ABA President Bay denounces 'chaotic' attacks on the rule of law
ABA President Bill Bay has condemned the Trump administration's extensive attacks on the rule of law. The association announced Tuesday it has joined two legal challenges to the funding freezes on USAID and federally funded immigration programs. (Photo by John O'Brien/ABA Journal)
ABA President Bill Bay on Monday condemned the Trump administration’s extensive attacks on the rule of law.
“We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law,” Bay wrote in a letter to members. “There are efforts to dismiss employees with little regard for the law and protections they merit, and social media announcements that disparage and appear to be motivated by a desire to inflame without any stated factual basis.”
“This is chaotic,” he added. “It may appeal to a few. But it is wrong.”
In the three weeks since Inauguration Day, the Trump administration has attacked constitutionally protected birthright citizenship, the U.S. Agency for International Development and lawful programs that seek to eliminate bias and enhance diversity, Bay said.
The ABA itself came under fire on Monday, as a coalition of conservative legal groups asked the U.S. Equal Employment Opportunity Commission to investigate several of its diversity hiring programs, including the Diversity Clerkship Program, Judicial Intern Opportunity Program and Business Law Section Fellows Program. The groups claim these programs discriminate by giving priority to minority applicants.
In a Jan. 21 executive order, President Donald Trump declared that “influential institutions of American society” are using “dangerous, demeaning and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion and accessibility’ (DEIA) that can violate the civil rights laws of this nation.” His order tasked federal agencies with identifying entities for possible civil compliance investigations, including large nonprofits and state and local bar associations.
In response, the ABA adopted a resolution at its midyear meeting last week that said the federal government should not investigate or prosecute bar associations for activities protected by the First Amendment, including advocating for or implementing diversity, equity, inclusion and accessibility policies.
The ABA supports the rule of law, which means holding governments accountable under the law, Bay wrote in his letter.
“We stand for a legal process that is orderly and fair,” Bay said. “We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today.”
Several federal judges have blocked the Trump administration’s directive to end birthright citizenship for the children of people who are in the United States illegally. Bay referenced Judge John Coughenour of the Western District of Washington, who said in a Feb. 6 ruling that “in this courtroom and under my watch the rule of law is a bright beacon, which I intend to follow.”
Bay noted more than a dozen lawsuits have been filed against the Trump administration for actions that violate the rule of law and constitutional rights.
Global impact
The ABA on Tuesday joined a federal lawsuit filed against the Trump administration to challenge a freeze in funding for the U.S. Agency for International Development and other federal foreign assistance programs. Trump implemented the freeze through a Jan. 20 executive order, which resulted in the shut down of aid and development programs around the world.
According to the Feb. 11 complaint, which was filed in the District of Columbia, the ABA’s Center for Global Programs has partnered with the U.S. Agency for International Development and other federal agencies to implement international rule of law and human rights programming in more than 100 countries. It currently implements 19 programs that are funded by the U.S. Agency for International Development.
The Rule of Law Initiative is one of the entities within the Center for Global Programs that implements USAID-funded programs. The ROLI board is chaired by retired U.S. Supreme Court Justice Stephen Breyer. ROLI was awarded the 2024 Judicial Independence Award by the International Association of Judges for its 30 years of service in more than 80 countries.
One such country is Kazakhstan, where ROLI opened an office in 1993, after the country declared independence from the Soviet Union. The USAID-funded Kazakhstan Rule of Law program, implemented by ROLI since 2020, has assisted in the development of the country’s code of judicial ethics, offered civil law training for legal professionals and encouraged more transparency from civil society organizations.
Details about other USAID-funded programs have been removed from the internet; the USAID website is currently blank, taken offline by the Trump administration.
The Trump administration’s “actions have forced affected parties to seek relief in the courts, which stand as a bulwark against these violations,” Bay wrote in his letter. “We support our courts who are treating these cases with the urgency they require.”
Bay added that “refusing to spend money appropriated by Congress under the euphemism of a pause” violates the rule of law and incorrectly suggests the executive branch has more power than the other branches of government.
The ABA also is part of a challenge to stop-work orders on federally funded immigration programs. The Jan. 22 directive from the U.S. Department of Justice significantly impacted the Commission on Immigration, which was forced to pause legal access programs at the Immigration Justice Project in San Diego; South Texas Pro Bono Asylum Representation Project in Harlingen, Texas; and the ABA’s office in Washington, D.C.
Bay called on elected officials to insist that the Trump administration adhere to the rule of law and legal processes and procedures. He also called on all attorneys to urge the administration to follow the law.
“It is part of the oath we took when we became lawyers,” Bay said. “Whatever your political party or your views, change must be made in the right way.”
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