"There is not and cannot be a basis for distinguishing between 'civil servants' and 'political appointees.' Basic democratic accountability requires that every executive agency’s work be supervised by politically accountable leadership, who ultimately answer to the President. A federal court, consistent with the separation of powers, cannot insulate any portion of that work from the specter of political accountability. No court can issue an injunction that directly severs the clear line of supervision Article II requires. Because the Order on its face draws an impermissible and anti-constitutional distinction, it should be dissolved immediately...."
It's the "MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE, CLARIFY, OR MODIFY EX PARTE TEMPORARY RESTRAINING ORDER" filed in State of New York v. U.S. Department of Treasury.
114 comments:
The memorandum asserts that the court's order is currently being followed.
The Constitution is like a train for the Democrats, as soon as they reach their stop, it's time to get off. Same with democracy in general.
Unaccountable one-man rule is a feature of the judicial branch; not the executive. 'Royalty' wears robes :-(
Redrum in my heart for teh Judge.
Seems that if this gets established, the jig will be up, and Elon will have won.
well, that's nice. It certainly makes more sense then the crazy judges ruling. But again, what does that matter? Remember when Trump cancelled Obama's illegal DACA order by issuing his own DACA order? A judge said, no and Roberts and 4 liberals agreed.
They refused to opine on the consituationality of obama's daca order, they let it stand, and said Trump's order was invalid because it was adequately reviewed or whatever. As the minority stated in their opinion, this is Alice in Wonderland illogic. But Roberts hates Trump and loves illegal immigration, so there you were.
So, how this ends up will depend purely on what judges get it, and how the squishy Republican SCOTUS judges like Roberts feel about it.
Common Sense and the plain meaning of the law are irrelevant.
The memorandum asserts that the court's order is currently being followed.
For us less lawyerly types why would Ann see it as appropriate to comment on this distinction?
I can see part of the game here is the hope the administration ignores the ruling, creating a thin justification to refer to Trump as lawless and/or committing an impeachable offense, or so lefties and Mitch McConnell hope…
More corrupt liberal judges. Anyone surprised?
The left is getting out over their skis. The faster the Executive Branch can get one of these too early, too broad injunctions up to the Supreme Court, the sooner the entire practice of nationwide injunction lawfare facilitated by politically sympathetic judges is brought to an end.
This order is so blatantly unconstitutional that the Trump Administration should ignore it, while simultaneously moving to have it overturned / quashed. They should ignore it to show that it will not tolerate judicial overreach into executive functions, and there is no way that any higher court could possibly affirm the district court's ruling - a perfect test case to curb the judiciary.
I think that they have kompromat on Roberts.
Also, the House should open impeachment inquiry and instruct the judge to preserve all communications with counsel, his clerks and anyone else regarding the case, and to preserve his internet browsing and search history on work and home devices in furtherance of that inquiry.
if 2 years from now YR4 is found to be on a collision course with Earth and and DT assigns Musk the job of saving the planet, Letitia James and NYT will both object.
The massive volume of people knowingly receiving corrupt payments is going to be so massive prosecutions may be impossible. Prosecute the biggest fish, and scare the living shit out of the rest.
The reply memo carefully stakes-out strong legal grounding for executive authority that extends beyond the instant case.
It didn't need to go further. That's because I still don't see how the order prevents Doge from writing the algorithms, Treasury career employees from running them and giving redacted copies of the output to Doge.
"NKP said...
Unaccountable one-man rule is a feature of the judicial branch; not the executive. 'Royalty' wears robes :-("
No, they think themselves as the high priests of the law. Personally, I'd love for the Supreme Court to bitch slap that judge so hard that his grandchildren's ears will ring.
The corrupt people are self-identifying now
Redrum in my heart for teh Judge.
Great, another call to assassinate a federal judge (and using cutesy references to The Shining doesn't get you off the hook).
