by Stephen Kaus on May 5, 2025 (BeyondChron.org)
Targeting of Law Firm and Deportation Under Alien Enemies Act Are Emphatically Invalidated
… in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’”—D.C. District Court Judge Beryl A. Howell
Perkins Coie Retaliatory Order is Unconstitutional. Judge Howell’s 102-page Opinion, issued last Friday, holds that Donald Trump’s Executive Order 14230 punishing the Perkins Coie law firm for representing Democrats and promoting diversity is unconstitutional in multiple ways.
In the Order, Trump sought to punish Perkins Coie for its representation of Hillary Clinton in 2016, its successful defense to many of Trump’s challenges to the 2020 election, and its actions in support of diversity. This year, Perkins Coie secured a preliminary injunction enjoining Trump’s order banning transgender people from serving in the military.
The Order also criticized, inaccurately according to Judge Howell, Perkins Coie for racial discrimination or DEI practices.
In the Order, Trump sought to cripple Perkins Coie’s representation of clients dealing with the federal government. It also prevented the firm from representing any clients in federal courts by banning its employees from entering federal buildings, which appeared to include federal courthouses.
The Order also revoked the security clearances of all Perkins Coie employees, “from its partners to its associate attorneys, secretaries, and mailroom attendants,” as Judge Howell puts it.
Perkins Coie was significantly damaged by the Order. Judge Howell accepted the firm’s assertion that all its top fifteen clients by revenue, representing almost a quarter of the firm’s revenue, and many of its other large clients compete for and have federal contracts.
On the day the Order was issued, a seven-year client ended the firm’s representation in litigation before federal agencies. Another client, for whom Perkins Coie had performed substantial work totaling over $1 million in fees, hired another law firm when Perkins Coie lawyers were barred from a meeting with federal officials. The opinion mentions six other clients who fired Perkins Coie because of the Order.
Judge Howell had no difficulty finding that the Order was issued in retaliation for the firm’s constitutionally protected practices. After all, the Order explicitly says so. It lists the firm’s supposed transgressions and describes them as “dishonest and dangerous activity” that is “a serious violation of the public trust.”
Of course, since 2016, Trump has relentlessly attacked the firm in speeches and online. For example, Judge Howell noted that on September 6, 2023, Trump posted on Truth Social that Perkins Coie “spied on my Campaign, Impeached me twice, had the Russia, Russia Hoax, the Fake Dossier Hoax, FISA Fraud, Election Fraud, the ‘No Collusion’ Mueller Hoax, and so much more. I was innocent on all counts. If I am elected, they will be brought to JUSTICE, something that Republicans have always been afraid to do.” [sic]
The government didn’t really attempt to refute the retaliatory nature of the Order. Instead, it questioned a court’s power to intervene and raised technical defenses such as standing and ripeness. It also sought to minimize the harmful effect of the Order. Judge Howell systematically discussed and rejected each of these defenses.
On the merits, Judge Howell emphatically found that the Order unconstitutionally punished Perkins Coie for expression of a viewpoint with which Trump disagreed, a clear violation of the First Amendment. The government may not “use the power of the State to punish or suppress disfavored expression.”
The bottom line for Judge Howell is that “punishing or denying a benefit to an individual on the basis of constitutionally protected speech or associations violates the Constitution.” Since the Order punished Perkins Coie for advocacy on behalf of its clients and for protected speech in favor of diversity, it cannot stand.
Factually, because most of the DEI discrimination accusations in the Order were shown to be false, the diversity accusation came down to the firm’s adoption of the “Mansfield Rule,” under which over 360 law firms have certified that “women, lawyers of color, LGBTQ+ lawyers and lawyers with disabilities comprise at least 30 percent of the candidate pool for significant leadership roles, senior lateral openings and promotions.”
Judge Howell pointed out that “the Mansfield Rule expressly does not establish any hiring quotas or other illegally discriminatory practices, requiring only that participating law firms consider attorneys from diverse backgrounds for certain positions.” She recounts that at oral argument, even the government attorney acknowledged that, “maybe isn’t so problematic.”
Thus, Judge Howell found, “the true motivation lurking behind the façade of discrimination allegations” is “the administration’s disapproval of plaintiff’s speech in favor of diversity.” In other words, exactly the kind of governmental viewpoint discrimination barred by the First Amendment.
