Trump Attorneys’ Ethics Violations Require State Bar Action

Back in December 2020, as the nation unknowingly marched toward the infamous January 6th attack on the Capitol, then President Trump said, according to reporting in the book Peril, “Lawyers, I have nothing but lawyers that stop me on everything. I’m very embarrassed by my lawyers and the Justice Department. At least [Sydney Powell] is giving me a chance.” Trump was lamenting Department of Justice (DOJ) attorneys’ efforts to stop him from appointing attorney Sydney Powell as special counsel to pursue an investigation in support of Trump’s fraudulent ‘Big Lie’ claim: Powell would eventually plead guilty to several misdemeanors in the Georgia election interference case.

Fast forward to 2025, and re-elected President Trump has appointed new leadership at the DOJ that is engaging in a purge of attorneys who may object to the administration’s malfeasance, with those who remain seeming to have taken heed of his infamous words. DOJ attorneys are not only doing nothing to stop the President from pursuing an all-out attack on the rule of law, they are enabling him by becoming active participants in the attack.

It would be impossible to detail every ethics violation by the Justice Department, actual or potential, here. However, one that sent shivers down the spine of the profession and should be the root of concern for the public is DOJ’s acquiescence to Trump administration executive orders and bullying extortion tactics attacking some of the nation’s largest and most prominent law firms and their lawyers. In short, the orders sought to suspend security clearances issued to the firms’ lawyers; restrict access to government buildings; ban the government from providing resources to these law firms, including compartmentalized information facilities; ban government hiring of law firm employees; and call for termination of government contracts for which law firms have been hired to provide services, including clients’ government contracts.

While it seems most everyone in the law, media, and public have acknowledged the immoral and likely illegal attack on the profession, the entities charged with regulating the legal profession — state bar associations and their regulatory and disciplinary commissions — are sitting idly by without a peep.

High-Level Intimidation & Extortion

One such attack was against the Paul Weiss firm. The White House’s executive order threatened the firm, its partners, and its clients economically to the tune of billions of dollars. In response, the firm, along with many others fearing similar executive orders, quickly capitulated

The victims of this intimidation — high-powered, high-paid lawyers — promised to dismantle things like their diversity, equity, and inclusion programs with no showing that the programs ran afoul of any federal antidiscrimination law. Trump’s DOJ also asked that certain individual attorneys be disciplined. Paul Weiss was forced to besmirch one of its own attorneys who Trump claimed wrongly pushed for his prosecution in Manhattan even though in the end, Trump was criminally convicted. But it didn’t end there. The administration asked for an exchange of legal services for the “favor” of the administration allowing the law firms to continue to have access to the federal government in the interests of their clients. Paul Weiss (like several of the other targeted law firms) promised to perform tens of millions of dollars’ worth of pro-bono work for Trump for loosely defined “special projects.”

The message had been sent: even a large law firm with seemingly unlimited financial capability could not fight back against Trump and his new government attorneys without great risk both financially and personally. The reasons to be afraid were set. In response to this capitulation, the White House promised to continue targeting large law firms with these executive orders and it has. At least nine law firms agreed to terms with the Trump Administration to avoid executive orders.

Marc Elias, one of the attorneys targeted by the administration, estimates nine of the largest law firms targeted by the executive branch have pledged $940,000 of free legal services to Trump. Another had the estimate as much higher, from $40 million to $125 million. This is high-level bullying of the worst kind: government attorneys extorting private attorneys to do the bidding of the President for his personal gain.

It should be noted that not all law firms have capitulated. Four targeted law firms, including Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey, have challenged the executive orders targeting them as a violation of the firm’s First Amendment speech, association, and petition rights, as well as their Fifth Amendment due process rights. At the district court level, each of these firms have been successful in their challenges.

Attorney Protestations

Despite an outcry for bar associations to speak up on the attack on the rule of law as far back as October 2023, it was only in August/September of 2024, that American Bar Association (ABA) President Mary Smith declared that “Lawyers Must Protect Democracy Now,” citing a “disappearing trust” in our democratic institutions. Properly, President Smith noted, “it is our oath to [actively] uphold justice and the Constitution,” but “many lawyers are not fully engaging with their ethical obligations . . . diminishing the profession’s role as keepers of democracy and the rule of law.”

Yet, more lawyers are taking notice now that the attacks on the rule of law are hitting the profession close to home. Attorneys see other attorneys engaging in conduct which is prejudicial to the administration of justice and the rule of law. At risk is the basic constitutional rights to effective assistance of counsel under the Sixth Amendment and the right to due process of law under the Fourteenth Amendment.

In the early days of the second Trump administration, over 50 bar associations, mostly metropolitan and county bar associations, also condemned 'government actions that seek to twist the scales of justice' including the intimidation of law firms and lawyers. Also, over 1,300 former alumni of the DOJ, who have collectively served both Republican and Democratic administrations, have condemned President Trump’s and the DOJ’s campaign of intimidation and retaliation against lawyers and law firms. They have called such executive branch actions, “an affront to the Constitution and the rule of law . . . undermin[ing] our legal system, the pursuit of justice, and our democracy.”

Generally speaking, it is the state bars that issue the state attorney licenses required to engage in the practice of law. Through their disciplinary arms, they also can  monitor their licensed attorneys to make sure they stay true to their oath to “support [protect, uphold, or defend] the law, the Constitution of the United States and the constitution” of their state in which they are being admitted, continue to maintain the character and fitness to practice law, and steer clear of violating the many ethics rules which are supposed to guide the manner by which they practice law.  This commonly happens when a complaint is filed with the proper disciplinary authority.

