Judge AliKhan Didn’t Halt Trump’s Funding Freeze Alone, Democracy Forward Did Too

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Update: As Marisa Kabas and others have reported, OMB has rescinded the memo. Those involved here won this round.

Yesterday, just minutes after Trump’s freeze on a great deal of federal funding was about to go into effect, Judge Loren AliKhan ordered a temporary stay of Trump’s order — through Monday at 5PM — to consider a request for an emergency Temporary Restraining Order submitted in a challenge to the order. Here’s Judge AliKhan’s order halting Trump’s effort to steal money Congress ordered him to spend.

The Court orders an administrative stay through 5PM on February 3rd to maintain the status quo and allow for full consideration of Plaintiffs’ request for a temporary restraining order.

Here’s the CourtListener docket.

Because there’s a great deal of doomerism, because a lot of people spent yesterday wailing, “Why doesn’t anyone do anything,” I think it crucially important to lay out who did what, so people can understand the agency involved.

The plaintiffs in the lawsuit are, as described in the complaint, are:

National Council of Nonprofits (“NCN”) is the largest network of nonprofit organizations in North America, with more than 30,000 organizational members. National Council of Nonprofits (“NCN”) supports nonprofits in advancing their missions by identifying emerging trends, sharing proven practices, and promoting solutions that benefit charitable nonprofits and the communities they serve. (Here’s a flyer they did Monday on the impact of Trump’s Executive Orders and here is their core values page.) To the extent that journalists are giving credit (they’re not, except to Judge AliKhan), NCN will be the named plaintiff.

American Public Health Association (“APHA”) is a nonpartisan, non-profit organization that champions the health of all people and all communities; strengthens the profession of public health; shares the latest research and information; promotes best practices; and advocates for public health issues and policies grounded in scientific research. APHA represents more than 23,000 individual members, who reside in all 50 states, the District of Columbia, and Puerto Rico, and also has 52 state and regional affiliates. APHA is the only organization that combines a 150-year perspective, a broad-based member community, and the ability to influence federal policy to improve the public’s health. (Here’s their about page.)

Main Street Alliance (“MSA”) is a national network of small businesses, which represents approximately 30,000 small businesses across the United States. MSA helps small business owners realize their full potential as leaders for a just future that prioritizes good jobs, equity, and community through organizing, research, and policy advocacy on behalf of small businesses. MSA also seeks to amplify the voices of its small business membership by sharing their experiences with the aim of creating an economy where all small business owners have an equal opportunity to succeed. MSA’s small business members compete for and receive various forms of what is broadly defined as “federal financial assistance,” including funding in the form of grants, loans, and loan guarantees. Members also benefit directly from other recipients of federal financial assistance being able to purchase goods and services from them as a result of federal programs. (Here’s their about page.)

SAGE is a New York nonprofit corporation. SAGE is dedicated to improving the lives of lesbian, gay, bisexual, and transgender adults.

Note, I’ve lifted this language directly from the complaint, which emphasizes that this battle pits an organization that tries to help non-profits work effectively and another that supports public health professionals, along with a number of small businesses. There’s an LGBTQ group in there, which (along with some services provided by the APHA) supports a First Amendment challenge to the way the OMB member specifically targeted “transgenderism.”

The Memo purports to pause all disbursements through federal financial assistance programs pending a “review” to determine whether they are “consistent with the President’s policies” as expressed in several executive orders, such as one announcing that “[f]ederal funds shall not be used to promote gender ideology.” The Memo further indicates that the review should identify recipients of federal funding that “advance Marxist equity, transgenderism, and green new deal social engineering policies.”

But even the lawsuit also focuses main street stuff, like keeping small businesses afloat. This group of plaintiffs were presumably chosen to represent both interests that matter to right wingers, but also interests that have a specific complaint based on the way OMB wrote its memo (particularly its focus on Trans people).

Importantly, these groups have legal standing (because they get federal grants); members of Congress do not, which is one of several reasons why civil society is leading this fight. Here’s how the complaint describes NCN’s injuries arising from the halt in funding.

Many of NCN’s members rely on federal grants and financial assistance to serve their missions, from supporting research and services to those with cancer and other serious diseases, to assisting people in escaping domestic violence, to providing mental health care and suicide hotlines. Federal grants and financial assistance are the lifeblood of operations and programs for many of these nonprofits, and even a short pause in funding—which, for many NCN members, is already in the pipeline—could deprive people and communities of their life-saving services. Nonprofits often make budget decisions two to five years in advance, and they make business decisions based on expected cash inflow just as any for-profit enterprise would: making staffing decisions, setting organizational priorities, providing essential services and programs, and identifying and working towards fundraising goals. They rely on federal funds to fund entire programs, including salaries. Halting this funding would lead to pauses of important community programs, food and safety assistance, and lifesaving research, among other things: even a short pause could be devastating, decimating organizations, costing lives, and leaving neighbors without the services they need.