The presidency is more powerful than some people's ability to see the office past its occupant. If you doubt what I'm saying just look at what Biden was able to do in 4 short years.
rehajm said... "The memorandum asserts that the court's order is currently being followed." For us less lawyerly types why would Ann see it as appropriate to comment on this distinction?
See ChrisSchuon's post below yours, rehajm. Ann was anticipating and addressing the expected argument (that ChrisSchuon made in short order) that the executive might have ignored the judicial. But Trump didn't. He chose instead to use procedures set in the rule of law for reconsideration and, one expects, ultimately appeal of a bad judicial decision. How utterly fascist of him.
No kidding!
I think it's important to read what the lefties have to say about all of this, but it's really hard to filter out the hysteria from the rational. Example: How close is Elon Musk to controlling a nuclear weapon?
"Prosecute the biggest fish, and scare the living shit out of the rest."
Maybe you can't get them all, but if you target some of "the rest", they might not be so eager next time to help the big fish run their scams.
I am betting Trump's lawyers are still waiting for the other shoe to drop. This is the best the dreaded Deep State can come up with?
Didn’t President Lincoln talk about this stuff?
PMD -
I thought Trump should ignore the order *and* appeal, because appealing alone concedes that executive must kowtow to a blatantly unconstitutional order from a single district court judge. The best course is for the executive to flex its constitutional muscles while also giving the judiciary the chance to correct its own errors.
According to this corrupt judge it is better to give access to corrupt lifetime bureaucrats who followed, benefited, and implemented massive fraud on the American taxpayer, that allow access to the people trying to clean it up.
There is no such thing as "cruel neutrality" or blind justice in our American judicial system. It is obviously massively corrupt.
I had suggested elsewhere that, as a demonstration of how the district court's order was an unlawful intrusion of the executive branch, the President should issue an executive order directing court to reassign the case to another judge. The basis would be that separation of powers, standing and limitations on judicial jurisdiction are part of the law of the US that the President is charged with faithfully executing. The court would inevitably ignore that ruling, forming another basis justifying Trump's ignoring the district court here.
ChrisSchuon -- we'll have to disagree. I think the rule of law means something, even or especially if the democrats ignore it. And even the executive branch doesn't get to ignore the judiciary when it wants to or disagrees with the ruling, or if it does, then we no longer have a rule-of-law-based system of checks and balances. And yeah, I know, THEY do it all the time . . .
another call to assassinate a federal judge
Another dishonest interpretation from a partisan hack. Speaking of one's own heart in such an elliptical fashion is not a call to action. Standing in front of the Supreme Court with a bullhorn screaming, "You will pay the price for these wrong decisions Kavanaugh!" is incitement, so much so that Schumer got a lowlife to travel cross-country with a gun and be arrested outside Kavanaugh's house. Then he confessed to wanting to kill him.
But Fredo never criticizes Leftist calls for murder, explicit successful, calls to action. No, he has to troll this comments section looking for words he can twist into something he can pretend to oppose for partisan gain. Troll. It's a verb and a noun!
"Redrum in my heart for teh Judge."
Great, another call to assassinate a federal judge
Freder, I'm no fan of violent rhetoric either, but... remember when Jimmy Carter said he had had "lust in his heart" for some woman? Was that a call for men other than Carter to feel lust? As far as I can see, that commenter was expressing his (I think "his") personal feeling about the judge, however overheated that feeling might be.
The "rule of law" does not mean rule by the judiciary. And "checks and balances" include checks on the judiciary overreaching its authority. You cannot leave it up to the judiciary to check itself, and legislative responses is toothless when there are 40 Senators who would filibuster or a Congress who invites judicial overreach. It has nothing to do with Democrats or Republicans generally, it is institutional.
Shorter me: Yeah, what Mike said!
Inferior Courts, which is how the Constitution refers to the District Courts, should not be able to issue injunctions outside their district and Congress should make that limitation explicit by passing a reform act.
I have a problem with legal types/associations who can’t muster an opinion of the work if Hawaiian judges when this shit happens…
Freder - Mike Wolff nails it.
