With all sight on the Capitol since Friday when the various festive balloons began, five major court cases slipped by the public’s notice. That range excludes the Supreme Court’s unanimous selection in TikTok v. Garland, which upheld The Protecting Americans from Foreign Adversary Controlled Applications Act ’s sanction that China sell from the popular social media program.
The Supreme Court’s TikTok selection immediately launched substantial discussion and, after TikTok went black, apparently some personal crises. Many Americans and the Chinese communist government perceived Trump’s impending inauguration as providing a reprieve from the law, even though a President cannot amend a statute ( or the Constitution — more on Biden’s claim about the purported 28th Amendment tomorrow ) by Executive Order or otherwise.
However, the shift in management proves considerable for five different essential cases which all saw advancements late last month.
Classified Documents Case:
First came explanations before Judge Aileen Cannon on the Department of Justice’s drive to provide a copy of Level II of now-former Special Counsel Jack Smith’s statement to the chair and ranking members of the House and Senate Judiciary Committee. Last year, Judge Cannon rejected attempts by Trump and former Department of Justice Attorney Jeff Clark to prevent the release of the first level of Smith’s statement; that size addressed the specific counsel’s research into Trump’s difficulties to the 2020 election.
Because Level I did not include the classified documents circumstance that Judge Cannon presided over, the Florida area court judge held she lacked the authority to stop Attorney General Garland from releasing the document publicly. As to Level II, after Trump’s co-defendants in the defined report case, Waltine Nauta and Carlos De Oliveira, filed a motion to prevent the release of the document, AG Garland agreed not to launch it formally. Rather, AG Garland maintained he intended to provide access to the report solely to the top Democrat and Republican members of the judiciary committees and in doing so would require them to commit to not discussing the contents of the report.
Judge Cannon temporarily barred the DOJ from providing anyone outside of the Justice Department access to the report and on Friday the Trump appointee held a hearing on the question of whether the AG could provide access of the report to the four judiciary committee members.
During Friday ’s hearing, Judge Cannon reportedly pushed federal prosecutors to explain their urgency in providing leaders of the Judiciary Committee access to Volume II, while they continued to appeal her earlier decision dismissing the indictment against Nauta and De Oliveira. The court reportedly pushed federal prosecutors on “why the department was offering the report to Congress now, when there is a possibility that the prosecution against Trump’s former codefendants could be revived. ” The DOJ apparently had no good answer for Judge Cannon, leaving her to take the question under advisement.
But at noon Monday, the DOJ will flip hands and with it control over the special counsel’s report— and not just the report but the efforts to prosecute Nauta and De Oliveira. Judge Cannon had previously ruled that Jack Smith’s appointment as special counsel violated the appointments clause of the Constitution and dismissed the charges against Trump and his two co-defendants. The Biden Administration appealed that ruling and the case is currently pending on appeal before the Eleventh Circuit Court of Appeals.
The new attorney general is likely to dismiss that appeal, letting Judge Cannon’s order dismissing the criminal charges stand. At that point, the release of the report would no longer impact Nauta and De Oliveira’s due process rights. However, the DOJ is likely to also conclude that because Smith lacked authority to conduct the investigation and because the investigation was politically motivated, the report should not be released.
While that might set off some fireworks between the executive branch and Democrats in Congress, for the near-term, at least, it is doubtful that the judiciary committee will receive a copy of Volume II of the special counsel’s report.
Supreme Court to Decide if Schools Can Propagandize Kids on LGBTQ Ideology.
Friday saw a second major development when the Supreme Court of the United States agreed to hear an appeal in Mahmoud v. Taylor. In that case, parents of elementary schoolchildren in Maryland challenged the school board ’s refusal to allow the parents to opt their kids out of lessons requiring the reading of a LGBTQ-themed book.
