Constitutional crisis update 2/10/2025 3:53 pm
Even a (so-far) nonviolent constitutional crisis moves swiftly. So far today there have been significant developments in two ongoing lawsuits to check the unlawful, unconstitutional conduct of the Trump regime. Both bring us closer to the inevitable face-off between the federal judiciary and that regime.
The two suits are both proceeding in federal district courts, the federal trial court level. Both have been brought by coalitions of state attorneys general. State of New York v. Donald Trump is before Judge John J. McConnell in the District of Rhode Island. This is the lawsuit seeking to prevent the Trump regime from freezing or otherwise interfering with the flow of Congressionally appropriated funds to the individuals and states meant to receive them. I will call this the funding freeze case. The other lawsuit is State of New York v. Donald J. Trump. It is before Judge Jeanette A. Vargas of the Southern District of New York. Here the plaintiffs are trying to prevent anybody other than the usual career civil servants from accessing the Treasury's secure payments systems and associated records. The litigation was prompted by Secretary of the Treasury Bessent giving access to "consultants" hired by Elon Musk's Department of Government Efficiency (DOGE), compromising the personal and financial information of millions of Americans. I will call this the Treasury systems case.
The funding freeze case concerns a major breach of separation of power between the federal executive and the federal legislature. The Treasury systems case concerns a wholly improper delegation of power from the federal executive to private individuals. In both, state attorneys general are suing on behalf of their citizens and on behalf of the states themselves.
Today in the funding freeze case, the court granted a motion filed by the plaintiffs seeking enforcement of a previously granted temporary restraining order (TRO) The plaintiffs had evidence that the defendants were disobeying the court's order requiring the federal executive branch to release and otherwise refrain from interfering with Congressionally appropriated funds. The defendants did not have much of a response. As the court wrote today, "The Defendants now plea that they are just trying to root out fraud. But the freezes in effect now were a result of the [Defendants'] broad categorical order [to stop funding], not a specific finding of possible fraud." The trial court concluded that ongoing pauses and disruptions violate the plain text of the TRO. In no uncertain terms, the court itemized specific funding streams that must be restored and reiterated the more general order not to interfere with any federal funding streams while the case proceeds. The Trump regime defendants subsequently gave notice they are appealing both the original TRO and today's enforcement order. The dispute over both will now move to the intermediate appeals court, the Court of Appeals for the First Circuit.
Today's developments in the Treasury systems case also concern a TRO, issued in the Southern District of New York, which, in an emergency order issued February 8, 2025, barred any expanded access to Treasury records and systems beyond the usual career civil servants. In response, the Trump regime defendants filed an emergency motion to dissolve or modify the TRO or, alternatively, to pause it while they appeal it to the Second Circuit Court of Appeals. The court then asked the plaintiffs and defendants to attempt to fashion a modified TRO, to take account of any legitimate concerns the defendants had. The court set a deadline for this effort of 5 pm eastern today. Shortly after the deadline passed, the plaintiffs filed a brief in opposition to the defendants' emergency motion, meaning that there was no agreement on any modified TRO. The defendants have until 11 pm eastern tonight to reply to this brief. Assuming the trial court denies the defendants' request to substantially alter, lift, or stay the original TRO, the defendants will appeal it to the Second Circuit.
Trump and his appointees want to get these temporary injunctions in front of the U.S. Supreme Court as quickly as possible, hoping that the Roberts Court will green-light the enjoined conduct in both the funding freeze and the Treasury systems cases. Generally speaking the Supreme Court is not required to hear appeals of orders related to ongoing suits, but the Roberts Court has not been shy about doing so. Nevertheless, if the First and Second Circuits uphold the TROs, let's hope the Supreme Court refuses to hear any appeals from the defendants - because the Roberts Court is not at all likely to be in any hurry to demand that Trump and his appointees obey judicial orders. This might be surprising. You might think that the U.S. Supreme Court would be anxious to assert the authority of the federal judiciary to constrain blatantly unlawful, unconstitutional activity by the federal executive. Not this U.S. Court.
Wholly apart from any tendency to let Donald Trump do whatever he wants, Chief Justice Roberts can be expected to do his best not to get into a position where Donald Trump directly flouts the authority of the Supreme Court itself. Once Trump does that, the inefficacy of the Supreme Court in safeguarding the Constitution from Trump will be laid bare. Trump and his supporters will demonstrate that it will take something other than federal lawsuits to stop him. This would be a major embarrassment for Roberts, who will go down in history as the Chief Justice whose Court could not protect the Constitution. Rather than risk this, Roberts will lead the Court in doing whatever it can to avoid confrontation with Trump, including by deciding cases favorably to him.
Of course, the deeper problem - the practical problem of who can make the federal executive obey the law and abide by the Constitution - remains, even if the Supreme Court simply refuses to hear appeals from federal Circuit Courts requiring Trump and his appointees to change course. Trump, Vance, and others are more than likely to ignore the orders of federal Courts of Appeal. Whether District, Circuit, or Supreme Court, federal law enforcement and military are the ultimate forces for making parties obey federal judicial orders, and Trump controls federal law enforcement and the military.
We aren't yet to the point where states and individuals have exhausted available judicial processes for bringing the federal executive to heel. But the Trump regime is rushing to reach that point. When it comes, Congress, the states, and we citizens are going to face stark choices. Congress will have to decide whether to remove Trump from office via impeachment - an unlikely, though not impossible, outcome. But that would merely put Vance in office, and he shows no interest in abiding by the Constitution, federal law, or federal judicial orders. With Trump, Vance, or any other MAGA executive, the states and their citizens will eventually have to decide what steps they will take to free themselves from the Trump regime. These won't be lawsuits.