrations of both parties.
The argument against them is that a district court judge in one of 94 jurisdictions nationwide shouldn't be able to halt a policy for the entire country, whether it's then-President Joe Biden's forgiveness of student loans or Trump's restrictions on birthright citizenship spelled out via executive order on the first day of his second term.
The number of nationwide blocks on administration policies exploded in recent decades. George W. Bush faced six, Barack Obama had 12 and Biden had 14, according to a study in Harvard Law Review. Trump faced 64 in his first term and dozens more in the first months of his second term.
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Attorney General Pam Bondi complained at a news conference the day of the Supreme Court's CASA decision that 35 of the first 40 national blocks on Trump policies came from five jurisdictions, where regional judges thought they were 'emperors."
'These judges have attempted to dictate the law for the entire nation,' Trump said June 27. 'This was a colossal abuse of power.'
Supreme Court upends nationwide injunctions in birthright case
Rather than rule on the constitutionality of Trump's birthright order in the CASA case, Justice Amy Coney Barrett's six-to-three majority opinion focused on judges blocking presidential policies. She wrote that under the 1789 Judiciary Act, regional judges lacked that authority unless necessary to provide 'complete relief to the plaintiffs before the court.'
Barrett's opinion ordered judges to review their nationwide injunctions within 30 days, which experts expect to lead to many being abandoned. But justices offered suggestions for where litigants could turn next to challenge the government.
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Justice Samuel Alito, who agreed with Barrett, suggested people could file class-action lawsuits. The hitch is that it can be time-consuming and costly to get a judge to sort out who might be harmed by an administration policy and certify a class of litigants.
'Putting the kibosh on universal injunctions does nothing to disrupt' the requirements of class-action lawsuits, Alito wrote. 'But district courts should not view today's decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of' class action rules.
Alan Trammell, a law professor at Washington and Lee University in Virginia, said after Barrett's ruling that class actions 'are going to bear a whole lot more of the weight of this litigation.' But Alito 'more or less said the quiet part out loud' that it could be hard to get judges to certify classes, Trammell said.
'Depending on your perspective, there is the risk or the possibility that there will be these snap decisions or what somebody referred to as drive-by class actions when it's supposed to be a fairly rigorous process,' Trammell told USA TODAY.
But other experts said it won't be that hard to get judges to certify class actions. That's because in cases against the government, people are trying to halt a policy. In cases against another person or business, people are often trying to win damages, which can get complicated as judges resolve who deserves a share of the money and how much.
David Marcus, a law professor at the University of California, Los Angeles, studied class actions beginning in 2011, when the Supreme Court tightened restrictions on them, and found courts were still favorable to litigants in 75% of cases through 2020.
'There shouldn't be a lot of fights over whether the evidence supports classification,' Davis told USA TODAY. 'Most of them are quite easy, clear-cut cases.'
Judges swiftly declare class actions for birthright, asylum cases
Judges have already begun certifying classes of plaintiffs challenging the Trump administration in the month since the high court's decision in late June. The same day as Barrett's ruling, the American Civil Liberties Union filed a nationwide class-action lawsuit against Trump's birthright citizenship order in New Hampshire before the same judge who ordered the nationwide injunction in the CASA case.
On July 10, U.S. District Judge Joseph Laplante temporarily blocked Trump's executive order limiting birthright citizenship by ruling the litigants could proceed as a class. The class covers all children or future children born after Feb. 20, 2025, to parents who weren't citizens or legal permanent residents.
Laplante found the children 'have demonstrated likelihood' of eventually winning the case and 'are likely to suffer irreparable harm' if the policy isn't blocked while the case is litigated.
Marcus, the UCLA professor, called the ruling "bullet-proof."
"It's not a quick-and-dirty order," Marcus said. "It's a picture-perfect administration of well-settled doctrine."
In another case in Washington, D.C., three nonprofits challenged a Trump proclamation issued on Inauguration Day that disallowed immigrants from remaining in the country while pursuing asylum claims. On July 2, U.S. District Judge Randolph Moss declared anyone affected by Proclamation 10888 a class and overturned it.
Moss ruled that nothing in the Immigration and Nationality Act or the Constitution grants the president the sweeping authority in his proclamation.
The Trump administration appealed the ruling July 3.
Even before the CASA decision, federal judges in two cases blocked the government from deporting Venezuelans under the 1798 Alien Enemies Act as alleged gang members of Tren de Aragua.
In southern Texas, U.S. District Judge Fernando Rodriquez, who was appointed by Trump, certified a class for Venezuelans who were designated enemy aliens. Rodriguez permanently blocked the administration from using the statute to deport alleged gang members.
In southern New York, U.S. District Judge Alvin Hellerstein also certified a class and temporarily blocked deportations.
The government has appealed both decisions to circuit courts.
What is the Administrative Procedure Act?
Justice Brett Kavanaugh, who also joined Barrett in the CASA decision, suggested another remedy. He wrote that litigants may ask a judge under the Administrative Procedure Act (APA) to ''set aside' a new agency rule' while a case is argued.
