Despite the tone of media coverage, all these judges have done, for now, is raise important questions.
Despite the tone of media coverage, all these judges have done, for now, is raise important questions.
I would not put much stock in media coverage or political rhetoric suggesting that the federal courts are in revolt against President Trump and his efforts to rein in government size and spending. Undoubtedly, there are some progressive judges (mainly those appointed by Presidents Obama and Biden) who are philosophically sympathetic to claims that the president is interfering with the safe, professional operation of the administrative state — as if the chief executive has no say in how executive agencies conduct business. For the most part, though, what we’re seeing are the normal effects of litigation, which slow down government action. This does not mean all or even most of Trump’s directives will be stopped.
Take the U.S. Agency of International Development (USAID) controversy. As I opined to Rich on our podcast last week, if Trump wants to have a fight about executive control over government priorities and spending, USAID is the perfect fight to pick. There is a strong current of constitutional interpretation, going back to John Marshall and Thomas Jefferson, and affirmed in Supreme Court jurisprudence, holding that the president’s power over the conduct of foreign relations is nigh plenary. Exceptions — e.g., Congress’s war power, the Senate’s treaty power, and the requirement of Senate consent before diplomats may take their posts — must be narrowly construed. There are many governmental areas in which Congress may compel the president to operate bureaucracies and spend public funds; in general, foreign affairs should not be one of them.
USAID was established by an executive order issued by President Kennedy in 1961, in facilitation of policies announced by Congress in that same year’s Foreign Assistance Act. These read like a progressive dream: an “interdependent” global order, in which the “world’s limited resources” must be jointly managed in an “equitable international economic system,” and where “traditional humanitarian ideals” impel our “commitment to assist people in developing countries to eliminate hunger, poverty, illness, and ignorance.” All very nice but very vague, long on aspiration but short on American interests — and thus an invitation to boondoggles.
Whatever one may think of Congress’s 1961 policy priorities in this aspect of foreign relations, they do not necessarily reflect any president’s policy priorities. And this is a constitutional realm in which the president gets to set priorities.
With that as background, let’s talk about two recent developments.
On Friday, Judge Carl Nichols, a Trump appointee to the federal district court in Washington, D.C., temporarily paused President Trump’s directives placing about 2,700 USAID employees on administrative leave and evacuating them from their host countries on an expedited basis. The objections were raised by government employee unions — which JFK greenlighted even though President Franklin D. Roosevelt had recognized that it should be intolerable to permit them (at least if they functioned in the manner of private sector unions).
When we look closely at the order, Judge Nichols is not saying the Trump administration will not eventually be able to do what the president wants done. Indeed, Nichols rejected the unions’ objection to stopping new spending (upon being informed that the administration was not blocking spending for obligations already in train). Rather, the judge’s concern is whether irreparable harm will result from the abrupt manner in which employees — who continue to be paid — have been cut off from USAID information systems and directed to evacuate. As the judge tartly put it, “administrative leave in Syria is not the same as administrative leave in Bethesda: simply being paid cannot change that fact.”
Clearly, the winding down of USAID — probably with its worthy aid programs transferred to the State Department — is not going to happen as quickly as Trump would like. The government is going to have to address, as it should, particular perils faced by employees in unstable countries, as well as those who have special needs children, property, and other considerations at risk if the evacuation is carried out too hastily. But these are things that can be worked out. Constitutionally speaking, I believe Trump is going to prevail as the litigation moves forward, quite possibly up to the Supreme Court.
Meantime, in Manhattan federal court (the Southern District of New York), Judge Paul Engelmayer has paused the access of the Department of Government Efficiency to what are described as “sensitive” (i.e., apparently not classified) Treasury records. DOGE, which is an overhaul of the U.S. Digital Service, is a temporary technology unit within the Executive Office of the President, established by a Trump executive order on January 20 and led by Elon Musk. Musk is a special government employee, as are members of the teams working under his direction. They are carrying out President Trump’s 18-month agenda (terminating July 4, 2026) to modernize federal technology and maximize government efficiency and productivity.
