Lawfare Daily: The Trials of the Trump Administration, October 2

The Lawfare Podcast

This episode of Lawfare Live provides a comprehensive legal update on the Trump administration's most aggressive executive actions and the resulting wave of federal litigation. The hosts and

Key takeaways

• NIAC Action v. Trump leverages associational standing through property owners near a threatened nuclear site to challenge the Iran conflict, potentially bypassing traditional political question barriers.
• District judges in D.C. are using 31 U.S.C. 1502B and equitable authority to suspend fund expirations during pocket rescission disputes, effectively neutralizing the administration's end-run around congressional appropriations power.

Main topics

• Standing doctrine and war powers litigation
• Appropriations law and pocket rescissions

Notable quotes

"The contest, the political struggle over there on where it has officially entered the federal courts in an interesting enough case."

Conclusion

The episode underscores a highly active judicial landscape where district and appellate courts are actively testing

Transcript preview

Speaker 4 (0:00) you Speaker 4 (0:07) Good afternoon. It's Lawfare Live, the trials of the Trump administration. I'm Natalie Orpett, executive editor of Lawfare, not Benjamin Wittes. But I am here with my colleagues, Lawfare senior editors all, Scott R. Anderson, making a special guest appearance, Anna Bauer, Roger Parloff, Eric Columbus, and Molly Roberts. So we are going to have a Scott friend, a Scott. top-heavy agenda because he has to go. But we're going to start with Iran. And Scott, I ask you, are there any legal mechanisms by which one might challenge the executive branch's decision to go to war? Speaker 1 (0:52) Well, we're about to find out, Natalie, or potentially at some point in the next six months to several years. We're about to find out. I think it's a fair thing to say. The contest, the political struggle over there on where it has officially entered the federal courts in an interesting enough case. I thought it warranted making an appearance. It's great to be back with the Trump trials and tribulation. It's been too long. I've been able to join. This is NIAC Action v. Trump. NIAC Action, of course, the PAC. I believe it's the National Iranian American Council. I should double check that, what exactly NIAC stands for. But it is an advocacy organization that has filed a lawsuit against President Trump over his pursuit of the Iran war as of last Friday in the D.C. District Court. It's a very interesting lawsuit that I think has collectively, it's fair to say, kind of been greeted with a little bit of a sigh and a rolling of the eyes by most people who follow these things, who are assuming this is a mostly symbolic. lawsuit that doesn't really have a lot of legs, primarily because we've seen a lot of challenges against presidentially initiated military action over the last 30 years that have mostly fallen apart on standing political question grounds. I spent a little time with a case this week in part because I'm working on a piece on it. And I am convinced it's actually got more legs than people think and is kind of almost by accident a little bit of a stronger case than I think even the plaintiffs and the attorneys may realize. So I thought it was worth mentioning and talking about why. Speaker 4 (2:17) Yeah. Do you want to give us a quick how do they possibly have standing when we're all accustomed to there not being any standing for this sort of situation? Speaker 1 (2:24) Yeah, that is like the question number one. There's two barriers that most of these cases have fallen on in the past, the vast majority of them. It's standing and the pro-question doctrine. So the standing one is kind of interesting. Usually, and then we've seen a lot of these lawsuits in the past, the plaintiffs have most often been individual legislators who almost certainly do not have standing except in certain extraordinary circumstances under Raines v. Byrd, 1997 Supreme Court case about legislator standing. So, but that's not who's pursuing this action here. Instead, it's being pursued by a number, by NIAC action, I should say, but on behalf of a number of its members through associational standing. who have family members and own property in Iran that have been affected to various extents, and very, very compelling on a personal, human level, extents by the Iran conflict. Now, most of these claims are going to fall on one of two sorts of grounds. One is the fact that, at least in the D.C. Circuit, and this came up in the Ahlulaki opinion, a famous opinion by Judge Bates, I think 16 years ago now, I think it was 2010, 2011. that talked about this al-Awlaki being the U.S. citizen who was at the time reportedly and was eventually killed by the Obama administration, where his father sued to try and intervene both on behalf of al-Awlaki and in his own capacity as the father, saying, you know, I have an interest in the well-being of my son. The D.C. Circuit said at the time, well, actually, if you look at the law as we have it in the circuit, and this has been reaffirmed by a number of judges, including the judge in this case, Judge O'Leary Catelli, They say essentially even really close relationships don't often have much of an interest that turns into a sort of legal interest. One person can sue for the lack of this person. Now, most of the relationships seem to be that sort of gap here. There's at least one person, I believe it's anonymous member number four in the complaint, that is suing because their siblings