Adam Zimmerman, a law professor at the University of Southern California, said Kavanaugh and Roberts have each written favorably about litigants challenging government policies under the APA. If someone challenged that strategy, they could side with justices who opposed Barrett's opinion − Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson − to uphold the strategy.
"I think the court didn't just open the door open to nationwide relief, I think there's a really good chance there are five justices who are ready to walk right through it," Zimmerman told USA TODAY.
Some judges have begun doing just that.
One technicality is that the APA covers department regulations, not the president. After Trump issues an executive order, agencies adopt regulations to put it into effect. The process can take months or years as agencies make initial proposals and gather public comment before issuing a final rule. The APA sets out the procedures for adopting regulations and also the rules for how judges review them. Litigants challenge the regulations, not the president's order.
"A president telling his subordinates to think about doing nasty stuff is not enough for the courts to get involved," Bagley said. "The agencies have to do the nasty stuff."
Judge blocks HHS layoffs under APA as 'arbitrary and capricious'
In federal court in Rhode Island, 19 states challenged the firing of thousands of workers from the Department of Health and Human Services by claiming the move deprived them of services for citizens that Congress mandated.
HHS Secretary Robert Kennedy acknowledged to reporters that in making the staffing cuts that '20% would have to be reinstalled because we'll make mistakes.' He said science jobs and frontline health jobs weren't cut.
On July 1, U.S. District Judge Melissa DuBose temporarily blocked the layoffs based on violations of the APA by ruling HHS' action 'was both arbitrary and capricious as well as contrary to law.'
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'Yet another group of plaintiffs seek relief from a federal court to halt sweeping changes to a federal agency's operations which they claim disregard congressionally mandated programs to the detriment and peril of all who live in the United States,' DuBose wrote.
DOJ lawyers urged the judge on July 11 to restrict her block to only the programs affected in states participating in the lawsuit. DuBose asked for more written arguments by July 31 about how the Supreme Court decision could affect the case.
Judge halts 'slapdash approach' to erasing HHS web pages
In federal court in Washington, D.C., HHS got into another legal scrape when the advocacy group Doctors for America challenged its decision to take down web pages filled with vital healthcare information.
The removals, which included the Centers for Disease Control and Prevention and the Food and Drug Administration, were based on another one of Trump's Inauguration Day executive orders from Jan. 20 declaring only two sexes and forbidding government spending on 'gender ideology.'
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On July 3, U.S. District Judge John Bates ruled the department took 'a slapdash approach' by removing information that mentioned 'gender' or 'pregnant people' from pages that doctors had come to rely upon. He ordered the department to restore the missing pages but said the government could take them down later if done through 'reasoned decision-making.'
'This case involves government officials acting first and thinking later,' Bates wrote, by removing 'hundreds or even thousands of health care webpages and datasets.'
The government submitted a report July 18 saying that 67 web pages out of 212 identified in the lawsuit had been restored. Six web pages had been removed for reasons other than a memo from the Office of Personnel Management or the HHS guidance disputed in the lawsuit. Officials continue to review other web pages for restoration "as soon as practically possible," the government report said.
Judge 'set aside' DHS directive to end work permits for Haitians
In federal court in New York, nine Haitians and two advocacy groups sued the Department of Homeland Security to prevent an early end to a temporary program providing work permits and protection from deportation after earthquakes.
On July 1, U.S. District Judge Brian Cogan decided under the APA to temporarily 'set aside' DHS Secretary Kristi Noem's directive to end the program that began in 2010 and was extended several times. Noem sought to end the program six months early on Aug. 3.
Cogan distinguished his ruling from an injunction. He said the government wouldn't be hurt by a postponement and that the government could still end the program if it went through the right steps.
'These orders are different in nature from injunctions, which prohibit an agency from taking a certain action at all, ever,' Cogan wrote.
Government lawyers submitted a letter July 18 saying Noem acknowledged the temporary program would end Feb. 3, 2026, as scheduled under the last extension.
What's next? Experts place no 'strong bets' given high stakes of the disputes
As judges increasingly wade into class actions and administrative challenges, legal experts say the Supreme Court could eventually tinker with those legal strategies, too.
'I actually worry that sometimes the harder cases make bad law,' Zimmerman said. 'I do worry that with the political stakes involved, the Supreme Court might feel pressure to make a rushed or bad decision that could have effects on other types of really beneficial class actions. I hope that doesn't happen.'
More: Trump wins again. Conservatives like Amy Coney Barrett again. Supreme Court takeaways
Another possibility deals with the APA. Judges have 'set aside' regulations, effectively invalidating them for the entire country, which Bagley calls 'a national injunction under another name.'
But he argued that judges could begin limiting regulatory remedies to the participants in lawsuits, rather than the whole country, just as the Supreme Court limited nationwide injunctions in CASA.
'I think we're going to see some development of the law,' Bagley said. 'I think we can't make strong bets at this point about how the law will develop.'
This article originally appeared on USA TODAY: Judges block Trump policies through new routes. Here's how
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