The Founders Sound the Alarm on the President’s Unchecked Power to Terminate Appointees at Will
“[I]f this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance.”
U.S. Supreme Court Justice Joseph Story, Commentaries on the Constitution (1833)
President Trump has clearly communicated his administration’s belief in presidential supremacy, emphasizing his authority to fire any federal appointee or employee, even those for whom Congress has required “good cause” for discharge. Regarding federal employee whistleblowers, the assertion of these powers wreaked havoc on the laws designed to protect employees who lawfully report waste, fraud, and abuse. President Trump fired both the Special Counsel and a Member of the Merit Systems Protection Board, both of whose jobs were protected under the federal laws that created the positions. More recently, President Trump has threatened to fire the Chairman of the Federal Reserve Board, another appointee whose position is protected under law.
By testing the unitary executive theory in the courts, the debate over the limits of the President’s authority to remove executive officers will soon be decided. The final decisions regarding the President’s removal authority will have a lasting impact on all federal employee whistleblowers, as the legal framework designed to protect these whistleblowers was all premised on the independence of the officials making final determinations in retaliation cases. If these officials are not independent (i.e., are not free from the threat of discharge by a sitting President), one of the most important safeguards included in the whistleblower laws covering federal employees will be compromised.
As the debate over Presidential powers moves through the halls of Congress, the Courts, and ultimately by the voters of the United States, the concerns raised by the Founders of the United States need to be carefully considered. The policy issues they identified years ago continue to resonate today.
The first Founder to comment on the President’s authority to remove officials was Alexander Hamilton. While the States were debating whether to approve the Constitution, Alexander Hamilton directly addressed this issue in Federalist No. 77. Hamilton explained that “the consent of [the Senate] would be necessary to displace as well as to appoint.” Hamilton recognized that the U.S. Constitution required a check and balance on the President’s authority to remove all non-judicial appointees who were confirmed by the Senate.
In other words, the issue was not whether or not the President had the constitutional power to fire appointees, but rather whether the Constitution required Senate approval for any such termination. Hamilton understood that, not only was the President’s power to terminate limited, but he went further and stated that any such termination had to be approved by the body that had originally approved the appointment (i.e., the Senate).
In 1803, a pivotal constitutional law issue arose in the landmark case Marbury v. Madison. The decision was authored by the most respected Supreme Court Justice in history, Chief Justice John Marshall. Justice Marshall explained that the President’s power of removal was controlled by Congress. Congress established the terms of the law establishing the office in question. This reasoning was not just accepted; it was a cornerstone of the unanimous decision, grounded in Congress’s authority to create inferior offices and define the rules governing them. The Constitution explicitly designates these powers not to the President, but to Congress.
In discussing the President’s removal authority, Chief Justice Marshall explained: “Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern…but when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled.” Thus, if Congress creates a position for which the occupant cannot be fired “at will,” and termination from that position must follow the restrictions placed on it by Congress.
Justice Marshall further explained that a President is barred from simply removing officers at his pleasure if Congress did not grant the President such powers: “[Mr. Marbury] was appointed; and [since] the law creating the office gave the officer a right to hold for five years, [he was] independent of the executive, [and] the appointment was not revocable.”
The most authoritative discussion of the policies underlying the power of a President to remove inferior officers was carefully explained by Supreme Court Justice Joseph Story’s widely respected 1833 Commentaries on the Constitution. In his text, he provides a thorough explication of the history and background of the removal authority and its significance within U.S. Constitutional law. Justice Story explained the polices that strongly weighed against expanding Presidential powers to include a unilateral right to fire federal appointees or employees, if Congress set limits on such removals.
In the Commentaries, Justice Story warned of the catastrophic impact of unrestrained presidential removal powers:
“[I]f this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance.
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“Even in monarchies, while the councils of state are subject to perpetual fluctuations and changes, the ordinary officers of the government are permitted to remain in the silent possession of their offices, undisturbed by the policy or the passions of the favorites of the court. But in a republic, where freedom of opinion and action are guaranteed by the very first principles of the government, if a successful party may first elevate their candidate to office, and then make him the instrument of their resentments, or their mercenary bargains; if men may be made spies upon the actions of their neighbors, to displace them from office; or if fawning sycophants upon the popular leader of the day may gain his patronage, to the exclusion of worthier and abler men, it is most manifest, that elections will be corrupted at their very source; and those, who seek office will have every motive to delude and deceive the people.
***
[S]uch a prerogative in the executive was in its own nature monarchical and arbitrary; and eminently dangerous to the best interests, as well as the liberties, of the country. It would convert all the officers of the country into the mere tools and creatures of the president. A dependence so servile on one individual would deter men of high and honorable minds from engaging in the public service. And if, contrary to expectation, such men should be brought into office, they would be reduced to the necessity of sacrificing every principle of independence to the will of the chief magistrate, or of exposing themselves to the disgrace of being removed from office, and that, too, at a time when it might no longer be in their power to engage in other pursuits.’
Six years later, in ex parte Hennen (1839), the U.S. Supreme Court unanimously upheld the principle that Congress had the authority to limit the removal authority of the President “by law,” for all appointments that were not “fixed by the Constitution.” Crucially, Hennen held that “the execution of the power [of removal] depends upon the authority of law, and not upon the agent who is to administer it.”
Hennen has never been overturned by the Supreme Court.
The 1903 case Shurtleff v. United States followed Hennen. The Court held that Congress had the authority to limit the removal authority of the President whenever it used “clear and explicit language” to impose such a limitation. Shurtleff has not been overruled by the Supreme Court.
That brings us to the landmark case primarily relied upon by those supporting the imperial powers of the President: Myers v. United States. This case has been mischaracterized as promoting a unitary executive. Far from it. The Court’s 6-3 holding –with distinguished justice Oliver Wendell Holmes Jr. and Louis Brandeis among the dissenters– did not diminish or overturn the precedents established by Hennen or Shurtleff.
