February 12, 2025

"Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or..."

"... to shape and constrain the remedies they provide. That has been true for as long as we have had courts and judicial review.... As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue.... To date, all the Trump administration’s responses in court have embodied appeals to these principles. In response to a recent temporary restraining order that seemingly barred all political appointees at the Treasury Department from access to certain internal information, the administration argued in a filing that the work of executive agencies is overseen by the president, and 'a federal court, consistent with the separation of powers, cannot insulate any portion of this work from the specter of political accountability.' That was a straightforward legal appeal to the limits of judicial authority, made within a judicial proceeding as an argument under applicable law. Even where courts have jurisdiction to decide, it is always legally valid to argue that their decisions ought to respect the separation of powers...."

Writes lawprof Adrian Vermeule, in "JD Vance’s Tweet Is No Crisis/Judges also have an obligation to respect the separation of powers. Usually they do so" (Wall Street Journal, no paywall).

29 comments:

mccullough said...

The judge’s wife has an NGO that lives off federal grants. Impeach and remove him.

Jupiter said...

"Usually they do so." Right. Most of them. Just not the ones handling these cases, for some reason.

Left Bank of the Charles said...

“the specter of political accountability”

It’s a ghost, it’s a phantasm.

Jamie said...

Maybe this point isn't as subtle as I thought it was when reading but ... when judges or justices use separation of powers to limit their own authority over a question, surely it's not an exercise in self-discipline on their part, right? They just don't want the blowback. But the writer writes as if to imply that the robed sages are simply being extra-conscientious.

boatbuilder said...

Any legal commentator who doesn't recognize this as the starting proposition for why this judge's ruling is unconstitutional on its face should not be given any credence. The default should be that the Executive has primary and presumptive authority over and within the agencies of the executive branch, and that any court intervention is an extraordinary act. Stated another way, deference works in favor of the executive, not the court.

Gusty Winds said...

The courts didn't want to get involved in the 2020 absentee voter fraud. That was out of corruption and cowardice. Their current involvement in trying to thwart Trump and DOGE is also corruption.

boatbuilder said...

Federal Courts do have jurisdiction over questions of the interpretation and application of statutory provisions--i.e., what did Congress mandate and what discretion does the executive have in connection with a Congressional mandate. But that is not the issue here. The judge has instead held that the States'--not Congress'--general interest in having the laws "fully and faithfully executed" justifies an order halting the Executive's actions in administration of the Treasury Department.

Enigma said...

I see this as a late phase of the left-wing judicial activism cycle that began with FDR strong-arming the Supreme Court to allow his New Deal initiatives to move forward. That happened 90 years ago. Leftward court movement was unchecked until the infamous 1970s "constitutional discoveries" in favor of abortion and for ending the death penalty.

The left first fought a war of retrenchment (i.e., by "borking" Robert Bork and smearing Clarence Thomas), and they shifted defensive lawfare (snail darter; spotted owls; all things Trump).

I fear that only a few unanimous and tough-minded 9-0 rulings will put an end to this era, but that's unlikely with an ideological sitting justice who cannot define "woman."

Dave Begley said...

The federal courts, per a famous book by Yale law prof Alexander Bickel, is supposed to be the least dangerous branch.

In my brief in support of my motion to dismiss the case filed by Big Wind against Knox County, Nebraska, I argue all sorts of reasons why the case should be dismisses: abstention, ripeness, etc.

Dave Begley said...


Ladylawyer
@Ladylaw31256058
And by the way.....

Judge Paul Engelmayer's wife Emily Mandestam works for an open borders NGO called "The New York Association For New Americans"

It gets funding from USAID- the same reform that Judge Engelmayer BLOCKED.

DDB: If lady lawyer is correct, this judge MUST recuse himself.

Earnest Prole said...

I think we can all agree they need to take care that the laws be faithfully executed while we are free to do whatever the fuck we want.

Dave Begley said...

This NGO appears to have closed in 2008.

After nearly 60 years of helping Jewish refugees find better lives in New York, an agency that at its peak aided some 50,000 clients in one year is expected to shut its doors this summer as a result of a dwindling case load and difficulty in competing for social service contracts.

The New York Association for New Americans was founded in 1949 as part of the Jewish community’s efforts to absorb tens of thousands who fled persecution and chaos, mostly from the former Soviet Union and Eastern Europe. The refugees were brought to America by the Hebrew Immigrant Aid Society.

“We are trying to wind it down,” said Joseph Lazar, the agency’s interim CEO. “If you don’t have the refugees coming in, you don’t have the money coming in and you don’t have a way to really function.”

NYANA, which served about 300 to 400 people last year, has seen its operating budget shrink from a onetime high of $90 million to a current $7.5 million in government grants and allocations from United Jewish Communities, the national federation umbrella.

robother said...

@Enigma "I see this as a late phase of the left-wing judicial activism..."
Good point. This made me realize that the New Deal Constitutional "amendment" changed two Articles: the Executive (to vest power in an unelected bureaucracy beyond Presidential control) and the Judiciary (to empower them to (i)enact progressive legislation too politically unpopular for elected Democrats to support, and (ii) to validate the bureaucracy rules as law). Any challenge to these unwritten Constitutional amendments progressives will describe as a "constitutional crisis."

