Trump’s Policy Push Faces Court-Driven Hurdles as Trial Lawyers Target Lawfare, Hammer Says

A wave of federal court challenges mounted by trial lawyers is intensifying as former President Donald Trump pushes a policy agenda that Hammer says would expand access to capital and reshape energy and federal workforce rules. Josh Hammer, senior counsel for the Article III Project, describes the strategy as lawfare designed to block core elements of Trump’s program through the courts rather than at the ballot box. The pattern, Hammer says, is coordinated and deliberate, aiming to curb the administration’s agenda on multiple fronts while courts decide the fate of policy changes that have already moved beyond the executive marquee.

One flashpoint is an August executive order that sought to democratize retirement savings by allowing high-quality alternative assets—such as private equity and cryptocurrencies—into 401(k) plans. The order directed the Labor Department to reexamine fiduciary duties under the Employee Retirement Income Security Act and to propose rules that could create a safe harbor for plan sponsors choosing to include these options. A few days after the order, the DOL rescinded Biden-era language that had discouraged such investments, opening the door for what backers say are broader choices for roughly 90 million savers. A prominent plaintiffs’ lawyer told Bloomberg Law that lawyers intend to use the courts to block the reform unless the rulemaking is robust—adding, “I would joke and say that I hope employers add alternative investments, because I have some kids I need to put through college.” These comments illustrate the incentive structure Hammer and others cite as driving litigation aimed at curbing the policy, should the rulemaking lack a clear safe harbor and predictable guidance.

On energy policy, Trump’s administration moved to expand exploration on federal lands, streamline permitting, revoke certain climate-related directives, and roll back electric vehicle mandates. Environmental trial lawyers have mounted a counteroffensive, using lawfare to stall these changes. The resulting court stays and procedural delays have the potential to keep energy prices higher and slow job growth in traditional energy sectors while maintaining reliance on energy from U.S. adversaries. The dynamic underscores a broader strategic clash between a presidential agenda aimed at rapid policy repair and a judiciary that serves as a check on executive power when challenged in court.

A separate executive order issued in March sought to improve workforce efficiency by addressing federal pay and reforming collective bargaining agreements. Some of those agreements were signed late in the Biden administration, and labor union lawyers have challenged the order in multiple federal courts, securing stays that suspend aspects of the reform and complicate efforts to right-size the federal workforce. Hammer’s framing of the series of court battles is that they reflect a concerted campaign by trial lawyers to use the courts to halt policy reforms to which many voters previously expressed support. He argues the strategy is designed to neutralize the political will expressed in elections by keeping policy changes in limbo through litigation.

Hammer, who is senior counsel for the Article III Project and the Internet Accountability Project, also hosts a podcast and radio show. He has painted the legal challenges as a well-coordinated effort to impede the implementation of Trump’s agenda and to restore policy-making authority to lawmakers and executive agencies only after court review. In outlining the strategy, Hammer emphasizes that the aim is to “fight back” and reclaim policy-making from the courts, arguing that the judicial branch should not be the primary battleground in a policy revolution that, in his view, mirrors the priorities Trump ran on in the last election.

The cases cited by Hammer cut across different policy areas but share a common thread: litigation as a tool to stall or narrow the effect of executive actions before they reach the market or the broader public. Proponents of the executive orders argue that they address long-standing needs to diversify retirement investments, accelerate energy development, and modernize the federal workforce by removing unnecessary frictions. Critics, however, say the policies carry risks that require careful regulation, especially in the areas of retirement savings, energy security, and labor rights.

As the legal battles unfold, Trump’s allies say the outcomes will shape the pace and scope of the administration’s policy push. The administration has signaled it will defend the rules vigorously, while opponents emphasize safeguards and due process in the rulemaking and litigation processes. The ultimate resolution will likely come from a combination of court rulings, rulemaking outcomes, and the extent to which Congress supports the administration’s reforms.

For Hammer and his colleagues, the central question remains whether the courts will permit a significant reorientation of policy away from existing structures toward a framework they argue better serves the country’s economic and energy needs. The answer, observers say, will influence not only the fate of Trump’s second-term agenda but the broader balance of power between the executive branch, the judiciary, and the legislative process in American politics.