Judge Howell found that the Order also violated other constitutional provisions, including the right of association of Perkins Coie and its clients, Perkins Coie’s right of equal protection (because there was no legal reason to treat it differently than other law firms), and Perkins Coie’s right to due process before being sanctioned. Judge Howell pointed out that “…deciding what process was due to plaintiff is unnecessary, because no process was provided.”
Perkins Coie’s clients’ Fifth and Sixth Amendment right to counsel of their choice was also unconstitutionally violated.
As a final reason for invalidation, the Order is impermissibly vague, which also violates the Fifth Amendment’s Process clause, because it “fails to provide adequate notice as to what are prohibited ‘diversity, equity, and inclusion’ policies, but nevertheless directs government agencies to take multiple adverse actions against plaintiff based on this “vaguely defined” term.”
In a footnote Judge Howell took a perhaps ill-advised swipe at the firms that made deals with Trump rather than going to court. She pointed out that while the concession route may be appealing, “some clients may harbor reservations about the implications of such deals for the vigorous and zealous representation to which they are entitled from ethically responsible counsel ….”
This decision, which granted summary judgement, is final and sends the case off to the Court of Appeals. Three other firms have challenged similar executive orders and have obtained temporary injunctions or temporary restraining orders.
Trump cannot use the Alien Enemies Act to “disappear” people. A Trump-appointed federal judge in the Southern District of Texas ruled Thursday that President Trump cannot use the 1798 Alien Enemies Act (AEA) to summarily deport undocumented people he accuses of being members of a Venezuelan gang. Previously, the AEA has been used three times, all during actual wars.
On March 15, 2025, President Trump issued a Proclamation declaring that the Venezuelan gang Tren de Aragua (TdA) was allied with the Venezuelan government to perpetrate, attempt and threaten “an invasion or predatory incursion” against the United States. Under the authority of the AEA, Trump declared that TdA members who are not naturalized or lawful permanent residents could be “apprehended, restrained, secured, and removed as Alien Enemies.”
However, Judge Fernando Rodriguez, Jr. held that although Trump had declared that an invasion or predatory incursion had occurred, he had not provided facts to support that assertion, so he could not invoke the AEA. Examining sources from the time of the AEA’s adoption and court decisions using those terms and concluded that ‘invasion’ in AEA meant “an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory.”
Similarly, a “predatory incursion” meant “a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory.”
Although the President is empowered to decide whether an invasion or predatory incursion has occurred, Trump’s declaration did not state facts supporting that conclusion. Therefore, his invocation of the AEA was invalid.
This was the first court decision squarely holding that Trump could not invoke the AEA to deport alleged TdA members. Several other judges had issued temporary restraining orders or preliminary injunctions based on a finding that Trump’s use of the AEA probably was improper.
This decision, which applies to the named plaintiff and a class of those against whom the AEA might be used, is only valid in the Southern District of Texas (Houston), where there are several ICE jails. When a judge in the Northern District of Texas (Dallas) refused to issue a temporary restraining order against AEA deportations, the Supreme Court issued a 7-2, 1 a.m. order blocking AEA removals while the courts are considering the issues. A judge in the Western District of Texas also blocked use of the AEA and scoffed at the evidence the government used to contend that a couple were TdA members.
This piecemeal approach is necessary because in an earlier appeal from Judge Boasberg’s first order, the Supreme Court said that potential deportees were required to each seek habeas corpus relief in the district where they were detained. It remains to be seen if the district-wide class declared by Judge Rodriguez complies with the Supreme Court’s persnickety concept of the appropriate procedure.
Because he held the use of the AEA is improper, he did not reach questions such as notice, due process or the propriety of transportation to the notorious CECOT prison in El Salvador.
Judge Rodriguez attended Yale Law School and is a member of the notoriously conservative Federalist society. Somewhat unusually for a Trump nominee, in addition to a clerkship with a conservative judge and eleven years of practice with a 775 lawyer Houston firm, he joined the evangelical International Justice Mission for which he worked against child sexual assault and human trafficking in Bolivia and the Dominican Republic.
Stephen Kaus is a retired Alameda County Superior Court Judge. He is a co-signer on a “friend of the court” brief in the Perkins Coie case being filed on behalf of a large national group of retired judges. @stephenkaus on X. @stephenkaus.bsky.social on Bluesky.