are there. And there is some D.C. Circuit and related federal case law that in other jurisdictions in the context of. things like Anti-Terrorism Act recovery, that suggests that actually siblings might be a close enough relationship that you can make these sorts of claims, but it's probably a stretch. So most of the claims about family members, I think, are probably weaker ones. That's the one that may have a bit of legs here. But odds are the courts aren't going to be eager to encounter this decision and marginal cases are going to fall apart. The one that's more compelling is anonymous member number two. This is an individual who It directly owns a property and also has a Philly burial site, although I think it's actually located somewhere a little differently in Iran. I'd have to go back and check. That's very close to Pickaxe Mountain. This is a location near the Teton's nuclear site. That's interesting for a few reasons. It's been struck directly by President Trump, or I should say by the Trump administration, in past conflicts, the last two rounds, both meaning summer of 2025 and this last conflict. And President Trump has directly threatened it by name. multiple times in the recent months, I think as recently as just the last few weeks was the last time it came up. So you've got this much more compelling case saying, well, this is property that's actually close to this facility where there's at least a meaningful risk of nuclear strikes, I'm sorry, of attacks. And they raise the prospect of there being a nuclear element of this because this is a nuclear site. And the concern is that a nuclear strike on this. or he strike out it could result in some sort of nuclear backlash. I suspect that is a little bit too hypothetical. But the fact that you've got property relatively close to a site where the president is directly threatening with military action is a little bit of a closer nexus than we have here. And I think there are other arguments that you could see some of these same plaintiffs making that for whatever reason they didn't get to in this complaint, or that NIAC might have other members to make. The clearest... example, or the clearest case of this is that a lot of these people are business owners and property owners in Iran. And they are people whose property and business interests, there's probably a good case has been hurt economically by the blockade, if not by the ongoing conflict. And given that here, the blockade is actually like the tip of the US military action at this point, particularly in much of Iran outside of, you know, the Strait of Hormuz, where there is some live military action going on against mostly maritime and maritime adjacent targets. that's a lot closer causation. I don't think any of this is open and shut. But if you look at the case in the classic Clapper case, for example, where the Supreme Court said basically, well, somebody who we think might be getting targeted because they are within the scope of what we are, it's reported as this classified program. That's all too speculative. This is a lot less speculative than that. So at least under the existing precedent, I'm not sure you couldn't at least colorably get there. Okay. Speaker 4 (7:02) Thank you. Scott, for those of you who don't know, it loves standing more than anything. Speaker 1 (7:08) I Speaker 4 (7:08) love standing. Sorry. So that is everyone's primer on the case. So the complaint was filed. That's as far as we've gotten so far procedurally, right? Speaker 1 (7:19) Yeah. We're probably going to get a response, probably get a motion to dismiss at a certain point. I should say political question doctrine, like this case is also stronger just to tackle the other base of that for the simple reason that Here we have not only that President Trump has at least doesn't admit it, but has by a lot of accounts really pushed, if not clearly violated, the 60-day limit installed by the War Powers Resolution. And we have a contrary concurrent resolution that both chambers of Congress enacted over the summer, basically saying we're opposed to what you're doing in Iran and we are directing you to stop it. That individually may not have legal force under INS v. Chata, but it's a clear expression of contrary congressional will. And that's what courts usually look for when they are saying, is this within the scope of the political question, where there's a clear conflict between the political branches? That's where supposedly the courts have said, no, we actually think we actually do have a duty to take up this issue. This is outside the scope of the political question. And this is closer to that circumstance than any of these cases we've ever seen before. Speaker 4 (8:18) Okay. We're going to have to keep moving along. But it is an interesting case and we will keep an eye on it. And since it is the intersection of so many things that Scott loves, we will invite him back to tell us more. So Scott, I'm going to stick with you, which is reminiscent of a piece that we worked on together many months ago about the legality of the boat strikes in the Caribbean. And the ACLU did us the favor of filing suit to try to get a hold of the OLC memo that authorized the operations that you and I were not able to look at in doing our analysis. So tell us about that lawsuit. Speaker 1 (8:58) Yeah, so we have seen a number of groups spirited by the ACLU, but they're just laying the lead name plaintiff for a whole universe of plaintiffs that have been suing over a FOIA request to get the, I believe it's September 5th, reportedly, at least, Office of Legal