Late last month, federal judges in Washington, D.C., and New York issued temporary restraining orders (TROs) that halted the Trump administration’s dismantling of the Voice of America and its affiliated news networks.
Somewhat counterintuitively, the two U.S. district court judges — one appointed by President Ronald Reagan and the other by President Barack Obama — did not rely on First Amendment protection of free speech or the press, even though the administration’s actions were squarely aimed at media outlets. Instead, the judges provisionally found that the administration had usurped congressional authority and violated a federal statute requiring agencies to offer a reasoned basis for their actions.
The cases were then consolidated in Washington before Judge Royce Lamberth, the Reagan appointee. On Apr. 22, Judge Lamberth issued a more conclusive, if still not final, ruling against the administration. Lamberth granted plaintiffs a preliminary injunction consistent with the earlier TROs. What stands out in the judge’s understated 37-page opinion is his apparent surprise at the Department of Justice’s (DOJ) unwillingness to argue the central point before the court or provide any reasonable arguments whatsoever as justification for shuttering the VOA and its affiliates.
Separation of Powers
As with the two earlier TROs, Judge Lamberth did not delve into the potentially sticky question of whether President Trump violated First Amendment protections of expression and the press when he shut down the VOA and its affiliates. The judge found the case relatively easy to resolve based on two other main grounds: the constitutional principle of separation of powers and the Administrative Procedure Act (APA).
Congress has repeatedly authorized the VOA to carry out its mission of reporting the news accurately for foreign audiences and continually passed appropriation bills that allow the agency to fulfill that function. Judge Lamberth made a basic point, observing that “the power to make law resides exclusively with the legislative branch,” as provided for by Article I, Section 1 of the Constitution.
The executive branch, he continued, quoting from Supreme Court precedent, “may not ‘enact, amend, or repeal statutes.’” The administration’s “unwillingness to expend funds in accordance with the congressional appropriations laws is a direct affront to the power of the legislative branch,” he wrote. Congress alone “possesses the ‘power of the purse,’ which is ‘the ultimate check on the . . . power of the Executive.’”
“Arbitrary and Capricious” Acts
Judge Lamberth went on to explain that the separation of powers analysis is buttressed by the APA, under which courts have the authority to set aside an executive branch action deemed “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The APA, in other words, obliges an agency to explain policy changes in a reasoned manner.
When shutting down the VOA, the administration not only failed to provide “reasoned analysis,” the judge wrote, it failed to engage in any analysis at all. Moreover, the earlier TROs were based on this failure. In response, the administration had the opportunity in written filings and in-person hearings to proffer some kind of reasoning. But government lawyers declined to do so.
Judge Lamberth seemed startled. “In their briefing before this court,” he wrote, the administration’s attorneys “do not even use the words ‘arbitrary’ or ‘capricious’ anywhere, even though the central holding of the TRO was that the defendants’ actions were arbitrary and capricious.” During a hearing before him, the judge added, “the defendants opted not to argue the merits of the arbitrary and capricious challenge despite being given several opportunities to do so.”
The government made the elementary mistake of relying solely on a claim that Judge Lamberth lacked jurisdiction to hear the case, which he convincingly rejected. It was a rudimentary error by the DOJ’s lawyers. In cases such as this, lawyers are trained to argue “in the alternative”: make the jurisdictional argument, but in case that doesn’t fly, offer the substantive statutory argument as well. Incredibly, the government did not do so.
Much damage has already been done
Court challenges to all manner of Trump attacks on federal agencies are invoking the APA’s “arbitrary and capricious” standard. The public won’t know the ultimate fate of these legal actions until the Supreme Court weighs in on the APA’s application to the White House’s campaign to uproot parts of institutional Washington.
But even if some of the challenges prevail, much damage has already been done. The systems that disseminated U.S. foreign aid have been decimated, for example, and couldn’t be quickly reconstructed, even if courts order that outcome.
Likewise, the VOA’s servers and transmitters are already gathering dust, while its journalists look for new jobs. Created during World War II to counter Nazi propaganda with factual news reporting, the VOA morphed into a Cold War broadcasting tool used against the Soviet Union. More recently, it has been a source of information for audiences in a variety of countries governed by repressive regimes, including Vladimir Putin’s Russia. Trump, who has demonstrated an affinity for Putin, among other autocrats, has attacked the VOA since his first term, associating it with what he calls the “fake news” mainstream media.
On Mar. 14, Trump issued an executive order instructing that VOA’s parent agency be reduced “to the minimum presence and function required by law.” The order was followed by a White House press release entitled, “The Voice of Radical America,” which stated that “taxpayers are no longer on the hook for radical propaganda.” On Mar. 15, nearly all VOA employees, more than 1,300 people, were put on administrative leave. One day later, 500 VOA contractors were terminated. The outlet fell silent. It will be difficult to rebuild what has already been lost.
The Trump administration is demonstrating that its arbitrary and capricious actions may outrun the judiciary’s capacity to consider its lawfulness.
Editor’s note #1: Two groups of VOA employees, among other plaintiffs, sued to stop the administration. One of the plaintiffs is Michael Abramowitz, the ousted director of the VOA, with whom the author has been friends since they worked together at a college newspaper in the early 1980s.
Editor’s note #2: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions
Readers may be especially interested in these essays:
Ambassador Daniel Fried, The US Government’s Self-Harm in Killing Radio Free Europe/Radio Liberty (Mar. 17, 2025)
Jean Garner, Journalists Who Took Risks for US-Funded Broadcasters Threatened Anew by Trump Shutdown (Mar. 18, 2025)
Mark Pomar, Trump Move to Eliminate VOA, RFE/RL Ignores Lessons of Global Power (Mar. 20, 2025)
Paul M. Barrett, Unpacking the Voice of America Litigation (Apr. 10, 2025)