By Lambert Strether
Ruling on a late Friday request by 19 mostly Democrat State Attorney’s General in State of New York v. Donald J. Trump, Judge Paul Engelmayer of the Southern District of New York granted a temporary restraining order halting access by Elon Musk’s so-called Department of Governmental Efficiency (DOGE) to Treasury Department data (this being the post-Inaugural DOGE, a temporary organization in the Executive Office of the President, not the gauzy entity it had been pre-Inaugural). In summary:
Trump created DOGE by executive order and appointed Musk to lead what they describe as an effort to modernize federal technology and identify spending cuts. But the move immediately raised legal concerns.
Attorneys general from states including New York and California alleged Trump and Bessent placed at risk the personal data of millions of people as well as billions of dollars in payments that states receive through the Treasury’s Bureau of Fiscal Services, or BFS.
The states allege the move violated the federal Administrative Procedures Act by failing give an explanation for the policy or allow public comment. The temporary court order requires that anyone who is granted access must pass background checks and receive proper security clearances. The states will seek to make all of the TRO’s requirements permanent.
Implementation of the policy, allowing “Musk and his DOGE team to access BFS’s payment systems, was adopted without any public announcement or explanation,” the states said. “Defendants have provided no reasons at all to justify the new policy, nor did Treasury conduct a privacy impact assessment prior to implementing the change.”
The Court accordingly:
ORDERS that the defendants show cause before the Hon. Jeannette A. Vargas, at Courtroom 14C, United States Courthouse, 500 Pearl Street, New York, New York, at 2 p.m. on Friday, February 14, 2025, why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure preliminarily enjoining the defendants during the pendency of this action from granting to political appointees, special government employees, and any government employee detailed from an agency outside the Treasury Department access to Treasury Department payment systems or any other data maintained by the Treasury Department containing personally identifiable information; and further
ORDERS that, sufficient reason having been shown therefor, pending the hearing of the States’ application for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the defendants are (i) restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees; and (iii) ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems, if any….
Harsh, but fair (and while it’s excellent that Engelmayer ordered any data taken to be destroyed, it would have been even better had he ordered that any backdoors installed in Treasury systems be removed). This is much stronger than Judge Colleen Kollar-Kotelly’s order on Thursday, which still allowed Tom Krause, CEO of Cloud Software Group, and Marko Elez “access.”
Musk was, of course, not happy, and called for Engelmayer’s impeachment (which he did not do with Colleen Kollar-Kotelly’s order, interestingly).
In this post, I will first look briefly at six causes of action raised by the plaintiffs. I will take a turn into left field, and examine the theory of The Unitary Executive, the ideology that undergirds the Administration’s views on what Federal government employees can and cannot be ordered to do, in the light of Federalist 51. IANAL, of course, but I think that theory is untenable, amounting to a Big Man view of politics (and there are far less polite ways of making that claim).
Plaintiffs: Causes of Action
These are all drawn from State of New York v. Donald J. Trump (PDF) which though long is worth a skim, if not a read; there’s a lot of exciting detail about how Federal payments are actually made and processed at state level; for example, New York operates on a reimbursement model (and so you can imagine what would happen if New York spent the money that by statute (appropriation) it was entitled to receive, and then Treasure decided to reimburse it for less than that). I think you will agree with Engelmayer that the states presented a strong prima facie case. And now to the Counts, which start on page 46:
Count One: Violation of APA § 706(2) – Exceeding Statutory Authority
156. Defendants may only exercise authority conferred by statute. City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013).
157. Defendants have no authority under the federal laws or regulations to adopt or implement the new policy of granting BFS payment system access to political appointees or special government employees and/or for the unauthorized purpose of blocking or impeding payments (the “Agency Action”).
158. The Agency Action exceeds Defendants’ authority under the statutes that govern the collection, storage, handling, and disclosure of PII and confidential financial information because it grants payment system access to political appointees and special government employees and/or for unauthorized purposes.
159. The Agency Action also exceeds Defendants’ authority under the statutes that govern the collection, storage, handling, and disclosure of PII and confidential financial information because it permits payment systems to be accessed on non-government third-party servers.
(APA = Administrative Procedure Act.)
Count Two: (Violation of APA § 706(2)(A) – Contrary to Law)
164. Section 208 of the E-Government Act of 2002, 44 U.S.C. § 101 et seq., mandate that an agency conduct a privacy impact assessment before “developing or procuring information technology that collects, maintains, or disseminates information that is in an identifiable form.” Section 208(b)(1)(A)(i). The purpose of this provision “is to ensure sufficient protections for the privacy of personal information” maintained by government agencies. Section 208(a). There is no authority under this statute to develop a plan to disseminate PII or other sensitive information without conducting in advance a privacy impact assessment, which Defendants did not do before adopting and implementing the Agency Action.