Finally, the real agency here: The suit was filed by Democracy Forward, which is in the business of litigating on issues like this. Here’s their client list. In other words, this is a lawsuit brought by a legal organization that found plaintiffs who’ll well represent the harm that cutting of federal funding will do to America, and do so in ways that personify what this attack is about.

Democracy Forward is part of a group, Democracy 2025, formed last year to challenge Trump’s assault on democracy.

So the plaintiffs are here because they have standing and because they’ll be able to tell compelling stories about the injury they’ve suffered. Democracy Forward will be doing the heavy lifting of fighting this legally.

One reason I’m making this point is to emphasize the import of civil society, including groups that have been preparing for these legal challenges for months. As I and others have pointed out, the battle over fascism often centers on the battle over pre-existing networks of civil society, networks that often are not themselves political.

And sustain or build your networks. Not just your political networks, the folks with whom you’ve worked to try to elect Kamala Harris or restore reproductive rights. But your other networks, too. Sometimes, after fascists break political networks, it’s the choirs or the knitting clubs where civic discourse can regrow.

The very first thing authoritarians try to break are the networks of civil society, because isolated people are easier to terrify. So make sure yours are as strong as they can be before the wrecking crew comes.

Here, civil society stood up, asserted its membership in a society linking small businesses in rural communities to aging LGBTQ people, and succeeded, for now, in pausing Trump’s attack on parts of civil society that Russ Vought and Acting OMB Director Matthew Vaeth are attacking.

In those moments you’re feeling particularly helpless, you might focus your energy on shoring up the strength of civil society within your own local community, even if it’s no more than the knitting club.

It is likely auspicious that Judge AliKhan — a recent Biden appointee who worked for years as an Attorney for District of Columbia — was randomly assigned to the case. But all she has done, so far, is preserve the status quo. The NGOs, from the service providers to the lawyers, are the people who scrambled to prevent the implementation of the order last night at 5PM.

One more point about agency. The lawsuit cites to the copy of the memo published by WaPo in its story on the halt. But as WaPo credited, it was not the first to report on the memo; independent journalist Marisa Kabas first posted it on Bluesky.

Things are definitely dire. But there are people — from journalists to NGOs to lawyers — who are doing their jobs to push back against Trump’s authoritarian attack. And it’s important to see that NGO networks are one of the most important bulwarks against such authoritarian attacks.

56 replies
  1. Golden Bough says:

    Not sure if this is reason for concern, but all of the NCN links are dead (at least through the Safari browser – “Safari can’t open the page because the server can’t be found.”).

    All the other org’s links are active.

    Reply
  2. Bugboy321 says:

    As a public health professional, I am greatly encouraged to see APHA participating. We’re already wondering how we’re going to do our jobs without communications with CDC and WHO, I hope there is a case against that soon.

    Reply
    • funnydiva says:

      Amen, Bugboy.
      The implications of Trump’s gag order on federal public health agencies are truly terrifying. Even if “temporary”. [Blue] states with good public health data collection can only pick up a little of the slack.
      I feel very sad for the career folks at those agencies–I wholeheartedly believe that they really care about public health and about doing their jobs, so this has got to hurt.

      Reply
      • Bugboy321 says:

        I know a few people in the Colorado CDC, one of them has been there for years and used to work at the Florida Medical Entomology Laboratory. She’s high enough up the food chain to expect a lot of attention, but I’m hoping since she is in mosquito control, they won’t “fire” her.

        Ironically, another one I know just took a job at CDC in December, was from Polk County where that idiot “constitutional” sheriff is, and was crowing about how much she liked how big of an idiot he is. I don’t feel too bad for her…

        Reply
  3. wa_rickf says:

    Great write-up Marcy and thank you for taking the time to explain who brought this court challenge. Your post is very informative and I doubt I would have learned as much from MSM on this topic, as I did from you. Kudos!

    (As an aside, whenever I talk to people about topics like this, they are amazed by the depth of knowledge I have about a topic – and its thanks to you most of the time. I point others to Emptywheel if they are truly interested in learning for themselves).

    Reply
    • PeteT0323 says:

      I suppose House Dems – could – introduce the first Trump Second term Articles of Impeachment.

      It (probably) would not get far, but may cause any spineless Rs – I know that could be all of them) – to at least pause and think for a moment.