In this instance, a complaint would not be necessary because the whole world knows what happened as it is a matter of public record and the players are easily identifiable.

Ethical Basis for Bar Association Investigation and Discipline

It is incumbent upon state bar disciplinary bodies to investigate and punish the ethical violations associated with the law firm executive orders. Intimidation of the sort reflected in the potential enforcement of these orders is always a basis for disciplining an attorney. As one court noted, “[t]his type of conduct ‘has a dramatic impact on the public’s confidence in the integrity of the Bar.” Intimidation is commonly associated with cases involving harassment. In the case of the executive orders, the  threat to use the coercive power of the government to curb core constitutional rights — including rights to speech, association, counsel, and due process itself —is much, much worse. The obvious nature of the misconduct is clear even under a cursory review of ethical rules.

Under the American Bar Association’s Model Rules of Professional Conduct, Rule 8.4, entitled, “Maintaining the Integrity of the Profession,” subpart (d) makes clear it is professional misconduct for a lawyer to, “engage in conduct that is prejudicial to the administration of justice.” Subpart (e) goes further and makes it professional misconduct to “state or imply an ability to influence improperly a government agency or official.” or “to achieve results [influence improperly a government agency or official] by means that violate the Rules of Professional Conduct.”

In the Comments to Rule 8.4, the basis for an investigation and for hearings potentially resulting in discipline become more obvious. The comments state:

Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

Further, the Comment recognizes, “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

Both subparts of the rule and the Comment plainly address the conduct of any attorney who helped to develop or stands at the ready to enforce the executive orders.

The law firms that have capitulated to the administration, while victims of this intimidation, must also be held to account for the effect such capitulation may have on their ability to serve as zealous advocates for their clients and that may, in and of itself, be “prejudicial to the administration of justice.”

Law firms that have made deals with an administration that has pointedly criticized those firms for their work on behalf of certain clients or for their reliance on certain legal arguments or positions, create an inherent conflict of interest. It is reasonable to question  the ability of lawyers within those firms to zealously represent the interests of their clients when they owe something to the government in return for what gangsters call “protection,” but more closely resembles extortion. Government attorneys who induce law firms and their attorneys to violate ethics rules violate Rule 8.4’s prohibition in subpart (a) of “induc[ing] another [attorney]” to “violate the Rules of Professional Conduct.”

This pattern of unethical intimidation and capitulation by government and private attorneys, respectively, warrant the time and attention of the disciplinary arms of state bar associations. To allow this behavior to go unexamined is an abdication of these bar associations’ critical role in ensuring the integrity of the profession and protecting the public.

Criminal Issues

In a recent review of the risks associated with attorneys preemptively acceding in the government shake-down of these large law firms, we are reminded that like so many other attorney ethical gaffs, they are often associated with criminal misconduct. In agreeing to provide hundreds of thousands if not millions of dollars’ worth of pro bono representation in return for the Trump administration treating them favorably, the attorneys at these firms could be accused of “influenc[ing] improperly a government agency or official,” more commonly known as bribery. Federal and state criminal statutes apply to such criminal conduct when it involves a quid pro quo, extortion, or racketeering. Since most of the involved law firms are international law firms with offices in foreign countries, the criminal misconduct may violate international law too.

While state bar associations and disciplinary commissions do not typically bother themselves with the ethics of criminal conduct until the latter is adjudicated, this is a different situation from the typical case since government attorneys, the law enforcement here, are actual participants in the unethical, public misconduct. At a minimum, this is worthy of a public statement or opinion by the state bar associations. More appropriately, it is worthy of immediate investigation and the meting out of discipline from censure to those with minor roles in the misconduct to outright suspension and disbarment of the main actors who masterminded or executed the unethical and criminal schemes.

Conclusion

Federal workers, including federal prosecutors, are accountable to the people, not to politicians, which is why they swear to “support and defend the Constitution,” and not any specific President. And yet, the DOJ is attacking the rule of law by engaging in intimidation and extortion to consolidate President Trump’s power by targeting law firms and attorneys. The swiftness with which at least eight law firms preemptively settled with the administrations without an executive order issue against them shows the chilling effect these orders can have on the entire legal profession made up of over 1.3 million attorneys. This affects not only the law firms and millions of lawyers, but the millions of potential clients who might have business and need an independent, zealous lawyer to challenge some federal action.

Bar associations and attorney disciplinary boards should take heed as there is little anyone can do to stop bad-doers like government attorneys who control the levers of power over other attorneys who might challenge them in court. Bar associations are not so limited.

Bar associations can start their own investigations into the happenings involving federal prosecutors and other administration lawyers targeting law firms. Afterall, attorney disciplinarians have a duty to protect the public. They have subpoena power too. They can mete out discipline such as censure, suspension, and even disbarment. Context matters and the context here — attacks on the legal profession and the rule of law through government action — is very serious.

Indeed, ten senators from the Senate Judiciary Committee called on the New York Bar Association to investigate one Trump federal prosecutor for acts that can be called intimidation and extortion too under the rules referenced above. There are many more attorneys whose conduct should similarly be investigated.

