Streetwise Professor

Although there’s more to be said about the continuing secondary explosions from the Trump administration’s carpet bombing of the Europeans, today I’ll turn attention (as promised) to the home front. Specifically, the legal battles that Trump’s flurry of Executive Orders and the operations of DOGE have triggered.

Across the nation, aggrieved parties have engaged in a forum shopping spree to file cases in Federal courts demanding temporary restraining orders (TROs) and/or preliminary injunctions to stymie the administration’s actions. Not all of these are created equal, and it’s worth categorizing them and analyzing category by category.

At the outset, let me say that one thing that deserves greater attention is whether the plaintiffs in these actions have standing. At least one request for a TRO has been rejected on standing grounds. Given that standing was the basis for the rejection of many of the 2020 election lawsuits filed by Trump or other parties, it’s quite clear that courts routinely use standing as a way of quashing suits they don’t like while avoiding ruling on the substance of the claims. I wouldn’t be surprised if courts (up to and including the Supreme Court) might punt on many of these cases by throwing them out on standing grounds.

Now, going to the substance of the various types of cases being filed. One good classification algorithm is based on the fact that virtually all of these legal actions relate to a challenge of presidential authority under Article II of the Constitution.

The Constitution establishes a separation of powers. A major role of the courts is ruling on boundary disputes that are inherent in such a separation. One boundary is between the legislative and the executive. Another boundary is between a branch of the federal government (executive or legislative) and the people: such a boundary exists because of the Bill of Rights. Another boundary, and the most problematic, is between the courts and either the executive or the legislative.

Cases that challenge the administration’s cutting spending relate to the executive-legislative boundary. Where the boundary is relatively clear is when Congress has mandated specific expenditures. The executive’s ability to withhold or cut those is shaky at best. Although even here the fact that Congress apparently felt it necessary to pass the Congressional Budget and Impoundment Act of 1974 to constrain the president’s power to impound funds suggests that even when it faced a crippled and very unpopular Nixon administration Congress was not confident that the restriction on the president’s impoundment power was not rooted in the Constitution. The constitutionality of the restrictions on impoundment may become the overriding issue, and this would have to be resolved at the Supreme Court–or by Congress changing the impoundment laws, which is not outside the realm of possibility.

Things get far more ambiguous when Congress allocates moneys to a particular department or agency, yet doesn’t provide specific orders on how the money is to be spent. It appears that’s where Trump/DOGE are focusing, and it’s by no means clear how that will play out in the courts, and in the Supreme Court in particular, where this dispute, like all the others, will end up one way or another.

There’s also the very important issue of where DOGE’s algorithms have identified apparently fraudulent expenditures which it refuses to make or even tries to claw back. The president has the duty to see the laws are faithfully executed, and fraudulent expenditures of moneys allocated by Congress would represent a violation of those laws, meaning that the president has an obligation to stop them.

Here is where what constitutes “fraud” will come into play. This will be an issue of fact as well as an issue of law, and the facts will differ in every instance.

As for “DOGE is not elected!!!” well, DOGE is part of the executive branch, and every part of the executive has accountants, auditors, and investigators whose supposed job is to prevent and deter fraud. DOGE is basically performing that function . . . and in so doing is demonstrating that those who are supposed to be doing this are doing a crap job at it. It is watching the watchmen, and the watchmen don’t like it one bit–nor do those the watchmen have failed to detect.

Another legislative-executive boundary war involves the ability of the president to terminate executive branch personnel. Relationships with these personnel are governed in large part by civil service laws dating back to the Pendleton Act of 1883. Meaning that courts will have to decide whether executive branch actions violate these laws.

A more ambiguous type of case involves things like the deals that the on-its-way-out-the-door Biden administration negotiated with government employee unions on things like work from home. As executive actions those would at least be plausibly within the new president’s power to undo.

The executive-people boundary is implicated mainly in Trump EOs relating to things like eliminating DEI, banning transgenders from the military, and eliminating biological males from participating in female sports. These will also be fact-intensive matters, specifically whether a particular EO violates any right.

