A Court Tells Trump No (Again), While SecDef Clamps Down on the First Amendment

Today, a federal judge granted a motion for a temporary restraining order, enjoining the government from firing employees during the shutdown. The injunction was entered in a case filed by unions: the American Federation of State, County, and Municipal Employees (AFSCME), the AFL-CIO, and others, against the Office of Management and Budget, the Office of Personnel Management, and other federal agencies involved in the employee terminations.

The opinion starts off with a bang. But it’s just the basic facts of the case:

“On October 10, 2025, federal agencies began laying off thousands of employees in the midst of a government shutdown … This is unprecedented in our country’s history. The President has publicly stated that the layoffs will be ‘a lot’ and that they ‘will be Democrat oriented, because we figure, you know, they started this thing, so they should be Democrat-oriented.’”

To make matters worse, because government employees are not supposed to access government email during a shutdown if they aren’t designated essential, “some employees do not even know if they are being laid off because the RIF [reduction in force] notices were sent to government e-mail accounts.” To complete the Kafkaesque nightmare federal employees now face, “Those who have received RIF notices cannot prepare for their upcoming terminations because the human resources staff who would typically assist them are also furloughed.” Some human resources employees were brought in briefly from furlough to work on the RIF, and then told to RIF themselves, according to the Judge’s opinion.

Judge Susan Illston in the Northern District of California is all business in this seven-page opinion, writing, “It is also far from normal for an administration to fire line-level civilian employees during a government shutdown as a way to punish the opposing political party.” Words like unprecedented leap to mind, but their overuse during this administration has numbed us to them. Outrageous, undemocratic, and immoral also come to mind. The president, who is supposed to represent all Americans—to “take care” to uphold the Constitution and our laws—isn’t.

Trump posted on social media: “I have a meeting today with Russ Vought, he of PROJECT 2025 Fame, to determine which of the many Democrat Agencies, most of which are a political SCAM, he recommends to be cut, and whether or not those cuts will be temporary or permanent. I can’t believe the Radical Left Democrats gave me this unprecedented opportunity.” You would think a federal agency as savvy in the ways of government as OMB would distance itself from this sort of crazy sauce, or at least ignore it. But now, the Judge’s opinion recites that “The memorandum from the Office of Management and Budget that appears to have initiated the shutdown RIFs says the same.”

The facts in this case make it relatively easy for the Judge to find that the plaintiffs have met their burden for getting the temporary injunction. They have to persuade her that they are likely to succeed on the merits of the case and that they will suffer irreparable harm if they don’t get relief. Because injunctions are categorized as “equitable” remedies, the plaintiffs also have to show that when the court weighs the potential hardships and harms to both parties, the balance of those equitable interests tips in the plaintiffs’ favor, and an injunction is in the public interest.

• Plaintiffs are likely to succeed on the merits: The Judge rules the plaintiffs are likely to win on their claims, brought under the Administrative Procedure Act (APA) because “If what plaintiffs allege is true, then the agencies’ actions in laying off thousands of public employees during a government shutdown —and in targeting for RIFs those programs that are perceived as favored by a particular political party— is the epitome of hasty, arbitrary and capricious decision making,” which the Act prohibits. The plaintiffs are also likely to succeed on claims that the agencies are acting on illegal grounds because they “essentially seek[s] to overturn mandates that Congress has put in place” and the agencies fail to justify their position. In fact, the Judge points out, at the hearing on this issue, they “refused to answer the question of whether or not defendants’ action are legal, instead saying that defendants were ‘not prepared’ to address the merits today.”

• The rest of the factors also weigh in the plaintiffs’ favor: The Judge found that they “face loss of income, loss of healthcare, and possible relocation from their homes,” and that these consequences amount to “irreparable harm if they do not receive immediate injunctive relief.” She characterized the harms employees face as “drastic and imminent public consequences,” while there are no harms to the government if the court temporarily maintains the status quo. And she finds that “[t]here is generally no public interest in the perpetuation of unlawful agency action.”

The Judge concludes that “To preserve the status quo and prevent irreparable harm, and because the Administrative Procedure Act requires this Court to “hold unlawful and set aside agency action” where an agency has violated the Act, 5 U.S.C. § 706(2)(A), (C), a temporary restraining order shall issue, pursuant to this Court’s authority including but not limited to authority to “issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights.”

The next step in the case will be for the Judge to decide whether to extend the injunction beyond the next two weeks. She has ordered both sides to submit their briefs on a quick schedule that concludes on October 27. She will hold a hearing on October 28 at 10:30 a.m.

It’s possible this case may break through in a way few others have. And as the shutdown continues, the burden on all federal employees, regardless of party, will grow. Today, Justice Department employees received light paychecks—the pay period ended on October 4, but they were paid through September 30, the date of the shutdown, receiving about 70% of their expected paycheck. But the next pay period, which runs from October 5 to October 18, with checks due to employees the last week of the month, will be entirely in the shutdown period. In other words, the check will not be in the mail. Similar schedules apply to employees across the federal government. With the House still not scheduled to come back into session, there is no end in sight.

But at the Pentagon, shutdown or not, Trump appointees are hard at work, shutting down the free press. Tara Copp from The Washington Post tweeted, “Today the Pentagon Press Corps handed over our badges and walked out in unison in defense of the First Amendment. It’s an unprecedented attack on the public’s right to know and the end of one of the most professional press relationships in DC.”

We’ve been following the story of efforts by Hegseth’s Pentagon to force journalists to sign a pledge that would make it impossible to do independent journalism. Most journalists, across the board, declined to bend the knee. Attempting to cancel the First Amendment is part of this administration’s legacy.

Journalist Nancy Youssef posted an item she said was found while the press corps was cleaning out. Signed in the wake of 9/11. “Information will be made fully and readily available,” it reads. “Information will not be classified or otherwise withheld to protect the government from criticism or embarrassment.”

We will all have the opportunity to share our views about the events we’re watching unfold on Saturday, when Americans protest the Trump administration’s mockery of democracy. In the comments to this morning’s post, some of you mentioned using lines from my book on your signs and tee-shirts, and I hope you will. “Giving Up Is Unforgivable” and “We have a republic to keep, and we are not quitters” are great slogans, and I love the idea that wherever we find ourselves for the march, our community will be connected by our signs.

What are your plans for this weekend’s No Kings protests or other pro-democracy actions?

Thanks for being here with me at Civil Discourse. Your support makes the newsletter possible. I’m especially appreciative to those whose paid subscriptions allow me to devote the time and resources it takes to do this, and to make the newsletter available for free, so that everyone can have the opportunity to stay up to speed at this critical juncture in American history.

We’re in this together,

Joyce