Counsel opinion justifying the ability to pursue those boat strikes that has never been publicly disclosed. They had faced pushback from the government on three different claims of privileges under FOIA. about deliberative process privilege, attorney-client privilege, and presidential communications. And in this case, we saw Judge Engelmeyer come back and say two of the three of those don't really clearly bar at least the legal argument parts of the separated from the potentially classified facts. Both attorney-client privilege and deliberative process privilege, she said, Judge Engelmeyer said essentially, I think it's a she, but now I'm doubting myself, said essentially, no, he, excuse me, said essentially, you... You have this case where this is effectively standing law and is final. It's no longer deliberative. It's no longer pre-final. There's a policy decision that's being quoted by military personnel as the only legal basis for these strikes and passed down through the ranks that divorces itself from those sorts of claims and distinguishes it. The one where he was less confident about his presidential communications privilege, that has to be handled and he's asked for additional briefing on that. What's interesting about that is that this opinion, as alleged by the government, supposedly has only been seen, it only has access to four people, evidently. I'm assuming that means outside the Office of Legal Counsel because usually a number of lawyers work on these things. It essentially sounds like it's extremely highly restricted within the executive branch. I don't know if that four was literal or not. But the thing he asked for additional briefing on, among a couple other issues, is essentially who actually has access to this thing and how much is this a presidential communication versus something else. And so that's additional terrain. But I will say, like, that's usually these things are exist. They're put into written opinions, not just for the president, but for a variety of people in the executive branch. So I suspect that's going to be a little uphill climb for the government there. So we may get a win from the plaintiffs in this case. It may then get subsequently appealed, et cetera, et cetera. But we're one step closer now, I think, to actually seeing this legal opinion. Speaker 4 (11:07) All right. That'll be super interesting to watch. All right. Now we're staying with you still, Scott, for the splashiest of splashy topics, which is appropriations. Tell us. If you like following diatribes on Standing Doctrine, Speaker 1 (11:20) just wait till I go out on the appropriations fight. We are having a super quiet, super revolutionary appropriations moment that no one is paying attention to this week that I think is worth flagging for people because it's very interesting and it's all going very distinctly under the radar. The part that most people are paying attention to is that President Trump started another pocket rescission on September 28th. For those who may not recall from last year, a pocket rescission is a move the Trump administration did last year and now has done a second time where the statute gives them an ability to ask Congress to rescind appropriated funds and then to hold off on spending it for 45 days while Congress considers that request. And the Trump administration has taken the stand, well, if that 45 days overlaps with the end of the expiration of the appropriated funds, then the funds expire and we don't have to spend them at all. So they can pocket rescind it on their own without seeking congressional affirmation of the rescission, which otherwise would be required under the Appointment Control Act. President Trump has used this move again. And of course, when you do it September 28th and most of the funds expire September 30th, it doesn't leave a big window there to begin addressing it. But it seems like district court judges were ready for this on a couple of different fronts. because we've seen a number of courts take really interesting action in this case. We were all looking, at least I was initially looking, at AIDS Vaccine Advocacy Council and the Global Health Council cases. These are the big foreign assistance cases that went up to the Supreme Court twice in the last appropriations fight, where a number of funds in the last popular decision that happened last year were foreign assistance funds that they had issue with. And that was ultimately the decision that went all the way to the Supreme Court. The Supreme Court said, actually, we're going to allow this rescission to go forward on a preliminary basis. We're going to stay the preliminary injunction Judge Ali and the D.C. District Court had issued in this case. I was expecting this to pop up here because the pocket rescission has been reported as a foreign assistance pocket rescission. You look at the pocket rescission, it's actually not. It's interesting. None of the monies are appropriate. While many of them do relate to kind of foreign affairs, not all that many of them, like Office of Residual Resettlement, things like that, they're actually mostly funds that are not administered by State Department and that were never actually administered by USAID either, interestingly. So none of these issues actually came up in that line of litigation, although it becomes relevant again in a way that circles back. Instead, all these other pockets of funds. It's not clear to me that actually any of them were subject to ongoing litigation, which I think is an interesting sign of maybe the Trump administration trying to be a little strategic