Do tell us about Schumer's(D) call to violence against the Supreme Court. ..and how Schumer's words actually worked.
imagine IF there was a Democrat President?
What would a Democrat President say and do in a circumstance like this?
"John Marshall has made his decision, now let him enforce it."
??
Just quoting a line of song lyrics from Moby Grape and Three 🐕 Night, fredo. Maybe take it up with what’s left of them.
Trump is executing a mirror-image play to the DC establishment's 2017 efforts to throw wrenches into his gears. They didn't want him to accomplish anything, and the Mueller investigation was the first of a never-ending series of dubious distractions. So, in 2025 Trump is doing everything ASAP.
As always, don't take Trump literally but take him seriously. Some of this stuff will stick and some will be rejected. He still may undo half of the combined government overreach of the last 100 years.
New intrusion on the executive branch
8 hours ago — A new bill in Ohio would make it a crime for men to ejaculate without intending to have a baby.
President Donald J Trump continues to be the most law-abiding POTUS in my lifetime. Carter may be a co tender but he was so inconsequential that I don’t remember anything he did but stupid stuff.
AA said, "The memorandum asserts that the court's order is currently being followed."
But isn't the position of the memorandum that it is unconstitutional to follow the order, in that the order mandates that an executive agency’s work be unsupervised by politically accountable leadership?
Either we have a Constitution or we don't.
"The" is the key word,
--- All legislative powers herein granted shall be vested in a Congress
--- The executive power shall be vested in a President
--- The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish
The judge's order is in direct conflict with the justification for the Civil Service
The point of the CS is that the people under it would NOT have significant decision making power. They're there to do what they're told by the political appointees, who are accountable to the voters via the President who appointed them and can fire them
There is NEVER a time when a CS person would legitimately have more power than a political appointee
I think that they have kompromat on Roberts.
I've thought so for a long time. His bizarre machinations to keep Obamacare afloat admit of no other rational explanation.
RCOCEAN II said...
Remember when Trump cancelled Obama's illegal DACA order by issuing his own DACA order? A judge said, no and Roberts and 4 liberals agreed.
Yes, I do.
But I ALSO remember that there are now only 3 leftists, add Roberts that makes 4.
So there are 5 votes to strike down this insane ruling, no matter what Roberts does.
Which means there will be at least 6 votes for striking it down
Test the powers early while you’re reforming foreign aid, which is one, if not the most unpopular thing the government does. Once you know what the rules are you go for the bigger fish. Dept of Education. The EPA and Defense.
The massive volume of people knowingly receiving corrupt payments is going to be so massive prosecutions may be impossible. Prosecute the biggest fish, and scare the living shit out of the rest.
The small fry can be effectively pauperized without sending them to prison. Unless they turn states' evidence, they should face permanent discharge from Federal employment, revocation of all security clearances, permanent enjoinment from contacting any Federal employee over any matter not of direct pertinence to themselves or their families, lawsuits by the Justice Department to claw back their bribes and embezzlements, and support for individual lawsuits for civil rights violations, with revocation of qualified immunity so that their victims can sue them by name.
Let's follow Alinsky's rules, and do as much harm to individuals as possible, not institutions. There is no reason the American taxpayer should be on the hook to pay compensation for his own oppression. No qualified immunity for these bastards! Strip them of everything they own. The punishments for these despicable crooks, who have been behaving like the proconsuls of an enemy occupation government, must be harsh enough that they will be in the history books a thousand years from now.
I wrote the other day that DOGE could follow the letter of the order and still do everything it is trying to do. That is what is happening right now.
“Great, another call to assassinate a federal judge”
You had nothing to say about Nicholas Roske, did you Cabana Boy?
Qui tacet consentire videtur.
I think you’re correct, Yancey. Trumps legal staff is on top of all this, including challenging while obeying but still getting done what they intend to get done. They can’t let Trump face even a hint of illegality that the media will drum up.
Hey? I've got a serious question?
Has Dr We Evil been around since USAID lost their funding?
I don't remember seeing him here?
