Courts Stand Up For Trans Rights and The Rule of Law

But will it be enough?

On Friday, a federal court in Maryland barred Trump from enforcing his noxious policy of denying federal funding to any institution that provides gender-affirming care to patients under 19.

Specifically, Judge Brendan Hurson issued a nationwide temporary restraining order prohibiting the Department of Health and Human Services from enforcing Section 4 of Executive Order 14187. That order mandated the freezing or rescission of any research or education grant to schools and hospitals if those institutions provide gender-affirming care. That instruction is now on hold for at least the next two weeks.

“The Court cannot fathom discrimination more direct than the plain pronouncement of a policy resting on the premise that the group to which the policy is directed does not exist,” wrote Judge Hurson incredulously.

The memorandum opinion is impressive in its moral and legal clarity. It’s also a roadmap for other judges confronting the Trump administration’s illegal plan to steal Congress’s power of the purse and wield Americans’ tax dollars as a cudgel to enact conservative policy nationwide.

Making America Bigot Again

Attacks on transgender Americans were a pillar of Trump’s campaign, and so it is unsurprising that on his first day in office, President Trump signed an executive order purporting to “defend women” and “restore biological truth” by declaring that trans people do not exist. He followed that up a week later by banning gender affirming care for anyone under 19, defining such care as “the chemical and surgical mutilation of children.”

Parents and Friends of Lesbians and Gays (PFLAG) challenged the ban on behalf of trans kids who will lose access to medical care if their providers comply with Trump’s edict.

“These Executive Orders are unlawful and unconstitutional,” they argued. “The President does not have unilateral power to withhold federal funds that have been previously authorized by Congress and signed into law, and the President does not have the power to impose his own conditions on the use of funds when Congress has not delegated to him the power to do so.”

The Justice Department’s lawyers ran a playbook that has become familiar in the past four weeks: First, they insist that the courts lack jurisdiction because an executive order is not a final agency action that can be challenged. Second, they claim that separation of powers requires the court to defer to the executive. And third, they protest that courts shouldn’t issue nationwide injunctions.

Thus far, this sequence has been spectacularly ineffective.

Executive Orders Are Not Laws

Trump’s plan to do so much illegal shit involves announcing it via executive order, as if his own word is the law of the land. His minions then seek to evade judicial review by claiming that the order is just a pronouncement, not a policy, and so there’s nothing to challenge in court.

With the trans ban, the Health Resources and Services Administration (HRSA) informed grant recipients on January 31 that “HRSA grant funds may not be used for activities that do not align” with the anti-trans executive orders. Hospitals across the nation, fearful of losing all federal subsidies, announced that they were ending gender-affirming care in accordance with the command. The government then claimed in court documents that HRSA rescinded that implementing instruction. They attached no proof of such rescission, but this provided cover for the goons running the Justice Department to argue that the case is not yet ripe because no grants have been rescinded and the executive order itself is not subject to challenge.

If that sounds familiar, it’s because they tried this exact same play two weeks ago in federal courts in Rhode Island and DC. In those cases, the Office of Management and Budget issued a memo instructing agencies to pause all federal disbursements to comply with the president’s executive orders, and then rescinded that memo in an effort — publicly acknowledged by White House Press Dingbat Karoline Leavitt — to moot the pending litigation while still allowing the executive orders to go into effect.

This time around, Leavitt managed to keep her mouth shut, but Judge Hurson saw through the ruse. He held that the case was still live under the doctrine of voluntary cessation, which allows courts to retain jurisdiction when the defendant quits (voluntarily ceases) breaking the law, but might resume at any time. Absent court intervention, the administration could simply operationalize the trans-bashing mandates, forcing the plaintiffs to come back into court to vindicate their rights.

You’re Not the Boss of Me

Hewing to the well-worn playbook, the DOJ then argued that federal courts can’t enjoin the President at all due to separation of powers concerns. This is an exceptionally misleading argument that’s worth unpacking.

It relies on selective quotes from a 1992 case called Franklin v. Massachusetts in which the Supreme Court ruled that a trial judge could not order President George H.W. Bush to recalculate the number of congressional representatives pursuant to the 1990 census after Congress delegated the power to him.

A plurality of the justices agreed “in general” that courts cannot order the president to perform a discretionary official act. In a concurrence, Justice Antonin Scalia went even further, arguing that courts had no power to enjoin or even issue declaratory relief against the executive, writing that it was “incompatible with [the president’s] constitutional position that he be compelled personally to defend his executive actions before a court.”

No court has ever endorsed Scalia’s interpretation, and Scalia himself noted that his rule would not prevent plaintiffs from procuring injunctive relief against “the officers who attempt to enforce the President’s directive,” i.e. executive branch agencies. But the Trump administration cites this concurrence as proof that nothing the president does can ever be reviewed by the courts.

