Court Cases

For four years, the White House provided American Sign Language (“ASL”) interpretation for its press briefings. It stopped doing so, however, in January 2025 when President Trump returned to office. This excluded deaf Americans, including Plaintiffs Derrick Ford and members of the National Association of the Deaf, from access to the White House press briefings. Plaintiffs sued and moved for a preliminary injunction to order the government to resume providing ASL interpretation during press briefings, arguing that the government’s failure to do so discriminates against deaf Americans in violation of Section 504 of the Rehabilitation Act of 1973. The district court granted Plaintiffs’ motion for a preliminary injunction, holding that it established a likelihood of success on the merits of its Rehabilitation Act claim. The government appealed to the U.S. Court of Appeals for the D.C. Circuit. It contends that Plaintiffs are unlikely to succeed because, among other reasons, the court lacks power to enforce Section 504. Specifically, according to the government, Congress precluded judicial review of a Section 504 claim; and even if it didn’t, Plaintiffs should nonetheless lose because they do not satisfy the heightened standard for “ultra vires” claims—which the government describes as a “Hail Mary pass” and one that requires the agency to have acted contrary to a specific prohibition in a statute, rather than simply showing that the project is unauthorized by the relevant statutes. On June 2, 2026, we filed an amicus brief in support of Plaintiffs to refute Defendants’ objections regarding the enforceability of Section 504. We first argue that federal courts have inherent equitable power to enforce Section 504 of the Rehabilitation Act based on courts’ historical powers, recognized by the Supreme Court, to prevent the government from violating the law, and that nothing about the Rehabilitation Act suggests that Congress intended to foreclose judicial review of Plaintiffs’ Section 504 claim. We also argue that a plaintiff bringing an ultra vires claim is not generally required to show that a government official’s action was contrary to a specific prohibition in a statute. Instead, the plaintiff only needs to show that the official’s action was unauthorized by law. This default standard is over a century old and well-established in the Supreme Court’s precedents and supported by the D.C. Circuit’s precedents. By contrast, the demanding standard the government proposes for ultra vires claims should apply only where Congress has limited judicial review. Because there is no statutory limitation on judicial review of Plaintiffs’ claim, the ordinary, default standard—rather than the heightened standard proposed by Defendants—applies. Whether courts can enforce laws duly enacted by Congress even in the absence of a statutory cause of action and the standard courts apply to ultra vires claims are important issues because they can determine the Executive Branch’s ability to get away with violating the law and whether the party challenging unlawful executive action will win or lose its claim. Under the government’s position, any time a party alleges that a government official is acting without legal authority and there is no private right of action in a statute, the party would need to satisfy the heightened “Hail Mary” standard, making it highly unlikely it will win. Such a rule would undermine rule of law and separation of powers principles and improperly hamper courts’ ability to review executive action for compliance with federal law. We therefore urged the D.C. Circuit in our amicus brief to reject the government’s sweeping position and apply the ordinary, default standard to Plaintiffs’ Rehabilitation Act claim. The D.C. Circuit has not yet scheduled oral argument.

On July 31, 2025, the White House announced in a press release that it plans to build a ballroom funded by private donations at the site where the East Wing of the White House used to stand. The National Trust for Historic Preservation in the United States, a nonprofit whose mission is to preserve and protect historic resources in Washington, D.C., sued and moved for a preliminary injunction to stop the ballroom project. It alleges, among other things, that the proposed White House ballroom project is “ultra vires” (in excess of) the President and Executive Branch officials’ authority under the relevant statutes. The district court granted the Trust’s motion for a preliminary injunction, holding that it established a likelihood of success on the merits of its ultra vires claim. The government appealed the district court’s decision to the U.S. Court of Appeals for the D.C. Circuit. Among their arguments, the government contends that the Trust cannot satisfy the demanding standard—a “Hail Mary pass”—that they argue applies to the Trust’s ultra vires claim. According to the government, the Trust must show that the proposed ballroom project is contrary to a specific prohibition in a statute, rather than simply showing that the project is unauthorized by the relevant statutes. On May 28, 2026, we filed an amicus brief in support of the Trust to refute the government’s argument that such a demanding standard applies to ultra vires claims. Under the default standard applicable in most cases, including this one, a plaintiff bringing an ultra vires claim is not required to show that a government official’s action was contrary to a specific prohibition in a statute. Instead, the plaintiff only needs to show that the official’s action was unauthorized by law. This default standard is over a century old and well-established in the Supreme Court’s precedents and supported by the D.C. Circuit’s precedents. By contrast, the demanding standard the government proposes for ultra vires claims should apply only where Congress has limited judicial review. Because there is no statutory limitation on judicial review of Plaintiff’s challenge to the proposed ballroom, the ordinary, default standard—rather than the heightened standard proposed by the government—applies. The standard courts apply to ultra vires claims is important because it can determine whether the party challenging unlawful executive action will win or lose its claim. Under the government’s position, any time a party alleges that a government official is acting without legal authority and there is no private right of action in a statute, the party would need to satisfy the heightened “Hail Mary” standard, making it highly unlikely it will win. Such a rule would undermine rule of law and separation of powers principles and improperly hamper courts’ ability to review executive action for compliance with federal law. We therefore urged the D.C. Circuit in our amicus brief to reject the government’s sweeping position and apply the ordinary, default standard to the Trust’s ultra vires claim. The D.C. Circuit is scheduled to hear oral argument in this case on June 5, 2026.