Dr We Evil? Paging Dr We Evil? are you still posting? or did you lose your funding?
Do you suppose this sort of thing is going to make the people who voted for Trump more or less supportive of his efforts going forward?
"Has Dr We Evil been around since USAID lost their funding?"
He probably got tired of having his ignorance exposed and jeered at.
@Mason G.
Anyone who voted for Trump and did not expect this sort of hysterical evasion and resistance was not being reflective about the Obama/Biden zeitgeist. Therefore more supportive to neutral, unless Trump submits to the pressure.
If there’s any evidence covered by this order, why not just hand it to the President?
All kidding aside, these idiotic, rogue lefty judges are a sub-species unto themselves.
"I wrote the other day that DOGE could follow the letter of the order and still do everything it is trying to do. That is what is happening right now."
Might be. I was thinking about the following language of the TRO (which is a complete pig's breakfast): "[access cannot be granted] other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services."
The Court doesn't seem to know who has the power or authority to assign or change "job duties". One way to be compliant, is to simply issue a change of job duty to an existing person to perform the searches and data analysis that Elon's team would otherwise have done.
Another problem the court didn't seem to grasp, which is evident in the Memo of Law, is that the Treasury department might have had lots of other external consultants doing work on the systems, which the order pretty clearly forbids by also restricting their access to the systems. Not well thought through, IMHO.
Again, not that Rich.
I believe the TRO is being interpreted unreasonably so as to justify all the hoopla. The operative language from the TRO is "restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department." You have to interpret the "detailed from an agency outside" proviso to apply only to "government employees" to prevent the Treasury Secretary, or any other Treasury employee for that matter, from doing anything. If "detailed from an outside agency" modifies the entire sentence, which I believe to be the far more reasonable interpretation, then it doesn't apply to anyone working for Treasury at all. It appears pretty clear to me that this enjoins DOGE personnel ("detailed from an outside agency"), and not Treasury personnel. I think they are interpreting this in a strained manner in order to conjure a basis to complain about it.
ChrisSchuon said: "I had suggested elsewhere that, as a demonstration of how the district court's order was an unlawful intrusion of the executive branch, the President should issue an executive order directing court to reassign the case to another judge."
Your wish is granted by Judge Engelmayer's TRO itself, which says "Later this evening, upon the States’ successful filing of their submissions, this matter was assigned on a permanent basis to the Hon. Jeannette A. Vargas, United States District Judge" and ordered "that the defendants show cause before the Hon. Jeannette A. Vargas, at Courtroom 14C, United States Courthouse, 500 Pearl Street, New York, New York, at 2 p.m. on Friday, February 14, 2025 ... ."
I don't know anything about Judge Vargas, but I do know she isn't the same judge who issued the TRO.
Rich, you're wrong. Your interpretation is not the more reasonable. If the writer wanted your interpretation, they could and should have added a simple comma. "...restrained from granting access to all political appointees, special government employees, and government employees, [note the comma] detailed from an agency outside the Treasury Department,..."
Professor, is a standing argument typically made at this stage or later?
Jupiter said...
I am betting Trump's lawyers are still waiting for the other shoe to drop. This is the best the dreaded Deep State can come up with?
This reminded me of a scene from The Lord of the Rings trilogy in The Two Towers, where the people of Rohan are under siege in Helm's Deep. The siege seems at first ineffectual and the King of Rohan wonders aloud, "Is this all you can conjure Saruman?" After that fate taunting comment, an Uruk-hai carrying a torch throws himself onto a pile of explosives planted under the castle wall, which leads to a harrowing battle in which nearly every last defender of the castle is slaughtered by Saruman's army only for them to be saved at the very end.
Quayle, I agree that the punctuation cuts the way you describe. But punctuation is one of many clues about meaning, and here, other clues, such as context and the terms of the original application itself, suggest to me that Treasury personnel aren't covered by this. In a less noteworthy case, I have to believe there would be a quiet and measured approach to the court to ask it to clarify whether it meant to enjoin Treasury personnel, and the answer would be no. I'd be willing to bet that is the subject of the ongoing negotiations referenced in footnote 1 on page 2 of the Government's response.
