The Trump administration just lost a TPS case about Venezuela on Friday. By Monday, they'd filed a motion to dismiss an essentially identical TPS case about Haiti, making the same argument. Bryan: "Even though they just lost a case on the exact same grounds, the administration went ahead and filed a motion to dismiss this one anyway." Meanwhile, they've also filed a motion for a stay pending appeal in the Venezuelan case — where their argument is: "Please stay this law that was specifically designed to provide stability to the people it covers."
Haitian Americans United v. Trump (25-cv-10498) is a TPS (Temporary Protected Status) case in the First Circuit (Massachusetts) challenging the Trump administration's attempt to revoke TPS for Haitian nationals before the statutory period expires. TPS is a congressionally created protection that gives nationals of countries experiencing disasters, coups, or other extreme conditions a stable period (6-18 months) to remain in the U.S. while situations back home stabilize. The statute is written to prevent the president from shortening or revoking that timetable. On Friday (September 5), a court in the Ninth Circuit blocked the administration from revoking Venezuelan TPS in a case called National TPS Alliance v. Noem, on exactly this ground — the statute was written to provide stability and prevent presidential modification of the timetable. Monday morning, the administration filed a motion to dismiss HAU, making the essentially identical argument. Bryan's armchair-quarterback take on the two circuits: the Ninth Circuit sees more immigration cases and has deeper immigration case law, giving it a reputation for immigration expertise. The First Circuit has been pushing back on federal overreach. He declined to predict, saying it's better to wait for the outcome. Bryan also noted the government filed a motion for a stay pending appeal in the TPS Alliance (Venezuelan) case, which requires showing strong likelihood of success AND minimal harm to plaintiffs — but the law was specifically designed to reduce damage to plaintiffs, making the stay standard hard to meet.
TPSTemporary Protected Statusstatutory stability periodpresidential authority to modify timetableFirst Circuit (Massachusetts) vs. Ninth Circuitmotion to dismissTPS Alliance Venezuelan case (companion)
Constitutional question: Congress has plenary authority over immigration under Article I. The TPS program is an exercise of that authority: Congress decided to provide a stable window for certain nationals, and it wrote the statute to prevent the executive from shortening that window — because unpredictable stability is no stability at all. The administration's argument that the president can revoke TPS at any time would gut the program's congressional design: if the stability period can be ended whenever the president wants, there is no stability. Courts across circuits have been rejecting this argument for exactly that reason, and the parallel cases in two circuits create the conditions for a circuit split if the outcomes diverge — which would likely push the question to the Supreme Court.
Trump issued an EO saying passports should "accurately reflect the holder's sex." That's all it says. The State Department said the EO left them "no choice" but to change the policy — sex assigned at birth only. Courts: even if that's true, you still have to follow the APA to change agency rules. Also, the president's lawyers wouldn't even lean on the EO as their defense — because they don't want this EO in front of the Supreme Court. The court of appeals denied the stay. The actual case hasn't even been heard yet.
Orr v. Trump (25-1579) is an appellate case challenging the Trump administration's policy requiring passports to reflect sex assigned at birth. The policy originated in a deliberately vague executive order directing the State Department to "accurately reflect the holder's sex" — the EO didn't specify binary sex, but the State Department interpreted it as requiring sex assigned at birth. The district court issued a preliminary injunction, finding the policy violated the Administrative Procedures Act: the State Department changed its rules without following the APA's required process for rulemaking. The government appealed and asked for a stay pending the appeal. The court of appeals denied the stay on two grounds: (1) the EO was vague, and the State Department had to exercise its own interpretive judgment about what "accurately reflect" meant — that independent interpretation is rulemaking under the APA, requiring notice and comment; (2) the fact that a rule comes from an executive order doesn't exempt it from the APA. Bryan noted the government's unusual posture: the president's lawyers specifically didn't lean on the EO as authority, because they don't want this particular EO before the Supreme Court, preferring to keep the legal question narrow.
APAnotice and comment rulemakingvague executive order (interpretation by agency = rulemaking)passport policysex assigned at birthpreliminary injunctionstay denied
Constitutional question: The passport sex designation policy implicates equal protection and liberty interests under the Fifth Amendment's due process clause for transgender individuals — but the case is being decided on APA grounds, not constitutional ones. The government's reluctance to put the EO directly before the Supreme Court signals awareness that the underlying constitutional claim is vulnerable: if the Court reaches the question of whether the government can compel passport documentation to conflict with a person's gender identity, the equal protection analysis under current doctrine is unsettled. Keeping the case in APA territory avoids that constitutional question while still achieving the policy goal — or trying to. The courts' refusal to stay the injunction keeps the prior passport policy in place while the litigation continues.