      Reply
      • dopefish says:

        If the U.S. survives the next 2 years and Democrats win the midterms, they ought to immediately impeach Trump again, because Trump has flagrantly violated his Oath to the Constitution to take care that the laws be faithfully extecuted.

        Refusing to enforce the TikTok ban, threatening allied nations, illegal purge of Inspectors-General, pardoning hundreds of violent insurrectionists, illegal spending freezes, constructive dismissal of federal workers, and more… the first 10 days have been a blizzard of lawless actions by a president who thinks he should be king.

        Reply
  8. phred says:

    Thanks so much for this post EW, I really appreciate it! As you say, this is not getting covered properly in the major outlets.

    The other thing I have been wondering about is the role of university lawyers (as well as agency lawyers), because fundamentally what OPM is up to has to be violating contract law every which way. There is a lot of paperwork behind every grant that covers every detail of federal funding. I would assume one party can’t simply waltz in and pretend those binding agreements don’t exist.

    One imagines there must be contract lawyers burning the midnight oil to see what can be done to enforce their contracts, but this is not my area of expertise, so perhaps I’m all wrong about this.

    Just hoping some of the lawyers who hang out here might chime in on what’s likely happening behind the scenes that we are not hearing about…

    Reply
    • Benoit Roux says:

      The response from top universities to this this vague and problematic (probably unlawful) Memorandum from the Trump administration has not been particularly vigorous. While some administrations have advised their faculty to continue charging grants as usual, others have self-imposed a freeze, in a way over-complying in advance without fighting or even protesting or questioning the action of the Trump administration.

      This is unprecedented. Even government shutdowns never cause this in the past. One has to realize that most the research personnel of most Medical Schools in the country have the larger part of their salaries paid by NIH grants. Graduate students are paid from grants too. Freezing, even for a 2 weeks is enormously disruptive. Freezing this for a few months would annihilate biomedical research in the US for years to come.

      Reply
  9. Amicus12 says:

    It’s impressive that this was done on such short notice. But I scrolled through the complaint and the memo in support of the temporary restraining order and they do not cite to the Impoundment Control Act. Now, it may not be an available cause of action, but it certainly seems relevant to the argument that OMB does not have the authority to halt appropriated funds.

    Reply
      • Amicus12 says:

        What I am suggesting seems relatively straightforward.

        Plaintiffs have an Administrative Procedure Act claim. In support of that claim, they allege that what OMB did is illegal because it lacks the statutory authority to impound appropriated funds. Agencies are creatures of statute, and have only the powers Congress has given them. Plaintiffs go through the statutory grants of authority to OMB and argue that nowhere has Congress granted OMB authority to stop (or delay) the disbursement of appropriated funds.

        That argument is all to the good.

        But a bolstering argument is that we know Congress did not give such authority to OMB because Congress denied that authority to the Executive pursuant to the Impoundment Control Act of 1974.

        It’s early days yet. I suspect this will come up in some fashion or another.

        Reply
    • Boycurry says:

      That is for Congress to fight. I called my representative’s office yesterday (first time ever) and asked what she and the Democratic Party intended to do about this blatant power grab and the person I spoke with said they were looking into it. Let your representatives know you are watching and expecting some kind of response – any response.

      Reply
    • SteveBev says:

      I have a couple of thoughts about pleading the ICA, which are obviously subject to correction by litigators versed in the topic and relevant procedures, which I am not, so these following are questions more that explanations

      Might the answer to the issue of whether, who and how the issue of the ICA might arise be a question of litigation and pleading strategy?

      —the ICA is the only legal way that a President may impound appropriated funds

      — What’s more, the ICA specifically exempts certain appropriated funds from even the ICA’s impoundment procedure—those that are “required” or “mandated” to be spent by the relevant statute (so if pleaded as part of a claim might complicate standing issues unnecessarily )

      — Defendants memo only nebulously refers to any legal justification for their temporary freeze as being only “to the extent permissible” by law, without further specification.

      —Since the President doesn’t purport to rely on ICA isn’t it simpler and cleaner for the plaintiffs not to plead it as part of the foundation of their case , but Plaintiffs can surely note in argument/or in reply to the defence the Defendants’ non-reliance upon and non-compliance with the ICA

      —-the onus is on the Defendants to plead their legal justification, and they cannot rely on ICA, because they don’t even pretend to have complied with it.

      — So the any argument about the ICA can be framed by the Paintiffs in response to whatever the Defendants raise as their defense by way of a reply, and Plaintiffs retain a tactical litigation advantage without the problems

      Reply
  10. Attygmgm says:

    Many thanks for this post.