Regarding the change of Judge that Rich referenced: I presume that Engelmayer was the duty judge when the TRO was filed, and Vargas was the next judge up on the rotation. Doesn't matter, and hard to prove, but would be interesting to know if the motion was filed specifically when Engelmayer was duty judge to improve the outcome.
Democrats seem to be masters at lawfare.
This seems to be a delaying action. And some good ol' political gamemanship. Ultimately the injunction will be removed, but in the meantime, Democrats have got out the narrative that Trump is lawless. And Musk is some evil character from a comic book.
Democrats won't provide specific legislation they claim the Executive has exceeded the boundaries of.
It's just "constitutional crisis" heavy breathing.
A dime for your thoughts.
At this point, it seems obvious the Trumps confirmed nominees (Hegseth, Noem, Scott Bessent) are 100% supportive of DOGE and will cooperate to audit their respective budgets and weed out Democrat and Deep State theft and corruption. Corrupt liberal judges will be speed bumps. The more Americans find out, the further and faster it will move. There will be turncoats who want to protect themselves, and there will be lower level whistle blowers coming forward.
And remember, Pam Bondi just got to the on deck circle.
I would add that giving full force to Quayle's comma theory, the TRO still doesn't touch Treasury "employees," just arguably "political appointees." I wouldn't argue that makes any sense practically speaking, but I don't see any reasonable argument that Treasury employees are enjoined at all. All of which, in a roundabout way, supports my original point; it would be nonsensical, so far as I understand, to enjoin political Treasury appointees but leave Treasury employees alone. And whatever you think of a particular judge, it's also a rule of construction that, if we can avoid it, we don't interpret legal texts in a nonsensical manner.
I vote that they be held to their word:
https://www.nytimes.com/2025/02/09/us/politics/democrats-trump-government-shutdown.html
Do they think they are the sheriff in Blazing Saddles?
"and there will be lower level whistle blowers coming forward."
It could be productive to let it be known that the window for whistleblowing won't be open for an extended period and that once it's closed, being a "lower level" individual won't afford protection when responsibility for past actions are allocated.
Vance doesn't believe the Executive branch needs to obey court orders. He has spoken publicly about the fact that courts, hugely powerful in theory, had no actual ability to enforce decisions or orders. The Executive branch controls all the enforcement assets--so, Vance reasons, there is no meaningful constraints on whatever the Executive wants to do. Congress similarly has no effective means of enforcement (even if the GOP members were not willing to give up their Constitutional authority and control of the purse strings and expenditures). Watch this closely; we may see the end of the rule of law and the relevance of Court decisions or Congressional actions. The unitary executive may now be in place.
Vargas is a Biden appointee
“ChrisSchuon said: "I had suggested elsewhere that, as a demonstration of how the district court's order was an unlawful intrusion of the executive branch, the President should issue an executive order directing court to reassign the case to another judge."”
The original TRO was issued by the Emergency Orders judge working that night. Presumably, the SDNY District Courts are setup so that duty rotates every night, and so most of them can get a full night of sleep. Don’t know if he was the Friday night or Saturday morning judge, but expect that timing of the filing was picked with him as the duty judge. In short, likely forum shopping.
Judge Vargas has weighed in. She is fast-tracking this thing: "ORDER. The parties are ordered to meet and confer with respect to the Defendants' Emergency Motion to Dissolve, Clarify, or Modify the Ex Parte Temporary Restraining Order to determine if the parties can reach agreement on a stipulation that either resolves or narrows the issues presented in the Motion. If no agreement is reached, Plaintiffs' response to the Motion shall be due by 5:00 p.m. on Monday, February 10, 2025. Defendants' reply papers shall be due by 11:00 p.m. on Monday, February 10, 2025. (HEREBY ORDERED by Judge Jeannette A. Vargas) (Text Only Order) (Vargas, Jeannette) (Entered: 02/10/2025)."