165. Pursuant to the Code of Federal Regulations, title 31, subtitle A, Part 1, section 1.32, there are restraints concerning Treasury’s collection, use, disclosure and protection of SSNs. Specifically, the Office of the Secretary of the Treasury, within Treasury, has specific guidelines on when the Secretary must collect and maintain full SSNs, as well as the prohibitions on disclosure of SSNs.
(PII = Personally Identifying Information.)
A similar argument is made in 166 (The Privacy Act of 1974), 167 (the Tax Reform Act of 1976), and 168 (“regulations that govern Treasury’s collection, use, disclosure and protection of SSNs”). In addition, 169 raises the question that SGEs are “governed by these ethics rules.”(SSN = Social Security Number; SGE = Special Government Employee.)
Count Three: (Violation of APA § 706(2)(A) – Arbitrary and Capricious)
172. The APA provides that courts must “hold unlawful and set aside” agency action that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).
173. The Agency Action is arbitrary and capricious because when adopting and implementing the Agency Action Defendants failed to provide a reasoned explanation for the change in longstanding Treasury policy restricting access to BFS payment systems to career civil servants who need access to perform their job functions and who have demonstrated compliance with the numerous privacy and security requirements for access to the system and sensitive information contained therein.
174. The Agency Action is arbitrary and capricious because when adopting and implementing the Agency Action Defendants failed to consider harms that flow from expanding access to BFS payment systems to political appointees and special government employees, especially where as here they have stated that their objective is to block payments to
beneficiaries who are not aligned with the President’s agenda.
(BFS = Bureau of Fiscal Services.)
Count Four: (Ultra Vires)
Defendants have no authority under the federal laws or regulations to adopt or implement the new policy of granting BFS payment system access to political appointees or Case 1:25-cv-01144 Document 1 Filed 02/07/25 Page 51 of 60 52 special government employees and/or for the unauthorized purpose of blocking or impeding payments.
(Ultra vires (‘beyond the powers’) = an act that requires legal authority but is done without it.)
Count Five: (Violation of the Separation of Powers Doctrine—Usurping Legislative Authority)
189. Here, the only reason that has been publicly articulated for the Agency Action is to enable the DOGE team to block payments to States and their residents of federal funds that have been appropriated by Congress.
190. The only basis to explain the Agency Action is an attempt to usurp Congress’s power of the purse in violation of the Separation of Powers doctrine.
Count Six: (Violation of the Take Care Clause)
196. In many instances, Congress has delegated to federal agencies the authority to implement laws through regulation.
197. By directing that the Agency Action be adopted and implemented, the President has failed to faithfully execute the laws enacted by Congress in violation of the Take Care Clause.
Defendants: What Were They Thinking?
Needless to say, the Defendants have a different view of Executive power from that expressed by the plaintiffs in the causes of action: “Unitary Executive Theory.” From ABC News:
The so-called “unitary executive theory” has various iterations but centers on the idea that the Constitution gives the president sole control over the executive branch of government.
Its advocates point to Article II, which reads in part: ‘The executive Power shall be vested in a President of the United States of America.’
‘I think that means he has the power to control subordinates throughout the executive branch, including in the independent agencies and how they exercise power. And as a corollary to that, he has the power to remove or fire subordinates in the executive branch,’ said Steven Calabresi, a Northwestern University law professor and former Reagan administration official who co-authored a book on the unitary executive theory.
Trump in 2019 said: “I have an Article II, where I have the right to do whatever I want as president.”
(Surely the Framers of the Constitution, having just fought a revolutionary war to escape (in their view) a tyrannical despot, would not have had Trump’s interpretation of Article II top of mind.) From the National Review:
[P]er the plain terms of the Constitution, ‘the executive Power shall be vested in a President of the United States of America,’ and not in anybody else. The two key terms of that provision are ‘the executive Power’ — which limits the jurisdiction to the powers of the executive, and thereby prohibits usurpation of the powers of the other two branches — and ‘vested’ — which is applied only to the president himself. And why would it be otherwise? The United States is a democratic republic in which elected officials are held accountable for their decisions. The only elected official who holds power within the executive branch is the president. For anyone else to exercise power without the permission or endorsement of the sole electee would be to create a fourth branch of government, unmoored from oversight, and thereby to undermine the whole apparatus.
And if the “exercise of discretionary executive power” involves Cultural Revolution-style dunce caps for recalcitrant officials, so much the better. From the Yale Law Journal:
The executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him.