Make the Road New York won a ruling that expedited removal can't be used deep inside the country. Government asked for a stay. Government's argument: under CASA, the injunction should only protect the named plaintiffs — so just have the nonprofit hand over a list of its members' names and addresses to ICE. Problem with that proposal: NAACP v. Alabama, 1958. The Supreme Court said you can't condition the assertion of a due process right on giving up a First Amendment right of association. The government's only alternative was to block the law entirely. Stay denied.
Make the Road New York v. Noem (25-cv-00190) is a case about expedited removal — the abbreviated immigration process that permits deportation without full due process when a non-citizen is stopped at the border. The Trump administration had been applying expedited removal deep inside the United States, far from the border, which courts ruled was not authorized by the expedited removal statute. The district court issued an injunction. The government appealed and asked for a stay, invoking the CASA v. Trump framework: under CASA's limitation on so-called "universal injunctions," the protection should apply only to the named plaintiffs, not to everyone in the country. The government's proposed solution: Make the Road New York (a nonprofit organization serving immigrants) should hand over a list of its members' names and addresses to ICE, so the injunction could be tailored to protect only those specific individuals. The court's response: NAACP v. Alabama (1958) prohibits the government from conditioning the assertion of a constitutional right on the relinquishment of another constitutional right. The NAACP precedent specifically addressed membership list disclosure — requiring disclosure of members to the state violated First Amendment rights of association. The same principle applies here: the organization cannot be required to out its members to the enforcement agency from which those members need protection. The government offered no alternative that didn't require either the list or blocking the law entirely. Stay denied.
Expedited removalextraterritorial (deep inland) useCASA v. Trump (universal injunction limitation)NAACP v. Alabama (1958)First Amendment associationconditional right assertionmembership list disclosure
Constitutional question: NAACP v. Alabama established that compelled disclosure of members to a government entity can itself be an unconstitutional burden on First Amendment associational rights — particularly when the disclosed members face government targeting. Applying that principle here: Make the Road New York's clients are immigrants who need protection from ICE. Requiring the organization to hand its client list to ICE as a condition of getting that protection turns the remedy into the harm. The due process right to protection from unlawful removal cannot be conditioned on waiving the First Amendment right not to have your association with an advocacy group disclosed to the enforcement agency. This case is structurally important: CASA creates a pressure to narrow injunctions to named plaintiffs, but the NAACP principle limits how far that narrowing can go when disclosure itself is harmful.
The Global Health Council case: the Court of Appeals reversed because the plaintiffs didn't have standing to bring their constitutional claim. But — the same claim can be brought under the APA instead. So plaintiffs filed an amended complaint. District court: fine, injunction still in place, government still pays. Government asked for a stay from the Court of Appeals. Denied. Bryan: "I think everyone is sick of hearing about this case." It's almost like starting over with a new theory.
Global Health Council v. Trump (25-cv-00402) — along with the related AIDS Vaccine Advocates case — had a complex two-week procedural arc that Bryan tried to untangle. The district court had held the government violated the Constitution by terminating global health grants. The Court of Appeals reversed on standing: the plaintiffs didn't have standing to bring the constitutional claim (on that particular constitutional question). But the Court of Appeals' ruling didn't end the case entirely — the same factual challenge can be brought under the Administrative Procedures Act instead of as a constitutional claim. The plaintiffs filed an amended complaint under the APA. The district court accepted it: the injunction remains in place, payments must continue. The government requested a stay from the Court of Appeals. The Court of Appeals denied the stay. Bryan's summary: "It's almost like we're starting this case over again with a new theory." The district court kept insisting payments were required throughout the appellate back-and-forth, which Bryan found confusing until the APA theory clarified why the case wasn't over even after the standing dismissal.
APA (new theory replacing constitutional claim)amended complaintstanding dismissal (constitutional claim)injunction maintained during APA rebootstay deniedpayment continuance
Constitutional question: The standing dismissal and APA pivot together illustrate a structural problem in challenging executive overreach: different legal theories require different standing showings, and a narrow constitutional standing ruling can knock out a claim while leaving the same underlying harm challengeable under a different theory. The district court's maintenance of the injunction through the APA reboot is itself constitutionally significant — it represents the court's continued judgment that the grant terminations were improper, regardless of which legal theory frames the challenge. The case's durability (multiple theories, continued court orders to pay) documents how hard it is for the executive to finally escape judicial oversight of actions that courts repeatedly find problematic.
