By: Dan McLaughlin – nationalreview.com – February 12, 2025

The DOGE case pushes the judicial power too far, and tempts a dangerous response.

We are not, currently, in a state of constitutional crisis. But we may be approaching one — and overreaching federal district judges seem bent on enticing the Trump administration into one. It’s an invitation that the administration seems too easily tempted to accept.

The Lockout

The immediate spark for the controversy was Saturday evening’s temporary restraining order issued by federal district Judge Paul Engelmayer of the Southern District of New York. Judge Engelmayer purported to order the president, the Treasury Department, and the secretary of the treasury to bar access to Treasury Department payment systems by “political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department,” while permitting such access on the part of “civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations.” He further ordered Trump and Treasury to “direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems.”

Judge Engelmayer, an Obama appointee, isn’t even the judge assigned to the case; he just happened to be on emergency duty at 9:30 p.m. on a Saturday night when Letitia James and the attorneys general of 16 other blue states filed a lawsuit aiming to stop Elon Musk’s Department of Government Efficiency (DOGE) from reviewing whom the government pays. As happens with short-term emergency requests, he issued the order without even letting the defendants respond. But the order was just good through Friday the 14th, the date set for a hearing before Judge Jeanette Vargas (a Biden appointee), to whom the case is assigned.

The legal theory — really a pretext — of the lawsuit is the claim that a series of federal statutes and regulations restrict access to personally identifiable payment information to agency employees. The states also argue that there’s no rational basis to allowing DOGE to find out who gets paid by the government because all spending power belongs to Congress — a preposterous stance, given how many federal grants are made by the decisions of executive agencies and departments rather than by the explicit direction of a federal law.

The actual aim of the lawsuit is to prevent DOGE from informing the president, the Treasury secretary, and the voters about who receives the public’s money as a result of those executive decisions. The states want to stop DOGE from doing this because, if the executive branch’s leadership knows where the money is going, it can change where it goes in the future. But it’s the job of the president to be informed, and to delegate to whomever he wants the task of gathering information in order to summarize it for him. For that matter, given that the president has a role in proposing and signing both the budget and spending legislation, it’s also a legitimate aim for him to be informed about spending decisions (including how much of the overall spending is necessary and appropriate) in order to make decisions about next year’s budget.

There are grave constitutional issues with Congress attempting to hide from the president where the executive branch is spending money. There’s also little reason to think that the various statutes invoked — the Privacy Act of 1974, the Tax Reform Act of 1976, the Ethics in Government Act of 1978, and the E-Government Act of 2002 — were designed to do so, much less to empower courts to override presidential determinations of who in his employ has a need to know these things.

There were two especially problematic aspects to Judge Engelmayer’s order. First, it was crafted to draw a distinction between “political appointees” and “civil servants” that stands on its head the executive branch’s constitutional chain of command, which is supposed to have the elected president at the top, followed by Senate-confirmed department heads and superior officers. In fact, as the Trump administration’s emergency response pointed out, it was so broadly written as to appear to bar the secretary of the treasury from access to his own department’s systems.

The court has already climbed down from that extreme reading. On Tuesday, Judge Vargas issued a second order that scaled back Judge Engelmayer’s order by expressly allowing the secretary of the treasury and other Senate-confirmed officers of the department to access the Treasury’s payment systems. As Judge Vargas conceded, there was no legal authority for such an order:

There is nothing in the record to indicate that, prior to January 20, 2025, any statute, regulation, or agency policy prohibited the Secretary of Treasury or any other Senate-confirmed officer within the Treasury Department’s senior leadership from accessing any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees. The parties both point to language in [an affidavit submitted by the defendants], which states that the Secretary of the Treasury does “not ordinarily need to receive access to or review data from such systems.” . . . Whether the Secretary and other senior officials routinely accessed or received data from these systems is a different question than whether they were previously prohibited from access, however. (Emphasis added.)

A different question indeed. One could not more neatly summarize the approach of the Trump administration, for good and for ill: Just because things have been done a certain way for some time doesn’t mean that the law requires that they be done that way forever. Donald Trump’s willingness to break with established traditions can clash at times with conservative respect for leaving settled practices in place. It is useful, however, to remember that G. K. Chesterton’s maxim about finding out why a fence was put in the road before removing it was not accompanied by a court order preventing anybody from finding out why the fence is there.

