Trump 2.0 - The Judicial Front
The next phase has opened and activist judges have fired their first salvos
Completely to no one’s surprise various low level judges, on behalf of various grifters threatened by a lack of federal funding, have issued orders telling Trump he can’t do things he and his various appointees, DOGE etc. are doing.
Since Trump and his team are very far from idiots, it is obvious that they will have expected this and have plans. The good news is that a number of these rulings and lawsuits seem to be based on interpretations of the US constitution that can best be described as wishful thinking. In the case of the Treasury one, not only is the cause iffy, but the filers quite clearly judge shopped and he/they in the process very clearly violated significant chunks of the Federal Rules of Civil Procedure, as John Lucas explains here:
The good news in this particular case is that both the Judge and some of the plaintiffs - especially a certain Colleen Faherty - have now opened themselves up for sanction in turn. Faherty, by making what can best be described as a pro forma atempt to provide notice, would seem to be vulnerable to a referral to the relevant bar association(s), having her right to appear at a federal court withdrawn until she completes some mandatory legal education and other similar sanctions. Not much in themselves, but they will cost her time and money. The Judge, Engelmayer, may escape serious sanction in this case, though having his TRO etc. tossed hard by whatever judges and courts see it with a list of reasons why it was completely wrong won’t do his reputation any good. I suspect that he’s going to face more concequences because Lucas has a follow up substack (behind a paywall) making the case for his impeachment
I sincerely hope the logic behind that post is seen by someone with suitable authority
Anyway, I’m also quite confident that the ruling will be swept away for the reasons enumerated in the reply brief by DoJ which includes:
Of the other lawsuits.
The one about stopping payments in Rhode Island seems to be still progressing, though I suspect that arguments similar to the ones made in New York will likely be made there at an appropriate level and win. The lawsuit is interesting in that it was filed to fight a memo that OMB already rescinded so one assumes that this will have some bearing on the eventual result. It is quite likely, IMO, that the Trump people want this lawsuit to continue because they believe they have a strong constitutional case for their actions. If they can get the Supreme Court to rule in their favor that Trump can stop spending that will kill almost all related lawsuits for rest of the presidency if not beyond.
It is notable that this too seems likely to have involved some judge shopping and the judge probably ought to have recused himself.
EXCLUSIVE:
🚨Judge John McConnell, the federal judge from Rhode Island who ordered the Trump admin and DOGE to unfreeze billions of dollars in federal grants has a daughter who currently works for the US Department of Education as a senior policy advisor and was appointed by @JoeBiden on Feb 14, 2022, which is a CONFLICT OF INTEREST since Trump and DOGE are planning to defund the Department of Education🚨
John J. McConnell Jr., Chief judge of the U.S. district court in Rhode Island, ordered the Trump administration to “immediately restore frozen funding” and accused the Trump admin today of failing to comply with his prior order to unfreeze funding.
The reason why Judge McConnell, a Democrat donor and activist wants Trump to restore funding is because his daughter, Catherine McConnell, is currently employed by the same Department of Education that President Trump and @elonmusk want to audit and DEFUND. She was appointed by Joe Biden and now her Dad is abusing his power to protect her paycheck.
This substacker advises Trump to pull a Biden and simply ignore these judges.
I don’t think this is a good idea, but I can certainly see the merit in it. My feel is that Trump would rather get a case up before the Supreme Court fast that provides a definitive ruling against more of these lawsuits. If the Supreme Court also required that the 20-22 states (it’s pretty much always the same 20-22) to file future motions of these sorts directly with the Supreme Court itself to avoid judge shopping that might also be good, though I’m not entirely sure they can do that.
Then there’s the “I am a website creator” Judge and the lawsuit about the right to delete government webpages. Sen Mike Lee sums up my view of this:
These judges are waging an unprecedented assault on legitimate presidential authority, all the way down to dictating what webpages the government has.
This is absurd.
Again this lawsuit looks remarkably like judicial interference in the legitimate operations of the executive branch. The Judge may believe he will rule in their favor, but I very much doubt his superiors will. And again, it seems likely that Trump anticipated this kind of thing and will have lawyers present arguments as to why the executive has the right to decide what it publishes.
About the only one that may succeed is the NIH one about limits to indirect costs funded by grants. The reason it may succeed is that, as the link above notes, it is similar to something Trump attempted to do in 2017:
Today, a coalition of 22 states filed a suit that seeks to block the new policy, alleging it violated both a long-standing law and a budget rider that Congress had passed in response to a 2017 attempt by Trump to drastically cut indirect costs.
[…]
This isn't the first time that indirect funding has been threatened, though. In 2017, Trump's budget proposal would have set all indirect rates at 10 percent of the grant's value, but it was blocked by congressional action (we'll return to that).
[…]
Should the judge decide that the new NIH policy isn't a federal rule governed by the Administrative Procedures Act, however, the states have a backup. As mentioned above, the first Trump administration had tried to slash indirect cost rates back in 2017. In response, the Democratic-controlled Congress of 2018 managed to attach a rider to an appropriations bill that prevented the NIH from spending any money to develop or implement any policy that alters the then-present system of determining indirect cost rates. That rider has remained in effect ever since, which suggests that, merely by announcing the new policy, the NIH has spent some of its budget in a manner specifically prevented by law.
I hope Trump’s team looked at the 2018 rider and wrote their new EO in a way that side-steps it, but this seems to be a moderately hard road block.
Now of course the current congress can attach a new rider to the next budget/appropriations bill cancelling the previous one or even write into law that indirect costs may only be 15% max but, short of that happening, I’m not sure this EO will prevail.
Of course these won’t be the only lawsuits. I anticipate that the EOs that require agencies to identify the statutory authority for their existence to be challenged because it is clearly going to threaten a lot of bureaucratic jobs
And I have no doubt that other EOs will also be challenged because Trump 2.0 is absolutely taking away the livelihoods of millions of members of the Professional Managerial Class the PMC people are the sorts of people who sue when things go against them. However, as I noted before, there are likely to be issues with the numbers of lawyers available. Although it is possible that a bunch of newly let got Department of Justice lawyers may be available, in that case the question becomes who pays for them? After all the main impetus for these lawsuits is going to be that Elon cut the magic funding fountain. Anyway it’ll be amuising to see who sues and who pays for the lawsuits.
Finally I note that in recent years considerable legal analysis has gone into looking at whether the current “Administrative State” is in fact constitutionally legal. This probably started with Philip Hamburger’s book “Is Administrative Law Unlawful?” and has continued with work by Gary Lawson ( The Rise and Rise of the Administrative State ) and others.
While it may sound contradictory, I would say it is almost certain that Trump wants to lose one of the cases against him because the loss will further invalidate the current Administrative State in the same way that “Loper Bright Enterprises v. Raimondo” overruled the “Chevron doctrine” last year. Clearly it will have to be the “right” case to raise the right constitutional point, but I anticipate it will happen.