"For us less lawyerly types why would Ann see it as appropriate to comment on this distinction?"
I was responding to a comment that was subsequently deleted. I didn't delete it. Someone expressed the opinion something like: Let's see the judge try to enforce his order. As if the Trump administration had defied it. But the answer to that was in the memo, which I'd already read, so I wanted to save people the trouble of going down that path.
'No legal authority' | U.S. District Judge John McConnell Jr. blocks federal funding freeze in 22 states and DC
Kakistocracy says, "Vance doesn't believe the Executive branch needs to obey court orders."
Missing citation, C-.
JD Vance said: "Judges aren't allowed to control the executive's legitimate power." The problem with that view is that if their is no oversight of executive power then there is technically no limit to executive power. Taking politics out of the equation; I would not want to see either a Democrat or a Republican with unlimited and unchecked power. It's antithetical to the system of checks and balances that were set there by the founding fathers for a reason.
A couple of comments to comments…
I think until the TRO hearing at the end of this week; I would play along with the Judge’s request. It doesn’t really do much to DOGE, because they are improving their models with the data they have. It also puts Trump’s administration in a better position to argue the harm this judicial resistance has to executing his duties.
To “not that Rich”, I read order as you did, the first time. Be careful the logic of the “and”. As I read it following the logic, I see 1) All political appointees, 2) special government employees, AND 3) government employees detailed outside Treasury. Sec. Treasury fits in bucket 1.
Final point on this. I looked at the original application for a TRO. It's too long to summarize here, but the nub of it is this: "Even before its inception, DOGE leader Elon Musk, and his DOGE team of SGEs, sought sensitive data information about the BFS payment systems, including the code underwriting the systems. Consistent with policy, a non-Treasury employee was denied access to the payment systems and any such code information. Compl. ¶ 146. By Jan. 29, 2025, however, Secretary Bessent changed the longstanding policy of restricting access to BFS payment systems to career civil servants with a need for access to perform their duties and granted the DOGE team SGEs access to those systems (the “Agency Action”). Id. By adopting and implementing this expanded access policy, Secretary Bessent materially changed the existing access policy put into place to maintain the security of BFS’s critical payment systems." The concern it conveyed was all about DOGE, and I don't read it as asking that Treasury's own access be limited beyond the existing guardrails already in place. Again, if I'm right, that informs the interpretation of the TRO if you ask me.
The judge is doing his job, but since the Executive Branch is still in crazy town, it seems unlikely that there is anyone left to enforce it.
Honestly, if Congress doesn’t step in, I don’t see any resolution to this constitutional crisis.
Quayle said...
"Missing citation, C-."
The citation is JD Vance on 'X' 2/9/25
"If a judge tried to tell a general how to conduct a military operation, that would be illegal.
If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal.
Judges aren't allowed to control the executive's legitimate power."
The key word there is 'legitimate'. Considering that there are numerous cases each year about Constitutional Amendment, which are usually fairly unambiguous it stands to reason that a court should indeed need to interpret legitimate executive power.
So is it the case that Judge #1 issued this ex PARTE TRO, but judge #2 will take it from here (given the Cas’s “JAV” designation)? Will judge # 2 get to play some bullshit game of “deference” to judge #1’s order, or is it truly de novo?
Matt writes “… if there is no oversight of executive power then there is technically no limit to executive power.”
But that’s just wrong. There is a check on executive power. It’s the impeachment process.
Matt writes “… if there is no oversight of executive power then there is technically no limit to executive power.”
But that’s just wrong. There is a check on executive power. It’s the impeachment process.
Following up, if the judge who entered the TRO is now out of the process, how can the intent behind its wording be illuminated?
Lucien: (1) I wouldn't expect any deference to the TRO on Judge Vargas's part. First, while it's been a long time since I litigated the question, as I recall a ruling on a preliminary injunction, following a TRO, is by definition de novo. TRO's are, of course, temporary (duh), almost always of notably short duration, and issued summarily — not the sort of ruling that merits deference. Second, since the TRO here was issued ex parte, that would only make it more certain that the preliminary-injunction ruling will be de novo.