The Unitary Executive theory might well be characterized as Hobbesian[1]:
THOMAS HOBBES, LEVIATHAN 109 (Edwin Curley ed., 1994) (1651). (“[T]he multitude so united in one Person, is called a Commonwealth, in Latin Civitas. This is the generation of that great Leviathan, or rather (to speak more reverently) of that Mortal God to which we owe, under the Immortal God, our peace and defence [sic].”).
Now I will step out into the unknown and introduce a new idea. As always with Constitutional questions, I return to the Federalist Papers[2], in this case Federalist 51, which discusses the powers of the Executive. The author, James Madison, begins:
[We must so contrive] the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
Those mutual relations are those of interest:
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.
Madison applies this policy only to the legislative, executive, and judicial branches. However, because he expects the legislative branch to be the strongest, he divides it into “different branches” (House and Senate). He does not, I would argue, consider doing so with the executive branch because he expects it to be “the weakest.” However, today that’s not so, but I believe that Madison’s words — “might be traced through the whole system of human affairs” — license me to extend the same policy to the executive branch.
Here is a toy example. Let us postulate a Game of Thrones-like world where officials are constantly being poisoned by rivals. In that world, there is also a government of three branches, though we’ll call the executive branch a King, and the legislative branch his Council. To prevent the King from being poisoned — at least overly often and too easily — his Council mandates that a food taster must taste all the King’s food. Further, the Council provides the foodtaster with a comfortable sinecure, on the King’s dime (his “place”), besides the penalty of death if the King be poisoned on his watch. Clearly the interests of the foodtaster align with those of the Kingdom; he has all the interest in the world to prevent the king from being poisoned.
The key question: Should the King — who is, after all, the King — ever be permitted to over-ride his foodtaster’s mandate to taste all his food? The Unitary Executive faction would say yes: “[H]e has the power to control subordinates,” otherwise there would be “a fourth branch of government,” “I have the right to do whatever I want.” But that’s absurd, because that puts the King at risk of being poisoned, which is bad for the kingdom. There is no “fourth branch” or government; there is simply a branch of government into which a divsion has been introduced, so that the branch checks itself for the good of the kingdom.[3]
Further, the Unitary Executive faction have an impoverished notion of power (possibly because they think of the President as a sort of CEO). Stepping further into the unknown, I would argue that the key word “faithfully” in the Take Care clause implies that a President does not merely execute official acts but is a steward of his office (“dress it and to keep it,” Gen 2:15). It would be entirely possible for an unchecked President to carry out a sequence of acts, each legal in itself, that leads to the degradation of his — or rather, the people’s — office. A central aspect of Madison’s policy:
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
(This was certainly true for foodtaster, above!). When the Framer’s wrote “place,” we today would say “office” (a placeman, back then, was an office holder). Now, the President’s actions in creating DOGE and setting it in motion run counter to Madison’s principle; “places” are unclear, hence interests are unclear, hence checks are unclear, hence “interior structure of the government” is out of whack. From Wired:
The engineers all hold nebulous job titles within DOGE, and at least one appears to be working as a volunteer.
From Business Insider, “Elon Musk’s newest job title is literally ‘unlisted’:
Elon Musk officially works for the government now. But what, exactly, is his job? More precisely, what is his job title?
It’s a surprisingly hard question to answer. A White House record seen by Business Insider says his job is simply “unlisted.”
Though Musk has a White House access badge as of January 20 and has been widely described as the leader of DOGE, the White House has not officially confirmed Musk’s title. His X profile describes him as “White House Tech Support.”
When Donald Trump folded Musk’s “Department of Government Efficiency” into the White House, he did it by rebranding the US Digital Service — an Obama-era effort to bring modern software-development practices to the federal government — as the “US DOGE Service.” He also moved it under his chief of staff, Susie Wiles, and created a “temporary organization” that would enable the new USDS administrator to recruit people faster, without going through standard federal hiring procedures.
But the order didn’t say who the USDS administrator was, nor did any of Trump’s statements designating leaders of various departments and offices. Ted Carstensen, who had been the deputy administrator of the USDS since last year, told staff on Thursday that it would be his last day.
The Unitary Executive faction would say DOGE’s hazy structure is jake with the angels; they’re government employees, so Trump can do what he wants. I say DOGE’s deliberately obfuscatory structure is anti-Madisonian in principle because it prevents the proper operation of checks and balamces, and I further say it’s bad stewardship of the Office of the President of the United States because it will undermine confidence in the legitimacy of officials and government generally[4]. All this is not to say that a suit can be brought on this basis; but it does reduce the Unitary Executive to Absurdity. So there’s a bright side.