In March 2025, President Trump issued an order directing “every executive department and agency head . . . to revoke any active security clearances held by” a group of named individuals “and to immediately rescind their access to classified information.” That list included Hillary Clinton, Kamala Harris, Elizabeth Cheney, former Secretary of State Antony Blinken, New York Attorney General Letitia James, former President Joseph Biden, “and any other member of Joseph R. Biden Jr.’s family.” That list also included Mark Zaid, an attorney who represents national security whistleblowers and other clients in cases involving classified information—significantly including the intelligence community whistleblower whose disclosures resulted in President Trump’s first impeachment. President Trump has called Mr. Zaid a “sleazeball,” and has said “he should be sued and maybe for treason.” Mr. Zaid sued, and in December 2025 won a preliminary injunction restoring his clearance. The government appealed, and on March 27, 2026, we filed an amicus brief supporting him, together with the National ACLU, the Knight First Amendment Institute at Columbia University, the Electronic Frontier Foundation, and the Rutherford Institute. Argument is scheduled for May 14, 2026.

Once again, the Trump Administration is attempting to exert unconstitutional control over the content of expression—this time, by affording executive officials unbridled discretion to revoke Pentagon correspondents’ press access for receiving, soliciting, or reporting “unauthorized” information. In the fall of 2025, the Department of Defense promulgated a new policy granting Pentagon officials unbridled and standardless discretion to deem a journalist “a security or safety risk to [Department] personnel or property,” including on the basis of that journalist’s (or their news organization’s) receipt, publication, or “solicitation” of any information, classified or unclassified, that is not “authorized” by the Department. Under the Policy, such conduct—which is the bread and butter of independent journalism—is punishable by suspension of journalists' Pentagon access. Rather than subject themselves to these viewpoint-based restraints on their reporting and the limitless discretion of Administration officials to kick them out, New York Times reporters turned in their press credentials and sued, asserting violations of the First Amendment and due process. Thereafter, the new "Pentagon press corps" consisted of ideological allies of the Trump Administration. In January 2026, we and the National ACLU filed an amicus brief in support of the New York Times' motion for summary judgment. Our brief placed the Pentagon policy in historical and global context. We argued that American history shows that scrupulous protection of the press’s right to disseminate information, without fear or favor to those in power, is essential to our democracy. From early American history, to World War I, to the Second Red Scare, our country has regretted the moments it has faltered in protecting the free press. And we argued that developments in other democracies and former democracies highlight the dangers of allowing the government to infringe on speech and press freedoms. Across the world—including in the Philippines, Hungary, Turkey, and Russia—democracies have backslid into repressive regimes with few freedoms after their institutions failed to hold the line on free expression. The lessons from history and other nations' experience should strengthen courts' resolve to apply the First Amendment rigorously, especially when the Trump Administration is relentlessly pursuing ideological conformity by attempting to punish or silence disfavored speech by lawyers, students, government employees, and universities, as well as journalists and media outlets. On March 20, 2026, the court ruled for the Times and held that the Pentagon's new rules violated both due process and the First Amendment, because the policy did not "provide fair notice of what routine, lawful journalistic practices will result in the denial, suspension, or revocation" of a press credential, and because the policy discriminated against journalists based on their viewpoint, "that is, whether the individual or organization is willing to publish only stories that are favorable to or spoon-fed by Department leadership." The court's opinion began: "A primary purpose of the First Amendment is to enable the press to publish what it will and the public to read what it chooses, free of any official proscription. Those who drafted the First Amendment believed that the nation’s security requires a free press and an informed people and that such security is endangered by governmental suppression of political speech. That principle has preserved the nation’s security for almost 250 years. It must not be abandoned now." Accordingly, the court enjoined the Pentagon's new rules. In response, the Pentagon promulgated a new policy that further closed off Pentagon access and used new language to restore a regime similar to the enjoined policy. On April 9, the court ordered the government to halt the new policy as well, explaining that it would not "permit such a blatant attempt to circumvent a lawful order of the Court to succeed." On April 10, the government appealed both orders to the D.C. Circuit.