The parents in Mahmoud argued that the schools, by requiring their “elementary school children to participate in instruction on gender and sexuality against their parents ’ religious convictions and without notice or opportunity to opt out, ” violated their First Amendment Free Exercise rights. The district court denied the parents ’ motion for a preliminary injunction and the Fourth Circuit Court of Appeals, in a 2-1 decision, affirmed. The parents petitioned for review by the Supreme Court, which on Friday agreed to hear the appeal.
While the United States is not a litigant in Mahmoud v. Taylor, it may file an amicus curiae, or friend-of-the court brief, supporting either the plaintiffs or the school board defendants. And while a Biden or Harris Administration would have continued to push LGBTQ ideology and degrade religious liberty, the Trump Administration is near certain to file a brief in favor of religious liberty and also to seek an opportunity to present oral arguments on behalf of the parents. The added advocacy from the Trump Administration’s soon-to-be-confirmed solicitor general, John Sauer, will further bolster the parents ’ claims.
Biden Administration DACA Regulations Stricken in Texas v. United States
The Fifth Circuit Court of Appeals entered the Friday flurry with its decision in Texas v. United States, which addressed the legality of the Biden Administration’s Final Rule on “Deferred Action for Childhood Arrivals, ” known commonly as DACA. That Final Rule adopted the same policy toward alien children brought to the United States illegally as the Obama Administration had previously devised.
Specifically, the DACA Final Rule provided that immigration officials were not to remove “certain young people who were brought to this country as children and know only this country as home. ” Such individuals would instead be “deemed eligible for a renewable two-year period of lawful presence through ‘deferred action. ’ ” Additionally, the DACA Final Rule provided that those granted “deferred action ” would also be “eligible for work authorization and various federal benefits, ” namely Social Security and Medicare benefits.
Texas challenged the DACA Final Rule, arguing that it violates the Immigration and Naturalization Act ( INA ). The Fifth Circuit agreed, relying on its previous decision that the Obama Administration’s “materially identical” DACA rule violated the INA. As the federal appellate court explained, the INA “expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present. ” Further, “[i]n the INA, Congress enacted a ‘comprehensive federal statutory scheme for regulation of immigration and naturalization ’ and ‘set the terms and conditions of admission to the country. ’ ” Yet, Congress “chose not to include DACA recipients in that comprehensive scheme. ” Accordingly, the Fifth Circuit held, “Congress’s rigorous classification scheme ” in the INA precluded the Department of Homeland Security from creating a new category of “lawful alien” in the DACA Final Rule.
Although the Fifth Circuit held that the DHS lacked authority to provide work authorization or benefits to aliens brought to the United States illegally while they were children, the federal appellate court upheld the Final Rule’s granting of a forbearance of removal. Here, the Court reasoned that “the DACA policy allows DHS, in line with its particular expertise, to proactively identify noncitizens who may be a low priority for removal. ”
A Trump Administration is unlikely to appeal the Fifth Circuit’s decision, although several states and DACA beneficiaries intervened in the case and are likely to seek review by the full court or the Supreme Court. But it is unlikely the high court will take the case given that the Trump Administration will surely recommend the Supreme Court not wade into the matter.
Further, the Trump Administration’s DHS, if it desires, could issue new regulations removing the forbearance of removal provisions of the Final Rule. Strategically, though, the Trump Administration might be wise to leave that Final Rule in place for now while it focuses on the much higher priorities of securing the border, removing the hundreds of thousands of criminal illegal aliens, visa-overstayers, and aliens previously ordered removed. Doing so would also preempt the Left’s constant refrain of the need for “comprehensive immigration reform ” to protect the dreamers — as they would already have protection from removal under the DACA Final Rules upheld by the Fifth Circuit.
States Challenge the Counting of Illegal Aliens in Census
Friday also saw Louisiana, Kansas, Ohio, and West Virginia sue the United States Department of Commerce and its Census Bureau, challenging the “Final 2020 Census Residence Criteria and Residence Situations Rule ” that authorized the counting of illegal aliens in the census. The complaint alleges that the Final Rule violates the Fourteenth Amendment by including illegal aliens and aliens holding temporary visas in the census tally.