The stated concern of Judge Engelmayer, an Obama appointee, is that DOGE’s access to the sensitive records carries a high risk of improper disclosure or hacking. These concerns are echoed — coincidentally, I’m sure — in a New York Times op-ed today, jointly penned by five mostly Democratic former Treasury secretaries (Robert E. Rubin, Lawrence H. Summers, Timothy F. Geithner, Jacob J. Lew, and Janet Yellen). As they tell it, “The nation’s payment system has historically been operated by a very small group of nonpartisan career civil servants,” an administrative “norm” they fear “has been upended” by Trump, Musk, and the “so-called” DOGE — “political actors [who] have not been subject to the same rigorous ethics rules as civil servants.”
This, of course, is the progressive vision of American governance: “Political actors” can’t be trusted; we need to be ruled by altruistic professional bureaucrats who are totally unmoored from partisanship, don’tcha know, and make decisions based solely based on their expertise, grounded in facts, science, American ideals — all the stuff they teach at such vaunted institutions as the very non-partisan Kennedy School. In the real world, the bureaucrats are predominantly Democrats — the party of government — and they administer public programs and spending to promote progressive pieties.
It’s a nice arrangement. This morning, Musk reported a DOGE team discovery that FEMA — the Federal Emergency Management Agency created by President Jimmy Carter’s executive orders to assist states in relief for such disasters as floods and terrorist attacks — had just sent $59 million to New York City to pay luxury hotels for housing illegal immigrants under the city’s progressive sanctuary policies. If Congress had transparently passed a law calling for such an egregious, unpopular expenditure of public funds, the Democrats who supported it would be penalized at the ballot box. Instead, this is how spending works in the administrative state: Congress appropriates funds to agencies with vague mandates, and the politically unaccountable bureaucrats spend it on their perception of what’s in the public interest . . . which tends to be very different from the public’s perception of its interests.
As used by the former Treasury secretaries, “political actors” is a pejorative term. In actuality, it’s a reference to political accountability, not partisan politics.
The Constitution’s governing structure, contrary to progressive philosophy, is that decisions should be made by officials accountable to the people who pay the freight and whose lives are affected, not by “civil servants” guided by “ethical rules.” We need civil servants and ethical rules, to be sure; but they are supposed to function within the parameters of clear statutory warrants, at the direction of officials who answer to the president, who in turn answers to the voters.
It is not Judge Engelmayer’s place to fret about potential recklessness by government employees. If President Trump, Elon Musk, or DOGE teams actually do something illegal — if they stop a payment that Congress directed, and that was neither unconstitutional, outside the statutory authority of the paying agency, or grossly in excess of the funding necessary to carry out a lawfully enacted task (see John Yoo’s excellent piece on that) — then the judge by all means should intervene. But so far, all that’s happening at Treasury is that DOGE is examining government payments in furtherance of making recommendations about whether the spending is sensible in view of what Congress has authorized and how it might be accomplished more efficiently.
So absurd is the notion that the chief executive is powerless to investigate how executive agencies execute their responsibilities that to state it is to refute it.
For the moment, all these judges have done is raise important questions — though we can debate whether courts ought to play that role in the absence of clear illegality. The litigation process will slow up the works. That will be frustrating for the president, but our system is designed to be frustrating because the Framers rightly feared concentrating too much power in any one set of hands — even if they also wanted an executive who could act energetically and swiftly if necessary.
That said, slowing up the works is not the same as stopping them. I believe the Trump administration is going to prevail in its efforts to slash USAID and to investigate what the Treasury is spending our money on. That doesn’t mean the president will be able to slash government agencies outside the ambit of his power to conduct foreign affairs, or that, by highlighting wasteful spending, he will be able to stop all wasteful spending.
As I’ve argued here and here, the stakes of this battle are high.