Thus far, that argument has been universally panned by trial judges. Not only is it without precedent, but it would leave no remedy when, as here, the president does something wildly illegal. In this case, Trump is stealing Congress’s power of the purse by imposing conditions on disbursing congressionally allocated funds.

“The challenged portions of the Executive Orders direct the agencies of the Executive Branch to withhold funds appropriated by Congress in order to further an administrative policy on gender ideology,” Judge Hurson wrote, accusing the administration of seeking to “wrest the power of the purse away from the only branch of government entitled to wield it.”

Be Careful What You Wish For

Judge Hurson’s order echoed Judge John McConnell in Rhode Island and Judge Loren AliKhan in DC, both of whom issued temporary restraining orders based on the Impoundment Control Act and the Constitution’s Appropriations Clause. But Judge Hurson went further, relying on two cases used by conservatives to check the authority of Democratic presidents.

First he cited Clinton v. City of New York, a 1998 decision in which the Supreme Court struck down the Line Item Veto Act as unconstitutional. That law would have permitted the president to excise specific portions of the annual budget after it was passed by Congress, but the Court held that the president has no authority to unilaterally “effect the repeal of laws, for his own policy reasons.” And if the president can’t strike language from statutes, then a fortiori he can’t write new language into them after they’ve been enacted, either.

Then Judge Hurson pointed to Loper Bright Enterprises v. Raimondo, the 2024 Supreme Court ruling overturning Chevron deference. In that paean to judicial review, Chief Justice Robert pared back the Biden administration’s authority, warning that deference to the president’s interpretation of laws “improperly strips courts of judicial power by simultaneously increasing the power of executive agencies.”

Citing Loper Bright is a pretty clever move by Judge Hurson. It’s functionally a flashing neon sign to the Supreme Court that Trump isn’t just stealing power from Congress — he’s trying to take it from the courts as well. Indeed, it’s axiomatic that “it is emphatically the province and duty of the judicial department to say what the law is.” (Marbury v. Madison 5 US 137 (1803). And what Trump wants is a blank check from the court to say what the best interpretation of the law is.

How Very Dare You

Finally, Trump’s minions affect indignation that the plaintiffs would seek a nationwide injunction, rather than relief for the individual plaintiffs. This one is especially galling, coming off of four years in which conservatives camped out in Amarillo and Fort Worth, securing dozens of nationwide injunctions to block President Biden’s entire agenda and teeing up appeals for the reactionaries on the Fifth Circuit. Now conservatives denounce nationwide injunctions as “extraordinary remedies,” and demand that courts confine injunctive relief solely to the named plaintiffs.

Rather than call out the flagrant hypocrisy of this position, Judge Hurson simply engages with the relevant standard. Judges have broad discretion to fashion injunctive relief, so long as the injunction is no more burdensome than necessary to award “complete relief” to the plaintiffs. And when a law (or an executive order) is facially unconstitutional, nationwide relief is particularly appropriate, not just to vindicate the constitutional rights of everyone affected by the action, but to avoid judicial confusion as to who might be subject to the court’s orders or not.

He concludes:

With this principle in mind, the Court finds that a piecemeal approach is not appropriate in this case. Significant confusion would result from preventing agencies from conditioning funding on certain medical institutions, while allowing conditional funding to persist as to other medical institutions. … The necessity of a nationwide injunction is underscored by the fact that hospitals all over the country could lose access to all federal funding if they continue to provide gender affirming medical care.

It’s a masterful order (from the youngest judge on the federal court in Maryland). Judge Hurson issued a nationwide injunction preventing the Trump administration from yanking federal funds as a cudgel to force medical providers to cut off gender-affirming care. But he also provided a blueprint for other judges seeking to constrain an out-of-control executive branch frantically grabbing as much power as it can.

And right on time Judge Lauren King of the Western District of Washington issued a strikingly similar opinion in a parallel case also challenging Executive Order 14187. It largely overlaps with the one issued by Judge Hurson by prohibiting the Trump administration from freezing or rescinding research and education grants to medical institutions that provide gender-affirming care. Additionally, Judge King’s order also enjoins Section 8(a), which would have directed the Department of Justice to begin prosecuting doctors who render gender-affirming medical care under a 1996 law prohibiting female genital mutilation.

That, too, is on hold for two weeks.

“The Framers envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts,’” writes Judge King. “This includes the power to reject the President’s interpretation of the Constitution; otherwise, ‘judicial judgment would not be independent at all.’”

She was quoting from Loper Bright. Now, the question is whether Chief Justice John Roberts and the rest of the Supreme Court’s right wing stands up for their own 2024 opinion and defends the independence of the judiciary from the man who would be king.