The issue at hand was not whether Congress could limit the removal authority of the President. Rather, the case decided a radically different issue: Whether the President needed to obtain the approval of the Senate any time he sought to terminate any official who was confirmed by the Senate. The case concerned an older established doctrine that, because a Senate vote was necessary to confirm certain appointments, a Senate vote should also be needed to remove that official.
The limited scope of the case was clarified by James M. Beck, the Solicitor General of the United States, who argued the case on behalf of the President. His statement to the court was clear: “[I]t is not necessary to decide” the issue of a President’s general removal authority. Further in his argument, after being questioned about the scope of the President’s removal authority, Beck explained that “it is not necessary for me to press the argument [against removal restrictions] that far (i.e., beyond the issue of Senate approval of removal decisions).” In essence, the case of Myers centered on an old argument about Senate interference with executive duties. This issue is fundamentally distinct from the debate today, which focuses on legislative regulations on the President’s ability to fire executive officers.
Justice Brandeis, in his dissent, further elaborated the very narrow nature of the issue decided in Meyers: “We need not determine whether the President, acting alone, may remove high political officers.” Brandeis’ dissent, along with those of Justices Holmes and James Clark McReynolds need to be understood in the context of the Founders’ views on executive power as expressed by Alexander Hamilton (Federalist No. 77), Chief Justice Marshall (Marbury v. Madison), and Justice Story (Commentaries on the Constitution). Justice Brandeis’ explanation of past precedent needs to be given its just weight in the debates that are unfolding today: “In no case has this Court determined that the President’s power of removal is beyond control, limitation, or regulation by Congress.”
Supporters of unrestrained presidential power to fire executive officers often reference the congressional debates on the establishment of the Department of Foreign Affairs in 1789 as their primary justification. However, this reliance again overlooks the historical context of the discussions regarding the president’s authority over foreign affairs.
The congressional vote regarding the removal of an executive officer did not address the constitutional question of whether Congress had the authority to impose restrictions on the president’s ability to terminate such officers. Instead, the issue being decided concerned an opposite proposition. The debate was over an amendment that would have stripped the President of the unilateral authority to remove the Secretary of Foreign Affairs. The amendment sought to strip the President of the power to fire the Secretary of Foreign Affairs. The specific clause the amendment sought to strike from the bill was the ability for the secretary “to be removed from the office of the president of the United States.”
The amendment was introduced by Virginia Congressman Alexander White, who had in the prior year participated in the Virginia convention that voted to approve the Constitution. Congressman White was very clear that the purpose of his amendment was not to decide whether or not Congress had the authority to set restrictions on a President’s removal authority. The issue was whether the Constitution prevented the President from having any such authority. Congressman White was simply raising the issue discussed in Federalist No. 77, i.e., whether the authority of the Senate to approve an appointment implied a requirement that the Senate concur in any removal. The issue was not whether the President had imperial powers, but instead was whether the President’s authority to terminate officers should be severely restricted.
Congressman White explained the meaning of his amendment as follows: “As I conceive, the powers of appointing and dismissing to be united in their natures, and a principle that never was called in question in any government, I am adverse to that part of the clause which subjects the secretary of foreign affairs to be removed at the will of the President”.
Although his amendment was not approved, Congressman White’s perspective—that the power of removal should be radically restricted—was supported by many members of the First Congress. But in defeating White’s amendment, the First Congress did not enact any law that would restrict Congress from placing limits on the removal powers of a president. That issue was simply not before the First Congress.
Regardless of the various arguments now being raised concerning the President’s removal authority, the warnings articulated by Justice Story have never been refuted. If the Supreme Court were to conclude that Congress lacked the authority to limit the President’s power to fire, at-will, any and all executive officers, the fear articulated by Justice Story would become the law of the land, and as he warned, would be “eminently dangerous to the best interests, as well as the liberties, of the country”.
Joseph Story, Commentaries on the Constitution of the United States, § 1533 (1st ed. 1833).
Compl. Dellinger v. Bessent, No. 1:25-cv-00385 (D.D.C. Feb. 2, 2025) ECF 1, Attachment A.
Tom Jackman, Federal Judge Rules Trump’s Firing of Merit Board chair was illegal, Wash. Post (Mar. 4, 2025), https://www.washingtonpost.com/dc-md-va/2025/03/04/trump-firing-cathy-harris-mspb-illegal/.
Colby Smith & Tony Romm, Trump Lashes Out at Fed Chair for Not Cutting Rates, New York Times, (Apr. 17, 2025), https://www.nytimes.com/2025/04/17/business/economy/trump-jerome-powell-fed.html.
The Federalist, No. 77 (Alexander Hamilton).
Marbury v. Madison, 5 U.S. 137 (1803).
See McAllister v. United States, 141 U.S. 174 at 189). (reaffirming the holding of Marbury v. Madison in regard to Presidential Powers 141 U.S. 1704).
U.S. Const, art. 1, § 8 (“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”); art 2 § 2 (“. . .the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone . . .”)(emphasis added).
Marbury v. Madison, 5 U.S. 137, 162 (1803).
Id. at 161
Story, supra n 1, § 1533.
Story, supra n. 1, at § 1533.
Story, supra n. 1, at § 1533.
Ex parte Hennen, 38 U.S. 230, 259 (1839).
Id at 260
Shurtleff v. United States, 189 U.S. 311, 315 (1903).
Shurtleff v. United States, 189 U.S. 311, 23 S. Ct. 535 (1903).
Myers v. United States, 272 U.S. 52 (1926).
Id at 63.
Id. at 66.
Id. at 310.
Id. at 314.
Elliot’s Debates, Vol. 4 , p. 350 (June 16, 1789).
Id.
Constitutional Reform Initiative Regarding Pharmaceutical Sovereignty and Safety
On April 22, 2025, a proposal was submitted to the Deputies Chamber proposing to reform articles 4, 25 and 28 of the Mexican Constitution, regarding pharmaceutical sovereignty and security.
The proposal appoints the modification of the legal framework at the constitutional level so that the State is required to guarantee pharmaceutical sovereignty and security, which in turn is intended to allow the subsequent adaptation of secondary laws, programs and budgets with a long-term vision.