(2) I believe the judge issuing the TRO could always be asked to clarify what and whom he meant to enjoin, but practically I do think this is now up to Judge Vargas. Chances are she will do something on the TRO tonight or early tomorrow, and that will stay put until Friday's proceedings about whether there will be a more extended injunction pending final judgment.
My guess: for the rest of this week at least, Treasury can go about its business as always (meaning adherence to pre-existing rules and safeguards re privacy etc.), and DOGE will be enjoined to some extent. Followed, of course, by appellate proceedings.
Matt said...
JD Vance said: "Judges aren't allowed to control the executive's legitimate power." The problem with that view is that if their [sic] is no oversight of executive power then there is technically no limit to executive power.
Vance alluded to judicial "control" over the executive's legitimate power, rather than "oversight" (your word). Courts do not "oversee" other branches of government sua sponte; they address actual claims and controversies brought to them by litigants.
Even then, the judicial limitations you seem to want is over the misuse of illegitimate power, either violative of statutory or constitutional law, not the nuances of how the executive should exercise its "legitimate power."
The threat Vance is addressing is giving the courts unfettered discretion to tell the executive (and congress?) how to do their jobs within the exercise of their "legitimate power."
Quayle said...
"But that’s just wrong. There is a check on executive power. It’s the impeachment process."
Trump was impeached twice. It had close to zero effect on Trump or his ability to govern. With impeachment the House may as well have blown him a kiss... The trail part in the Senate also was a sideshow. This is why we need courts. Recall that the SCOTUS smacked down Obama when he made some recess appointments.
JD Vance was referring to the political question doctrine without actually naming it (probably because it would distract the non-lawyer audience).
This morning on MSNBC, a coterie of Vance’s fellow Yale Law grads and other talking heads conspicuously avoided mention of the doctrine.
Probably because it controls here.
JSM
Wince said...
"The threat Vance is addressing is giving the courts unfettered discretion to tell the executive.."
I see that distinction and agree with Vance if he means control. But we are in fact seeing court cases and some courts pushing back about the frozen federal funding and about the DOGE access to the payment system operated by the Treasury Dept. My reading is that Trump and Vance [and their lawyers] think the courts should have no say. I don't think it's about control but instead an interpretation of power. We'll see what the courts say.
I was responding to a comment that was subsequently deleted.
Ah- thank you!
From what I read in the post by the author of that Frankenstein reboot here, I didn't actually see anything in that injunction that could be considered objectionable. I have worked with sensitive data in the past, I have written stream editing scripts to sanitize it, strip it of it's identifiable matter without changing its essential nature, which would have rendered it useless, then given this data to testers and developers to use freely. It worked fine. I am just talking about Doge here.
From what I have seen in the press about these government systems, it seems like they are deliberately designed to facilitate fraud. For instance, the systems I worked on had one function which allowed the user to sanity check payment information from other unrelated systems, it wasn't even the system of record, but you can bet that any changes to the data were logged and auditable, that there was always an audit trail. In the far more sensitive area of vote counting systems, from what I have read regarding Georgia, there was not even a robust audit trail, you could simply delete stuff and delete the audit records. This should have been rejected as not fit for service, but that all depended on what "service" you expected the system to do, didn't it? Same with these untraceable payments. Deliberately untraceable payments.
Oy vey!
"constitutional crisis."
LOL, it's a court case. Is that the talking point you have been assigned? Look at the scoreboard, your stuff isn't working.
A court has now ruled that the frozen funding must be released. Court thinks they run the executive branch,
https://x.com/ProfMJCleveland/status/1889003029409493029
End italics
Isn't ordering the payments to be made exactly the opposite of a temporary order, since they can't be taken back, even if Trump wins.
This is the kind of stuff that thieves and kleptocrats would think of to cover their tracks, not somebody interested in getting a legal resolution of the problem.