    The OMB memo which underlies this suit seems a slim reed for the Executive’s legal arguments, as it refers only to funding priorities of the President, with no mention of funding priorities of Congress. Congressional funding priorities should be controlling.

    Let’s hope that when the Supreme Court gets these appeals they will choose to reaffirm Congress’s Article I powers rather than erase them, and sustain rather than end our experiment in governing through separation of powers.

    Reply
    • John B.*^ says:

      Let’s hope, but who the hell knows? This SCOTUS makes new law based on things that are not in the Constitution and gets rid of pesky things that are in the Constitution. I don’t trust them.

      Reply
  11. Konny_2022 says:

    Thanks for the post and all the comments. It can’t be overstressed that no court, no judge, however friendly towards the rule of law, human rights and the cause of democracy in general can act on themselves alone. It always needs a plaintiff (or many of them) to initiate the proceedings.

    Reply
  12. P J Evans says:

    I suspect a lot of people have just learned how much their local businesses depend on federal funding. Also they’re learning why there are laws and regulations that require hearings before making massive changes – not doing it on “day 1” with EOs that are poorly written.

    Reply
  13. The Old Redneck says:

    Intuitively, it seems any recipient of blocked spending would have standing under the ICA. But I think its omission here was about strategy. If standing under the ICA is unsettled and isn’t a clean argument, then you don’t want to include it in a request for an injunction. It complicates things and reduces the chances for ultimate success on the merits.

    For the long run – beyond the injunction stage that is – it would be nice to see courts rule that private plaintiffs have standing under the ICA for situations just like this. That would help prevent rogue presidents from running roughshod over Congressional appropriations.

    Reply
  14. Art Grand says:

    It seems like there’s a corollary here. If I’m choosing which non-profits to support, I’m better off choosing an organization that is doing good work AND that is also putting a case together for why it has standing to sue Trump. That way, my time and my money are doing twice as much good. How do I find these organizations? Thanks

    Reply
  15. Ed Walker says:

    The Founders thought that each branch of government would protect its powers. The power to allocate funds is purely legislative. Theoretically enforcement of the separation of powers is a judicial function, but congress can protect itself directly by impeachment.

    The importance of this is clear. If Congress won’t protect its power, what purpose does it serve? It would just me a money suck, a ceremonial barnacle on the new fascist ship of state, just waiting to be scraped off and sent out for composting.

    Reply
  16. William_S says:

    Just in case you’re interested in all the work efforts ongoing now where it’s no longer speculation, but response to lawless action.

    Here is below another example of many (see Marcy’s OP for the biggest visible one) for an answer to, “Where are the Dems?”.

    It is hard to follow the paper trail when looking for soundbites.

    This 4 page document is worth reading, it’s fire.🔥

    https://democrats-judiciary.house.gov/uploadedfiles/2025-01-28_raskin_connolly_to_mchenry_doj_-_civil_servants.pdf
    [Link replaced: do not use shorteners here.]

    Reply
  17. drhester says:

    From NYT

    Karoline Leavitt, the White House press secretary, emailed the following statement after the retraction of the funding memo:

    “In light of the injunction, OMB has rescinded the memo to end any confusion on federal policy created by the court ruling and the dishonest media coverage. The executive orders issued by the president on funding reviews remain in full force and effect and will be rigorously implemented by all agencies and departments. This action should effectively end the court case and allow the government to focus on enforcing the president’s orders on controlling federal spending. In the coming weeks and months, more executive action will continue to end the egregious waste of federal funding.”

    The head of Democracy Forward, the legal group that persuaded a judge to temporarily stay the freeze order on Tuesday, issued a statement celebrating the order’s demise. “While we hope this will enable millions of people in communities across the country to breathe a sigh of relief, we condemn the Trump-Vance administration’s harmful and callous approach of unleashing chaos and harm on the American people,” said Skye Perryman, Democracy Forward’s chief executive.>/blockquote>

    Reply
    • RealAlexi says:

      What is this? It sounds like the memo’s been rescinded but the EO remains so FU we’re doing it without the paperwork?

      Reply
  18. Sue Romano says:

    Thank you so much for posting this. I’m a Housing Authority Commissioner, and this action caused our portal to our funds for operations to be closed down yesterday at 5. We were just informed by Senator Jack Reed it will be remedied today. I just donated to Democracy Forward thanks to you!

    Reply
  19. Mark Gardiner says:

    Is there any chance the withdrawal is just step to them going to TX federal court for a declaratory judgment supporting their position on impoundment? Getting the issue out of the DC Circuit?