This reform mainly states the following:
The State will guarantee access to biological medicines, vaccines and medical devices by promoting the national production, storage and distribution of essential health products.
Pharmaceutical sovereignty and security will be fundamental principles to ensure the timely supply of such products, especially those of public interest and high impact on health.
The State will promote the development and strengthening of the national pharmaceutical industry, through public policies that encourage research, production and distribution of medicines recognized by law and that are strategic for the population, guaranteeing the reduction of external dependence in the acquisition of critical products for health.
It defines as functions of strategic areas the production, storage and distribution of medicines, biologicals, vaccines and medical devices essential for public health and therefore exempts them from being considered as monopolies, with the objective of guaranteeing universal access to indispensable treatments.
If approved, this initiative would undoubtedly have an impact on Mexican health legislation and, of course, would imply the modification of processes for the evaluation and approval of health products, as well as the authorization of activities in establishments focused on the production, manufacture, storage and distribution of health products.
In other words, the effects of this proposal translate into drastic changes in the system of production of health products that are known today, so that if it is not analyzed harmoniously with the applicable legislation and the international treaties, in cooperation with the institutions and entities involved in the corresponding processes, as well as the subjects involved in the health system, it could complicate the due access to health products to the detriment of the patients.
Federal Judge in New Hampshire Grants Preliminary Injunction Blocking Education Department’s DEI Letter
On April 24, 2025, a federal judge of the U.S. District Court for the District of New Hampshire largely blocked the U.S. Department of Education from cutting funding for schools that refuse to drop diversity, equity, and inclusion (DEI) programs.
Quick Hits
A federal judge blocked the U.S. Department of Education’s “Dear Colleague Letter” that threatened funding cuts for schools with DEI programs, protecting the plaintiff organizations.
The court found the letter vague and a potential infringement of First Amendment rights due to its lack of clear compliance guidelines for schools.
The judge noted that the risk of federal funding loss could harm institutions, leading to censorship of DEI discussions.
U.S. District Judge Landya McCafferty granted a preliminary injunction request from a teacher labor union and another educational organization to block the Education Department’s recent “Dear Colleague Letter” (DCL), which directed schools to cease DEI programs. The injunction enjoins enforcement against the plaintiff organizations and institutions that employ or work with the plaintiffs.
Judge McCafferty found the groups—the National Education Association (NEA) and its New Hampshire affiliate, as well as the Center for Black Educator Development (CBED)—were likely to succeed on their claims that the DCL was vague, infringed their First Amendment rights, and violated the Administrative Procedure Act (APA).
The order is one of three federal court decisions issued on April 24, 2025, blocking the Trump administration’s attempts to eliminate DEI in schools. A Maryland district judge preliminarily enjoined enforcement of the DCL and a requirement that schools certify their compliance with the policy. In addition, a federal judge of the U.S. District Court for the District of Columbia paused enforcement of the policy, ruling that the DEI policy provided “no clear ‘boundaries of the forbidden areas’ to guide schools’ compliance with the certification or to limit the Department’s enforcement actions.”
Education Department’s “Dear Colleague Letter”
The DCL, issued on February 14, 2025, threatened schools with a loss of federal funding if they continued DEI programs, asserting that such programs were discriminatory and violated Title VI of the Civil Rights Act of 1964. The DCL advised educational institutions to “ensure that their policies and actions compl[ied] with existing civil rights law” and to “cease all reliance on third-party contractors” and proxies to “circumvent prohibitions on the use of race.” The department then launched the “End DEI” online portal to enable parents, students, teachers, or others to report “discriminatory practices” at publicly funded K–12 schools as a way for the department to “identify potential areas for investigation.”
On February 28, 2025, the department issued guidance, titled, “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act” (FAQ document), clarifying the Education Department’s interpretation of the Supreme Court of the United States’ June 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), which struck down certain race-conscious admissions policies in higher education.
On April 3, 2025, the Education Department directed states and school districts to certify their compliance with federal antidiscrimination obligations, and, specifically, that they did not have DEI programs that advantaged one person’s race over another’s as a condition of continuing to receive federal funding.
Decision of the U.S. District Court for the District of New Hampshire
Judge McCafferty’s April 24, 2025, eighty-two–page decision found that the challengers were likely to succeed on their claims and were likely to suffer irreparable harm if the EO’s requirements are not blocked. Thus, the judge granted a preliminary injunction prohibiting the Education Department from enforcing its DCL and FAQ document against the NEA, CBED, and entities with which they work or contract.
In so finding, the court rejected the Education Department’s arguments that the DCL was unchallengeable because it did not have the force of law and merely provided the department’s interpretation of the law. According to the decision, the department had argued that DCL “merely state[d] that schools may not use DEI programs as a cover to engage in racial discrimination or harassment.”
Judge McCafferty rejected that argument, stating, “This argument ignores, however, that the 2025 Letter fails to give reasonable notice of the Department’s understanding of how DEI programs unlawfully discriminate and the ways in which such programs could be operated to avoid running afoul of Title VI.” The FAQ document only “exacerbate[d]” the vagueness, Judge McCafferty stated.
Judge McCafferty further found that the NEA and CBED “are likely to be successful in arguing that defendants are attempting to coerce third parties to punish or suppress disfavored speech.”
“The loss of federal funding would cripple the operations of many educational institutions,” Judge McCafferty stated. “Even the possibility of funding termination has been enough to lead many schools to censor their professors or eliminate all reference to ‘diversity, equity, and inclusion’ within the school.”
Judge McCafferty added, “[W]hile defendants point out that, as a legal matter, Title VI does not permit the immediate termination of federal funding, there is evidence in this record that the [Education] Department is not adhering to these requirements.”
Scope of the Preliminary Injunction
The preliminary injunction is not nationwide but is tailored to provide relief to the plaintiffs and their members, ensuring that the Education Department cannot enforce the letter against institutions that employ or work with the plaintiffs.