Bar associations should not sit idly by. They have an important role to play in protecting the legal profession, the rule of law, the public, and our democracy. The time to act is now.

James “Jim” Saranteas is a practicing attorney of 25 years with experience. Jim is a recipient of Loyola University Chicago School of Law’s Board of Governors prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He continues to advocate on social issues as well as help law students with their advocacy skills.

America’s Gerrymandering Crisis: Time for a Constructive Redistricting Framework

Thanks to the actions of Texas Republicans, America has been plunged into a tit-for-tat redistricting faceoff that is oddly occurring in the midcycle period as politicians angle for advantage ahead of next year’s midterms. First, Texas Republicans at the urging of President Donald Trump himself have proceeded to redraw their state’s electoral map in a clear maneuver to grab an additional five congressional seats come November 2026. In response, and in a bid to also grab five additional seats for their side, California Democrats have finalized arrangements to launch their own effort in November via a ballot initiative to counteract the move in Texas.

The broader political context of these moves is quite noteworthy: the Republican majority in the House being razor thin and the midterm elections being traditionally unfavorable affairs for the party in power, the Republicans’ action amounts to a preemptive move to retain control of Congress and thereby shield the Trump administration from an anticipated Democrat pushback against Trump’s increasingly controversial agenda which has literally convulsed American politics. Given this scenario, the countermeasures undertaken by the Democrats was not only foreseeable but rather inevitable. For them to do otherwise would have amounted to what some groups like Common Cause have termed “unilateral political disarmament in the face of authoritarian efforts to undermine fair representation and people-powered democracy." (This invokes the proverbial scenario of “bringing a knife to a gun fight.”)

Nationwide, both parties are gearing up to confront each other in what promises to be a race to the bottom redistricting contest. These midcycle maneuvers, initiated by the Republicans, clearly seem to defy the normal practice under which redistricting exercises are conducted every ten years in accordance with the census cycle established in Article I Section 2 of the Constitution.

In simple terms, what the two parties are doing here is known as “gerrymandering,” a notorious maneuver in which electoral maps are intentionally drawn to give an advantage to one side, usually the side drawing the maps, over the other side.  More specifically, what we are seeing in Texas and California, the country’s two most populous states, is a species of gerrymandering behavior known as “partisan gerrymandering” (based on party); the other kind is known as “racial gerrymandering” (based on race).

As between the two, while racial gerrymandering is prohibited, as a violation of Section 2 of the landmark Voting Rights Act of 1965, partisan gerrymandering is deemed permissible, thanks to the US Supreme Court’s decision in the 2019 case of Rucho v. Common Cause, which said that such situations belong to the class of non-justiciable “political questions,” where federal court intervention is unsuitable because they lack the “objective” criteria to assess those situations. As we’ve seen in litigation post-Rucho, things can get tricky in circumstances where it may not be easy to separate the “racial” and “partisan” components of a given gerrymandered situation.

A Mutual Skullduggery 

While Republicans control more state legislatures than Democrats and thus wield greater ability to engage in gerrymandering behavior, the evidence clearly suggests that both parties are guilty of the mischief of partisan gerrymandering. On the Republican side, aside from Texas, plans are reportedly underway to extend this Trump-inspired bout of gerrymandering to other Republican-controlled states like Indiana, Missouri, and Florida.

In Texas, for instance, where Kamala Harris won 42% of the vote in the 2024 presidential election, Democrats hold only 34% of the congressional seats (13 of 38 seats). In Indiana, Democrats hold two of seven seats, which is 22% despite Harris’ 40% share of the 2024 vote. In Missouri: Democrats hold two of eight seats, which is 25% despite Harris’ 40% share of the 2024 vote. In Mississippi: Democrats hold one of four seats, which is 25% despite Harris’ 38% share of the 2024 vote.

On the Democrat side, a similar sampling of representation patterns tends to show even more pronounced partisan gerrymandering: blue states like Massachusetts, Connecticut, and New Mexico, for instance, have zero Republican members in their congressional delegations, even though Trump won 36%, 42% and 46% respectively in those states in 2024. In places like New Jersey, the Republicans hold only 3 out of their 12 congressional seats (which is 25%) despite Trump’s 46% share of the votes in that state in 2024. In California, Republicans hold only 9 of the 52 congressional seats (which amounts to 17%) despite Trump’s nearly 40% vote share in California in the 2024 presidential poll.

In Illinois, where many of the runaway Democrat legislators from Texas had fled to during the redistricting controversy in their home state, Republicans hold only 3 of the 17 congressional seats in that state’s delegation, which is roughly 18%, despite Trump’s 43% share of the vote in the 2024 presidential poll. Who could soon forget the awkward scene on August 5 when comedian Stephen Colbert of The Late Show confronted his guest JB Pritzker, Illinois’ governor, with a map showing the truly bizarro shape of his state’s congressional District 17, a shape the comedian described as “crazy.”

Although legally permissible, the downside of partisan gerrymandering is enormous, not least because the victimized voters of the rival party are denied the genuine opportunity to elect representatives of their choice, in violation of the 14th Amendment’s equal protection guarantee. Not to mention the corrosive effect of this invidious maneuver on the citizens’ faith in the overall legitimacy of the electoral system.

