WHY LAW FIRMS SHOULD SUE THE GOVERNMENT WHEN AN EXECUTIVE ORDER VIOLATES THE CONSTITUTION

 Law firms should sue but not settle with the government when an Executive Order violates the Constitution

Adam Unikowsky

On March 25, 2025, President Trump issued an Executive Order entitled “Addressing Risks from Jenner & Block. ”  Among other things, the Executive Order “limit[s] official access from Federal Government buildings to employees of Jenner,” “limit[s] Government employees acting in their official capacity from engaging with Jenner employees,” and “require[s] Government contractors to disclose any business they do with Jenner and whether that business is related to the subject of the Government contract.”

On March 28, 2025, Jenner & Block sued the government in the U.S. District Court for the District of Columbia. That same day, the District Court granted Jenner’s motion for a temporary restraining order. As such, the bulk of the Executive Order is currently not being enforced because three federal judges have found that these Executive Orders violate the Constitution.

In his newsletter of April 9, Adam Unikowsky, a partner in Jenner & Block, argues that Donald Trump’s Executive Orders are unconstitutional. “They violate the First Amendment right of lawyers and their clients to speak, petition, and associate. They are also designed to discourage lawyers from representing unpopular clients—even clients with meritorious cases—and in so doing, they profoundly distort the judicial system. If anyone should be standing on principle and attempting to vindicate the rule of law, it is our nation’s lawyers.”

In this blog I want to walk you through Unikowsky’s argument for the conclusion that “the Executive Order violates the First Amendment in several ways, and it even distorts the judicial system itself.”

The Executive Order violates the First Amendment

First, “the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.”  Jenner engaged in protected speech when they advocated on behalf of immigrants and transgender persons. Jenner is being punished for speaking.

Second, Unikowsky points out that “the First Amendment’s Petition Clause separately protects the right to petition the government for redress of grievances, including the filing of lawsuits.”  It is irrelevant that the government may be aggrieved by some of these lawsuits, even when they are filed for political ends.

Third, “the First Amendment also prohibits the government from discriminating on the basis of viewpoint.”  If a law firm has a viewpoint about immigration that is different from the government’s viewpoint, then merely having a different view is not sufficient to punish the law firm.

Fourth, The Executive Order further “require[s] Government contractors to disclose any business they do with Jenner and whether that business is related to the subject of the Government contract.”  This is a violation of the First Amendment’s right to association. The Executive Order compels contractors to disclose their association with their chosen counsel as a means of deterring contractors from retaining that counsel. That compelled disclosure deters contractors’ exercise of their right to freely associate.

The Executive Order violates the Fifth and Fourteenth Amendment

Fifth, the Executive Order also violates the Due Process rights of both Jenner and its clients. It violates the Due Process rights of the law firm by not requiring the government to provide notice and a hearing before it imposes punishment. Instead, the Executive Order was “issued based on the President’s unilateral decision that Jenner had done something wrong.”  This takes us back to the unilateral decisions of a 16^th century monarch.

The clients of attorneys also lose their Due Process rights by taking away the attorneys’ rights to obtain zealous legal representation. The law firm cannot represent its clients in dealings with the government “when there is an Executive Order that bans Jenner lawyers from government buildings and that bans government officials from speaking to us.”  It is as if those who wrote the Executive Order had never read the due process clause of the Fifth and Fourteenth Amendments to the Constitution. 

Settling with the government

Four law firms who had also been victims of the Executive Order did not respond by suing the government. Instead, they settled a deal with the President by persuading him to withdraw the Executive Order if they “dedicate the equivalent of $40 million in pro bono legal services” to “support the Administration’s initiatives” on “mutually agreed projects.” Since then, three other law firms have joined the settlement “by agreeing to undertake $100 million in pro bono work on causes supported by the President.”

These law firms should be ashamed of what they have agreed to do. Surely, they know that the Executive Order is unconstitutional. But they have pushed the Constitution aside despite the fact that they took an oath to defend it when they joined the Bar. Instead, they bowed to the king and made a deal to do whatever will make him happy.  President Trump gets his so-called “causes” supported and the law firms avoid the threats of the Executive Order.

Unikowsky has this to say: “Settling with the government not only reflects capitulation to unconstitutional government coercion, but also irrevocably compromises a law firm’s ability to defend its clients… The theory behind settling is that what clients really want is a law firm that folds in the face of unconstitutional coercion, to get into the government’s good graces, rather than a firm that stands up for its right to remain independent from the government. Law firms should have more faith in the people they represent than that.”

The conclusion: Law firms should sue not settle with the government when it has violated the Constitution

CHILDREN'S RIGHTS, STATE INTERVENTION, MARRIAGE, CUSTODY AND DIVORCE

Hot off the press and hoping that the book will not be "stillborn." You can help.  Buy an eBook or paperback copy now at Amazon.

https://www.amazon.com/dp/B0F2ZWRDSW

 

By the end of the 20th century there had been a veritable deluge of philosophical essays and books about children’s rights, adultery, family violence, the ethics of divorce, the limits of state intervention in the family, gay marriage, filial duties, and the right to have and raise children. There is now a substantial body of writing on these and other related topics for interested readers and scholars.

