The Trump administration’s lawyers have spent significant time in court this month fighting dozens of requests filed by legal groups, labor organizations and a litany of other state and local plaintiffs across the country – and so far, most judges haven’t granted these requests.
The courts ‘are rightfully saying we don’t have jurisdiction over this,’ or, in certain cases, that plaintiffs ‘aren’t proving harm,’ Fox News legal editor Kerri Kupec Urbahn, a former spokesperson for Attorney General Bill Barr, said of the numerous legal challenges to Trump’s agenda.
The lawsuits, totaling more than 80, are aimed at blocking or reversing some of Trump’s most controversial actions and executive orders.
Nearly all plaintiffs are seeking, in addition to the long-term injunctive relief, a temporary restraining order, or TRO, from a federal judge that would block the order or policy from taking force until the merits of the case can be heard.
Almost all these requests for emergency relief have been rejected in court, with judges noting that plaintiffs lacked standing, and ordering both parties to return for a later hearing date to consider the merits of the case.
Some Trump allies and legal commentators have criticized the many lawsuits as a way for plaintiffs to skip over the traditional administrative appeals process and take their case directly to the courts instead – a pattern they say has prompted the wave of rejections by federal judges.
There is an internal review process for agency-specific actions or directives, which can be challenged via appeals to administrative law judges or an agency-specific court.
But doing so for executive orders or presidential actions is much more difficult.
According to information from the Code of Federal Regulations and the Federal Register, a president’s executive order can be revoked or modified only by the president or via the legislative branch, if the president was acting on authority that had been granted by Congress.
Since the latter is not immediately applicable to the Trump-era orders many of the lawsuits hinge on, that leaves the courts as one of the limited arbiters for determining whether to let stand the orders or action in question.
That means the requests for injunctive relief are considered in a sort of two-part wave of proceedings, since most – if not all – Trump-era complaints include both the request for the TRO and for the preliminary injunction.
The TRO requests are the first wave of ‘mini-arguments’ to come before U.S. judges tasked with reviewing the complaints.
They are heard immediately and require plaintiffs to prove they will suffer irreparable injury or harm if their request for relief is not granted— a difficult burden to satisfy, especially when the order or policy has not yet come into force.
(As one judge remarked earlier this month, the court cannot grant TRO requests based on speculation.)
The courts then order both parties to re-appear at a later date to consider the request for preliminary injunction, which allows both sides to present a fuller argument and for the court to take into account the harm or damages incurred.
‘The bottom line is that courts typically do not grant requests for emergency relief at the start of a lawsuit,’ Suzanne Goldberg, a Lawfare contributor and professor at Columbia Law School, wrote in a recent op-ed.
‘Instead, they wait to decide what remedies a plaintiff deserves, if any, until after each side makes its legal arguments and introduces its evidence, including evidence obtained from the other side through the discovery process.’
These near-term court victories have buoyed Trump allies and the Department of Government Efficiency, allowing DOGE, at least for now, to continue carrying out their ambitious early-days agenda and claiming ‘victory.’
‘LFG,’ Elon Musk cheered on X recently, in response to a court’s rejection of a request from labor unions seeking to block DOGE access to federal agency information.
Other accounts have praised the overwhelming court rejections of emergency restraining orders as evidence that the Trump administration, and DOGE, are ‘winning’ – a characterization that legal experts warn is largely premature.
In fact, they’ve noted, the slow-moving legal challenges and nature of the court calendar are features, not bugs.
This includes efforts to block or curtail DOGE from accessing internal government information or firing agency employees; lawsuits aimed at blocking the Trump administration’s transgender military ban; and complaints seeking to block the release or public identification of FBI personnel involved in Jan. 6 investigations, among many other things.
But that’s not because every one of these actions is legitimate. Rather, legal experts say, the near-term ‘victories’ hinge on the limited power a judge has to intervene in proving emergency relief, or granting temporary restraining orders.
Judges, including U.S. District Judge Tanya Chutkan, noted previously that fear and speculation alone are not enough to curtail DOGE access: plaintiffs must prove clearly, and with evidence, that their workings have met the hard-to-satisfy test of permanent or ‘irreparable’ harm.
Rule 65 of the Federal Rules of Civil Procedure states that plaintiffs must be able to show evidence that a rule, action or policy in question will result in ‘immediate, irreparable harm’ to satisfy a TRO request.
That’s a difficult burden of proof, and a near impossible one for plaintiffs to satisfy, especially for an action that has not yet taken effect.
One exception is the Trump administration’s ban on birthright citizenship.
The request for immediate relief, was granted by multiple U.S. district courts judges, who sided with plaintiffs in ruling that hundreds of children born in the U.S. were at risk of real harm.
It was also upheld by a U.S. appeals court last week, setting the stage for a possible Supreme Court fight.
But barring that, most of the lawsuits will play out in the longer-term, Goldberg, wrote in the Lawfare op-ed.
‘Stepping back, the current litigation landscape of TROs and preliminary injunctions may seem quite extraordinary… But considered in context, these many provisional orders suggest that even more extraordinary are the government’s threatened actions, both in their likely unlawfulness and their potential for irreparable harm,’ she said.