The Case for Redistricting Commissions 

To be clear, redistricting is an inherently political exercise that cannot be rid of all partisanship. Yet, a good starting point in draining the toxic partisanship out of the exercise is to remove it from the grips of state legislatures via nationwide shift to the use of redistricting commissions, which are already in use in one form or another in more than 20 states across the country. Among the available options, the optimal structure for the redistricting commissions would be one that is geared toward greater public participation in the process and away from direct control by politicians.

For instance, elected officials and their direct associates should be excluded from the redistricting commissions, which bodies should be mandated to hold public hearings and receive public input on their proposals, both online and in-person. Plus, whatever data the redistricting commissions are relying on for their proposals must be made available for public examination. To further isolate the process from partisanship, the final redistricting proposals produced by the commissions should not be further subjected to final legislative approval, as happens in places like New York. In this scenario, anyone dissatisfied with the proposals, say, on equal protection or other constitutional grounds or even on a claim that the commission violated its own terms of reference, might then seek their remedy in court.

Given the importance of the task at hand, some federal intervention might well be needed to harmonize the redistricting process across the country and thereby enhance its credibility and legitimacy among the people. For instance, Congress could use its authority under the Elections Clause (Article I Section 4) to mandate a nationwide shift to the use of redistricting commissions everywhere, in addition to prohibiting the bitterly polarizing practice of midcycle redistricting, a situation that only betrays the motivation of politicians to ‘game the system’ for partisan advantage.

Whatever the imperfections of the redistricting commission approach, these bodies can be trusted more than self-interested political actors to draw maps in accordance with the public interest, so that the voters are indeed the ones choosing their leaders and not the other way around.

Conclusion

What is happening in Texas and California, and perhaps soon to come in other places, is less an exercise in representative self-governance in a democratic republic than a corruption thereof, a situation made worse by the extremely polarized nature of current American politics. Thus, there is no better time than now for a nationwide shift to the use of redistricting commissions and a prohibition on midcycle redistricting to streamline the exercise and enhance its credibility with the voters.

Carl Unegbu, a lawyer and journalist, serves as a vice chair of the New York Chapter of the American Constitution Society. He can be reached at ocarls@yahoo.com.  

 

 

To Defeat Authoritarianism, We Need Labor

This Labor Day, institutional leaders contemplating how to stand up to arbitrary power should reflect on the old IWW slogan: an injury to one is an injury to all. In other words, a collective problem calls for a collective response. Institutions should look to the labor movement, in part for organizing and advocacy strategies, but also because any coalition to defend democracy must include organized labor.

Less than one year into his second term, President Trump’s most consistent priority seems to be imposing costs on anyone who disagrees with the administration’s views, while rewarding and empowering his favorites: “tough on crime” rhetoric notwithstanding, January 6 rioters got pardons; the people who prosecuted them got fired. Harnessing the executive branch and his own bully pulpit, Trump aims to force institutions to choose between their wallets, and their integrity. These ultimatums should be understood as assertions of power; while couched in legal language, they bear at most tenuous relationships to law.

Understandably, institutions have struggled to respond to these threats. One reason: they have mostly been going it alone. This is partly because the Trump administration has tended to set its sights on one news outlet, university, law firm, or city at a time; others may have hoped that by keeping quiet, they’d avoid being next. (The less said about law firms that tried to gain a competitive advantage by poaching lawyers or clients from firms targeted by the Trump administration, the better.)

In building coalitions to protect their own independence and democracy more generally, institutions should view organized labor as a partner, rather than an adversary. Research by political scientists confirms that labor unions are important to healthy democracies for several mutually reinforcing reasons. Among them, unions help reduce income inequality, which corrodes democracy. As democratically run organizations, unions are “schools for democracy,” with members developing political skills that they then bring to electoral politics as voters, volunteers, and candidates. They effectively amplify their members’ concerns in the political process, while also increasing their members’ knowledge about politics. And union representation tends to decrease white workers’ racial resentment, which is an important vector of authoritarianism.

For similar reasons, the historian Joseph McCartin recently called for “a labor-led democracy movement.” This requires at least two things. First, for unions to embrace this role, directing even more of their limited resources to educating and mobilizing their own members and nonunion workers in defense of democracy. To be clear, most unions are already robustly engaged in this work—though a small handful have recently failed important tests of inter-union solidarity. Second, other institutions – especially those that depend on democracy – must view unions first as allies in the fight against authoritarianism. To put it more concretely: a university, non-profit, or media outlet that engages in union-busting in 2025 is making a strategic mistake, prioritizing limited short-term benefits over the big picture.

Unions are already on the front lines of organizing resistance to anti-democratic policies. To start with some recent examples, unions (together with other groups) have organized protests against draconian immigration policies, the deployment of militarized forces in US cities, and mass firings of federal workers. And by naming apprentice Kilmar Abrego Garcia as their union brother, the leadership of the Sheet Metal Workers union made it harder for the Trump administration to claim to be acting in the interests of and with the support of the (white) working class.