Specifically, the preliminary injunction enjoins the department from enforcing or implementing the DCL and the FAQs, the End DEI Portal, and the April 3, 2025, certification requirement “against the plaintiffs, their members, and any entity that employs, contracts with, or works with one or more plaintiffs or one or more of plaintiffs’ members.”
Next Steps
The preliminary injunction is a significant legal victory for those challenging the Trump administration’s efforts to eliminate DEI programs in employment and education and in other contexts. However, the preliminary injunction is also limited to the parties and is likely to be appealed. At the same time, state attorneys general and state regulators have been issuing their own guidance to schools.
Definitional Disagreement Among Justices Fractures Partisan Stereotypes – SCOTUS Today
Today, the U.S. Supreme Court again decided only a single case, that of Feliciano v. Department of Transportation, and, to many Court observers, the most interesting thing about it is the lineup of Justices—one that contradicts common stereotypes as to how the Justices align with respect to statutory interpretation.
The decision, while particularly important to military reservists who work for the federal government, is hardly a front-page matter to most people. Today’s holding is simple: a federal civilian employee who is a reservist called to active duty pursuant to “any other provision of law . . . during a national emergency,” as described in 10 U.S.C. §101(a)(13)(B), is entitled to differential pay if the reservist’s service temporally coincides with a declared national emergency without any showing that the service bears a substantive connection to a particular emergency. “Differential pay” closes the gap between the reservist’s civilian government pay and his or her military pay while serving on active duty “during a national emergency.”
At its core, the dispute before the Court turns on the meaning of the phrase “during a national emergency.” Is that phrase merely temporal, as the petitioner contends, guaranteeing differential pay to those federal civilian employees called to active duty service while a national emergency is simply ongoing? Or does it require an activated reservist to prove a “substantive connection between his service and a particular national emergency, as the Federal Circuit held and the government contends?” To some, this may recall the debate during the Clinton administration concerning what the definition of “is” is.
Today, Justice Gorsuch delivered the opinion of the Court, siding with the petitioner. He was joined by the Chief Justice and Justices Sotomayor, Kavanaugh, and Barrett—in other words, a five-Justice majority composed of jurisprudential conservatives and jurisprudential liberals. The majority’s interpretation revolves around the word “during,” which normally describes a temporal link, i.e., it is “contemporaneous with.” See United States v. Ressam, 553 U. S. 272, 274–275 (2008). Justice Gorsuch then cites a series of dictionaries that similarly define “during” in contemporaneous terms.
A similarly philosophically diverse group of dissenters, led by Justice Thomas, with whom Justices Alito, Kagan, and Jackson join, reject the holding of the majority that an operative national emergency need only be concurrently ongoing with active duty service to require the payment of the differential compensation. The dispute among the Justices boils down to assessing what Congress meant by a single word. Here, textualists on both sides fail, inasmuch as the word at issue can have inconsistent meanings, and the decision rests in discerning what Congress likely meant in adopting the term. The majority has case precedent and a host of dictionaries on its side in arguing that the temporal relationship comports with the general public understanding. The dissenters rely upon legislative history and supplemental executive orders to support their belief that a causal connection between the emergency and the activation of service should be required.
In the end, the Justices in the majority agree with the petitioner, and the resolution of the case has little, if anything, to do with jurisprudential philosophy.
IT ENDS!: The Battle to Kill the One-to-One Rule Is Officially Over– But the Fight Over Damage Caused By Errant Ruling May Just Be Starting
Just minutes ago the Eleventh Circuit Court of Appeals issued its mandate officially terminating the Hobbs Act challenge to the FCC’s one-to-one TCPA consent rule.
This means the case against the TCPA’s one-to-one rule is now officially dead and it will not be back– at least not in the current administration.
The truth is, however, much of the damage feared by the one-to-one rule has already been done. Thousands of companies spent hundreds of hours (or more) preparing for the new rule and dropped tens or even hundreds of thousands of dollars into preparation.
None of this should have happened since the Eleventh Circuit found the FCC had exceeded its authority from the jump.
Troutman Amin, LLP is investigating what rights and remedies may exist to recover for these losses.
Not to sound like a late night infomercial, but if your company suffered a loss as a result of the FCC’s one-to-one ruling and wants to explore its legal rights to receive compensation give shoot us a note. I suspect a large number of companies may want to band together here to save cost.
More soon.
Mandate here: 24-10277_Documents
SCOTUS Considers Article III Questions with Significant Implications on Class Action Certification
The Supreme Court of the United States (SCOTUS) heard oral argument this week in Labcorp v. Davis (No. 24-304) to determine “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” If the Court’s answer is “no” or some form of “no”, that would support defense counsel’s mechanisms for challenging class certification on the front end of litigation.
There is currently a split among the federal circuit courts on the question. When faced with the issue of how many uninjured persons can be certified within a class without tripping over Article III, courts have taken three general viewpoints. Some circuits hold that Article III bars certification when the class would include any persons who lack standing. Other circuits, viewing the question through Rule 23(b)(3), permit certification if no more than a de minimis portion of the class includes uninjured parties. The third group of circuit courts all but defers the question to post-certification stages of a case, unless it is evident that a “great many” or “large portion” of unnamed class members lack standing.
The Labcorp case comes to SCOTUS out of the Ninth Circuit, one of the handful of circuits that do not impose a material Article III hurdle at the class certification stage. The plaintiffs in the case successfully obtained class certification from the district court for disability discrimination claims, even though there did not seem to be much dispute that the class definition captured an appreciable number of uninjured persons. After the Ninth Circuit affirmed the certification order, Labcorp petitioned and obtained certiorari from SCOTUS, leading to Tuesday’s argument before the Court.