Conclusion
It’s difficult to make predictions, especially about the future, and so we don’t know what the outcome of State of New York v. Donald J. Trump will be. Certainly the possibility is that Trump is flooding the zone with lawsuit material to raise the issue before the Supreme Court, there to make the the Unitary Executive Theory law. From WaPo:
Donald Trump’s rapid-fire efforts to expand presidential authority seem likely to prompt key test cases at the Supreme Court he helped shape, according to legal experts, with the conservative supermajority signaling in past rulings that it may be open to landmark changes in the balance of power.
In the opening weeks of his second term, Trump has fired inspectors general, frozen federal grants and loans, removed the leadership of independent agencies and dismantled civil service protections.
Behind the seemingly scattershot array, analysts see a common goal: A decades-long effort by conservatives to boldly grow the power of the presidency through a principle that says the executive branch has sole authority to hire and fire agency employees and control their policies.
The Supreme Court has also embraced the “unitary executive theory,” as the legal idea is known.
Legal experts and Trump allies said some of the new administration’s opening moves appear calibrated to tee up cases that rely on the theory, before a friendly Supreme Court that includes three appointees from Trump’s first term. Rulings in favor of the executive branch could cement a vision of the presidency defined by untrammeled authority.
Then again, not all jurists are happy with the Trump Administration. From Politico:
President Donald Trump’s “shock and awe” assertion of executive power has hit a wall in the courtroom — at least for now.
At least nine federal judges — from Washington, D.C., to Washington state — have halted aspects of Trump’s early-term blitz, from his effort to rewrite the Constitution’s birthright citizenship guarantee to his sweeping effort to freeze federal spending to his plans to break and remake the federal workforce.
That trend reached a crescendo Friday when U.S. District Judge Carl Nichols — a Trump appointee — blocked a plan by Trump and Elon Musk to put 2,200 USAID employees on leave, part of a rapid-fire effort to dismantle the foreign aid agency. Hours later, a federal judge in New York blocked Musk and his allies from accessing sensitive Treasury records, citing a risk of improper disclosure or hacking. The ruling by U.S. District Judge Paul Engelmayer, an Obama appointee, was the most sweeping of its kind so far
And:
In some cases, judges are voicing distress and even visceral fury as they stand in Trump’s way. ‘It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals,’ said U.S. District Judge John Coughenour, a Seattle-based appointee of Ronald Reagan, as he blocked Trump’s birthright citizenship policy. ‘The rule of law is, according to him, something to navigate around or simply ignore.’
Finally:
None of the cases his orders have triggered has yet reached the appellate courts, let alone the Supreme Court. But as Trump’s Justice Department begins to file appeals challenging the growing list of injunctions, the cases could begin reaching the justices in the coming weeks.
For now, the initial decisions to slow down the onslaught are having widespread effects, forcing federal agencies to disclose more details about their opaque plans for the workforce, establishing guidelines for the handling of sensitive government data that Musk’s “Department of Government Efficiency” has been gobbling up and raising sharp questions about Trump’s effort to impound swaths of government spending authorized by Congress.
Could be worse. The future lies ahead!
NOTES
[1] I cannot at this juncture say I am a Calvinist, although I wish I could!
[2] As many leftists might do; Madison’s perceptions of human nature as expressed through the exercise of power in government is in my view unparalleled, and victorious party leaders (Lenin, Mao) might have done well to study it when the hard work began.
[3] An obvious parallel is the Federal Reserve: “The Congress also structured the Federal Reserve to ensure that its monetary policy decisions focus on achieving these long-run goals and do not become subject to political pressures that could lead to undesirable outcomes.” Now, you can argue that this is a bad thing, because money creation should be under democratic control, but to argue on those grounds that the Fed is a fourth branch of government — or fifth, or tenth, or forty-second, depending on how the divisions are introduced.
[4] Of course, if you’re a neo-reactionary, this is a feature, not a bug.
Thanks for this. The idea of a division of authority within the executive branch is particularly compelling because executive agencies exercise so much authority delegated from Congress. All delegation must be based on an intelligible principle at the very least. The conservative justices are the ones who have wanted to narrow this standard and allow less delegation.
Unitary executive theory does not work as well for domestic policy as for foreign policy and defense.
> Unitary executive theory does not work as well for domestic policy as for foreign policy and defense.
The inter-agency process would suggest that the executive branch is not in fact all that unified.
It’s just a wretched theory.
albert and Lambert Strether: As Lambert Strether points out above, the framers of the U.S. Constitution saw the People (We the People) as sovereign, delegating their power in Article 1 to the Congress, which is supposed to be the main branch of government. Sic transit gloria mundi.