Dave Begley said...

Friends of Olmsted-Beil House, a non-profit organization that seeks to preserve and present to the public Frederick Law Olmsted’s 19th Century farmhouse on Staten Island. Emily F. Mandelstam, a former journalist, is a volunteer at the organization.

Gusty Winds said...

boatbuilder said... general interest in having the laws "fully and faithfully executed" justifies an order halting the Executive's actions in administration of the Treasury Department. NOTHING justifies the courts protecting fraud, money laundering, kick backs, and corruption. Especially district courts where the shit lib judge's wife was making a living off USAID funding. A clear conflict of interest which the shit lib corrupt judge unethically ignores.

The laws aren't being faithfully and fully executed. Where in "the law" does it say the treasury is free from basic accounting principles to cover the trail of known fraudulent payments?? Nobody, but those favor of the continuation of the corruption is buying this bullshit liberal judge shopping.

mikee said...

I for one enjoy the current lamentations of the women. More seriously, the difference between a court "deciding" an issue is outside their purview and a court "agreeing" an issue is outside their purview is an important one. The former indicates the courts could change their minds on the subject, damn the words of the constitution or law. The latter indicates a recognition of the separation of powers that constrains the courts as it constrains the legislature and the executive. Let's have courts "accept" that some things are outside their control in government.

The Vault Dweller said...

While I don't think the administration should ignore or defy the court orders, I will note Separation of Powers is in the Constitution but Judicial Review is not.

Hassayamper said...

After nearly 60 years of helping Jewish refugees find better lives in New York, an agency that at its peak aided some 50,000 clients in one year is expected to shut its doors this summer as a result of a dwindling case load and difficulty in competing for social service contracts.

I read that as "failure to provide enough lavishly paid do-nothing jobs for wives and sons-in-law and nephews of USAID bureaucrats."

Greg The Class Traitor said...

"Usually they do so"

But not when they're corrupt Democrats (pardon the redundancy)

Greg The Class Traitor said...

Good call Hassayamper, I'm pretty sure that's exactly what that meant: they wouldn't pay to play, so they didn't get to play.

Perhaps they will re-open in 6 months

Greg The Class Traitor said...

DDB: If lady lawyer is correct, this judge MUST recuse himself.

Why? It didn't stop Marchan.

I'm wondering if the situation will only be cured by people deciding to assassinate "judges" who step beyond the limits. Because it;'s for damn sure the Democrats won't remove them from office after impeachment, no matter how corrupt they are.

If you want people to obey the law, YOU have to obey it, too. The Dems refuse to accept this

JIM said...

Trump has been faithfully executing immigration laws such as, deportations of criminal aliens, and those who had received deportation orders, but had not, in fact, been deported by Biden, who was not faithfully executing immigration law.

gilbar said...

the Thing of It IS..
There IS a Constitutional Crisis right now..
The Unelected Branch, the "judges", working with the Deep State, the "bureaucrats", are attempting to take over The ENTIRE US Government.

THAT is the Constitutional Crisis

boatbuilder said...

Gusty--I agree with you.

I was simply pointing out that even if the judge's stated rationale is taken to be valid, there is no jurisdictional authority for the judge to do what he did. At the very least, there is a very high legal burden which he didn't even pretend to meet.

Leland said...

If I may suggest, let us not be shocked that there is gambling going on. We knew the blue states would fight Trump with lawfare, because they bragged about the money they were bringing to the table. We knew they would judge shop, and we knew they would find their “Hawaiian judge”. We knew all this.

What we don’t know is how many Hawaiian judges are out there, and they seem to be more than happy to expose themselves. It is just a short delay, because we also know these rulings won’t stand the slightest scrutiny. Let them continue to waste their state taxpayer’s money to defend the federal government mishandling their taxpayer’s money. Let them expose corrupt judges. And watch the polls for the state and local elections for next year and midterms.

Enigma said...

@Leland: Yes, nothing new or surprising here.

1. Wait for the Supreme Court to rule.
2. Wait for the blue states to openly defy the SC.
3. Wait for the real action. Arrests? Fines? RICO? "Worse?"

See the open defiance of the Old South following the Civil War. See the rise of the KKK. See the open defiance of prohibition in New York's speakeasies. See Utah and turning a blind eye to plural marriages. Etc.

MaxedOutMama said...

The first one of these injunctions has been lifted. The one about the buyout scheme for government employees. Lack of standing. Many more will meet the same fate.

Mike (MJB Wolf) said...

@Gilbar the annoying District Courts cannot take over because their power is limited and the mess of recent crazy rulings, as they try get sand in the gears of DOGE, means their reach is about to be permanently pruned back led by Gorsuch and Thomas. This clock has been ticking down since 2000.

Lazarus said...

The NYANA English School taught incoming refugees as much English as possible in intensive classes. ... Teachers were recruited from the performing arts community and included Todd Solondz.

Someone ought to check in on those New Americans and make sure they turned out alright.

Anyway, it's a good thing when an NGO decides that it's accomplished its mission and doesn't have to stretch it's lifetime out by adopting new causes.

Post a Comment

Comments older than 2 days are always moderated. Newer comments may be unmoderated, but are still subject to a spam filter and may take a few hours to get released. Thanks for your contributions and your patience.