Unions also push employers to defend workers’ safety and professional integrity, and they act on their own (or with other movement groups) when employers fall short. Within a workplace, unions can urge employers to show backbone when faced with an unlawful demand by the Trump administration. They can also raise the costs to employers of capitulation or cooperation, as in the case of a striking Teamsters local’s demand that the employer not over-comply with ICE. Outside of workplaces, unions call public attention to how Trump administration policies will harm their members or the public. And unions litigate on behalf of their members. For example, the NewsGuild was part of a coalition of plaintiffs that sued the Department of Homeland Security over officers’ use of force against both protestors and reporters covering ICE raids in Southern California. The American Association of University Professors, has filed several lawsuits over threats to academic freedom; these include challenges to the administration’s revocations of student or employment visas because of protected speech, and threats to yank federal funding over DEI programs. And unions representing public employees are litigating over the administration’s many efforts to close entire federal agencies despite statutory mandates, engage in mass layoffs and push federal workers to resign, and muzzle federal workers who might express dissent. It may be that private employers who are also harmed by the subjects of these cases either openly or tacitly support them, though in at least one case – an AAUP suit challenging funding cuts at Columbia – litigation highlighted that workers wanted to fight for their institution’s independence, despite leadership’s decision to seek a settlement with the Trump administration.

In a sense, the Trump administration seems to agree with this analysis—its actions to date suggest that it views the labor movement as another institution to be either co-opted or retaliated against. It recently invoked “national security” to suspend collective bargaining rights for hundreds of thousands of workers at agencies ranging from the Social Security Administration to the EPA. As the unions argued in a lawsuit challenging the first of these orders, the list of covered agencies makes little sense when viewed through the lens of national security – but it does track unions’ opposition to Trump administration policies.

President Trump also fired NLRB Member Gwynne Wilcox, despite statutory language that Board members may be removed only for “neglect of duty or malfeasance in office.” This had the immediate effect of depriving the Board of a quorum, and preventing it from deciding unfair labor practice cases. (Trump later nominated two management-side lawyers to the Board; they are awaiting Senate confirmation.) And two Trump-appointed Fifth Circuit judges recently barred the NLRB from proceeding with three unfair labor practice cases at all, pending adjudication of this and other challenges to the Board’s structure. This interim order is remarkable because it goes further than the likely remedy if the plaintiffs ultimately succeed – in previous similar cases, courts have excised good-cause protections from statutes without striking those statutes down altogether – and because it effectively makes compliance with labor law optional within the Fifth Circuit. While this may all seem like good news for employers who dislike the NLRA’s protections for workers’ concerted activity, it should alarm both employers and unions that a President bent on rewarding his friends and punishing his enemies would be able to manipulate the Board’s composition at will.

There are already some excellent examples of collective action to defend institutional independence and democratic values. For one, hundreds of law firms joined amicus briefs in defense of the firms targeted by executive orders; the list included plenty of plaintiff- and union-side firms, speaking up in defense of firms that are normally adversaries. Showing a united front, even symbolically, can make a difference – but institutions should also consider making more tangible commitments to defending themselves and each other. Numerous university faculty senates, including at the University of Minnesota where I teach, have urged their administrations to establish a mutual legal defense compact. (Such a compact might even deter the administration from targeting individual schools, much like a robust strike fund might motivate an employer to reach an agreement.) Law firms can join with unions and civil rights groups to provide pro bono representation for federal workers and other individuals targeted by the administration. The point is not that any one of these efforts will save the day on its own, but instead that institutions, unions, and other civil society groups should strategize and experiment.

When universities cede their academic freedom, it becomes harder for researchers anywhere to work collaboratively and without fear; when law firms agree to provide free legal services to the government and refrain from taking up disfavored causes, it chips away at the rule of law on which lawyers and clients alike rely. These institutions, along with the media, civil society groups, unions, and others, depend on democracy and the rule of law, and vice-versa. Recognizing this fundamental shared value suggests a path forward – at least for now, we’re all in it together.

Charlotte Garden is a professor at the University of Minnesota Law School; the views expressed in this essay are hers alone.

The Will of the People and Nationwide Injunctions

Martin E. Gold

President Trump and members of his administration have been hurling insults at federal judges whose opinions they dislike since early in his first administration. One particular condemnation, which has been used most frequently in immigration cases, is uniquely disquieting—the accusation that judges are not adhering to “the will of the people.” Among others, the American Bar Association has strongly objected to this admonition, saying: “Judges swear oaths to follow the law, not public opinion, or political chatter, or what someone contends is the will of the people.” The ABA believes these claims are intended to undermine the courts and the legal profession.

Invoking the “will of the people,” as an attack line against the judiciary comes from the idea, mostly found in autocracies, that the last election overrides any existing law that conflicts with the views of the winner. The Nazi government in Germany did not rewrite or repeal existing laws, it just ignored or overrode them in accordance with the will of the leader. This view is totally inconsistent with our concept of the Rule of Law.

These admonitions, however, have not stopped. On July 12, U.S. Central District of California Judge Maame E. Frimpong issued a restraining order against federal immigration raids that lacked reasonable suspicion. The court found that arrests based on race, accent, or location violated Fourth Amendment rights. The White House responded by saying that Judge Frimpong was “undermining the will of the American people.”

One of the problems with adhering to popular opinion (which forms the core of political populism) is that popular opinion can be a blade of grass that sways with the wind, ever-shifting, -sometimes on a dime. It may be based on breaking news, which may be misinformation (especially true with today’s social media) or a single charismatic leader who lacks character. Emotions of the moment can turn out to be a dangerous source for decision making. In comparison, the slow but thoughtful development of laws by legislatures and by the courts, each having an historical perspective (that the general population lacks) and a wider breadth of knowledge, yields a quilt which is woven from more reliable threads, a carefully constructed whole, called the Rule of Law.