about what they use this pocket rescission on. But we saw a number of plaintiffs file a number of complaints in DDC and then one by the state of California in the Northern District of California saying, look, President Trump's issuing the pocket rescission with two days notice. This has to be illegal. There's no way for people to even manageably challenge this. This is clearly an effort to kind of end run the appropriations authority of Congress. And at least one district court judge agreed, that's Gia Cobb in National Urban League v. Trump, a case in D.C. District Court, where she did a really interesting ruling that took up an authority that we talked about a year ago as being something Judge Lee had flagged as a possibility but chosen not to rely on in that AVAC Global Health Council case, which is that there is a statute 31 U.S.C. 1502B. as well as related equitable authority that predates it in the D.C. Circuit that says in certain circumstances, the courts can choose to, either as a statutory basis or as an equitable remedy, suspend the expiration of funds when they're in dispute as they relate to legal disputes. Judge Lee acknowledged there were some constitutional questions about that, about separation of powers, and chose not to rely on it last time. Instead, issued a preliminary injunction saying you have to spend this money, Trump administration. That's what got vacated or stayed by the Supreme Court. Here this time, everything was moving so quickly, Judge Cobb chose to rely on this authority, as far as I can tell, for the first time, at least in this latest discussions about pocket rescissions, and says, I'm suspending the suspension of these funds. And that means I'm going to set a briefing schedule on this motion over the next two weeks, which is now in place. Interestingly, then saw Judge Ali in the AVAC and Global Health Council case issue an opinion embracing the almost the exact same logic, basically saying, I'm also suspending these deadlines for because while none of the people in his exact group were related, his group of plaintiffs. had funds that were subject to the pocket rescission. They did have funds where they were disputing whether they were adequately or appropriately obligated to the right target. And he chose to suspend the deadline so that they could continue briefing around those issues on the exact same legal theory. And interestingly, he, and he actually, I should say, he's actually got across the line first because he noted in there at one point, a government attorney actually conceded that these remedies were available in the, I believe it was oral arguments during the around or. you know, a hearing debating this matter. And that one got quoted by Judge Cobb in her opinion. That was released a couple hours later in the same day. So basically the D.C. District Court now leaning on this D.C. Circuit precedent as well as the statute has found a way to potentially end the pocket rescission as a move if this is all ultimately upheld. Because if you can suspend the suspension of these funds, then the pocket rescission loses some of its bite because none of these funds expire. And while neither of those judges addressed it directly, plaintiffs on at least two other matters, the California one I mentioned, another one in DDC, where the judges haven't ruled yet, but where they're seeking similar remedies, they've noted the fact that these statutes don't actually have a lot of preconditions other than the funds being disputed at the time they expire. So they could still apply to the 2025 funds that were at issue last year. In other words, all of which are still being litigated. So long story short. It's possible that we've seen the DDC finally embrace this solution we talked about a year ago that could issue an end to the pocket rescission as an authority based on these two authorities. The real question is now what happens on appeal and how much incentive does the government have to rush appeal? You may think they would want to immediately rush to resolve this, but the status quo still doesn't. isn't clearly requiring them to spend these funds right now. In some ways, this kicks the can down the road and lets the courts continue to debate the right resolution of these funds without forcing the government to spend it on this deadline. So I kind of suspect in some ways the Trump administration may be okay with this in the interim, not conceding that it's right, but allowing the courts to kind of proceed on the base of it and then challenge if and when they actually get a contrary ruling where the remedy requires them to provide funds that have expired and then challenge it then. We'll have to wait and see. But it's a really interesting development. I haven't seen anyone really talking about who covers and looks at this stuff, except for our Slack at Lawfare. We wanted to come and talk about it with you all. Scott, can Speaker 5 (18:09) I ask you a quick question on that? Yeah, please. I hope I know the answer. I'm still figuring this stuff out. I think you do. The National Urban League complaint, I saw the complaint was filed on September 29th. I hadn't seen Judge Cobb act. Did she do it like the next day, like literally? Speaker 1 (18:25) She did it the next day, maybe even the same day. I think it must have been the next day because I believe the Global Health Council decision or order didn't come out, that she quotes, didn't come out until the 30th. So she moved very fast. The two other complaints, it's California v. Trump in the Northern District of California and National Hep Camp Association, I