The shutdown firing game of cat and mouse continued. The TRO blocking the administration from firing furloughed workers has now been modified twice in one week. The government keeps finding agencies not named in the order and trying to fire those employees before the judge notices. The judge's response: define "federal agency" as a list of specific departments on a quarter-page roster. Bryan: "Maybe these agencies will dress up as something not on the list for Halloween and see what they can get away with."
AFL-CIO v. OMB (same docket as AFGE v. OMB, 3:25-cv-08302) covers the government shutdown workforce reduction. The administration was using the funding lapse to fire furloughed federal employees outside normal civil service procedures. After the original TRO was issued blocking these firings, the administration found gaps — agencies not specifically named — and attempted to fire employees in those agencies before the court's next move. The court responded by modifying the TRO to name specific agencies: Agriculture, Commerce, Defense, Education, HHS, Homeland Security, Interior, and a quarter-page list of others. By October 23, the TRO had already been modified twice in a single week. Bryan flagged a key limiting principle: under the Supreme Court's earlier CASA v. Trump ruling from the summer, TROs can only protect members of the plaintiff organizations (the unions), not the general federal workforce. Still: union membership covers a lot of people across most agencies, making blanket agency-level firings extremely difficult. The administration's game of finding un-named agencies continued.
Government shutdown employment lawAPA arbitrary and capriciousTRO modification scopeCASA v. Trump (TRO limited to party membersunion members only)
Constitutional question: The repeated TRO modifications illustrate the gap between the constitutional principle (a funding lapse does not suspend employment law) and enforcement reality (each gap the administration finds requires a new court order). The separation of powers argument the administration is implicitly making — that the executive's emergency management of a shutdown creates inherent authority to restructure the workforce — is exactly what the court has repeatedly rejected. CASA v. Trump's limitation on TRO scope reflects a separate constitutional constraint: equitable relief in federal court is bounded by traditional standing and party-membership principles, even when a constitutional violation is ongoing.
The administration is trying to claw back five-year grants to school psychologists and counselors at low-income schools — grants Congress funded after school shootings. Their argument: the recipients aren't complying with our "priorities and policy preferences." But the priorities the recipients agreed to were the ones written in the grant, not the current administration's preferences. The motion to dismiss failed. Bryan: this specific "priorities and policy preferences" argument is popping up in multiple cases. Watch it. It'll probably succeed somewhere.
Washington v. DOE (25-cv-01228) involves five-year federal grants to fund school psychologists and counselors at low-income schools, appropriated by Congress after a series of school shootings. Grant recipients had agreed to terms — including benchmarks like increasing the number of school counselors — and were meeting those terms. The Trump administration moved to cut off the grants early, arguing that recipients were no longer in compliance with the administration's current "priorities and policy preferences." The legal hook: there is a regulatory provision allowing grant termination if a recipient isn't complying with "priorities and policy preferences" of the granting agency. The administration's novel argument: those priorities and policy preferences aren't fixed — they change with the administration, and the current administration's preferences are different from what the grants originally required. Sixteen states filed suit challenging the early termination. The administration moved to dismiss on standing grounds, arguing the states weren't directly harmed. The district court rejected the motion to dismiss: the states had standing because the program was designed to prevent the kind of harm (school shootings in low-income communities) that defunding would risk. The case proceeds to a preliminary injunction hearing. Bryan's broader warning: this "priorities and policy preferences" argument is a soft-launch the administration is testing in multiple cases simultaneously; it hasn't succeeded yet, but the regulatory language is ambiguous enough that it might land somewhere.
APA arbitrary and capriciousSpending Clause (Art. I, §8)grant termination conditionsstanding (state harm from federal grant termination)
Constitutional question: The Spending Clause gives Congress authority to attach conditions to federal grants — but those conditions must be clear and knowable at the time the grant is accepted. The administration's argument that "priorities and policy preferences" can be redefined post-hoc attacks the clarity-at-acceptance principle: grantees cannot have knowingly agreed to a condition that didn't exist when they signed. The standing ruling also has constitutional weight: the court found state harm from defunding a program designed to prevent school shootings — recognizing that states have a concrete, particularized interest in safety programs that affect their schools and residents, not just abstract policy disagreement.
Illinois v. Trump has a new development: after a couple of meetings, the government agreed to extend the TRO against National Guard deployment in Illinois indefinitely — rather than go into a PI hearing that would have tanked their Supreme Court filing. A TRO can only be extended once, and the judge wasn't giving them just 30 days. She offered: unlimited extension, or go straight to PI. They picked unlimited. Bryan on the underlying law: "My blood pressure rises until you can boil an egg on my head."
Illinois v. Trump (1:25-cv-12174) had been building toward the TRO's expiration limit. A TRO can only be extended once under the Federal Rules. The government had asked for a 30-day extension. The district court judge — who had already issued the original TRO blocking National Guard deployment in Illinois and whose order had been backed up by the Seventh Circuit ("political opposition is not rebellion") — wasn't giving them just 30 days. She presented the government with a choice: agree to an indefinite/unlimited TRO extension while the Supreme Court case plays out, or go straight into a preliminary injunction hearing on the merits — which would have mooted their SCOTUS filing (since a PI would supercede the TRO and change the appellate posture). The government chose the unlimited TRO extension. Result: the Illinois National Guard remains federalized but not deployable while SCOTUS considers whether to grant the administration's stay. Bryan gave his most candid assessment of the underlying law: he's read Perpich, Luther, Mott, and charted the militia acts from 1792, 1795, 1798, 1901, 1903, and 1916. His conclusion: the law is "freaking confusing and absolutely circular." The core question — who the law designates to make the call about deploying the military — is unresolved. Candidates: the president, Congress, the governor, the court. Bryan: "I keep thinking I've solved it and then I realize I'm wrong, and I don't like being wrong."
Federal Rules of Civil Procedure Rule 65 TRO extension limitchoice between TRO extension and PI hearingSCOTUS stay petition (mooting risk)10th Amendment10 U.S.C. § 12406
Constitutional question: The militia acts Bryan referenced (1792 through 1916) are the congressional history underlying 10 U.S.C. § 12406 and related statutes. The question they collectively grapple with: the Constitution gives Congress authority to "provide for calling forth the Militia" (Art. I, §8), and makes the president commander-in-chief of the militia "when called into the actual Service of the United States" (Art. II, §2). The statutes bridge that gap — but they're layered and internally inconsistent. Bryan's bottom line: unlike the Oregon case (a statutory interpretation question fixable by Congress), this case might involve constitutional limits on who gets to decide. The indefinite TRO extension preserves the status quo (federalization without deployment) while that question works through the courts and possibly SCOTUS.