Not only is the White House’s charge that judges are ignoring the will of the people inappropriately leveraging highly partisan pressure, based on our norms and culture, but the actual will of the people with respect to immigration, based on current polls, has shifted dramatically over the past year. It no longer supports the MAGA demand that judges adhere to their views. Gallup polls conducted in June show that the percentage of Americans who want a decrease in immigration has dropped from 55% to 30%. Sixty-two percent of Americans now disapprove of Trump’s handling of immigration, with 45% strongly disapproving and only 21% strongly approving. Significant changes in the views of Republicans, and to a lesser extent independents, are the major reason for the shift. Two out of three Republicans now say immigration is “a good thing,” in contrast to only 39% who said that a year ago; 80% of independents agree.

Interesting as well is that approval for providing a pathway to citizenship for children brought to the U.S. illegally has risen to 85%, including 71% of Republicans. These are the DACA kids, the Dreamers, who have now grown-up.

Today people appear to be much less concerned about border security, with most Americans no longer supporting further construction of the wall along the U.S.-Mexico border.  But the public is increasingly unhappy with the mass deportations now underway. The reasons for this shift may include Immigration and Custom Enforcement’s (ICE) aggressive enforcement, characterized by entry into courtrooms and other public buildings, forceable arrests, sometimes behind masks, the terrible conditions in many of the holding camps, the deportation to hidden and deplorable foreign prison facilities (from which they may never emerge, even if they never committed a crime), together with the administration’s general disregard for due process. So, when Attorney General Bondi, DHS Secretary Noem, White House Border Czar Homan, and others, demand that the courts follow the “will of the people” rather than the law, they are not just violating long-held judicial norms, they are totally off-base given the actual will of the American people currently. Labelling a judge as “rogue” is just another way this administration has of saying he or she is not in concert with the will of the people as embodied in President Trump and his administration. The administration, and particularly Trump himself, also have some other ways of saying they are not in concert. In March, Trump attacked Judge James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, calling him on social media a “Radical Left Lunatic of a Judge, a troublemaker and agitator. “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!” (The Senate confirmed Judge Boasberg by a vote of 96-0.) Federal judges say that words like these are leading to increasing amounts of harassment and to frightening threats of violence. 

Nationwide Injunctions

One area in which MAGA member critics have been strongest in decrying judges who ignore the “will of the people” is in the use of nationwide injunctions. These injunctions, issued by district court judges, halted the implementation of Trump administration programs that they found to be unconstitutional or otherwise illegal. They have been applied to policies with national impact such as denial of birthright citizenship and programs like the mass deportation of immigrants without due process or adherence to other controlling laws that are on the books. Such injunctions are a relatively recent phenomenon. There were almost none until Reagan became president. Then twelve were issued during the George W. Bush presidency and nineteen during Obama’s two terms. The number then jumped quite noticeably during Trump’s first term. He averaged approximately sixteen per year. During the Biden administration the number fell back. Just fourteen were counted during his first three years. Trump and his supporters praised the injunctions against the Biden administration, calling them “brilliant” and “great news,” but they turned 180 degrees when they started being issued against him during his second term.

Then, on June 27, 2025, the Supreme Court in Trump v. CASA, Inc. ruled that federal district court injunctions can only apply to the specific plaintiffs in a case and not nationwide to everyone that might be affected. So nationwide injunctions (except in rare circumstances) can no longer be used in immigration cases or other claims against the President for actions that have nationwide impact. But Justice Amy Coney Barrett in her opinion for the majority noted that class actions (which let people facing a common problem join together in a single lawsuit to obtain relief) may be available nationwide to all those in a certified class. Class actions are an established legal mechanism under the Federal Rules of Civil Procedure. In contrast, nationwide injunctions issued by district court judges were mostly blocked in this decision because the Court found such power was not granted in the Judiciary Act of 1789 or any act applicable to the powers of the lower federal courts since then. In addition no such powers were traditionally accorded to courts of equity at the time of the founding of the United States.

Less than a week later, on July 2, D.C. District Judge Randolph D. Moss enjoined (with a 14 day pause) a Trump proclamation that there has been an “invasion” on the border and invoking “emergency presidential powers” to deport migrants without allowing them to apply for any relief. The judge found that the administration was attempting to create “an alternative immigrations system.” As part of his ruling, he certified all asylum seekers “currently present in the United States” as a legal class action.  Trump administration officials immediately called Judge Moss a “rogue” judge.

Then on July 10, New Hampshire District Court Judge Normand Laplante certified another class action lawsuit against President Trump, challenging his executive order restricting birthright citizenship. Judge Laplante granted class action status and issued an injunction temporarily stopping Trump’s executive order from taking effect nationwide. The class certified will include individuals born on or after February 20, 2025, whose mother was unlawfully present in the U.S. and father was not a U.S. citizen or lawful permanent resident, or whose mother's presence was temporary and father was not a U.S. citizen or lawful permanent resident at the time of birth.

The quick action by these two district courts in certifying class actions suggests (strongly) that Trump’s win in the CASA case may turn out to be less significant than initially thought. Judge Laplante said he had "no difficulty" determining an injunction was appropriate for what he described as an executive order of "highly questionable constitutionality that would deny citizenship to many thousands of individuals."  A White House spokesman called the judge’s ruling “an obvious and unlawful attempt to circumvent the Supreme Court’s clear order against universal relief.” That statement is clearly untrue. Justice Barrett specifically noted that class actions are an alternative and gave claimants thirty days to pursue such an action, or other options.