The second problem with Judge Engelmayer’s order is its insistence that records gathered thus far be destroyed immediately. Normally, if a court has heard evidence and argument and concluded that a party is holding information it has no business possessing, it may well be appropriate to order it destroyed. Typically, whatever is subject to a court order of destruction might be held in a secure location until the party challenging the order can appeal it. It is exceptional for a court to order a party to do something irrevocable before that party has even been heard in court.

The Backlash

Following Judge Engelmayer’s order and an order in D.C. federal court regarding the administration’s effort to sideline the staff of the U.S. Agency of International Development (USAID), JD Vance responded on Twitter/X: “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.”

This was widely panned as a threat to defy court orders. It wasn’t explicitly such a threat, but Vance also didn’t exactly deny such a threat, and seemed quite happy to promote the public perception that the administration might disregard the courts. This is of a piece with Trump’s habit of playing chicken with norms and institutions. It’s also similar to how Joe Biden behaved when he repeatedly bragged in his stump speeches that “the Supreme Court tried to block me from relieving student debt. But they didn’t stop me.” Biden, in fact, went further in 2021, after the Supreme Court had made clear that a majority of the justices thought that the Biden administration’s eviction moratorium was illegal, but before they had issued a permanent order barring it. Biden instituted a new moratorium that was openly intended just to buy time before the Court could strike it down:

The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. . . . But there are several key scholars who think that it may and it’s worth the effort. But the present — you could not — the Court has already ruled on the present eviction moratorium. . . . Whether [the new moratorium] will pass constitutional measure with this administration [sic], I can’t tell you. I don’t know. There are a few scholars who say it will and others who say it’s not likely to. But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money. . . . At least we’ll have the ability to, if we have to appeal, to keep this going for a month — at least. I hope longer.

The Least Dangerous Branch?

The big-ticket question is how completely the federal executive branch must submit to the decisions of the courts. At the margins, it’s actually an unsettled and long-contested question among legal scholars. Several past presidential administrations have threatened to test the waters of flouting court orders, starting when Thomas Jefferson and James Madison refused to even send a lawyer to argue their administration’s side of the case in Marbury v. Madison. A few, including Richard Nixon and arguably Abraham Lincoln, have at least temporarily ignored the courts. Some, such as Andrew Jackson, have declined to help enforce court orders when the federal government wasn’t involved in the case itself. But no president has directly challenged the obedience of executive authority to the courts. Jackson’s famous and possibly apocryphal remark (Chief Justice John Marshall “has made his decision, now let him enforce it”), after all, was directed at Worcester v. Georgia, a lawsuit between a Native American tribe and a state government.

Judicial supremacy — the notion that courts can just order literally anything on literally any basis and the two elected branches have no recourse — is a real problem, but just about every solution (other than getting better judges) tends to be a cure worse than the disease. Even when there are strong arguments for ignoring the courts, it is perilously difficult to define a limit to the power to ignore court orders once the principle of doing so is established. For the moment, the only line is the standing warning to courts that sooner or later somebody might try to defy their rulings if they push their own power too far.

Those who would like to pick a fight on this issue, unfortunately, are being given some gifts here. It’s perfectly legitimate, for example, for the Trump administration to insist that Judge Engelmayer shouldn’t be trying to eliminate its right to appeal by ordering the destruction of materials that the administration contends are properly reviewable by DOGE — much less issuing that order ex parte on a Saturday night. Refusing to abide by that demand may run the risk of contempt of court, but it is also simply a way to try to vindicate the power of the appellate courts to reach a ruling.

As Andy McCarthy notes, there are also well-understood limits on the judicial power to issue orders about how the executive branch does its job. Those limits are a different matter than simply the question of whether a court order is legally right or legally wrong; they cut to the core of what Article III means by “the judicial Power” and what Article II means by “the executive Power.” There really is a respectable case that, beyond a certain point, it would be a dereliction of the executive’s constitutional oath to allow executive powers to simply be taken over by a rogue district judge. Attempting to oust the president’s power to even inquire into what the executive departments are doing runs perilously close to that line. So, as Andy notes in regard to the USAID case, does taking over the executive’s foreign policy powers.

It is troublesome that this administration, like its predecessor, is not only willing to flirt with the idea of defying the courts but thinks it benefits politically from the perception of doing so. But if judges insist on ranging far beyond the remedial powers of courts, they are apt to tempt the Trump administration to find out where those limits really are. That’s a genie that could be hard to put back in the bottle.

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Source: Overreaching Judges Are Presenting Trump with a Constitutional Crisis | National Review