As noted earlier, the most problematic boundary is between the executive and judicial. Many of the suits have challenged the executive’s authority to do things that seem to be quite clearly and unambiguously under the purview of the executive. Most notable of these are attempts to restrict executive branch personnel from accessing executive branch information resources. The most astounding of these is the TRO that barred the Secretary of the Treasury from . . . accessing Treasury Department databases.

These suits seem to me to be facially absurd. How is the executive supposed to see that the laws are faithfully executed if he or his designated agents are not able to access information about the operations (most notably the distribution of moneys) of executive departments and agencies?

It is abundantly clear why these actions have been filed–and it’s not because of a punctilious regard for Constitutional powers. It is because information is power. The (unelected!) bureaucracy wields massive power precisely because at least heretofore it has had control over information. Giving the actual chief executive access to that information is a mortal threat to the power of bureaucrats/the administrative state/the Deep State.

This, of course, is precisely why under Trump’s direction DOGE’s first actions have focused on accessing and mapping that information. It realizes that control of information is the center of gravity in the war on the bureaucracy. Hence unhindered access to data and information is DOGE’s/Trump’s schwerpunkt.

And here is where the court-executive boundary comes into play. These actions are self-evidently in the sphere of the executive, and necessary for him to achieve his duty of ensuring the execution of the laws. By intervening in this domain the courts–or more accurately, specific Federal judges–are transgressing the limits of their authority.

It is a basic principle of Anglo-Saxon law that no person should be a judge in their own case. But that’s effectively what certain federal judges are doing here–judging what falls in their sphere. This is an inherent conflict under the separation of powers: who judges the judges? Yes, you can say that higher court judges will judge these district judges, but at the end of the day you still are in a situation where the highest court of judges is determining how far its powers, and those of its inferiors, extend.

So if there is a Constitutional Crisis now, it is one that is an omnipresent possibility under the separation of powers.

How can these conflicts be resolved? One is for the executive to exercise the FU option, and refuse to comply. Andrew Jackson’s response to a Supreme Court decision (“Mr. Marshall has made his decision. Now let him enforce it.”) is one way. Similar is Lincoln’s in ex parte Merryman, where Supreme Court Chief Justice Taney issued a writ of habeus corpus that Lincoln refused to obey: Taney ruled that only Congress could suspend habeus corpus. Taney admitted that he was powerless to enforce it, and Lincoln ignored the court. (Ex parte Milligan raised similar issues, namely the ability of the administration to try people with military tribunals while civilian courts were operating, but the Supreme Court decision came down when the issue was effectively mute, meaning that there was no need for the administration to defy the court).

These standoffs inevitably become political issues. In the Lincoln-Taney standoff, the suspension of habeus corpus was widely popular in the US, and a little more than a year after Merryman Congress passed a law authorizing its suspension. But even here, Lincoln felt compelled to make the case to the nation:

The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?

I suspect that outside the usual suspects on the left and in the media (redundant, I know) letting slip the DOGEs of war on the bureaucracy’s information monopoly will be widely popular, especially given the bad look arising from disclosures like those involving USAID have had. Thus, I think it highly likely that the administration would prevail in the political controversy that defiance would unleash.

Some on the right, notably commentator Kurt Schlicter, recommend that that administration comply and just let the issue work through the courts. They argue that Trump’s case is so strong, and the high court’s neuralgia at overstepping its bounds in a fraught political issue is so great, that he will eventually prevail without having to bring things to a confrontation. This would have the added benefit of creating useful precedents.

This is probably wise. After all, the administration still has the FU option, and can defer choosing to exercise it until it becomes necessary. This would avoid paying the strike price of a political frenzy that would inevitably result.

Trump’s odds of prevailing depend on the bucket a particular case falls in. He has the best odds in the last type of case where the courts are asserting authority over matters that seem clearly outside their domain and within that of the executive. The cases that fall into the other categories are less clear-cut, and Trump will no doubt lose many though will prevail in more than a few.