At oral argument, Labcorp principally argued that district courts must address jurisdictional questions of standing (injury) before reaching the merits of a class action—i.e., before certifying a class. Otherwise, defendants are faced with the prospect of defending a large number of claims by parties who independently lack standing, increasing the scope of potential litigation risk in the case and creating monumental settlement pressure. Courts also would be in a position of entering dispositive orders that are binding on unnamed class members who suffered no injury and therefore had no standing to be included in the first place, in violation of Article III. Alternatively, Petitioner addressed that a class certification encompassing uninjured parties would plague litigation with individualized inquiries as to who was actually injured, contrary to Rule 23(b)(3). Labcorp argued that the first issue (Article III standing) can typically be addressed by requiring courts to define the class to only include those individuals who have been injured. But even assuming a class can be redefined to exclude individuals who lack injury, Labcorp argued that a class cannot be certified under Rule 23 unless there is an administrable way to separate non-injured individuals without conducting minitrials as to each. To do so would present clear ‘predominance’ and ‘commonality’ issues under Rule 23(b)(3).
In contrast, Respondents’ counsel argued that courts need not take up all Article III questions at the class certification stage and specifically that absent class members should not be required to demonstrate their standing until the court acts on them as individuals, typically at the relief phase of the case. Respondents’ counsel placed particular emphasis in their briefing on existing precedent, in which the Court suggested that “class certification issues” in some cases are “logically antecedent to Article III concerns” and “should be treated first.”
The Solicitor General of the United States also participated in the argument and focused primarily on Rule 23’s certification requirements. Specifically, the government argued that the Rule 23(b) certification analysis encompasses elements of ‘predominance,’ ‘commonality,’ and the like, that cannot be satisfied when the class includes injured members. The government firmly pressed that Rule 23 requires class members to share a common injury or else the class action mechanism breaks down. Therefore, an individual who has not first suffered an injury should not be part of the class. See U.S. Amicus Brief, Mar. 12, 2025 (“Courts should not certify a class under Rule 23(b)(3)—which permits class actions seeking money damages—when some members of the proposed class lack any Article III injury.”).
Many of the Justices, especially from the more liberal side of the Court, confronted the Petitioner’s Article III positions head on. These included challenges regarding the logistical difficulties district courts would face in sorting out broad Article III inquiries at the class certification stage, as compared to current measures that allow standing to be addressed after all class members come before the court at the relief stage. Some Justices also raised procedural concerns as to whether they could even consider Petitioner’s arguments given the procedural posture from which the case was presented from the Ninth Circuit below. These discussions signaled that the Court may defer or limit its ruling on the Article III and Rule 23(b)(3) questions at issue.
The Court’s ultimate resolution of the case is difficult to predict. For now, the key takeaways are that many Justices appear unprepared to impose a strict Article III requirement applicable to unnamed class members at the certification stage, and the Court may even punt some or all of the meatier constitutional issues for a later day. Given that the Court’s prior class action standing opinions—e.g., Spokeo (2016) and TransUnion (2021)—were rendered as split decisions, it would not be surprising to see a similar outcome here.
New Executive Order Seeks To Limit Disparate Impact Liability
On April 23, 2025, the Administration issued a new Executive Order entitled “Restoring Equality of Opportunity and Meritocracy” along with an accompanying fact sheet. The Executive Order shifts how the federal government approaches civil rights enforcement and how it will analyze allegations of discrimination. Specifically, the Order limits the federal government’s ability to rely on the disparate impact theory of discrimination in its investigations and enforcement actions.
Notably, the Executive Order does not change existing federal discrimination law or court precedent. Executive Orders do, however, impact federal agency interpretations, and agencies usually begin to effectuate Executive Orders by issuing non-binding agency guidance and binding regulations (through the rulemaking process), revising policies, altering enforcement priorities, and even changing the content and language on government websites and in publications.
There are currently two main theories of liability under federal discrimination law:
Disparate treatment, which is intentionally treating someone differently because of their legally protected status; and
Disparate impact, which is when policies or practices are neutral on their face, but result in unequal outcomes among different protected groups. Under this liability framework, even unintentional disparities could lead to claims of discrimination.
By limiting or ending use of the disparate impact legal theory, the Executive Order seeks to require federal agencies to change their interpretation and enforcement of decades of court precedent, agency guidance, and law. The effect could be that an individual or agency, seeking to enforce federal discrimination law through agency enforcement and Department of Justice law suits could only show that they were discriminated against by a business, employer, or institution of higher education if that individual showed that they were treated differently because of their legally protected class, rather than also using a disparate impact theory of liability.
The Executive Order instructs federal agencies and the Department of Justice to:
Amend or repeal Title VI regulations and policies that incorporate disparate impact theories.
Review all other regulations, guidance, rules, or orders—including laws and decisions at the state level—that impose disparate impact liability requirements and recommend their amendment, repeal, or other appropriate measures to address them.
Reevaluate current lawsuits and federal investigations relying on disparate impact theories.
Deprioritize enforcement based on disparate impact theories ; and
Determine whether federal authority pre-empts state laws, regulations, policies, or practices that impose disparate impact liability.
This Executive Order is one of several EOs recently issued by the Administration seeking to change existing diversity, equity, and inclusion (DEI) initiatives. For businesses, employers, and institutions of higher education, the implementation of this Executive Order by the DOJ, EEOC, and U.S. Department of Education, among other federal investigatory agencies, have impact how pending and future civil rights investigations are handled.
Consult outside counsel with any concerns related to compliance with federal discrimination law and enforcement actions and investigation by the Department of Education or other executive agencies.
Does Employer Disparate Impact Liability Still Exist? The Latest EO Pushes to Eliminate It
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President Donald Trump issued the “Restoring Equality of Opportunity and Meritocracy” executive order (EO) on April 23, 2025. The stated purpose of the EO is “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” But the “maximum degree possible” is more limited than the words suggest.
What Is Disparate Impact?
The typical discrimination claim is a disparate treatment claim where an individual allegedly is treated differently than someone else because of their race, sex, or other protected characteristic. A disparate impact theory of discrimination would find discrimination when the application of a neutral policy or practice disproportionately affects a particular group. For example, pre-employment testing may expose an employer to disparate impact liability if the results disproportionately exclude women, individuals with disabilities, or candidates from certain racial or ethnic groups from proceeding to the next stage of hiring. The expressed concern with the disparate impact theory of liability is that employers may feel forced to engage in affirmative action or overcorrect for the impact of a neutral policy and make decisions based on race or sex to avoid the threat of liability.