This has been a torpedo amidship to the DNC's government funded political apparatus, this is all about keeping the firehose of taxpayer money going to favored organizations, nothing more.
There is not and cannot be a basis for distinguishing between 'civil servants' and 'political appointees.'
And yet there has been for the 150 years of the federal civil service.
Ex parte TROs to preserve the status quo pending a hearing is hardly anything new either. So either these Trumpists are incredibly ignorant or they are just dishonest. Or both (which is certainly the case for both Trump and Vance).
Matt, unlike the judiciary, the Chief Executive stands for election, and reelection and that is the ultimate check on his power. I would submit that no other candidate in my 60 years has been so open and explicit about wanting to devolve the power of the Federal Government. But it will take the vigorously exercising his powers to do so.
"Ex parte TROs to preserve the status quo pending a hearing is hardly anything new either."
Mark, you are arguing a point not at issue.
Mark,
TROs are issued to prevent irreputable harm. If the money is disbursed and later determined to be fraud then irreputable harm has been done (It's difficult or impossible to retrieve). If the money is not immediately disbursed and sent later, there is just normal government delay and not irreputable harm. The intent of the TRO is to keep the money flowing wither it is fraud or not, then the irreputable harm is being done by the courts not DOGE.
I wonder if Democrats have thought this through. Let's start with something that will be determined, even if it takes a few appeals or SCOTUS to say it; the POTUS has the authority to audit the Executive Branch and its spending. That will happen, and the results will be made public.
Do Democrats think the American people, who already are polling the majority in agreement with what Trump is doing, will just say, "well, if the federal courts say the President must continue this spending..." Good luck with that argument.
Mike (MJB Wolf) said...
"unlike the judiciary, the Chief Executive stands for election, and reelection and that is the ultimate check on his power."
No doubt 'the will of the people' has to be considered as a major arbiter of any president's right to his agenda. But it cannot be the only arbiter. Historically if we go all the way back to Marbury v Madison [1803] we see the importance of the courts: It gives "the Supreme Court the power to declare laws and actions unconstitutional if they violate the Constitution." The EO on birthright citizenship being a prime example of one that will be challenged.
Ann - the memorandum asserts that the order is currently being "substantively followed", but also points out that taking the order literally would obstruct normal operations in three ways, and so that part has been ignored. They're interpreting it so as to make it workable.
“ Historically if we go all the way back to Marbury v Madison [1803] we see the importance of the courts
no, Matt, what we see in Marbury v Madison is a court saying on their own authority that they are the final authority. we don’t see the importance of the court though they’re certainly are important. we see them assert their constitutional authority under article III, just as the president is able to assert his or her no less constitutional authority under article II
Regarding Matt's post at 2:15 re impeachment:
Yes Democrats impeached Trump twice with flimsy stories and no evidence. This doesn't speak to the deficiencies of the impeachment clause so much as it reinforces the belief that partisan prosecutions without a compelling factual claim are weak in their own right. A president who truly ignores the law and tramples the Constitution could and should be impeached and removed. But the prosecution would necessarily have to overcome the public's impeachment fatigue and reluctance to remove an elected president. That's a reasonable threshold, though we have no limits on partisanship other than regularly scheduled elections.
“A federal court, consistent with the separation of powers, cannot insulate any portion of that work from the specter of political accountability.”
“Specter” is an odd word choice here, it means:
1: a visible disembodied spirit : GHOST
2: something that haunts or perturbs the mind : PHANTASM
The Trump administration is arguing in court that DOGE is a ghost or phantasm.
“Interfering with those basic functions, even for a day, will cause irreparable harm to the government.”
“Will cause” is future tense but the Trump administration claims they have been following the order for a couple of days which undermines the claim of irreparable harm “even for a day.”
Left Bank reminds me of a joke.
"How do you make an NGO moan?"
"Don't pay them."
"Specter" (or "spectre") can also mean "the idea of something unpleasant that might happen in the future." The word is more often used in that metaphorical or abstract sense than in the older literal sense.
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