“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.”
Yale Law-educated VP, JD Vance on X, February 9th “Legitimate Power”!!
With control of Congress seemingly locked within the Trump/MAGA program, albeit with a very slim majority, the only remaining constitutional guardrail seems to be the federal judiciary. But even once bastions of liberal bias – like the once Trump’s “9th Circus” is now populated with 10 of 29 Trump appointees (and 3 other GOP appointees) – are no longer dependable liberal-leaning appellate panels. In the world of trial court forum shopping, despite efforts to contain the practice, West Texas offers the best bet to rightwing causes, where the sitting trial court(s) are ultra-conservative Bible-thumpers, often willing to let evangelical religious beliefs supplant the Constitution. But Trump’s executive orders, followed by Musk’s cadre of young zealots who could never survive top secret security background checks, are seeking imperial controls.
Knowing how difficult it is to get Congress to accept his political Project 2025 agendas through legislation – the Senate filibuster rule alone threatens much of that platform, Trump has taken to methods to circumvent that process: through executive orders. In addition to that effort, Trump is knowingly issuing edicts he knows will find their way into the federal judicial system, counting on the same Court that gave him presidential immunity for “official actions” – a power completely devoid of any constitutional legitimacy – to reinforce his expansive view of his authority.
But perhaps, this defiance is already happening. “A federal judge on Monday [2/10] said the White House has defied his order to release billions of dollars in federal grants, marking the first time a judge has expressly declared that the Trump White House was disobeying a judicial mandate… The ruling by Judge John J. McConnell Jr. in Rhode Island federal court ordered Trump administration officials to comply with what he called ‘the plain text’ of an edict he issued on Jan. 29… That order, he wrote, was ‘clear and unambiguous, and there are no impediments to the Defendants’ compliance with’ it… Judge McConnell’s ruling marked a step toward what could quickly evolve into a high-stakes showdown between the executive and judicial branches…” NY Times, February 10th. Intentional defiance (hence, a constitutional crisis) or ?????
Could there be more? “On Saturday [2/8], a federal judge in New York blocked individuals associated with Elon Musk's Department of Government Efficiency (DOGE) from accessing what effectively serves as the government's checkbook… With Musk now flirting with the idea of defying court orders or targeting judges, the third branch of government might soon confront an unprecedented scenario in modern history -- the president of the United States openly and willingly disobeying a court order.” ABC News, February 9th.
Article II of the US Constitution sets out Presidential powers. Notwithstanding requiring the President to “take Care that the Laws be faithfully executed,” that article gives the President plenary powers over pardons, immigration and as commander-in-chief (which is why, Mr Vance, judges cannot countermand military combat orders), although only Congress has the power to declare war. By challenges to unambiguous constitutional provisions – like this provision of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” – the Musk/Trump administration’s efforts still focus on whether the President can order the shutdown of an entire federal agency (even if created by Congress), pause or terminate funding to that agency or its congressionally authorized programs or appoint leadership of such agencies charged with winding down operations and culling federal staffing.
As Musk’s management practices have consistently reflected: less than Musk-level productivity results in instant discharge, union activities are always resisted, federal labor laws are often ignored resulting in claims from employees (current and former), mercurial management style and a litany of major policy changes and reversals, personnel instability and general insensitivity to employees. His relations with employees and even senior management following his Twitter (now X) takeover were legendarily malignant. His current approach to federal agencies seems no different. Cut, defund and fire… don’t worry about the consequences, outside criticism or whistleblowers. Loyalty to the cause is justification enough.
Bottom line, civil service rules and statutory requirements are barriers to efficiency. Musk is used to functioning as an imperious CEO and cares little for rules and regulations he does not like. Still, as his DOGE operatives approach the mandate to eliminate waste (by Trump’s or Musk’s assessment) and stop governmental programs that seem to contradict Trump’s vision for government (or Musk’s interpretations of that vision), personnel files are being compromised in flagrant violation of the relevant data privacy requirements, and check-writing is being co-opted or restricted in ways that could easily stop congressionally approved programs and allocations.
As federal courts have been focused on these intrusions, particularly at the grandest check-writer of them all (the Department of the Treasury), Musk faces a reality: federal courts could check his self-perceived power (or Trump’s approval thereof), wreck his rapid agency takeover and defunding, decimate his “efficiency” directive and stop him dead in his tracks. Unless he (with Trump’s blessing) adopted the defiance of President Andrew Jackson who once refused to accept a Supreme Court ruling, albeit not over constitutional interpretation. Lots of MAGA members of Congress and senior Trump officials are casting doubt on the power of the federal courts to reverse Trump’s executive orders, regardless of the justification. As Jill Colvin writes for the February 10th Associated Press:
“Musk also shared a post from a user who had suggested that the Trump administration openly defy the court order… ‘I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us,’ the person had written… The court order against Musk barred his team temporarily from accessing a Treasury system that contains sensitive personal data, such as Social Security and bank account numbers for millions of Americans. Musk and his team say they are simply rooting through government systems to identify waste and abuse at the direction of the Republican president.
“Deputy White House chief of staff of Stephen Miller called the ruling ‘an assault on the very idea of democracy itself… What we continue to see here is the idea that rogue bureaucrats who are elected by no one, who answer to no one, who have lifetime tenure jobs, who we would be told can never be fired, which, of course, is not true, that the power has been cemented and accumulated for years, whether it be with the Treasury bureaucrats or the FBI bureaucrats or the CIA bureaucrats or the USAID bureaucrats, with this unelected shadow force that is running our government and running our country,’ Miller said on Fox News Channel’s ‘Sunday Morning Futures.’
“The pushback comes as the courts have hampered the administration’s efforts to dismantle government agencies and eliminate large swaths of the federal workforce. Judges have also blocked Trump, at least temporarily, from moving forward with mass federal buyouts, from placing thousands of USAID workers on leave and from implementing an executive order that seeks to end automatic citizenship for anyone born in the U.S.
“Early Saturday [2/8], U.S. District Judge Paul A. Engelmayer issued a preliminary injunction after 19 Democratic attorneys general sued, alleging the Trump administration allowed Musk’s team access to the Treasury Department’s central payment system in violation of federal law… ‘I disagree with it 100%. I think it’s crazy,’ Trump told Fox News Channel’s Bret Baier in an interview that aired Sunday [2/9] on the Super Bowl pregame show… The payment system handles tax refunds, Social Security benefits, veterans’ benefits and much more, sending out trillions of dollars every year while containing an expansive network of Americans’ personal and financial data.” It’s a little more disturbing as Trump hints at a third term… with or without a constitutional amendment.
I’m Peter Dekom, and although the MAGA faithful, including more than a few members of Congress, believe we live in a more “pragmatic” post-constitutional era, you only have to look back at why the United States was created in the first place, why Revolutionary War heroes were willing to die for cutting ties with an imperial dynasty… we don’t like kings!
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