While sorting through the past 45 years of my own research and writing about family law and family ethics, I discovered that most of it fits into one of four thematic areas: children’s rights under the United States Constitution, issues in state intervention in family life, the resolution of parental disputes involving custody, and problems arising from the theory and application of family ethics. Many of my articles have appeared in diverse, out of print or otherwise hard to obtain philosophical and law journals, anthologies, or were delivered as unpublished conference papers. Hence, I thought that it would be of interest and perhaps useful to scholars of family law and ethics to bring these together into a single volume.
Chapters 1 - 3 are about the status of children in United States constitutional law, raising questions about the consistency of U.S. Supreme Court decisions in cases involving children.
Chapters 4 - 6 are about the debate over the distinction between the public and the private as this pertains to the problem of state intervention in the family.
Chapters 7 - 9 are about the ethical issues that arise in making policy decisions regarding the proper resolution of disputes over the custody of children when parents divorce.
Chapters 10 - 12 shift from questions about family law to questions about the ethics of family relationships.

In the Afterword section of the book I have made a list of the most important federal and state statutes that were passed by legislators in the first quarter of the twenty first century (2000 - 2025), and the most important decisions made by state and federal courts, including the U.S. Supreme Court.

 

 

 

LEVIATHAN: THOMAS HOBBES ON THE ORIGIN OF CIVIL SOCIETY

THOMAS HOBBES 1588 - 1679

 

LEVIATHAN: THOMAS HOBBES ON THE ORIGIN OF CIVIL SOCIETY

 from Understanding Thomas Hobbes: The Smart Student's Guide to Leviathan

Whenever you see or hear the word 'origin' you must be careful not to confuse it with the word 'meaning'.  A theory about the origin of civil society is not the same as a theory about the meaning of 'civil society'.  Origin theories are empirical, requiring observation, experience and experiment.  Theories about meaning are analytic, requiring conceptual analysis.  But meaning comes first.  If you have no understanding of the meaning of the concept, then will not know what to observe, experience or experiment. 

What does 'civil society' mean?   What does 'civil' mean?  Is there such a thing as a non-civil society?   Hobbes answers the third question affirmatively when he says that a non-civil society is a group of people who have 'joined together' or are simply 'a multitude of men.'  When the word 'civil' is added to 'society' then the multitude have joined together by forming political authority, the exercise of legitimate influence by one social actor over another.    

The laws of nature are but empty words

“Covenants without the sword are but words and of no strength to secure a man at all.”

Example: Cicero and Julius have entered into a mutual covenant not to kill or steal from one another. This does not guarantee them protection against injury, death or theft if “there is no power erected, or not great enough” for their own security.  Laws of nature (e.g., “Do not do unto others as you would not be done to”) are empty threats because the behavior they prohibit is “contrary to our natural passions that carry us to partiality, pride, revenge and the like.”  Without the “terror of some power” strong enough to prevent Cicero and Julius from killing one another, the admonition of others to obey the Golden Rule will be ignored when their passions (for example, for revenge) are strong. 

Joining with others is not a solution

“Nor is it the joining together [with others] that gives them this security.”

Joining with small or large numbers of others will not guarantee security.  If Cicero and Julius recruit Maximus, Octavia, Philo, Laurentia, Fortunata and Cato for their security team, a small group of eight might be seen by others as “sufficient to carry the victory.” But this will give others a motive to recruit an opposing team large enough to mount an invasion.

Cicero and Julius might respond to this objection by adding hundreds of people to their small group, giving themselves more defense and protection.  But it is foolish to believe that this will deter a common enemy.  Hobbes predicts that arguments will break out within the group about “the best use and application of their strength.”  These quarrels will “reduce their strength” and make them vulnerable to an easy victory by their opponent.  And even if they have no common enemy, members of large groups will inevitably “make war upon each other for their particular interest.”

Hobbes’ most devastating objection to the “great multitude” proposal is that it assumes the possibility of “peace without subjection.” 

For if we could suppose a great multitude of men to consent to the observation of justice and other laws of nature without a common power to keep them all in awe, we might as well suppose all mankind to do the same; and then there neither would be, nor need to be, any civil government or commonwealth at all, because there would be peace without subjection.

This quote satisfies the 'origin' question.  Civil society has its origin in the realization of the multitude that they must "erect such a common power as may be able to defend them from the invasion of foreigners and the injuries of one another."  Once a large percentage of the multitude comes to realize that they must find and 'erect' a common power that can defend them from invasion and injury and they act on this realization, there is the origin of civil society.

 

EUTHYPHRO: EXAMPLES OF SOCRATIC METHOD, Part 4

 

 

From  Understanding Plato: The Smart Student's Guide to the Socratic Dialogues and the Republic

 

 

 

EUTHYPHRO: EXAMPLES OF SOCRATIC METHOD

 

Part 4 

Piety is not a Skill

After a bit of floundering about, Euthyphro finally hits on another, final definition of piety (D4).  It is “some sort of knowledge of sacrificing and praying” (14c).  The pious person is one who knows how to ask from the gods (prayer) and how to give to them (sacrifice). 

Socrates points out that knowledge of how to give must imply knowing about what the recipient of the gift needs.   This in turn implies that there is some benefit the gods get from the gifts they receive from us.  When Socrates asks, “what could those gifts of ours to the gods possibly be?” Euthyphro replies “honor and reverence and…what’s pleasing to them” (15a).   

 But Socrates points out that this takes us full circle!  For that which is pleasing to them is the same as what is loved by them (R4).  As Socrates puts it “So, once again, it seems, the pious is what’s loved by the gods” (15b), and Euthyphro is back to where he started.  In this case, the elenchus is displayed when Socrates shows Euthyphro that D4 assumes the previously discarded claim in D2 that piety is what all the gods love. 

Socrates now asks Euthyphro “to examine again from the beginning what the pious is,” but Euthyphro has had enough.  “Some other time, Socrates.  You see, I’m in a hurry to get somewhere, and it is time to be off” (15e).