The Plaintiff states further alleged they were harmed by this unconstitutional apportionment, with Ohio and West Virginia stating they each lost one congressional seat and one electoral vote in the reapportionment conducted pursuant to the 2020 Rule. For their part, Louisiana and Kansas alleged that they are likely to lose congressional seats and electoral votes following the 2030 census if illegal aliens and aliens holding temporary visas are included in the count.
With Trump now president, his Department of Justice will represent the Department of Commerce and Census Bureau in this litigation. And here there will likely be much overlap between the Plaintiff states and the Trump Administration’s view of the Constitution. However, the case will likely see several states and individuals intervening to argue against Louisiana, Kansas, Ohio, and West Virginia’s position, but having the Trump Administration predisposed to the plaintiffs ’ view will be extremely beneficial.
Also important is the timing: With the lawsuit coming at the beginning of Trump’s second term, and five years before the next census, there is ample time for the issues to be resolved before the 2030 census begins. In contrast, a last-minute lawsuit before the 2020 census and a decision by the Supreme Court prevented the Trump Administration’s Department of Commerce from including a question on citizenship in the 2020 census.
However, as then-Attorney General William Barr stressed, “the Supreme Court recognized, it would be perfectly lawful for the federal government to ask on the census whether individuals are citizens of the United States. ” The high court “nevertheless held that the Commerce Department did not adequately explain its decisions for doing so on the 2020 Census, ” General Barr continued, adding that the Supreme Court also recognized that “the defect in the Commerce Department’s decision was curable with a better record. ”
So now the Trump Administration has both an opportunity to make a better record to justify the citizenship question and to obtain a binding decision that the illegal aliens and residents here on temporary visas cannot be counted for purposes of electoral votes and congressional apportionment.
Biden Administration Enters a Consent Decree Demanding Discrimination
The fifth case of great legal import is the Biden Administration’s “lawsuit ” against Cobb County, Georgia. “Lawsuit ” is in quotes because, as the Court noted in its opinion last week, “before the Complaint was even filed, the parties negotiated a proposed resolution to this dispute ( Amended Consent Decree ), without any admission of liability by Defendant. ”
The supposed dispute was between the Biden Administration’s Equal Employment Opportunity Commission and Cobb County Georgia, with the EEOC claiming the “Defendant’s use of the written examination and its prior use of a credit check between 2016 and 2020 to screen and select candidates for firefighter positions had an impermissible disparate impact on African-American candidates in violation of Title VII. ”
Title VII is the federal statute that prohibits discrimination on the basis of race, among other things. And “disparate impact ” is a controversial theory of liability that holds an employer liable for discrimination even if the employer did not intentionally discriminate against a job applicant or employee. Simply put, under the “disparate impact ” theory, an employer is liable under Title VII if a facially neutral policy has a disproportionate impact on a race ( or other protected class ), unless the practice or policy is necessary for the job.
In United States v. Cobb County, GA, the parties never resolved whether the firefighter exam disproportionately disqualified racial minorities from firefighter positions. Nor was there any resolution to the question of whether the written exam was nonetheless necessary to ensure candidates could properly perform as firefighters. ( The county had removed the credit check requirement four years before the lawsuit was filed. )
Instead, after filing the complaint in 2024, the Biden Administration and Cobb County entered into an agreement under which Cobb County committed to hiring up to sixteen African-Americans, and giving them retroactive seniority, as well as paying$ 750,000 in damages. The parties then filed a Consent Decree for the court to enter that detailed these and other provisions.
The court, however, refused to do so, holding that such a Consent Decree, by mandating the hiring of African-Americans over other candidates, would require Cobb County to engage in intentional race-discrimination.
While there may be some merit to the Title VII claim against Cobb County — it is impossible to tell from the current state of the record — the Trump Administration will surely remove any effort to force the county to engage in reverse discrimination. The new administration will likely also take a closer look at the underlying disparate impact theory.
These are just a handful of the cases that will soon be impacted by Trump’s return to the White House — and last week’s flurry is likely to snowball.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall. com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments —her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
