Feb.10

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Dem 47

   

GOP 53

Judges Start Making Rulings

During his first 3 weeks in office, Donald Trump has signed more than 50 XOs and other executive actions aimed at transforming the government and the country. Many of them are controversial, to put it mildly. Already more than two dozen lawsuits have been filed against them. Some of them have gotten to the point where judges have made temporary rulings to block (or not block) execution of the XOs until the judge has time to consider the merits of the case. Generally, judges won't temporarily block an XO unless they think there is a reasonable expectation that the plaintiffs could win the case later on the merits. Let us look at some of the lawsuits and outcomes so far.

• DOGE: Early on, Elon Musk's band of happy hackers descended upon the Treasury Dept. and took over its computers, including the ones handling $6 trillion in annual federal payments. The databases on these computers have a great deal of personal information about hundreds of millions of Americans. Government unions sued, claiming giving access to kids working for a private businessman who is not even a government employee, and has not been confirmed by the Senate for anything, violated federal privacy laws. Last Friday, a group of 19 state attorneys general, led by NY AG Letitia James, also filed a lawsuit arguing that the Muskrats' access was unconstitutional.
  
  On Saturday, U.S. District Judge Paul Engelmayer (a Barack Obama appointee) issued an emergency order in response to the lawsuit from James and the other AGs. He agreed that this administration policy risked disclosing sensitive data. He also said that he expected the states would be able to show that this new arrangement is illegal. His order was far reaching, stating that only persons who are civil servants, who have passed all the background checks, have the necessary security clearances, who have had the required security training, and who need access as part of their assigned duties may get access. He specifically banned all special government employees (meaning Musk and his merry band of kids) from accessing the system and further ordered them to delete all information they had downloaded from the system immediately. Good luck with enforcing that one. On Feb. 14, Judge Jeannette Vargas (a Joe Biden appointee) will hear the case on its merits. Sometimes the courts take forever to do things, but sometimes they can move quickly.
  
  
• USAID: On Thursday, two government unions filed a lawsuit over Musk's attempt to dismember USAID, which provides humanitarian aid, health care, and much more in many poor countries around the world. On Friday, U.S. District Court Judge Carl Nichols (a Donald Trump appointee) issued a temporary restraining order blocking Musk's attempt to put 2,200 USAID employees on administrative leave, effectively shutting down the agency. The judge wrote that without immediate legal intervention, the employees would suffer irreparable harm. He also blocked an order to recall 1,400 foreign service officers, some of whom are undergoing medical treatment in the country where they actually lived. Others were ordered stateside, where they had no home and no income. He also said that the government claimed massive corruption in the agency, but didn't provide any evidence of that at all. When he hears the case, he will make a decision on the merits. Note that he will not make a decision based on whether USAID does good work or not, but on whether Musk has the authority to unilaterally kill a statutory agency created by Congress.
  
  
• Government Buyouts: In an attempt to make the federal government small enough to drown it in a bathtub, the Office of Personnel Management, which was commandeered by Musk's team, made an offer to almost all federal workers that if they agreed to resign in September, they probably wouldn't be fired before then. It is thought that about 60,000 people accepted the offer, some of whom were probably planning to leave anyway. Unions sued on the grounds that no one in the executive branch has the authority to make such an offer. Only Congress can do that, by law. On Thursday in Boston, federal Judge George O'Toole (a Bill Clinton appointee) blocked the government from implementing the buyouts until today, when he will hold a hearing. White House Press Secretary Karoline Leavitt saw this as a win, since it de facto gave government employees a few more days to sign up.
  
  
• Birthright citizenship: One of the XOs Trump signed countermands the Fourteenth Amendment by declaring that persons born in the U.S. of undocumented parents are not citizens. Two federal judges, John Coughenour (a Ronald Reagan appointee) in Washington State and Deborah Boardman (a Joe Biden appointee) in Maryland, issued nationwide preliminary injunctions blocking the XO until they can hear the relevant cases. This means that the parents of any newborn can apply for Social Security numbers and passports and the agencies must issue them until further notice. The DoJ has already appealed Coughenour's order. The case is certain to get to the Supreme Court and be granted cert since it raises the issue of whether an XO can overrule the actual words in the Constitution.
  
  
• Funding Freeze: A memo from the Office of Management and Budget last week froze many disbursements from the treasury. The memo said this would give the administration time to see which ones they liked. This is called "impoundment" and there is a specific law banning it. The courts have ruled that when Congress directs that a certain amount of money is to be spent for certain purpose, the Executive Branch is required to spend it as Congress directed. In particular, the president has no authority to refuse to do what Congress has ordered him to do. In fact, the president has taken an oath to see that the laws are faithfully executed. It is not a la carte, the president cannot pick and choose which laws to enforce.
  
  There was a huge uproar about this memo and it was quickly withdrawn, but Leavitt said that only the memo was withdrawn, not the freeze. On Friday, U.S. District Judge John McConnell (an Obama appointee) in Rhode Island issued a ruling banning the freeze for the moment. He wrote: "Federal law specifies how the Executive should act if it believes that appropriations are inconsistent with the President's priorities—it must ask Congress, not act unilaterally," Another judge, Loren AliKhan (a Biden appointee), made a similar ruling in D.C.
  
  
• Transgender inmates: Another XO declared that there are exactly two sexes, male and female, determined at conception and unchangeable. This led four transgender women prisoners who were about to be transferred to men's prisons to sue, claiming they would be at serious risk of sexual assault in a men's facility. In a ruling, U.S. District Judge Royce Lamberth (a Reagan appointee) concluded that there is no need for immediate transfers until he can hear the case on its merits. There are only 16 male-to-female trans women in the entire federal penal system and he believes they can stay where they are for the time being.
  
  
• FBI agents Donald Trump wants to release the names of the FBI agents who worked on the Jan. 6 case, likely in the hope that his vigilantes attack them. They sued to stop disclosure. U.S. District Judge Jia Cobb (a Biden appointee) ruled that the names could only be disclosed with a 2-day warning in advance so the agents could go to court to ask a judge to block the release.
  
  
• Labor Department: The DOGEys want access to the Department of Labor's computers. The AFL-CIO sued to block them, fearing that they would get access to sensitive data about ongoing investigations concerning Musk's companies and competitors. On Friday, U.S. District Judge John Bates in D.C. (a George W. Bush appointee) declined to block access because he ruled that the union organization did not show that it has been harmed. The AFL-CIO President Liz Shuler said that the ruling was a setback, but not a defeat.

We are only 3 weeks in and already there are over 30 lawsuits. After 3 months, there will be many more. (V)