Wisconsin Involved in 7 Lawsuits Against Trump Administration

Attorney General Josh Kaul at Governor Tony Evers’ first State of the State address in Madison, Wisconsin, at the State Capitol building on Jan. 22, 2019. Photo by Emily Hamer/Wisconsin Center for Investigative Journalism. (CC BY-ND 2.0)

Two months into Trump’s second presidency, there are more than 130 lawsuits against the administration.

Wisconsin is part of seven of them, according to the state Department of Justice.

The state has joined challenges to the president’s attempts to end birthright citizenship, freeze funding through the Office of Management and Budget, cut research funded by the National Institutes of Health and allow the Department of Government Efficiency, or DOGE, to access Treasury Department data, fire federal probationary workers, end teacher grants, and dismantle the Department of Education.

“So far, I think … we’ve selected wisely where to get involved,” Wisconsin Attorney General Josh Kaul recently told WPR’s “Wisconsin Today.”

Kaul explained how the state Department of Justice is deciding when to challenge the Trump administration.

The following has been edited for clarity and brevity.

Kate Archer Kent: The legal clashes over President Trump’s actions are intensifying. Currently, there are more than 20 lawsuits against DOGE. Can you tell us about what litigation Wisconsin’s DOJ is prioritizing?

Josh Kaul: With any multi-state litigation … I look at basically two issues to determine when to get Wisconsin involved.

One is, is the policy that’s being challenged something that’s harmful to Wisconsinites? And in all of the cases that we’re involved in right now … there are clear harms to people in our state.

And then secondly, is there a strong legal basis for challenging the policy? Is there a basis for us to get into court? Do we have standing because one of the agencies in Wisconsin is harmed? [This] is a necessary condition for us to win these cases.

KAK: There are 23 Democratic attorneys general in this country. Are you all in agreement with how to respond to the Trump administration?

JK: We’ve worked together closely in preparing for the Trump administration, and then as this administration has moved forward. There are some issues that impact one state or issues that impact a different state, but maybe not both. And sometimes we have differences of opinion as to which types of cases to get involved in, or even where to file cases.

With birthright citizenship, for example, there are two separate cases going on involving [states]. There’s one that most of us are involved in, but then there’s a second one in a different state. But what we are all committed to, I’m confident, is working together to protect the rule of law and our Constitution and the best interests of the people of our state.

KAK: State attorneys general brought a case against President Trump and Treasury Secretary Scott Bessent challenging DOGE access to Treasury Department records. What are you arguing in this case?

JK: The basic argument is that when policies are adopted, there’s federal law that requires … they be adopted in a particular way. In that case, we argued they didn’t. And we want a preliminary injunction, an order from the judge that prevents DOGE, at least for the time being, from accessing sensitive Treasury data.

In a lot of these other cases, there are potential violations of the Constitution at issue [or] violations of law, as well. And we’re also concerned about the privacy harms that come from allowing people who haven’t even gone through the basic security training — though they’re now working to address that — but allowing them access to some of the most sensitive data that people have, and also data that could cause major catastrophe for our economy if it were to be disrupted somehow or corrupted.

KAK: Are the actions of DOGE in Treasury records rising to the level of a data breach or a cybersecurity breach?

JK: A lot of people who are experts in this area have commented about how the access that DOGE has gotten to … data throughout the government would in a lot of contexts be considered a massive data breach and a data security issue that’s really unrivaled.

That’s part of what’s so dangerous here about what the Trump administration is doing. They’re allowing people who seem to only have been vetted by Elon Musk …  unfettered access to review data, potentially to make changes. And there’s been a lot of secrecy around what DOGE is doing. To this day, we don’t know precisely what’s happening with DOGE, what it’s doing with the information that it’s getting.

KAK: Is the Privacy Act of 1974, which is meant to protect people’s data from government overreach, a particular piece of law that the multistate litigation is considering in its argument?

JK: We’ve raised a variety of legal arguments.

One of the really troubling things we’ve seen from the Trump administration in a number of cases is the argument that when they are executing the laws that they’re basically constitutionally entitled to ignore what Congress has done. They’re asserting sweeping power under Article 2 of the Constitution, which is the article that gives power to the president. What they’re suggesting would basically make numerous acts of Congress pointless. So this is a massive power grab from the president that we’re seeing with respect to Article 2.