The EO
The latest EO challenges the legitimacy and constitutionality of the disparate impact theory of liability. The EO requires the following:
1. Revokes the Presidential approvals of the parts of regulations that prohibit disparate impact discrimination under Title VI of the Civil Rights Act of 1964 (Title VI prohibits exclusion from federally funded programs or activities based on race, color, or national origin);
2. Instructs federal agencies to deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability, including under Title VI and Title VII of the Civil Rights Act;
3. Instructs the attorney general to initiate appropriate action to repeal or amend the implementing regulations for Title VI for all agencies to the extent they contemplate disparate-impact liability and also to provide a report on
all existing regulations, guidance, rules, or orders that impose disparate-impact liability or similar requirements, and detail agency steps for their amendment or repeal, as appropriate under applicable law; and
other laws or decisions, including at the State level, that impose disparate-impact liability and any appropriate measures to address any constitutional or other legal infirmities
4. Instructs the Attorney General and the Chair of the Equal Employment Opportunity Commission (EEOC) to assess all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law within their respective jurisdictions, including Title VII of the Civil Rights Act of 1964, that rely on a theory of disparate-impact liability, and take appropriate action with respect to such matters consistent with the policy of the EO;
5. Instructs the Attorney General, the Secretary of Housing and Urban Development, the Director of the Consumer Financial Protection Bureau, the Chair of the Federal Trade Commission, and the heads of other agencies responsible for enforcement of the Equal Credit Opportunity Act, Title VIII of the Civil Rights Act of 1964 (the Fair Housing Act), or laws prohibiting unfair, deceptive, or abusive acts or practices to evaluate all pending proceedings that rely on theories of disparate-impact liability and take appropriate action with respect to such matters consistent with the policy of the EO;
6. Instructs all agencies to evaluate existing consent judgments and permanent injunctions that rely on theories of disparate-impact liability and take appropriate action with respect to such matters consistent with the policy of the EO; and
7. Instructs the Attorney General, in coordination with other agencies, to determine whether any Federal authorities preempt State laws, regulations, policies, or practices that impose disparate-impact liability based on a federally protected characteristic such as race, sex, or age, or whether such laws, regulations, policies, or practices have constitutional infirmities that warrant Federal action, and shall take appropriate measures consistent with the policy of the EO.
What Does This Mean for Employers?
The EO’s most likely immediate impact will be seen at the federal agency level. Employers who are facing agency action based on a disparate impact theory under Title VII or Title VI may be able to rely on this EO to limit or stop the federal agency (including EEOC and Department of Justice) from continuing enforcement efforts at both the charge and litigation phases based on this theory.
Employers who are subject to current injunctions or consent decrees with a federal agency that require action to correct a claimed disparate impact may be able to reduce or limit those obligations.
Employers facing litigation from private parties may use the arguments that the federal government relies upon to challenge disparate impact claims; but with statutory support in Title VII, it is unlikely that the disparate impact theory of liability disappears without further congressional or U.S. Supreme Court action.
What Should Employers Do to Avoid Litigation?
Despite uncertainty regarding disparate impact theories of liability, employers remain well-served to evaluate their practices, policies, job requirements, and tests to ensure that they are necessary and effective for purposes of making the best employment decisions and to remove any artificial barriers to equal employment opportunity. An example of such a barrier can be a degree requirement that may or may not be necessary for the job at issue. Notably, the EO also instructs the attorney general and the EEOC chair “to jointly formulate and issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education, where appropriate.” The current administration has made clear that it expects employers to focus on equal employment opportunity. In evaluating practices, employers should make sure opportunities are available to everyone and remove artificial barriers and avoid making a decision based on the race or sex of an individual to even out the results.
What Recourse Does a Federal Grant Recipient Have If Its Grant Is Terminated?
When a federal agency terminates a grant award, the consequences can be severe for the recipient. Whether you’re a nonprofit, research institution, public entity, or otherwise, a sudden termination can disrupt operations, staff retention, and mission-critical projects. Fortunately, grant recipients do have legal recourse options when facing termination — provided they act quickly and understand their rights.
Understanding Federal Grant Termination
Federal grants are governed by a combination of statutory provisions, agency-specific regulations, and the terms of the grant agreement itself. Under the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance) — codified at 2 C.F.R. Part 200 — federal awarding agencies may terminate awards in three main scenarios:
For Cause – Due to the recipient’s material failure to comply with the terms and conditions of the award.
With Consent – Mutually agreed upon by both the federal agency and the recipient.
For Convenience – Unilaterally by the federal agency, typically for policy or funding reasons.
Each type of termination may afford different remedies and procedural protections for the grantee.
Step 1: Review the Terms of the Award
The first step is to review the Notice of Award (NOA) and any referenced regulations. These documents often specify what constitutes a breach, notice requirements for termination, and any rights to appeal or dispute the termination. Also, review the agency’s specific grant regulations (e.g., NIH, DOE, or NSF guidelines), which may add additional procedures.
Step 2: Understand Your Appeal Rights
If your grant is terminated for cause, you generally have the right to:
Receive written notice explaining the reasons for the termination.
Respond or submit a corrective action plan.
Request a hearing or appeal under the agency’s dispute resolution procedures.
Different agencies have different appeal mechanisms, so it is important to review and understand the relevant agency’s rules and regulations.
Step 3: Consider Contractual and Equitable Remedies
Although grants are not traditional contracts, courts may apply some contract principles when interpreting grant disputes. For example:
If a grant is terminated in violation of the terms of the award or applicable regulations, the recipient may have a claim for breach of implied covenant of good faith and fair dealing.
Some suits under the Tucker Act have been permitted in the U.S. Court of Federal Claims when the government allegedly breaches a funding obligation.
Equitable estoppel or reliance-based claims may be possible if the recipient made significant investments based on assurances from the agency.
However, federal sovereign immunity and grant-specific doctrines may limit the availability of monetary relief.