The rule of law is one of the cornerstones of democracy. Maintaining it requires that there be well-crafted protections that are steadily guarded and applied when the need arises. There must be the means of preventing a popular president or prime minister from wrapping themselves in the then-current version of the “will of the people” and harnessing the combination so as to turn themselves into a king. Thomas Paine, in 1776 at the birth of the nation, advised in his pamphlet Common Sense that “in absolute governments the King is law . . . in free countries the law ought to be king.”

Limiting Legal Remedies for Medicaid Prioritizes Politics over Access to Care

In the first U.S. Supreme Court case involving access to abortion after the 2024 election, a 6-3 majority allowed states to block Medicaid patients from choosing their own health care provider. Medina v. Planned Parenthood South Atlantic involved a diabetic Medicaid patient seeking comprehensive health care at Planned Parenthood South Atlantic (PPSA). In 2018, South Carolina blocked PPSA from Medicaid unless it would agree not to provide any abortions. Under federal law, Medicaid already only pays for abortions in cases of rape, incest, or to save the life or health of the patient. But that wasn’t enough for South Carolina policymakers, who in 2022 also voted to severely restrict abortion access.

Medina shows that states are emboldened to limit access to medical care after the Dobbs decision overturned the right to access abortion. At the same time, this decision allows states to defy safeguards for people enrolled in federal spending programs, like Medicaid, reflecting a long campaign to weaken the American safety net. Together, the implications for access to medical care across different states cannot be overstated.

Congress protected patients’ right to choose their own health care provider in the Medicaid Act to shield access to care and patient autonomy. But after Medina, more states will feel free to limit funding despite these federal protections.

Medicaid’s rules mainstream patients into medical care wherever they live. The free choice of provider provision, also called the “any willing provider” or “any qualified provider” rule, was a 1967 response to states’ overly restrictive implementation of Medicaid, obligating states to allow patients to pick their own doctor. Until Medina, the vast majority of lower federal courts held that providers and patients could enforce the free choice of provider rule in federal court, but that will no longer be the case.

South Carolina’s barring PPSA from Medicaid was part of a larger state movement, including Texas, Louisiana, Missouri, and Arkansas, to limit Planned Parenthood’s role in health care for low-income populations by “defunding” it. Nationwide, Planned Parenthood makes medical care available for people that have limited access, including primary care services, such as breast and cervical cancer screenings; sexually transmitted disease screening and care; and contraceptives. No one disputed that South Carolina excluded PPSA solely because it sometimes offers abortions.

In holding for South Carolina, the Court effectively closed federal courthouse doors to patients trying to protect their own access to care. This will affect the roughly 79 million low-income people who rely on Medicaid’s public health insurance coverage, which pays for over 40% of all U.S. births, as well as medical needs for children, pregnant patients, elderly people, people with disabilities, and two-thirds of long-term care.

Sixty years of partnership between the Department of Health and Human Services (HHS) and states show Medicaid can cause federal-state conflict, because states do not always implement Medicaid as federal law requires. HHS has power to withhold all or a part of a state’s Medicaid funding for noncompliance, a potentially problematic remedy that can weaken the program and hurt beneficiaries and providers. Given how much they rely on Medicaid funds to balance their budgets, states are harmed too if funding is withdrawn.

When providers or patients needed to stop a state from violating the Medicaid Act, they relied on “section 1983,” a Civil War-era law that allows for suing individuals “acting under color of law” who violate constitutional or statutory rights. These lawsuits allow courts to issue more precise decisions that directly address state actions, while HHS’s power to withhold funding is blunt. The Court reiterated that section 1983 is available to enforce Medicaid rules against noncompliant states just two years ago. Why hear another case so soon? Under the surface is a bigger issue, that states have been making these kinds of claims – unfettered power over regulation of medicine – regularly since Dobbs. South Carolina has been acting as part of a pattern of states challenging federal authority over health care programs, which could undermine the social safety net for everyone, not just people relying on Medicaid.

In the ruling, Justice Gorsuch wrote that HHS could enforce Medicaid rules, but not health care providers or patients, because Medicaid is a federal spending program and the federal government should enforce its own conditions. Most social programs rely on this kind of structure – federal spending offered to states with rules for using the money – and this decision cannot be limited to just Medicaid. Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), education, public health, and more could be affected. Despite HHS having power to enforce Medicaid requirements by withholding funds, this is not feasible, not only because withdrawal could be harmful for funding recipients but also because HHS does not have enough staff to police each state’s actions for compliance; HHS relies on section 1983 lawsuits to know when states are noncompliant. So, Medina hands states more power, because they have been able to exploit HHS’s understaffing, as well as HHS’s underenforcement of Medicaid rules that do not align with a presidential administration’s policy preferences.

The Court’s extreme deference to state regulation of medicine was also displayed in the Skrmetti decision, which allowed Tennessee to ban gender-affirming care for adolescents because the legislature wanted minors to “appreciate their sex.” Taken together, these cases mean that states may not only “defund Planned Parenthood,” but that they may impose policy preferences on medical care with little fear of federal court oversight. Not only will this curtail patient autonomy, but other politically disfavored kinds of care, such as vaccines, may be on the chopping block. States could go so far as to exclude providers who support firearm safety, or wearing bicycle helmets, with little concern for legal consequences.

