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seem to be vulnerable to a referral to the relevant bar association(s), having her right to appear at a federal court withdrawn until she completes some mandatory legal education and other similar sanctions.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 The lawsuit is interesting in that it was filed to fight a memo that OMB already rescinded so one assumes that this will have some bearing on the eventual result.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.
I still maintain that the Executive is not constrained by the Judicial Branch, except by force of reasoning, as Andrew Jackson stated in his veto (which was largely drafted by Justice Roger Taney - see https://en.wikipedia.org/wiki/Roger_B._Taney), to wit:
"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."
And that act of defiance should be quite effective in bringing this Constitutional crisis to a head, because what we have is an effective "fourth branch" of government asserting power over the elected and Constitutional three branches of government:
"The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution. The original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects of our modern government chose the administrative state, and their choice has stuck. ... The United States Congress today effectively exercises general legislative powers, in contravention of the constitutional principle of limited powers. Moreover, Congress frequently delegates that general legislative authority to administrative agencies, in contravention of Article I. Furthermore, those agencies are not always subject to the direct control of the President, in contravention of Article II. In addition, those agencies sometimes exercise the judicial power, in contravention of Article III. Finally, those agencies typically concentrate legislative, executive, and judicial functions in the same institution, in simultaneous contravention of Articles I, II, and III. In short, the modern administrative state openly flouts almost every important structural precept of the American constitutional order." The Rise and Rise of the Administrative State, Gary S. Lawson, Boston University School of Law, at https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=1941&context=faculty_scholarship.
The unconstitutional Administrative State, put very largely in place by Franklin Roosevelt and largely staffed by Democrats, which has cemented Democrats in power and continied their policies, regardless of elections and the will of the electorate, must be ended and utterly abolished, and Constitutional rule re-established:
A contemporaneous writing, from 1938, was prescient of the current situation:
“The test came in the first one hundred days. No matter how carefully a revolution may have been planned there is bound to be a crucial time. That comes when the actual seizure of power is taking place. In this case certain steps were necessary. They were difficult and daring steps. But more than that, they had to be taken in a certain sequence, with forethought and precision of timing. One out of place might have been fatal. What happened was that one followed another in exactly the right order, not one out of time or out of place.
Having passed this crisis, the New Deal went on from one problem to another, taking them in the proper order, according to revolutionary technic; and if the handling of one was inconsistent with the handling of another, even to the point of nullity, that was blunder in reverse. The effect was to keep people excited about one thing at a time, and divided, while steadily through all the uproar of outrage and confusion a certain end, held constantly in view, was pursued by main intention. The end held constantly in view was power.
In a revolutionary situation mistakes and failures are not what they seem. They are scaffolding. Error is not repealed. It is compounded by a longer law, by more decrees and regulations, by further extensions of the administrative hand. As deLawd said in The Green Pastures, that when you have passed a miracle you have to pass another one to take care of it, so it was with the New Deal. Every miracle it passed, whether it went right or wrong, had one result. Executive power over the social and economic life of the nation was increased. Draw a curve to represent the rise of executive power and look there for the mistakes. You will not find them. The curve is consistent. At the end of the first year, in his annual message to the Congress, January 4, 1934, President Roosevelt said: "It is to the eternal credit of the American people that this tremendous readjustment of our national life is being accomplished peacefully."
Peacefully if possible—of course.
But the revolutionary historian will go much further. Writing at some distance in time he will be much less impressed by the fact that it was peacefully accomplished than by the marvelous technic of bringing it to pass not only within the form but within the word, so that people were all the while fixed in the delusion that they were talking about the same things because they were using the same words. Opposite and violently hostile ideas were represented by the same word signifiers. This was the American people's first experience with dialectic according to Marx and Lenin.
Until it was too late, few understood one like Julius C. Smith, of the American Bar Association, saying: "Is there any labor leader, any businessman, any lawyer or any other citizen of America so blind that he cannot see that this country is drifting at an accelerated pace into administrative absolutism similar to that which prevailed in the governments of antiquity, the governments of the Middle Ages, and in the great totalitarian governments of today? Make no mistake about it. Even as Mussolini and Hitler rose to absolute power under the forms of law . . . so may administrative absolutism be fastened upon this country within [and yet fundamentally opposed to] the Constitution and within the forms of law." https://cdn.mises.org/Peoples%20Pottage_2.pdf
Make no mistake about it, this is the war of the Shadow Government, the Unelected Permanent Government, of the US, against the American people, most of whom perhaps - but not for too much longer - still believe that the elected government holds the power. This is a war between the Shadow Government and the Constitutional Government - and the Constitutional Government must overthrow and eradicate the unconstitutional Shadow Government.