Posted originally on the CTH on February 10, 2025 | Sundance

Lawyers representing President Trump and the office of the presidency have filed an urgent response motion to remove a court order by U.S. District Judge Paul Engelmayer that blocked the Treasury Secretary and “political appointees” from accessing Treasury Department systems. [SEE ADMINISTRATION FILING HERE]

The filing is in response to District Judge Engelmayer’s blatant effort to engage in judicial activism and violate the Article II separation of power.  The Chief executive cannot be limited in scope or activity by the judicial branch, let alone a single circuit court judge within the regional judicial branch who is attempting to block the executive branch nationally.

[Source pdf]

“Basic democratic accountability requires that every executive agency’s work be supervised by politically accountable leadership, who ultimately answer to the president,” Justice Department attorneys wrote in the 11-page filing, calling the order “impermissible” and “anti-constitutional.”

WASHINGTON DC – […] The attorneys are asking Manhattan-based U.S. District Judge Jeannette Vargas to quickly end or modify the order to ensure Treasury Secretary Scott Bessent and his top leadership can be briefed on the payment system and perform their legally required roles. (more)

From The Twitter – “Donald Trump’s actions since his inauguration have caused public discussion of some questions in Constitutional law.

I’m not a lawyer. But I have more than a passing acquaintance with Constitutional law – I’ve been studying it ever since I was an individual amicus in the Supreme Court case that struck down the Communications Decency Act back in the 1990s.

After 30 years of studying issues around the First and Second amendment and the doctrine of judicial review, I have some thoughts.

There are several intermingled issues here.

First: when JD Vance says that the courts do not have the authority to intervene in the administration of the executive branch, he is probably correct.

The judicial review power is generally considered to extend modifying or striking down laws, not to allowing any judge to interfere in the president’s administrative authority over the executive branch.

Second, any judge that rules that the Treasury of the Secretary may not have unlimited access to Treasury department data is setting himself up for reversal. This has never been litigated because it’s a ridiculous overreach that has never been attempted before.

Third, there are serious questions about the authority of federal judges below the level of the Supreme Court (what the Constitution explicitly calls “inferior” courts) that may now be forced to a resolution.

For purposes of separation of powers, only the Supreme Court itself is considered co-equal to the executive and legislative branches. Inferior judges are not.

One question, therefore, is whether the President may assert separation of powers as a defense against rulings of an inferior judge. Certainly, invoking separation of powers against a ruling of the Supreme Court itself would trigger a constitutional crisis, but that’s not the situation we’re talking about here.

This has not been litigated, but I think the President is likely to prevail on the question.

The fourth question is about the authority of federal circuit court judges to issue injunctions with nationwide effects outside the circuit where they have formal authority.

Until very recently, federal judges were so reluctant to raise this Constitutional issue that they almost never issued such injunctions. They issued injunctions only for their own circuits and left it to the Supreme Court to resolve questions about nationwide application.

But nationwide injunctions in contentious cases have become more common recently, and it is likely that the Supreme Court will be forced to address whether inferior-court federal judges do in fact have nationwide authority.

I think it is quite unlikely that the Supreme Court will affirm this.

I am not addressing here the question of whether I think Trump and DOGE’s authority to block Treasury payments should prevail. I am predicting that it almost certainly will prevail.” ~Eric S Raymond