Which means that “execute,” as Lambert Strether points out, does not mean to operate as a modern CEO, which the founding generation of the US of A would not have understood as a concept. Well, maybe as tyrant or buccaneer or poltroon.
Washington’s first cabinet covered Treasury (feds as issuer of money), War (as promoting the common defense), Attorney General (enforcing the law), and State (which also meant relations with Indian Nations and foreign countries). These all indicate basic functions of government (and not management à la CEO) and delegated authority from the Congress. “Unified” doesn’t come into play here, even if cabinet members serve at the pleasure of the president of the U S of A.
I will also point to parallel language in Article III that sets up the court system: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Vesting power means giving responsibility, because as we all know, the judicial branch has no enforcement power. And it doesn’t produce a “unified chief justice,” very much as it doesn’t produce a unified executive function. Given that the Constitution places limits on “managing” judges — appointment for life provided behavior is acceptable — it still seems to me that “vesting power” in the Constitution means the function and purview of the branch, not some imagined “theory” that allows capricious behavior.
Madison, personally, was anything but capricious. Ask Dolley.
So what we are getting, in the deteriorated postmodern republic, is a courtier class of law perfessers and think-tank barnacles telling us that the king can cure scrofula through his royal touch.
Always delighted by any mention of scrofula!
And by these painfully thorough accountings of skulldugery and goingson from Lambert.
This claim assumes that Congress is indeed opposed to the fiscal purge that DOGE represents. But there have been no moves by either house to intervene. Individual congressmen have raised concerns but overall it’s crickets from capitol hill.
I don’t see Trump II as a businessman in a political chinashop. I see this executive as a bipartisan agreement to reform and/or loot the post-war, rules based consensus. Gaza has blown it out of the water, and 40 years of economic decline have made it unaffordable. It is true that Trump is smashing down pillars of the state, but I don’t think this is without the states partial consent. A certain insider faction is losing out, but another is gaining. The public is set to once again pay for it all.
Sorry but that it not how it works. Congress passes laws and authorizes funding. They have no additional mechanism for intervention except impeachment.
And you also completely misrepresent what Trump promised and voters voted for. He never said he’d destroy government. He never said he’d stop the genocide as you imply, in fact, he promised the reverse, that he’d be a better friend to Israel than Biden was. He did say he’d stop the war in Ukraine day one, which he has not done. In fact, he is on a path to escalating, with his aid Kellogg discussing increasing the sanctions on Russia and Trump planning to secure more funding via the barmy promise of a loan against Ukraine assets the US will never be able seize.
And he’s not going to reverse decline. He’s in the process of creating a Russia 1990s crisis, except this might wind up becoming a global Depression, and he and his plutocrat buddies will engage in a massive asset grab.
Trump lied. But you are showing your willingness to continue to be a mark despite that.
I’m not defending Trump and I’m definitely not saying he’ll stop the genocide.
I’m saying the US empire is in ideological, institutional, and reputational collapse after 40 years of economic decline, geopolitical interventionism and now wholesale genocide backing in Gaza, and the insiders realizing this, and unwilling to bother correcting collapse, have begun to fight among themselves for the palace furniture.
I don’t think (the majority of) congress is going to oppose Trump’s institution demolition campaign as they themselves are lining up to profit from the fallout. I completely agree on comparisons to 1990s Russia. I go further and say it is likely being used as a model by many of the insiders in Washington as a whole. I go back to my original point: the article assumes congress — or even the judiciary — is in facto opposed to state liquidation. Some insiders may be, but Russia shows that a rapacious and cynical ruling elite can and will loot by quiet consensus among them. Checks, balances, and duties be dammed.
What ideals and principals that were still holding the whole rotten polity/bureaucracy together have now fallen apart. Faith in the system was obliterated in Gaza. We’re at the stage of American glasnost before the perestroika and inevitable orgy of looting — by the political class.
> I go back to my original point: the article assumes congress — or even the judiciary — is in facto opposed to state liquidation.
No, it doesn’t. Just because I diagnose the patient — the body politic — correctly doesn’t mean the patient will do what it takes to get well. That remains to be seen. I’m not a prognosticator. In fact, the outcome could be a great deal worse than the Soviet Union in the 1990s. Or better. Everything depends on what the counter-reaction to Trump’s reaction comes from; strength, timing, class origin.
> This claim assumes that Congress is indeed opposed
Nonsense. At least for citizens, constitutional questions are not resolved on the basis of the motives or psychology of players. It really is possible for dull normals to determine whether the power of the purse is being violated or not, despite the obfuscations of hired guns.
