Emerging Developments for Litigators from the Federal Executive, Legislative, and Judicial Branches

• Pages: 10-10
• Date: 01 July 2025
• Published date: 01 July 2025
• Subject Matter: Administrative & Public Law

Published i n Litigation News Volu me 50, Number 4 , Summer 2025. © 2 025 by the Americ an Bar Associa tion. Reprodu ced with permiss ion. All rights r eserved. Thi s information or any p ortion

thereof may not b e copied or dis seminated in a ny form or by any mea ns or stored in a n electroni c database or r etrieval syst em without the ex press writt en consent of th e American B ar Associa tion.

Court Wades into Dispute over Due Process and

Breadth of Presidential Power

Google Dealt Second Blow in Antitrust Suits

U.S. SUP REME COUR T

Constitutional Law

The Court spent the early months of

2025 grappling with emergency mat-

ters testing the bounds of Article II

executive power. The most prominent

showdown came to a head when a

federal judge in Maryland ordered the

government to “facilitate and eectu-

ate the return” of a man removed to El

Salvador—and imprisoned there—due

to what the government termed an

“administrative error.”

The Department of Homeland

Security (DHS) asked the Court to

vacate that order, and the Court

granted part of that relief. The Court

began by holding that the district

court’s order “properly requires the

Government to ‘facilitate’” the man’s

release. But the Court balked at the

term “eectuate” and told the district

court to “clarify its directive, with due

regard for the deference owed to the

Executive Branch in the conduct of

foreign aairs.” The Court’s direction

to DHS was a cautious testing-of-the-

waters: “For its part, the Government

should be prepared to share what it can

concerning the steps it has taken and

the prospect of further steps.” Noem v.

Abrego Garcia, No. 24A949.

Civil Rights

In April 2025, the Court heard oral argu-

ment in a clash between parents and

educators, called Mahmoud v. Taylor. The

case springs from a policy change at a

Maryland school district. After LGBTQ-

inclusive books were woven into school

curricula, the district instituted an “opt

out” policy, with notice given to parents

in advance of lessons involving those

books. The district then reversed course

and struck that policy, citing potential

disruption and stigma.

A parent group sued to enjoin the

district, not to challenge the curricu-

lum, but to argue that the policy change

threatened their religious freedoms and

AND MORE . . . BY C . MICHAEL JU DD, LITIGATION NEWS ASSOCIATE EDITOR

parental rights. Though their arguments

failed in their early stages, at the Court

a majority of justices appear inclined

to direct that the opt-out policy be

restored. Mahmoud v. Taylor, No. 24–297.

Second Amendment

Privately made f‌irearms—often called

“ghost guns”—make policing dicult,

both because ghost guns have no serial

numbers and because they fell outside

the scope of federal gun regulations.

But in 2022, an administrative rule made

ghost guns subject to federal regula-

tion. Gunmakers—both manufacturers

and hobbyists—mounted a facial chal-

lenge to that f‌inal rule. A district court

vacated it, and the Fifth Circuit sus-

tained that ruling.

But in a March 2025 decision, the

Supreme Court reversed, conclud-

ing that the governing statute autho-

rizes the government to regulate

ghost-gun kits as “weapons.” As the

Court explained, “The term ‘weapon’

is an artifact noun—a word for a thing

created by humans.” And because

“everyday speakers sometimes use

artifact nouns to refer to unf‌inished

objects,” like an unf‌inished novel or an

IKEA table, ghost-gun kits qualify as

“weapons” under federal law. Bondi v.

Vanderstok, No. 23–852.

U.S. DEPAR TMENT OF JUS TICE

Antitrust

In 2024, a federal district court ruled

that Google had used exclusive distri-

bution agreements to unlawfully main-

tain its monopoly in certain search and

advertising markets. This spring, in a

separate federal case, the district court

found that Google had unlawfully main-

tained its monopoly in dierent adver-

tising markets, in part through unlawful

product ties. Both cases will now pro-

ceed to a penalties phase, where the

Department of Justice will ask the

courts to take aggressive steps to break

up Google’s monopoly—including a

potential forced sale of some parts of

Google’s business—and to keep Google

from extending its monopoly into other

markets, including A.I. U.S. v. Google

LLC, No. 1:20-cv-3010 (D.D.C.); U.S. v.

Google, No. 1:23-cv-108 (E.D. Va.).

FEDERAL DISTRICT COURTS

First Amendment

Several prominent law f‌irms have

secured preliminary relief enjoining the

enforcement of executive orders target-

ing them. The f‌irms contend that the

executive orders amount to retaliation

for protected First Amendment activity,

including both speech rights and asso-

ciational rights. The f‌irms’ decisions to

f‌ight the orders in court stand in stark

contrast to responses from other tar-

geted f‌irms that opted instead to strike

deals with the administration to escape

those orders. Perkins Coie LLP v. DOJ,

No. 1:25-cv-716 (D.D.C.); Wilmer Cutler

Pickering Hale & Dorr LLP v. Exec.

Oce of the President, No. 1:25-cv-917

(D.D.C).

FEDERAL AGENCIES

Agency Independence

The independence enjoyed by some

federal agencies stems from checks

on the president’s power to remove

agency leaders. Some checks are

now being tested by the removal of

board members at the National Labor

Relations Board and Merit Systems

Protection Board. A 1935 U.S. Supreme

Court case called Humphrey’s Executor

v. United States has long been under-

stood to limit the president’s power to

remove board members at adjudicative

agencies. The Trump administration

is now mounting a direct challenge to

Humphrey’s Executor. In the mean-

time, the removals threaten to leave the

aected agencies without a quorum,

impeding the agencies’ work while the

parties wait for the Court to speak.

Trump v. Wilcox, No. 24A966.

SUMMER 2 025 • VOL. 50 NO. 4

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KEEPING WATCH EMERGING DEV ELOPMENTS FOR LITIGATORS