Lawsuits may be the only way to stop Trump's reckless rampage
It hasn’t even been three weeks since Trump took office again, but it’s already near-impossible to keep track of all the ways he’s wrecking the American government.
Trump’s second term is shaping up to be an all-out attack on the Constitution, but it’s also an attack on the day-to-day functions of the federal government. Both types of attacks have been met with litigation, and, while the constitutional challenges to Trump’s agenda are critical, lawsuits that focus on his willful flouting of things like federal privacy laws are equally so. Those lawsuits might actually have a shot at stopping some of the administration’s most destructive moves.
Litigation over high-profile constitutional issues, such as Trump’s trans military ban, ultimately runs up against the fact that the federal courts are stuffed with conservative appointees who are as anti-trans as Trump. It’s an ideological battle where Trump already runs the table. But litigation over the privacy of your grandma’s Social Security info or whether you should get to see the health care data your tax dollars paid for is much less ideologically driven or polarized. At least that’s the hope.
Doctors for America v. Office of Personnel Management
Earlier this week, Doctors for America, helmed by former U.S. Surgeon General Vivek Murthy, sued the Department of Health and Human Services, the Food and Drug Administration, and the Centers for Disease Control and Prevention over the removal of health data and research. The lawsuit also names OPM because it issued the memo requiring agencies to take down all media that “inculcate or promote gender ideology” to comply with Trump’s executive order about “Restoring Biological Truth to the Federal Government.”
The administration took a hatchet to health care data, pulling down over 3,000 pages from the CDC. Researchers raced to try to preserve datasets as they disappeared. Some research, like the Youth Risk Behavior Survey, which asks high school students about behaviors like alcohol use, eventually reappeared, but without some gender data and without its data documentation, which researchers need to analyze data files properly.
The lawsuit lays out why it’s a terrible idea, public health-wise, to delete information on clinical trials or HIV monitoring, but the real legal hook is actually … paperwork. Yes, the Paperwork Reduction Act of 1995 might save us.
The PRA requires agencies to consider public input for “information dissemination activities” and have to provide notice when “terminating significant information dissemination products.” Webpages and electronic documents are considered information dissemination products.
So, before the health agencies went tearing through their websites and removed public data that had long been used for significant health research, they were required to get public input and provide notice. Neither of those things happened.
Additionally, the lawsuit notes that the agencies still possess the public data they removed. The PRA requires that the public have “timely and equitable access” to an agency’s public information. However, the public now has no access whatsoever to public data about things Trump deems too woke, like HIV treatment.
What this lawsuit makes clear is that this data isn’t the government’s research data—it’s our research data; Taxpayer dollars paid for it, and it can’t just be disappeared because Trump feels like it. The lawsuit asks that all the removed material be restored and that the health care agencies be blocked from pulling down additional material unless they follow the input and notice provisions of the PRA first.
The court has scheduled a hearing on the plaintiffs’ motion for a temporary restraining order for Feb. 10. If granted, the administration would have to immediately restore the deleted web pages and enjoin them from further deletions while the litigation proceeds.
John and Jane Does v. Department of Justice; Federal Bureau of Investigation Agents Association v. DOJ
FBI employees have filed two lawsuits to try to stop Trump from getting—and likely publicizing—the names of every FBI employee who worked on the Jan. 6 cases or the Mar-a-Lago classified document case. One is a class action brought on behalf of at least 6,000 current and former FBI employees, while the other is on behalf of seven individuals still employed by the FBI.
High-level FBI executives were already purged, as were over two dozen prosecutors who worked on Jan. 6 cases. But that hasn’t proven enough for Trump or acting Deputy Attorney General Emil Bove, who demanded a list of everyone who worked on those cases. Bove represented Trump in his election interference and classified documents cases.
The Bureau has partially complied with the demand, providing employee ID numbers, job titles, and their roles in the Jan. 6 investigations but not employee names. The FBI employees are rightly concerned that Trump intends to release their identities and fire them en masse.
Trump has targeted only FBI employees who he perceives are disloyal to him because of their work on Janu. 6 cases. However, it’s the alleged violations of the Privacy Act of 1974 that might prevail, and doing so without getting into the thorny issue of how much fealty Trump gets to demand from government employees.
Under the Privacy Act, there is no disclosure without consent. Agencies can’t disclose records, even to another agency, without the prior written consent of the individual to whom the record pertains. Here, none of the FBI employees have consented to having their names and case assignments disclosed—not to Bove, and not to the public.
Moreover, there’s no legitimate employment-related reason to compile a list of everyone who worked on the Jan. 6 cases. As the class action lawsuit points out, the FBI has plenty of other ways to determine the work of individual agents and whether their performance was satisfactory.
On Friday, an agreement was reached in court which stopped the Trump administration from publically disclosing information about agents who investigated Jan. 6.
Newsweek revealed that “According to the terms of the agreement, the Trump administration must provide at least two days' notice to the plaintiffs before releasing any information about the agents who investigated the January 6, 2021, U.S. Capitol riot. The agreement allows the matter to be reconsidered in federal court.”
Alliance for Retired Americans v. Bessent
The lawsuit that seems most like it should be a slam dunk is the one against Trump’s brand-new Treasury secretary, Scott Bessent. The Alliance for Retired Americans joined two federal employee unions, the American Federation of Government Employees and the Service Employees International Union, in suing over Bessent allowing Musk’s merry band of baby bros to run amok through Treasury’s payment systems.
This is a Privacy Act case as well. It’s not just as simple as saying that the government is obliged to keep your private data out of the hands of randos. More relevant here is that the Privacy Act requires an agency to provide a formal
System of Records Notice for any new or intended use of information in the system and an opportunity for the public to submit comments.
Additionally, a SORN has to include each routine use of records in the system, including the categories of users that access those records and the purpose of each use. It also must have agency policies about storage and access controls.
The Treasury Department has 20 different SORNs for all the different types of sensitive data it holds. Each has language explaining how electronic records are protected by restricted access procedures, like passwords, and only people whose official duties require access are allowed to view and control the records.
In theory, maybe Bessent could claim that the DOGE boys had official duties that required access. But no one officially knows who the DOGE kids are. In some meetings with government employees, some won’t even share their last names.
On Thursday, the parties all consented to an order temporarily limiting DOGE access to the Treasury payment systems to just two DOGE employees, Tom Krause and Marko Elez, while the litigation proceeds. By Thursday night, though, that was down to one employee after Elez resigned after his extremely racist social media posts were unearthed. Only the best people.
American Federation of Government Employees v. Ezell
On Monday, three federal employee unions sued OPM over the “fork in the road” resignation offer, which had been set to expire on Thursday, Feb. 6. The unions pointed out all the problems with the haphazard buyout offer.
For example, federal funding runs out in March, so the government can’t guarantee that people who take the buyout will be paid past then. The resignation offer contained no information about what happens to pensions or leave payouts.
OPM also sent the resignation email to employees it ultimately decided weren’t eligible to accept the offer, then continued to hound those same employees with emails trying to get them to resign anyway. In fact, OPM’s handling of this was so shoddy that it sent the resignation offer to federal judges despite the fact that they all enjoy lifetime employment.
Federal District Judge George A. O’Toole Jr. for the District of Massachusetts delayed the deadline temporarily, saying that he “enjoin[ed] the defendants from taking action to implement the so-called Fork directive, pending the completion of briefing and oral argument on the issues.” Oral argument is currently set for Feb. 10. OPM is now just telling people the new deadline is 11:59 PM on Feb. 10, so federal employees remain in limbo.