    Reply
  20. chrisanthemama says:

    “This is NOT a rescission of the federal funding freeze,” [Leavitt] wrote on X. “It is simply a rescission of the OMB memo. Why? To end any confusion created by the court’s injunction. The President’s EO’s on federal funding remain in full force and effect, and will be rigorously implemented.” What the hell does that mean? Only the memo was rescinded, not the actual funding freeze itself? WTAF.

    Reply
  21. pdaly says:

    This is not Trump’s first rodeo, so for every poorly executed (and unconstitutional) Executive Order Trump produces I hope the Democrats in Congress and in the states repeat the message that Trump has failed to learn how to govern.
    Repeat the message that Trump is not new on the job making rookie mistakes; he is refusing to preserve, protect and defend the Constitution of the United States.

    If and when the midterms flip the House and Senate, let Trump receive his 3rd impeachment.

    Reply
    • funnydiva says:

      I agree.

      I plan to keep calling to make this point to my congressional contingent (all solid Dems).
      It can’t hurt to message this directly to _them_ on a regular basis. They have (or should have) influence with the Democratic Party as a whole, they need to be reminded to use it until they’re tired of it!

      Reply
        • funnydiva says:

          So far,
          “Thank you, I’ll pass your comments on to the senator”
          I’ve been calling their local offices because an actual person usually answers.

          Should I do something different to get a more detailed response?

          I did get a response to an email regarding support to Ukraine the last time it was held hostage. The boilerplate response was more than a year out of date, so…

  22. AndreLgreco says:

    Perhaps this illustrates Carville’s advice to “just let Trump punch himself out”. Ham-handed and confusing edicts not only piss off the wrong people, but also undermine the ‘logic’ of Trumpism. Of course, they’ll put this on Stephen Miller who will crawl into the nearest hole, out of sight until the smoke clears and the next opportunity arises.

    Reply
    • funnydiva says:

      How exactly does this “illustrate” such do-nothing advice?

      The memo was NOT rescinded because everyone just “let” Trump fail.
      Did you not read the OP?
      MANY, MANY people prepared and then acted to OPPOSE him.
      What are [expletives deleted] like Carville actually DOING to at least support _their_ efforts?
      When was the last time any of his advice was of any practical use?

      Reply
  23. drhester says:

    However, Ms. Leavitt just posted that the memo is rescinded but not the President’s EO. Then she says she’s posting it to avoid confusion.

    Reply
  24. vigetnovus says:

    I think the standing issue cannot be overstated.

    The more poorly worded EOs they issue, the larger will be the pool of available plaintiffs. For example, that joke of an EO regarding the definition of male and female sex is ripe for challenge, as it is riddled with factual errors that would give reproductive endocrinology groups standing to challenge and risk having a DC District judge make findings of fact that totally contravene the order.
    Moreover, as we all know by now, findings of fact are typically not subject to appellate review, and are only allowed to be overturned in cases of clear error, meaning Justice Thomas et al can’t save their bacon.

    So I say, keep the poorly written EOs coming! It may be the way we save the republic!

    Reply
  26. pdaly says:

    Forgot to add in my above comment, that I am glad to learn about these important nonprofit groups helping to preserve rule of law. I had not heard before that Congress does not necessarily have standing to make these cases themselves in court–I have thought Congress would merely need to be unified in order to do so.

    In more breaking news of Trump et. al. breaking things:



    Monday this week: 18 y.o. girl pushes her 12 y.o. brother down at home in Lynn, MA over a fight about a cell phone. 
She is arrested by Lynn, MA police but is quickly released later that day by the Lynn, MA District Court judge who allows her to enter into a young adult diversion program. 

    However, ICE apprehends her at the Lynn, MA courthouse lock-up before the girl can speak with the Essex County DA about the diversion program, and ICE subsequently transfers her across state lines to Cumberland County Jail in Maine.



    Apparently this teen, Zeneyda Barrera, was born in Nicaragua but has legal status to work in the US and lives with her mother, brother and step-father in Lynn, MA.




    https://www.masslive.com/news/2025/01/a-lynn-teen-pushed-her-brother-during-a-fight-then-ice-took-her.html



    I can only see the 6pm headline of this article from the Portland Press Herald

 confirming her presence in Maine.
    https://www.pressherald.com/2025/01/29/teenager-detained-by-ice-in-massachusetts-held-at-cumberland-county-jail/

    Reply
  27. P J Evans says:

    Their plan to shut down TSA may have just gone down in flames, literally.
    Collision between a commercial flight about to land at Reagan, from Kansas City, and an Army helicpter. The plane’s transponder disappeared 2400 feet from the runway, over the Potomac.
    https://www.sfgate.com/news/article/a-small-aircraft-is-down-near-washington-s-reagan-20064703.php

    Click to Edit – 
    Reply

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