Step 4: File an Administrative or Judicial Challenge (If Available)
If administrative appeals fail or are unavailable, the recipient may consider legal action. Options might include:
Agency-Specific Boards or ALJs – Some agencies permit formal administrative litigation before an administrative law judge.
Federal Court – In some cases, a recipient may be able to challenge termination in U.S. District Court, particularly if alleging violations of the Administrative Procedures Act or constitutional violations (e.g., due process or equal protection).
Court of Federal Claims – For certain claims seeking monetary damages, the U.S. Court of Federal Claims may have jurisdiction.
Step 5: Preserve Your Rights
To maintain eligibility for future funding and preserve legal claims:
Document everything, including communications with the agency and any harm suffered.
Continue compliance with closeout requirements, including final reports and record retention.
Consult counsel early in the process to assess your legal options and preserve appeal deadlines.
Conclusion
Termination of a federal grant is a serious matter, but not necessarily the end of the road. Federal grant recipients have a range of procedural and substantive rights that can provide a path to appeal or challenge a termination decision. As always, early legal advice and thorough documentation are key to protecting your organization’s interests.
Leaked Budget Proposal Suggests Major Restructuring of Federal Health and Safety Agencies, Including the Consumer Product Safety Commission
A recently leaked and apparently genuine Office of Management and Budget (OMB) Budget “Passback” memorandum—the OMB’s official feedback mechanism for budget submissions from federal agencies—signals major changes to the Department of Health and Human Services’ (HHS) proposed discretionary budget for Fiscal Year 2026. Namely, the draft Passback shows the Trump administration is considering sweeping changes to the structure and funding of federal health and safety programs, including not only HHS but also the Consumer Product Safety Commission (CPSC).
Dated April 10, 2025, the draft Passback is marked “pre-decisional” and explicitly not intended for dissemination. According to its language, the proposed funding levels “reflect the reforms necessary to enable agencies to fulfill their statutory responsibilities in the most cost-effective manner possible,” while acknowledging that “many difficult decisions were necessary to reach the funding level provided in the Passback.” The Washington Post has verified the authenticity of the draft Passback, though no formal confirmation has been issued by the White House or the relevant agencies.
In the draft Passback, the Trump administration proposes cutting nearly one-third of the federal health department’s budget. This would be achieved primarily through the elimination of select programs and the consolidation of various health and safety-related agencies under a new umbrella entity: the Administration for a Healthy America (AHA), overseen by Health Secretary Robert F. Kennedy, Jr.
Among the potentially affected agencies is the CPSC, an independent, bipartisan regulatory body established by Congress during the Nixon administration in 1972 through the Consumer Product Safety Act (CPSA). The CPSC is tasked with protecting the public from unreasonable risks of injury or death associated with consumer products. Under the proposed restructuring, the CPSC’s functions and staff would be absorbed into a newly created “Assistant Secretary for Consumer Product Safety” within the Immediate Office of the Secretary. The draft Passback also outlines a reduction in funding for administrative and support functions, stating that those responsibilities could be handled by existing staff within the Immediate Office of the Secretary. The CPSC reported total budgetary resources of $174.3 million in FY 2024. Its operating plan for FY 2025—last revised on February 25, 2025—requests $151 million at the Continuing Resolution level and $183.05 million under the President’s proposed budget. By contrast the FY 2025 budget for the Immediate of Office of the Secretary was $15.2 million. How the proposed restructuring would affect these appropriations remains unclear.
What Is Next for the CPSC?
The future of the CPSC remains uncertain. The CPSC is an independent agency created and empowered through congressional legislation. As only Congress has historically had the power to create and eliminate independent agencies, this draft Passback raises questions regarding whether the executive branch has the necessary authority to actually do what it proposes.
The CPSA mandated the CPSC’s creation in 1972, which was expanded in 2008 through the Consumer Product Safety Improvement Act (CPSIA). Traditionally, these enacting legislations would have insulated the CPSC from unilateral intervention by the executive branch. However, this draft Passback, in combination with several recent executive orders, signals plans to reduce the independence of regulatory agencies and asserts a level of executive oversight that would depart from historical norms. These efforts raise constitutional questions, particularly ones regarding the separation of powers between the executive and legislative branches.
These actions are likely to spark significant legal challenges. But with a Supreme Court that has reviewed and overturned related precedent, there is a possibility that these challenges may not succeed. Notably, the Court recently stayed a lower court ruling that reinstated Gwynne Wilcox to the National Labor Relations Board, and the matter is pending final disposition. Wilcox’s removal raises questions under Humphrey’s Executor v. United States, 295 U.S. 602 (1935), a landmark case that limited a president’s power to remove officers of independent agencies. That precedent may now be at risk. In its reply brief, the Trump administration leaves little doubt about its intentions: “Article II of the Constitution vests the ‘executive Power’—‘all of it’—in the President alone.”
In short, the possibility that the CPSC may be subject to restructuring cannot be ruled out. If implemented, the changes outlined in the draft Passback would mark a significant step toward increased executive oversight of independent agencies like the CPSC.
U.S. Federal Court Permanently Enjoins Ohio Social Media Age Verification Law From Taking Effect
On April 16, 2025, the U.S. District Court for the Southern District of Ohio Eastern Division issued a ruling permanently enjoining the Ohio Attorney General from enforcing the Parental Notification by Social Media Operators Act, Ohio Rev. Code § 1349.09(B)(1) (the “Act”). The decision follows a preliminary injunction issued in February 2024 by the same court.
The Act was signed into law in July 2023, and was set to take effect on January 15, 2024. The Act would have required social media platforms to verify whether users are at least 16 years old and obtain parental consent before allowing children under 16 to create an account on their platforms. The court held that the Act implicated the First Amendment because it restricted children’s ability to engage in and access speech, and that the Act’s application to certain websites but not others amounted to a content-based restriction because it favored certain forms of engagement with speech over others. In its ruling, the court stated that the Act “resides at the intersection of two unquestionable rights: the rights of children to ‘a significant measure of’ freedom of speech and expression under the First Amendment, and the rights of parents to direct the upbringing of their children free from unnecessary governmental intrusion.” The court held that the government did not satisfy the satisfy the First Amendment’s strict scrutiny standard, which is applied to content-based restrictions. “Generally, First Amendment protections ‘are no less applicable when government seeks to control the flow of information to minors,’” the court said.