Congress created a protected right in Medicaid so that states would not have unfettered power over medical decisions for low-income patients. The ruling for South Carolina does more than ignore Congress’s purpose in adding the free choice of provider provision to Medicaid. It gives states significant leeway to regulate medical care beyond abortion. If states can exclude providers regardless of clinical qualifications, health care quality and access for millions of Americans could be jeopardized.

Nicole Huberfeld is Edward R. Utley Professor of Health Law at Boston University School of Law and School of Public Health, Chair of the BU Health Law Program, and Co-Director of the BU Program on Reproductive Justice.

When ICE Agents Break the Law, Can Victims Sue? The Supreme Court Hints Yes. Will the Eleventh Circuit Listen?

Over the past five months, Immigration and Customs Enforcement (“ICE”) agents have arrested and deported U.S. citizens,  caused car crashes during reckless pursuits, brandished weapons on unarmed children, and unnecessarily used force against elected officials. These are just a few of the egregious acts that federal law enforcement officers have committed since the Trump administration has ramped up its smash and grab deportation tactics. As an increasing number of people are injured by ICE and other federal law enforcement agents, clarity around pathways to accountability is more important than ever. Unfortunately, the U.S. Supreme Court opted to gently nudge—rather than clearly direct—the Eleventh Circuit to join the rest of the country in allowing victims of federal police abuse to sue when they are injured.

This term, the Court issued an opinion in Martin v. United States, a case filed by a family that was terrorized by a Federal Bureau of Investigations (FBI) SWAT team during a wrong house raid. The Court’s main holding was relatively uncontroversial: reversing the Eleventh Circuit’s outlier position that the supremacy clause shields the federal government from suit when its law enforcement officers violate state laws. However, the Court sent back to the Eleventh Circuit for “careful reexamination” what should have been an equally clear issue—whether the Federal Tort Claims Act’s (“FTCA”) discretionary function exception prohibits lawsuits for officer conduct that is not directly prescribed by federal law or policy. How the courts ultimately define the scope of the FTCA’s discretionary function exception could determine whether ICE agents face any consequences for their increasingly unhinged and illegal actions.

On its face, the FTCA is a hyper-technical statute that governs a relatively small number of the nation’s cops. However, the FTCA will be the primary vehicle to seek justice in court for people harmed by the Trump administration’s mass deportation agenda. The statute provides one of the only methods for a person injured by federal officers to sue for damages. Accordingly, the FTCA will be the litigation vehicle for people injured by ICE as well as the federal militarized response to protests opposing immigration raids.

The FTCA doesn’t allow lawsuits for all federal officer misconduct and contains several exceptions—most notably, the discretionary function exception. In a nutshell, the discretionary function exception shields officers from FTCA lawsuits when they are engaged in conduct for which they are exercising discretion. In the past, the Eleventh Circuit has endorsed a uniquely expansive reading of the exception, holding that any actions not specifically addressed in a federal statute, policy, or regulation are discretionary and an officer cannot be sued for them. Law enforcement officers rarely receive written bright line rules outlining every permissible or prohibited action. Federal law enforcement policies are no different. Under the Eleventh Circuit’s uncorrected standard, ICE agents and other federal officers could dodge accountability for a broad range of reprehensible, dangerous, and illegal actions simply because a victim couldn’t cite a specific statute, policy, or regulation banning their actions.

For instance, Leonardo Garcia Venegas, the U.S. citizen that was violently arrested in Alabama because ICE agents thought his REAL ID was fake, would need to point to a formal policy, statute, or regulation to bring a case under the Eleventh Circuit’s rule. While some of the agents’ actions might be prescribed, it is unlikely that all the illegal conduct that occurred during Mr. Garcia Venegas’s hours long detention would be explicitly regulated.

Negligent conduct may be even harder to challenge in court if the Eleventh Circuit declines to reconsider its position. As Justice Sotomayor noted in her concurrence, under the Eleventh Circuit’s standard, a person could only sue a federal officer that severely injured them in a car accident “if federal law or policy specifically prescribed an officer’s permissible maneuvers on the road.” This scenario is not just a hypothetical concern. Just last month, an ICE agent caused a major car crash while fleeing a failed raid attempt at a school in New York. In Texas, immigration-related vehicle pursuits have led to hundreds of deaths.

Given the Court’s increasing hostility to federal law enforcement accountability, the Martin majority opinion’s gentle suggestion to “think again” is a relative success story. While the Supreme Court did not directly overturn the Eleventh Circuit’s misreading of the discretionary function exception, its subtle directive to “carefully reexamine” the exception’s application may prompt the Eleventh Circuit to join the rest of the country in permitting lawsuits in cases even when there is no specific federal policy addressing the conduct in question.

But at a time when ICE and other federal law enforcement agents are violating people’s rights at unprecedented rates, it is disappointing for victims and their advocates in Alabama, Florida, and Georgia to have to wait and see what the Eleventh Circuit will do. It is hard to overstate the importance of the FTCA and the scope of its protections for the millions of people living in the Eleventh Circuit.  Florida currently leads the country in ICE cooperation and is one of the states where federal military troops have been deployed to assist with ICE raids. Alabama and Georgia have also increased their participation in federal immigration enforcement. As a result, abhorrent abuses are already happening, and more are inevitable.

Given all that is at stake and the clear legal precedent at issue, it would have been nice for the Court to have fixed the misinterpretation. Hopefully the Eleventh Circuit will be able to take the hint.