State AGs Take The Lead In First Month Of Trump Opposition

The first month of the second Trump Administration has been marked by a deluge of executive orders and federal agency directives aimed at implementing the new administration's policy priorities. State Attorneys General have promptly responded to these actions in federal courts. These lawsuits seek both declaratory and injunctive relief; many have successfully obtained preliminary injunctive relief from the implementation of the directives.

Below, we summarize high-level developments in major legal actions brought by multi-state coalitions of State AGs in the first month of the new administration.

Birthright Citizenship

Executive Order: On his first day in office, President Trump signed the executive order seeking to end birthright citizenship for children born to undocumented persons on the basis that individuals in the United States illegally are not "subject to the jurisdiction thereof."

In response: The order sparked numerous legal challenges from states, non-citizen pregnant individuals, and immigrant and civil rights groups. Two of these lawsuits are led by State AGs.

State of New Jersey et al v. Donald J. Trump et al

• Led by New Jersey State AG Matthew Platkin, 18 State AGs,¹ the District of Columbia, and City of San Francisco, the Plaintiffs filed a complaint in the United States District Court for the District of Massachusetts on January 21.
• The Plaintiffs seek declaratory and injunctive relief, arguing that the principle of birthright citizenship has been enshrined in the Fourteenth Amendment and further cemented by the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898).
• On February 13, Judge Leo T. Sorokin granted a preliminary injunction enjoining the executive branch from implementing the order.

State of Washington et al v. Donald J. Trump et al

• Led by Washington State AG Nick Brown and joined by State AGs of Arizona, Illinois, and Oregon, the Plaintiff State AGs filed a complaint in the United States District Court for the Western District of Washington on January 21.
• The Plaintiff States request declaratory and injunctive relief, alleging similar constitutional arguments for birthright citizenship as in State of New Jersey.
• Two weeks after issuing a temporary restraining order ("TRO"), Judge John Coughenour issued a nationwide preliminary injunction on February 6.
• On February 20, the Ninth Circuit denied the Defendants' motion to stay the preliminary injunction, leaving the executive order enjoined indefinitely.

Federal Funding Freeze

Office of Management and Budget ("OMB") Memo: On January 27, the OMB issued a memo, which was later rescinded, directing federal agencies to temporarily pause federal financial assistance programs that may conflict with President Trump's policies reflected in recent executive orders.

In response: New York et al v. Donald J. Trump et al

• Led by New York State AG Letitia James and joined by the rest of the 22 democratic State AGs² and the District of Columbia, the Plaintiffs filed a request for emergency TRO in the United States District Court for the District of Rhode Island on January 28.
• The Plaintiffs allege that the OMB directive substantively violates the Administrative Procedure Act ("APA") along with separation of powers and the spending clause by refusing to disburse Congressionally allocated grants.
• On January 29, the OMB rescinded the memo at issue. Two days later, Judge John J. McConnell, Jr. issued a TRO against the OMB despite the rescission, because the rescission was in "name-only and may have been issued simply to defeat the jurisdiction of the courts."
• On February 10, Judge McConnell granted the Plaintiffs' request to enforce the TRO, finding that the Trump Administration has not complied with the order and continued to deny access to federal funds.
• The hearing on the motion for preliminary injunction is set for February 21 before Judge McConnell.

Gender-Affirming Care

Executive Order: On January 28, President Trump signed the executive order calling for an immediate halt to gender-affirming care for transgender individuals under 19 and directing federal agencies to ensure that medical institutions receiving federal grants stop providing such care.

In response: State of Washington et al v. Donald J. Trump et al

• Led by Washington State AG Brown and joined by State AGs of Minnesota and Oregon (along with three individual physicians), the Plaintiffs filed a complaint in the United States District Court for the Western District of Washington on February 7.
• The Plaintiffs seek declaratory and injunctive relief, arguing that the executive order is unconstitutional on grounds of the Fifth Amendment Equal Protection Clause, separation of powers, and the Tenth Amendment.
• Judge Lauren King granted the Plaintiffs' request for a TRO on February 14, putting a 14-day pause on the enforcement of the order.

Department of Government Efficiency ("DOGE")

Executive Order: On January 20, President Trump signed the executive order establishing DOGE, led by Elon Musk, to carry out President Trump's promise of maximizing government efficiency.

In response: Among many legal challenges against DOGE and the actions of its affiliated leaders, the following two lawsuits are led by State AGs.

New York et al v. Donald J. Trump

• Led by New York State AG James, 19 State AGs³ filed a request for emergency TRO in the United States District Court for the Southern District of New York on February 8.
• The complaint alleges that the Defendants improperly granted access to DOGE-affiliated individuals to confidential personal and financial information stored and maintained by the Treasury Department, to block federal funds from reaching disfavored beneficiaries. Seeking injunctive and declaratory relief, the Plaintiff States argue that such agency action not only violates the APA but also usurps legislative authority.
• Judge Paul A. Engelmayer issued a TRO on February 8, which Judge Jeannette A. Vargas extended on February 14 while the decision on the preliminary injunction is pending.

New Mexico et al v. Musk

• Led by New Mexico State AG Raúl Torrez, fourteen State AGs filed a complaint in the United States District Court for the District of Columbia on February 13.
• The Plaintiff State AGs seek injunctive and declaratory relief, arguing that Musk's exercise of significant authority as the head of DOGE without Senate confirmation violates the Appointments Clause.
• On February 18, Judge Chutkan denied the Plaintiff State AGs' motion for emergency TRO.

National Institutes of Health ("NIH") Uniform Cap on Indirect Costs

NIH's Guidance: On February 7, the NIH published this guidance, setting a uniform 15% reimbursement rate on indirect costs (i.e., administrative overhead) for public research institutions receiving federal grants, where these rates have historically been negotiated by each individual institution with the federal government.

In response: Commonwealth of Massachusetts v. National Institutes of Health

• Led by Massachusetts State AG Andrea Joy Campbell, the 22 democratic State AGs filed a complaint in the United States District Court for the District of Massachusetts on February 10.
• Where the guidance impacts critical amounts of funding for research and education institutions, the Plaintiff State AGs allege standing on grounds injury to their state institutions and instrumentalities directly aggrieves the states. Substantively, they argue that the uniform rate change will have immediate destructive effects on research institutions, and that such policy is an "arbitrary and capricious change" in violation of the APA.
• On February 10, Judge Angel Kelley issued a TRO, enjoining the implementation of the rate change.

As many of these executive orders and agency directives attempt to upset legal precedent or legislatively appropriated federal funds, we expect continued activity in State AG-led actions in federal courts. We will follow and update these cases, tracking State AGs' pursuit of obtaining preliminary relief, as well as the outcomes on the merits.

Companies and institutions across wide swaths of the economy have experienced significant impacts from recent executive actions, and many have expressed uncertainty in assessing and responding to new developments. Foley Hoag is able to bring its cross-cutting expertise to bear in advising on your organization's particular impacts, to help you navigate this rapidly-evolving landscape.

Footnotes

1. New Jersey, Massachusetts, California, Colorado, Connecticut, Delaware, Hawai'i, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont, Wisconsin.

2. Arizona, California, Connecticut, Colorado, Delaware, Hawai'i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Wisconsin.

3. New York, Arizona, California, Colorado, Connecticut, Delaware, Hawai'i, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, Wisconsin.

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Originally published 20 February 2025

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