The ruling is the latest in a string of lawsuits brought by NetChoice, a tech industry trade association, against similar state laws. It also represents the second permanent injunction NetChoice has secured, following a recent permanent injunction blocking a similar law in Arkansas.
The New Alien Registration Requirement: Considerations for Foreign Nationals
The Department of Homeland Security (DHS)’s Alien Registration Requirement, effective April 11, 2025, requires most noncitizens aged 14 and older who remain in the United States for over 30 days, to register and complete biometrics. Parents or guardians are responsible for registering minors under 14, and individuals turning 14 must re-register within 30 days of their birthday. The registration can be completed by filing Form G-325R through an individual USCIS online account. This registration does not grant any immigrant or nonimmigrant status. Once an individual has registered and completes fingerprinting, DHS will issue the proof of registration, which anyone over the age of 18 will be required to carry and keep in their personal possession at all times.
However, many individuals are already considered registered and not required to register, including:
lawful permanent residents;
individuals paroled into the United States under INA 212(d)(5) for urgent humanitarian reasons or significant public benefits, even if the period of parole has expired;
individuals admitted to the United States as nonimmigrants who were issued Form I-94 or I-94W (paper or electronic), even if the period of admission has expired;
all individuals present in the United States who were issued immigrant or nonimmigrant visas in their passports at the U.S. consular posts abroad before their last date of arrival;
individuals placed into removal proceedings;
individuals issued an employment authorization document;
individuals who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700, and provided fingerprints (unless waived), even if the applications were denied; and
individuals issued border crossing cards.
For additional information about the Alien Registration Requirement, please refer to the Q&A section below. According to USCIS:
Q: What is “alien registration”?
A: Alien registration is a federal legal requirement under Section 262 of the Immigration and Nationality Act (INA). It requires most noncitizens who remain in the United States for more than 30 days to register with DHS, provide biometric information (like fingerprints), and carry evidence of registration at all times if age 18 or older.
Q: Why is this being enforced now?
A: On Jan. 20, 2025, President Trump issued Executive Order 14159, directing DHS to ensure that noncitizens comply with the registration requirement and to treat failure to register as a civil and criminal enforcement priority. As of April 11, 2025, DHS began enforcing this process and introduced the online registration process.
Q: Who must register?
A: Anyone who falls into “not registered” category, if:
you are aged 14 or older and have not registered and fingerprinted when applying for a visa to enter the United States and remain in the United States for 30 days or longer;
you entered the United States without inspection or parole;
you were not fingerprinted during your visa application or entry;
you are the parent or guardian of a child under 14 who has not been registered; or
you are a child who just turned 14 and were previously registered by a parent
Q: Who is considered “Not Registered”?
A:
Individuals present in the United States without inspection and admission OR inspection and parole and who have not otherwise registered.
Canadian visitors who entered the United States at land ports of entry and were not issued evidence of registration.
Individuals who were not fingerprinted during a visa application or entry.
Individuals who submitted applications for deferred action or TPS who were not issued evidence of registration.
Q: Who is exempt from registration?
A: You are exempt if you are:
a holder of an A or G visa (diplomatic or international representatives); or
a nonimmigrant who DHS waived from fingerprinting (e.g., diplomats, certain short-term visitors under reciprocal arrangements).
Q: How do I know if I’ve already registered?
A: Anyone who has been issued one of the documents designated as evidence of registration is considered “already registered,” including:
lawful permanent residents;
you filed a qualifying form such as:
Form I-485 (adjustment of status),
you were fingerprinted (biometrics) by USCIS; or
you were issued any of the following:
I-94/I-94W
Green card (I-551)
Employment authorization document (I-766)
Notice to appear (I-862) or other DHS-issued removal notices
Border crossing card (I-185/I-186)
Q: What does not count as registration?
A: The following documents are not considered evidence of registration:
a state driver’s license or ID;
an application for TPS, DACA, or asylum without an approved registration form or DHS fingerprinting; and
entering via land border as a Canadian or Mexican national without receiving DHS documentation.
Q: How do I register if I haven’t already?
A: To register properly, follow these steps:
Create a USCIS online account at https://my.uscis.gov, if not already created. If you are registering a minor child, create an account on their behalf.
Complete Form G-325R (Biographic Information – Registration) online through your USCIS account.
Biometrics Appointment: After submitting the form, you will receive a biometrics appointment notice.
Attend your biometrics appointment at an USCIS Application Support Center.
Download Proof of Registration: Once processed, download your proof of alien registration PDF from your USCIS account.
Note: If you are 18 or older, you must carry this registration at all times.
Q: Is there a fee to register?
A: Currently, there is no fee. The registration is free, including the biometric appointment. DHS is considering a $30 biometric services fee in the future.
Q. What happens if I don’t register?
A: Failure to comply with the register requirement or carry proof of registration may result in:
a misdemeanor charge;
fines up to $5,000;
imprisonment for up to 30 days; and
deportation proceedings under INA § 237 unless an individual can prove that a failure was reasonable, excusable, or was not willful.
Note: False statements during registration may also lead to criminal prosecution and deportation.
Q: What happens if I change my address?
A: You must report a change if address to USCIS within 10 days of moving. This can be completed through your USCIS account by completing Form AR-11 online.
Q: After registering, what else do I need to do?
A: You must:
carry your registration document at all times if you are 18 or older;
file AR-11 with USCIS within 10 days of any address change; and
re-register if you were registered as a child and just turned 14.
Q: Can I use the registration document for work or immigration benefits?
A: No. Alien registration is not an immigration status, does not create an immigration status, establish employment authorization, or provide any other rights, public benefits, or protection from removal.