On March 27, 2025, President Trump issued an Executive Order excluding the Federal Education Association and other unions representing educators who work in schools operated by the Department of Defense Education Activity (collectively, “Plaintiffs”) from coverage under the Federal Service Labor-Management Relations Statute (“FSLMRS”), which protects federal employees’ collective bargaining rights. The plaintiff unions sued and moved for a preliminary injunction, arguing that the Executive Order violates the First and Fifth Amendments and is ultra vires (in excess of) the President’s authority under the FSLMRS. The district court granted Plaintiffs’ motion for a preliminary injunction, holding that they established a likelihood of success on the merits of their ultra vires claim. The government appealed the district court’s decision to the U.S. Court of Appeals for the D.C. Circuit. It contends that Plaintiffs are unlikely to succeed for three reasons: first, that the district court lacked jurisdiction because the FSLMRS requires Plaintiffs to submit their claims to the Federal Labor Relations Authority (“FLRA”); second, that the district court lacked jurisdiction over Plaintiffs’ ultra vires claim because the FSLMRS commits exclusion decisions to the President’s unreviewable discretion; and third, that even if Plaintiffs’ ultra vires claim were reviewable, Plaintiffs would face a demanding standard—a “Hail Mary pass”—to win on their claim. Specifically, the government argues that to prevail on their ultra vires claim, Plaintiffs must show that the President’s decision to exclude Plaintiffs from the statute’s coverage was contrary to a specific prohibition in a statute, rather than simply that the President’s action was unauthorized by the statute. On November 12, 2025, we filed an amicus brief in support of Plaintiffs to refute the government’s argument that such a demanding standard applies categorically. We argue that the standard that the government proposes is a narrow exception to the default standard for ultra vires claims. Under the default standard, a plaintiff bringing an ultra vires claim is not required to show that a government official’s action was contrary to a specific prohibition in a statute. Instead, the plaintiff only needs to show that the official’s action was unauthorized by law. This default standard is over a century old and well-established in the Supreme Court’s precedents and supported by the D.C. Circuit’s precedents. By contrast, the demanding standard the government proposes for ultra vires claims should apply only where Congress has limited judicial review. The standard courts apply to ultra vires claims is important because it can determine whether the party challenging unlawful executive action will win or lose its claim. Under the government’s position, any time a party alleges that a government official is acting without legal authority and there is no private right of action in a statute, the party would need to satisfy the heightened “Hail Mary” standard, making it highly unlikely it will win. Such a rule would undermine rule of law and separation of powers principles and improperly hamper courts’ ability to review executive action for compliance with federal law. We therefore urged the D.C. Circuit in our amicus brief to apply the ordinary, default standard to Plaintiffs’ ultra vires claim if the FSLMRS does not limit judicial review of the President’s exclusion decision. The D.C. Circuit is scheduled to hear oral argument in this case on December 15, 2025.

In August 2025, President Trump removed Governor Lisa Cook from the Federal Reserve’s Board of Governors based on his determination that he had cause to do so. Governor Cook sued, arguing that the President’s decision to remove her violated her due process rights and was ultra vires (in excess of) the authority Congress granted the President because it was not “for cause” as required by the Federal Reserve Act. After the lower courts granted Governor Cook’s request for an injunction to prevent her removal, the government filed an application in the Supreme Court to stay (pause) the injunction. The government made two arguments in its stay application in response to Governor Cook’s ultra vires claim: first, that President Trump’s decision to remove Governor Cook is unreviewable in court because the determination of cause is committed to the President’s unreviewable discretion, and second, that even if a court could review President Trump’s decision, Governor Cook would face a demanding standard—a “Hail Mary pass”—to win on her claim. Specifically, the government argued that to prevail on her ultra vires claim, Governor Cook would need to show that that the President’s action was contrary to a specific prohibition in a statute, rather than simply that the President’s action was unauthorized by the statute. Together with the National ACLU and The Rutherford Institute, we filed an amicus brief in support of neither party to refute the government’s argument that such a demanding standard applies. We argue that the standard that the government proposes is a narrow exception to the default standard for ultra vires claims. Under the default standard, a plaintiff bringing an ultra vires claim is not required to show that a government official’s action was contrary to a specific prohibition in a statute. Instead, the plaintiff only needs to show that the official’s action was unauthorized by law. This default standard is over a century old and well-established in the Supreme Court’s precedents. By contrast, the demanding standard the government proposes for ultra vires claims should apply only where Congress has limited judicial review. The standard courts apply to ultra vires claims is important because it can determine whether the party challenging unlawful executive action will win or lose its claim. Under the government’s position, any time a party alleges that a government official is acting without legal authority and there is no private right of action in a statute, the party would need to satisfy the heightened “Hail Mary” standard, making it highly unlikely it will win. Such a rule would undermine rule of law and separation of powers principles and improperly hamper courts’ ability to review executive action for compliance with federal law. We therefore urged the Supreme Court in our amicus brief to apply the heightened standard the government proposes to Governor Cook’s ultra vires claim only if the Federal Reserve Act limits judicial review. The Supreme Court is expected to hear oral argument in this case in January 2026.