That is U.S. A.I.D., the United States Agency for International Development. The play on words is a feature, not a bug, as the possibility in NEWSPEAK, as in MINISTRY of TRUTH, for mischief abounds.
Serious question, who physically is going to stop the little keyboard warriors?
Are we going to see perp walks? Or are these little twerps just going to reply to the judge with edgy tweets like their boss did and continue as if nothing has happened?
If so, then that’s quite the rubicon…
The rumor I’ve seen is the assumption is that these kids will end up in jail, which is why no one older and wiser is jumping on the opportunity. The far right youth club is willing to sacrifice themselves for a chance at a pat on the head from their god.
My thoughts exactly. All this bluster about how the courts have stepped in is meaningless unless these perps are arrested. They have clearly broken the law, and will continue to do so until they are physically restrained. What’s it going to take for Musk to be arrested?
As I commented below another post, the Capitol Police probably have jurisdiction here. The office buildings involved are part of the Capitol complex. Furthermore, the Capitol Police are not restricted to just the District of Columbia. Possibly, all Federal facilities are under their jurisdiction. Finally, the Capitol Police are controlled by the Capitol Police Board, which consists of the Architect of the Capitol, the sergeants at Arms of the House and Senate, and an ex-officio ‘retired’ former Chief of the force. They all work for the Congress.
In theory, Congress can order the Capitol Police to run the DOGEies off. The “Private Security” employed to shield the DOGEies is probably illegal.
Where is our Lucius Aelius Sejanus when we need him?
Could you please bother using a search engine rather than making me waste time I should be spending on new posts?!?! Otherwise my alternative is to nuke your comment as Making Shit Up, which it arguably is by being unduly speculative.
This is what Wikipedia says:
That language = they can pursue other crimes ONLY incidentally, as a byproduct of policing the Capitol premises.
The DOGE violations are not that. They are not crimes of violence and the Capitol Police would not be able to observe them directly.
On top of that, they have fewer than 1900 members. Some of those will be admin types, so say at most 1700 cops. They would have to work on shifts with most on day shift, so that could be rearranged. But they probably need at least half the members to keep the Capitol secure and provide for the safety of individual Congresscritters on a bare bones basis (another part of their duties).
So at the very very very outside, they have 850 cops they could deploy across all shifts.
Do you have the foggiest idea of how massive these Federal buildings are? I’ve been inside Treasury. You could drive a coach and four through its corridors.
And the Capitol Police are not trained like the Russian armed forces, to clear hostile territory.
Now admittedly they are trained to remove rowdy individuals and small groups from Capitol premises, and they do carry guns. So they might succeed if they targeted one building and Treasury would be the top candidate (I assume Treasury ops are not in the same place as the grand Treasury building, but securing two buildings is probably feasible).
But it’s not hard to think that in that event, the Trump fallback would be to call his followers to come to DC armed.
> the Capitol Police
I don’t have time to research this, but D.C. has its own police force (though infested, no doubt, with federales). A stupid search says that any crime committed in their presense is arrest-worthy.
The search for the Democrat Party’s militant wing persists….
NOTE Or hire some mercs, as in Maidan. I’m sure there would be funding.
Section. 8.
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
> If so, then that’s quite the rubicon…
Indeed. I don’t think that waiting for the midterms is a good idea.
As I keep saying, the essential benefit to Trump’s reaction will be the counter-reaction to it. Doubtful that can come from the hegemonic factions of the PMC, who will just hunker down and hope the axe doesn’t fall on them. It follows it won’t come from the Democrat Party, where the rot is fractal, in every leader.
I hate to depend on something so abstract as Newton’s Law, but a reaction will come….
The little keyboards are mining billions worth of financial data on essentially private laptops. US oligarches know the value of that data and will move heaven and earth to make sure no-one stops them getting it.
With TRUST in the US Government failing across the globe, the BRICS will soon be the BRICCS (with Canada the second ‘C’).
Trump’s team is not making America great again; it is now the Great Guffaw again.
> BRICS will soon be the BRICCS
Ingenious!
Vance says DOGE may ignore the court ruling. Too bad the Dems already shot their impeachment wad on theater twice during the last Trump admin. I won’t expect much from the third if they do one.
https://www.rawstory.com/jd-vance-ignore-court-ruling/
Meanwhile they might get the labor dept. data after all:
https://abcnews.go.com/US/judge-decide-block-doge-accessing-sensitive-labor-department/story?id=118575362
One notes that “the rule of law” was never an issue when Trump was being attacked with vicious bogus legal attacks. Did nobody on the Democratic/oligargic side ever think that maybe – maybe – Trump might take that personally? That perhaps, turnabout is fair play? Where were all the snowflakes currently crying about what Trump is (attempting to) do now when Trump was being railroaded?
