Federal district judges on the east and west coasts presiding over simultaneous litigation brought by different parties have issued temporary restraining orders blocking enforcement of President Trump’s executive orders that sought to coerce healthcare providers from performing gender-affirming care for minors.
Judge Lauren King of the US District Court in Seattle and Judge Brendan Hurson of the US District Court in Baltimore came to the same conclusion: The plaintiffs in both cases are likely to be able to prove that President Trump does not have the authority to unilaterally change federal law by imposing new restrictions on the grants and other federal money that health care institutions rely upon for their operations, which is Trump’s method for making gender-affirming care unavailable.
The East Coast case, PFLAG v. Trump, was brought by that organization and six transgender youths, all of whom are at some stage of accessing gender-affirming care but were notified by their provider that the care would be discontinued because of Trump’s executive order, since their provider was threatened with a cut-off of federal funds.
The West Coat case, State of Washington v. Trump, was brought jointly by the states of Washington, Minnesota, Oregon and Alabama and three physicians who perform gender affirming care. In each of the states there are public health care institutions that are threatened with loss of federal grants if gender-affirming care is provided in their facilities.
The central theme of both cases is that the president does not have the authority to place new conditions on the receipt of federal funding that were not legislated by Congress. Under the separation of powers set up in the Constitution, Congress makes the laws by passing statutes, the president swears to see that they are faithfully executed, and it is up to the courts to interpret and apply the laws in actual cases. Some borderlines between making laws, interpreting them, and enforcing them have become blurred by the emergence of administrative agencies and executive branch departments that are authorized to issue rules, guidelines, and regulations, but both Judge King and Judge Hurson show in their opinions that the president’s role remains limited under the separation of powers.
The president does not have the power to dictate healthcare policy to the states, and Congress’s own authority regarding healthcare is also limited because the regulation of healthcare is among the police powers generally reserved to the states under the 10th Amendment of the Constitution, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This provision was particularly important for the west coast case, where four states are plaintiffs.
In both of these cases, the Justice Department, representing Trump and the various federal departments who are sued because they have grants and contracts with health care institutions, argued that the lawsuits are premature, that no action has been taken yet to suspend federal payments, and that a memo sent out by the Health Resources & Services Administration of the Department of Health and Human Services directing healthcare institutions that no federal money can be used to “promote gender ideology” (which is Trump’s term, borrowed from his good buddy Vladimir Putin) by providing gender-affirming care to minors, and that any institution providing such care stands to lose their grants or federal contracts, was revoked about a week after it was sent out. But the executive order has not been revoked by Trump and can be activated at any time in the absence of these court orders.
The judges noted that the revocation of that memo did not make the situation any less urgent, since the executive order specifies the cut-off of federal funding for gender-affirming care is “immediate,” and both judges concluded that the plaintiffs would suffer irreparable injuries if all federal money was withdrawn.
Judge King in Seattle wrote the longer and more detailed opinion. In addition to violating the separation of powers, part of the basic structure of the Constitution, Trump’s order cited 18 U.S.C. Section 116, a criminal statute, as a source of authority. This is a statute that was enacted to deal with the issue of genital mutilation of women and imposes criminal penalties. The judge wrote that “to the extent the executive order purports to expand the scope of criminalized conduct in another federal statute – 18 U.S.C. section 116 – this, too, trespasses beyond the president’s powers under the Constitution.”
She also found a potential violation of the Fifth Amendment’s equal protection requirement by treating people differently “based on sex or transgender status,” which she opined could only be done “if the differential treatment (1) serves important governmental objectives and (2) is substantially related to the achievement of those objectives,” the “heightened scrutiny” standard of judicial review. The district court in Seattle is bound by rulings of the Ninth Circuit Court of Appeals, which has held in past cases that discrimination based on transgender status is subject to the heightened scrutiny test, and she pointed out various ways that Trump’s announced directives are likely to be struck down under this test.
“The record indicates that none of the funds received by the plaintiff states’ medical institutions have a congressionally authorized condition requiring them to refrain from the provision of gender-affirming care,” wrote Judge King. “And defendants have not shown that Congress has delegated authority to the president to condition federal research grants on compliance with his policy agenda. The president’s power is thus ‘at its lowest ebb.’ Despite this, President Trump’s executive order purports to do something not even Congress is permitted to do: ‘surprise states with post acceptance . . . conditions’ on federal funds, and ‘impose conditions on federal grants that are unrelated to the federal interest in particular national projects and programs.’”
She characterized the order as “an end-run around the separation of powers,” and, quoting from a Supreme Court decision, wrote that “to hold that the president has ‘the power to switch the Constitution on or off at will’ would ‘permit a striking anomaly in our tripartite system of government,’ but ‘our basic charter cannot be contracted away like this.’”
Judge King agreed with the plaintiffs’ argument that Trump’s order “appears to serve no interest at all save to communicate official, presidentially directed animus against transgender and gender-diverse people, their medical providers, and their families,” finding not credible that the order is intended to protect children from “regret” about being subjected to gender transition by their parents and doctors.
She also found that the plaintiff states would likely succeed in their argument that under the 10th Amendment, Trump’s directive to the Attorney General to “review Department of Justice enforcement of Section 116 of title 18, U.S. Code, and prioritize enforcement of protections against female genital mutilation” as part of his campaign against gender-affirming care, is an inappropriate attempt to amend a federal statute to a purpose not authorized by Congress. “The Plaintiff States’ legislatures have the exclusive power under the 10th Amendment to criminalize acts committed within those states that lack a federal nexus,” she wrote. “Plaintiff states have not passed any laws criminalizing Listed Services” in Trump’s Order. Although some other states have imposed criminal penalties on health care providers who provide gender-affirming care to minors, the four states who brought his law suit have not done so, and Trump’s attempt to stretch a federal statute to make this a federal crime violates the rights of those states.
Although her opinion ends with a grant of a temporary restraining order, Judge King comments that “the balance of equities and the public interest strongly weigh in favor of entering a preliminary injunction,” and “The Rule of law is secured by a strong public interest that the laws ‘enacted by their representatives are not imperiled by executive fiat.”
Normally, temporary restraining orders have only brief duration while the court determines whether to issue a preliminary injunction, which would block enforcement of the order until the court issues a final decision after a trial or in deciding a motion for summary judgment, but it seems likely, given Trump’s usual approach to adverse judicial rulings, that the government may attempt to appeal these temporary orders. If not, preliminary injunctions are likely to follow shortly.
Both Judge King and Judge Hurson were appointed by President Joe Biden.
