Dems And Judges Shredding Article II Are A Threat To Democracy

For a solid week, blue states, labor unions, and non-profit organizations have descended on federal courts up and down the East Coast seeking to halt President Donald Trump’s agenda. And they have found receptive partners in a handful of federal judges willing to enter temporary restraining orders, or TROs, to immediately — and sometimes without any notice — prohibit the normal functioning of the executive branch.

To be clear, the TROs entered are not addressing specific disputes between Trump and the litigants, where the plaintiffs allege a particular action injures them in some concrete way. Rather, the country is seeing large coalitions of plaintiffs who oppose the president’s agenda filing lawsuits challenging the broad policies and the management of the executive branch.

Consider, for instance the lawsuit more than twenty states, led by New York, filed in a federal court in Rhode Island: In that case, New York v. Trump, the states initially challenged an Office of Management and Budget (OMB) Directive to agencies to temporarily pause activities and disbursement of federal funds that conflict with various executive orders. The OMB later rescinded that directive. Yet federal judge John J. McConnell, Jr., a Barack Obama appointee, entered a TRO ordering the President of the United States not to “pause, freeze, impede, block, cancel, or terminate” federal financial assistance to the states.

The Trump Administration read that TRO as only prohibiting the freezing or canceling of grants based on the challenged OMB Directive or the president’s various executive orders. Surely the federal agencies could continue to review various grants as is always the executive’s prerogative? 

Not according to an order Judge McConnell entered yesterday in response to a motion the states filed to enforce the TRO.

In that order, Judge McConnell unequivocally declared Donald Trump “must immediately restore frozen funding,” and must “immediately end any federal funding pause . . . ” The command was all encompassing, applying to “any federal funding pause.” It didn’t matter why the federal funding was paused, whether the pause was permitted by the grant, a statute, a regulation, or done as part of the internal management and oversight by agencies. And by the plain language of the order, it didn’t matter whether the funding went to the plaintiff states or came from one of the defendant agencies.

The order represented a complete coup over the Executive.

The Trump Administration promptly notified the court of its intent to appeal. A TRO, however, is not normally appealable, meaning the executive branch may remain hijacked until the lower court resolves the pending Motion for a Preliminary Injunction, which can then be appealed.

As outrageous as this order is, there is a worse one still, being the TRO entered by a New York federal judge.

At 1:00 a.m. on Saturday, another Obama appointee, Judge Paul A. Engelmayer, entered a TRO prohibiting Trump and the secretary of the Treasury from granting access to treasury department data systems to any person “other than civil servants.” Further, the TRO expressly provided that Trump and the Treasury secretary could not provide any political appointees access to the systems.

Nineteen blue states had sought that TRO even though the Treasury secretary had made clear that only a limited number of executive branch representatives would be accessing the databases and even though the access was limited to a read-only function. And a federal judge then granted the injunction against the President of the United States in the early morning hours of the weekend, prohibiting members of the Trump Administration from accessing many of the Treasury Department’s computer systems.

In what sane world can a federal judge tell the executive and the Treasury secretary which employees can have access to a computer system?

The Trump Administration thought the answer was clear — none — and yesterday filed an emergency motion to vacate the TRO, writing:

This is a remarkable intrusion on the Executive Branch that is in direct conflict with Article II of the Constitution, and the unitary structure it provides. 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.

That motion is currently pending before Judge Jeannette A. Vargas, who was assigned the case. (Judge Engelmayer merely handled the after-hours emergency filing.) 

Early on Monday, Vargas asked the parties to confer and seek a resolution of the issue, but by late afternoon, the states filed a response opposing anything other than a minor change to the TRO. In their response, the states argued there was no reason the Trump Administration needed access to the computer systems because the political appointees could merely ask the civil servants to provide them any information they wanted.

But it is not for the states or a federal judge, for that matter, to tell the executive branch how to conduct an audit of computer systems. Whether Judge Vargas agrees remains to be seen.

What is clear, however, is that opponents of the Trump Administration’s agenda care not for democracy, our Constitution, or the rule of law: They care only for power. And after losing it electorally in 2024, they fear they will soon also lose control over the unelected bureaucrats that run the government and fund their leftist organizations and causes. 

They won’t go down without a fight, however, and the flurry of TROs seen over the last week is likely just a taste of what is to come.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.