How dare you. We raised that issue all the time during the Trump lawfare. We pointed out how the cases were crap and that (one of many examples) Fani Willis should have been forced off the case given the boyfriend issue and her failure to report gifts from him (in case you think this is not a big deal, we got a CalPERS exec to resign over his financial disclosure forms that showed a financial conflict of interest). We regularly linked to articles, most notably by Jonathan Turley but also others, that said the same.
I trust you will find your happiness on the Internet elsewhere.
I think that Hillz being fined $8k (the pain, the pain) for misreporting the funding of the Steele dossier was adequately referenced hereabouts. Trump didn’t need to misreport his misdemeanor until after the election, and they turned it into a felony.
The Hillz instigated Russia-gate hoax gripped the Dem-bot universe for years. There was plenty of push back hereabouts, iirc.
Oh, those Democrats…
But snowflakes is a trigger.
> One notes that “the rule of law” was never an issue when Trump was being attacked with vicious bogus legal attacks.
“Never an issue” expresses a grievance but alas, is worthless analytically. An issue for whom is always the question. You can’t have been reading the site long. If you had been, you would have noted I covered the bogosity of anti-Trump in great, even excruciating detail.
The Norms Fairy has gone into retirement and the Anything Goes Fairy has taken the field. When these cases reach the Gilead Republican Opus Dei Supreme Court, the Court will ratify the TrumpAdmin’s view of Presidential Power wherever they think they can get away with it and especially when it lets their type of President advance their own agenda even further.
Nixon said ” if the President does it, it is legal.” The Musk(trump)Admin believes that if the President can get away with it, then it has become legal by virtue of not having been stopped or reversed. Here is a little item showing a few Vance quotes indicating Vance’s view on the subject.
https://www.reddit.com/r/law/comments/1iljya2/this_is_phase_2_for_them_disobeying_judges/
> The Musk(trump)Admin believes that if the President can get away with it, then it has become legal by virtue of not having been stopped or reversed.
Indeed, the perennial question:
The liberal Democrat answer is to let the process play out for two years and win the midterms. Worthless….
The idea of splitting up executive branch into pieces constitutionally doesn’t seem to make much sense yo me. Federslist 70 (granted, it’s Hamilton, with a very different constitutional theory) explicitly argues against this.
The idea that the executive might choose to restrain itself from using its nominal power to the fullest and split up its power deliberately among different factions for its own good is hardly new–team of rivals and all that. But granting “constitutional” protection of authority to the food taster, say, seems a bit extreme. It seems to be a formula only to increase inefficiency and graft, as well as “extraconstitutional” trickery. Might the food taster use his authority to blackmail rivals (or even the king) and/or curry favor with friends? You bet. Would the king develop a “black market” to bypass the troublesome good taster? Probably. In many ways, in fact, this is the sort of bureaucratic infighting that caused a lot of problems to begin with and adding extra hard coded protection to parts of the executive branch against other parts can only worsen things, it seems to me.
> Federslist 70
Good point; I have quoted energy in the executive myself. Here is Hamilton’s justification, which on consideration I think is deeply flawed:
[1] I was inclined to give Hamilton the benefit of the doubt here, but then examples occurred to me: a proxy war with a nuclear power in Ukraine, a genocide in Gaza, and a threatened war with China, one that we are likely to lose. I for one would be happy if the energy of the executive were sapped to the degree that our policy horizon became the Atlantic, the Pacific, Canada, and Mexico.
[2] Nonsense. The civil service, exactly the sort of check I am describing/advocating, is a far more important advance than relying on the “energy” of one man;
[3] So the unitary executive is better for union-busting and state violence generally? There I would agree.
[4] Here, on ambition, Hamilton takes a directly opposing view to Madison. I prefer Madison systemic approach, rather than Hamilton’s personalized one.
I find it ironic in the extreme that when I view the actions coming out of the Trump camp, I immediately thought of Franklin Delano Roosevelt’s 100 Days. Many of Roosevelt’s stratagems were overturned by the courts then, but he and his partisans soldiered on. That was viewed as a revolutionary period by the Status Quo Ante. Today’s Trump actions can be viewed as a Counter Revolution against the vestiges of the New Deal of the 1930s.
Time for “The Return of the Robber Barons.” Coming soon to a Police checkpoint and FEMA Re-education Centre near you!
Stay safe. Go Grey.
