Fifth Circuit Still Has Path to Hear Big Cases in Trump Era

The Fifth Circuit won’t miss out on all major litigation during the next four years, even as the conservative appeals court is expected to lose its status as a go-to spot to challenge federal policies during Donald Trump’s upcoming presidential term.

The New Orleans-based appeals court heard major federal challenges during the first Trump administration. It struck down the Affordable Care Act in a ruling later overturned by the Supreme Court, and found that the structure of the Federal Housing Finance Agency was unconstitutional.

David Coale, the chair of the Dallas-based firm Lynn Pinker Hurst & Schwegmann’s appellate practice, said he doesn’t expect all major cases to disappear from the Fifth Circuit. He expects the docket will look more like it did before filling up with dozens of cases challenging the Biden administration.

But this time, litigants will face a bench with six Trump appointees who’ve settled into their roles. Some are even considered front-runners for any Supreme Court vacancy under Trump.

“It’ll continue to be a voice,” Coale said of the Fifth Circuit. “It won’t be the exceptionally loud voice that it’s been.”

The court has continued to take up major cases in the waning days of the Biden administration. A three-judge panel in November heard two challenges to the constitutionality of the National Labor Relations Board, but signaled that it’ll rule that plaintiffs Amazon and Elon Musk’s SpaceX moved too fast in taking their cases to the circuit.

Adam White, the executive director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University, said conservative litigants could still use Trump administration actions to file similar cases.

“Obviously, having rules come out of Trump agency actions in a deregulatory direction complicates the calculus for whether to litigate any particular rule or other action, but there’s still going to be challenges to agency constitutionality,” White said.

He said he’d find it difficult to believe that groups behind lawsuits against federal agencies would drop that work for four years. “It’s going to be conservatives challenging the structure of these agencies. And there’s no reason why they would challenge anywhere but the Fifth Circuit,” White said.

The circuit has precedent on those kinds of cases. In the Federal Housing Finance Agency litigation, the Supreme Court agreed that its structure violated the separation of powers, but remanded the case to determine if the shareholders behind the lawsuit would be entitled to any relief. The Fifth Circuit two years later affirmed a trial judge’s decision that they were not.

The circuit in 2022 also ruled that the Securities and Exchange Commission’s use of in-house judges was unconstitutional, a finding upheld by the Supreme Court last June. That decision has opened the door for challenges to the use of administrative law judges at other agencies, including the NLRB.

However, White said that if liberal litigants file suit over the same Trump administration actions in other courts, the Fifth Circuit could lose those cases. When petitions are filed in multiple appeals courts over the same action, they’re subject to a multistate lottery and assigned to a circuit at random.

Coale said that challenges to Texas laws could also be litigated in federal courts. He said that, even if the Trump Justice Department isn’t suing Texas the way the current administration has, outside litigants will certainly still pursue lawsuits.

And the recently changed terms of service to Musk’s X, formerly known as Twitter, mandates that federal litigation against it be filed in the US District Court for the Northern District of Texas, within the Fifth Circuit’s jurisdiction.

Texas is also home to business hubs like Dallas and Houston, meaning there will always be a steady stream of enforcement actions to litigate.

Throw in other regularly filed cases on issues like the First Amendment and religious liberty, Coale said, and the Fifth Circuit will have no shortage of opportunities to weigh in.

“They don’t need to have a lot of cases to really express themselves,” Coale said.