The other thing we’re seeing that’s very concerning is disregard for court orders, at least in public statements from the Trump administration. We have three branches of the federal government. We’ve got the executive, Congress and the courts. We’ve already got the Trump administration ignoring Congress. If it starts ignoring the courts, that’s a massive constitutional crisis. We’re already in really uncharted territories, but this is really troubling rhetoric we’re hearing.

KAK: There might not be clear agreement about when the U.S. actually enters a constitutional crisis. What are your thoughts on this? 

JK: I think that the foundations of our Constitution and our democracy are clearly being tested by the Trump administration in a variety of different ways.

We’re seeing that through disregard of acts of Congress. When the U.S. Supreme Court concluded that the president had the sweeping immunity for official acts, it helped set us on this very dangerous course, and the Trump administration is really using that … immunity to take all sorts of actions that would have been considered clearly out of bounds previously. We’ve got a Congress that so far has done very little to push back against the Trump administration. And then we’re seeing the administration also weaponize the justice system.

So for those of us who care deeply about the Constitution and the rule of law, we are facing a major challenge right now.

The good news is …  so far, we’ve been extremely successful in the court cases we’ve filed. In most of the cases we’ve filed, we’ve received temporary restraining orders or preliminary injunctions that have blocked the Trump administration from taking the actions that it sought to. Having the courts hold the line on protecting people’s rights and our constitutional system is really critical. So far, it’s been highly successful, but it’s critical that that continues.

KAK: Let’s turn to lawsuits regarding the firing of federal employees. Wisconsin had about 3,000 probationary federal employees who have been in their jobs between one and two years. How are Wisconsinites affected by these firings, and what is the involvement of our DOJ in this litigation? 

JK: What the Trump administration has done here is similar to what we’ve been talking about in these other contexts. There’s a process in place for reductions in force, efforts to downsize federal employment. But, among other things, that requires 60 days notice. And what the Trump administration did was they simply ignored those laws, and they just decided to lay people off without the notice required. They’re also required to give notice to the states, which they didn’t do. So we brought this action to ensure that they are following federal law.

But it’s a pattern of lawlessness that we’re seeing with the Trump administration, and that’s part of the reason we keep winning these cases. I’d love to tell you it’s because we’re all such brilliant lawyers. And while I think we’re making strong arguments, the reality is that we keep winning in these cases against very difficult standards. It’s not easy to get a preliminary order, but we’re winning because the Trump administration is consistently, flagrantly violating the law. That’s what happened with these probationary employees, and we very quickly got an order requiring that those employees be reinstated and that the effort to fire those probationary employees stop.

KAK: With Democratic attorneys general like yourself working on these high-level cases involving the Trump administration, does that leave you time and ability to work on cases like the opioid settlement, for instance, or other litigation that perhaps gets sidelined in this moment?

JK: Certainly we would rather not be using resources … to ensure that the federal government is following the law. We would rather be using all those resources on our other priorities.

But at the same time, we’ve got to put our resources where they can have the biggest impact, and so we don’t get involved in cases challenging the federal government unless we feel like those two standards are met that I mentioned before.

We’ve also benefited from working collaboratively with other states around the country, some of which have far more resources in their AG offices than ours does. But nevertheless, it’s always my hope that the federal government works consistently with the law and that we can find common ground.

KAK: As we talk about DOGE, here in Wisconsin, Republican lawmakers are creating a committee similar to DOGE called Government Operations Accountability and Transparency, or GOAT committee. What do you make of the Assembly committee looking into efficiencies here in Wisconsin? 

JK: I think what happens here in Wisconsin remains to be seen. We are all committed to making sure that our government is working efficiently and that taxpayer dollars are being used wisely. We take a lot of pride in doing that here at DOJ. Making sure that there’s transparency for the public into the operations of government, I think is a great goal.

What I hope we don’t see, and I’m optimistic we won’t, is the kind of thing we’ve seen with Elon Musk, where the committee works in a way that is not at all transparent, where they are having unfettered access into agencies, and where they are making rash decisions without any input from from the people who would be impacted, or in some cases, even much understanding of what they’re doing. I don’t think we’re going to see that in Wisconsin.

Listen to the WPR report

Wisconsin involved in 7 lawsuits against the Trump administration was originally published by Wisconsin Public Radio.