I am sorry but this comparison is strained. We are not in the middle of a severe global economic crisis, which is what FDR was trying to combat. Instead, the most logical explanation for what Trump is doing is to precipitate a massive crisis so he and his plutocrat buddies can buy assets on the cheap, a la Russia in the 1990s.
And FDR did not defy court orders, as Vance has just threatened to do.
I’ll contend that we are at a point similar to when Hoover signed the Smoot-Hawley tariffs law into force. A similar chain of events can result. Back then, Hoover signed the Act due to his Business Friendly Republicanism.
See (I know, I know.): https://theconversation.com/the-us-tried-high-tariffs-and-america-first-policies-in-the-1930s-trump-should-note-what-happened-next-249079
I can see your point about Trump being point man for the First World Kleptocracy. Such would cross the boundary from garden variety stupidity into the realms of Evil.
This brings up a disturbing thought. Are we seeing the formalized abandonment of the Public Good as a policy goal in public life? If so, then the corollary would be that the Public no longer owes the State fealty.
Roosevelt did try and pack the Supreme Court in 1937, but failed. It can be argued that Trump, with the blithe accedence of the Democrat Party, pre-packed the supreme court in his first term. As for Vance speaking treason, well, one can view this as a classic kayfabe maneuver. Or, if you will, “good cop” “bad cop” theatrics. One thing we can observe is that the last few years of Democrat Party “Lawfare” against all things Trump has degraded the public’s respect for the institution of the Law in general. Yet another step on the road to formal Authoritarianism.
Stay safe in Siam.
> Are we seeing the formalized abandonment of the Public Good as a policy goal in public life? If so, then the corollary would be that the Public no longer owes the State fealty.
Yes and yes, though we already saw the first with Covid, assuming you believe that not killing each other with an airborne virus is a public good.
Mellon was at least sincere, if totally wrong headed, when he said:
https://www.goodreads.com/quotes/11687514-liquidate-labor-liquidate-stocks-liquidate-farmers-liquidate-real-estate-it
Mellon then meant enterprising small businessmen and farmers.
This by contrast is a raw power struggle, and the “competent people” are Silicon Valley bros who promised and could not deliver self-driving cars, and have now been embarrassingly shown to be not very good at their grandest scheme by AI. In other words, competent at the bezzle and not much more.
Well, I just had to stab at wrong headed-ness:
Sounds like Lenin
Lenin had another word for moral.
Towards collectivity, but he failed when
The point is to not have wrecks of anyone’s lives and have anyone picking over them.
I’m done :-/
Whether or not my earlier comment appears, I find your final take compelling.
I’m not qualified to opine on the rest, but the privacy impact assessment is basic stuff. I suspect all or nearly all government departments have something similar, and most large private companies that handle customer data do as well. Its purpose is to codify the handling of personal data, for all the many reasons why that’s needed (tracking and managing customer choices, consent and disclosure, setting rules around data sharing, preventing breaches, tracking impact and mitigating consequences when breaches do occur, etc.) It provides a consistent, standard and repeatable way to do this so that people don’t have to reinvent the wheel every time a new requirement to collect personal data (or use for it) comes along.
Musk saying he shouldn’t have to do this is tantamount to saying that none of the industry standard rules around security and data protection should apply to him.
The APA is the target.
It’s not going to take Supreme Court approval of a Unitary Executive to give Trump’s team a win. Look at the the titles of the first 3 of the 5 counts of the States’ Causes of Action: “APA” (the Administrative Procedure Act). The APA is one of the two rocks upon which the DC influence game is based (the other is, of course, simple bribery, gauzily veiled as “campaign contributions”).
It’s the APA that gives special interests (the ones you like as well as the ones you hate) some moderately effective tools to influence how Federal administrative agencies implement and administer the statutes that Congress hands down as their mandates. That is, it determines how agencies turn statute into rules (via formal processes for interested citizens’ and groups’ review and advocacy during rulemaking) and gives citizens and influence groups grounds for judicial challenge of what they regard as faulty agency enforcement (or lack thereof) of those rules.
Since it was created in FDR’s time, the APA has been the “flywheel” to moderate and smooth how regulation changes. It has been an essential enabler for significant course corrections achieved through the courts (if not in earlier rulemaking), even when Congress wouldn’t step up to the plate and make statute more to various groups’ liking (e.g., in evironmental and discrimination issues).
If the Supremes significantly neuter the APA, then there will only be Constitutional challenges to fall back on when your favorite interest group tries to get some Federal agency to “do its job.” Given the technical complexities in virtually every regulatory sphere, that’s a much duller tool with which to fine-tune regulation, and Mr. Trump will be able to justifiably chalk up a win.