The Week Ahead

February 9, 2025

Virginia Senator Tim Kaine who delivered the weekly Democratic address, made several key points about what lies ahead:

• “The so-called ‘Department of Government Efficiency,’” or DOGE, led by Musk and his cronies, is working its way through the federal government like malware.”

• “A big part of Trump's agenda here is to try to terrorize federal workers, the people who’ve dedicated their careers to important work and serving their fellow Americans.”

• “The first three weeks of the Trump Musk Administration have been chaotic, but Senate Democrats stand united, ready to link arms with you, and to fight back in every way we can.”

Let’s hope that they are ready, because this week, it may literally come down to linking arms and fighting back.

On November 19, after the election, I included the following in this newsletter. It’s worth remembering as we head into the coming week:

Steve Bannon, hosting his War Room podcast on November 15 said: “Donald Trump and his revolution is in charge now. And that revolution is going to make its way from Mar-a-Lago and from every part of the country, like Andrew Jackson, it's going to converge on the imperial capitol in late January. And yes, we're going to burn some of these institutions down to the ground. Because you know why? They need to be burned down to the ground. Metaphorically. As the process of creative destruction. The process of the structure of revolutions, the paradigm shift has impact.”

The burning has started. The question is, where will it stop? Will they go as far as Vice President JD Vance has suggested they might? Vance retweeted Harvard Law Professor Adrian Vermeule, who referred to decisions made by judges—the co-equal third branch of government that is designed to make decisions about what constitutes “legitimate acts of state”—as “judicial interference.” Vemeule seems to be suggesting that “internal functioning” of the executive branch, i.e., Trump shutting down USAID and now the Consumer Financial Protection Bureau (CFPB) or impounding congressonally authorized expenditures, is not subject to judicial review. Vermuele was commenting on Harvard-Law-educated Senator Tom Cotton’s tweet of outrage over a judge issuing, of all things, a limited temporary restraining order (TRO) to lock the status quo in place for a few days so the parties could argue the issues to a judge next week. There are standards for issuing a TRO, the party who seeks one has to show they’ll be irreparably injured if they don’t get it and the plaintiffs established that here.

Before we move onto the substantive issue, it’s worth noting the incredible hypocrisy here. Trump can delay the criminal justice system for years, but apparently a few days of delay to maintain the status quo while the court sorts things enough is now enough for Cotton and friends to suggest blowing up the judiciary instead of letting it fulfill its role in maintaining the balance among our three branches of government. Vice President, and Yale educated lawyer, JD Vance chimed in, retweeting the comments.

This is not a close call. Centuries of precedent establish the role of the courts in checking overreach by the executive branch, like Youngstown Sheet & Tubing Company v. Sawyer. It was during the Korean War, in April of 1952, when President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to take over the nation's steel mills in order to avoid the negative impact of an expected strike by the United Steelworkers of America. The Supreme Court ruled 6-3 against Truman, holding that a president lacks that authority, clarifying that “the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

The idea that the courts can’t step in and hear cases like this is ridiculous. So, what are Vance and Cotton outraged about? Apparently, it’s the fact that the courts have decided it’s worth learning the truth about DOGE before passing on its legitimacy. Although the claim is that DOGE is about cutting out waste and fraud in government and modernizing outmoded computer systems—all worthy goals in principle—in reality, it appears to be about something entirely different. In practice, DOGE’s purposes appear to range from shutting down government agencies that interfere with certain business interests to harvesting personal information of millions of Americans to taking control of government payment systems.

This week we will see continued developments in the courts with cases challenging DOGE and the administration. On Friday, a federal judge in Manhattan, Jeanette Vargas, will hold a hearing on whether to issue a preliminary injunction in the case New York Attorney General Letitia James, joined by 18 of her Democratic attorney general colleagues, filed to get DOGE out of the Treasury Department’s systems. The AG plaintiffs argue that DOGE’s access to the Treasury’s Bureau of Fiscal Services violates the Administrative Procedure Act (APA).

There is already a temporary injunction (a TRO) in place that is supposed to keep DOGE from acting and force them to destroy copies of information they’ve already collected, but that is an emergency device used to permit a court to take a brief period of time to receive briefs from the parties and hold an evidentiary hearing if necessary to determine whether the status quo should be maintained—in other words, whether DOGE’s activities need to be stopped—while a lawsuit proceeds to a decision by the courts, which can take some time. Expect whichever party loses to appeal; this is the posture in which we sometimes see the Supreme Court decide emergency appeals off of its shadow docket, although frequently without an opinion explaining the decision, which may give us an early sense of how the Court is leaning. (An example of this occurred when Texas’ vigilante justice anti-abortion law came to the Court on a motion asking for a preliminary injunction while the litigation over the law moved forward, and the Court declined to grant one, foreshadowing its subsequent reversal of Roe v. Wade in the Dobbs decision.) The Court doesn’t have to hear appeals like this, but at least so far, they’ve tended to hear Trump-related appeals.

The biggest concern right now is how the Trump administration will respond to court orders that go against them. Will they thumb their nose, as there is already some suggestion they’re doing in the impoundment case, where despite a court order that paused Trump’s spending freeze, there are reports that much of those funds remained unavailable? Will this administration, as JD Vance’s retweet suggests it could, decide that only its own decisions, not those of the courts, are legitimate, and keep on acting as it pleases? And how do you put the toothpaste back in the tube given the access DOGE had before the courts entered their orders?

If Trump pushes the country over the edge into a full blown constitutional crisis, there are two places to look for action, unless Congress suddenly grows a backbone:

• The courts, which have limited enforcement mechanisms in a direct standoff, since federal law enforcement—the prosecutors who would prosecute a contempt or agencies like the FBI and the U.S. Marshal’s service that could be called upon to intervene—are all under the control of the Justice Department and ultimately the president, who heads the executive branch. Even Richard Nixon complied with adverse court orders, turning over the White House tapes when ordered to. Now we will see just how far Trump is willing to go and whether anyone in his own administration will try to function, if not as a guardrail, then at least in protest by resigning to focus public attention.

• The public. It may come down, as Senator Kaine says, to locking arms in protest. Some people are concerned that Trump might use protests to invoke the Insurrection Act and further lock down the country. But Americans still have First Amendment rights. If the president and his administration openly abandon the rule of law, Americans can either protest in the only manner left to them or concede the point.

What happens if we hit that stage? Everyone, from the Attorney General to the White House Counsel and others, should write a “resign” email if Trump refuses to obey a lawful court order. The legal route for the government when it loses a case is to appeal the decisions they disagree with, not disobey it. But much of the current litigation against the Trump administration, more than 40 cases in its first three weeks, are happening because Trump ignored the law in the first place, like he did by unlawfully firing Inspectors General even though he could have done it legally by giving 30 days notice, there’s no reason to believe he’ll suddenly do an about face. He has tried to override the Constitution by ending birthright citizenship and 120 years of jurisprudence interpreting it, which is beyond his power without a constitutional amendment. And he has taken over Congress’ control of the purse strings to halt funding. It seems unduly optimistic to hope for restraint if courts begin to impose preliminary injunctions that prevent DOGE from proceeding for at least as long as it takes to appeal the order and possibly for the entire time the litigation proceeds.

President Lincoln drew criticism for suspending habeas corpus during the Civil War. Great Americans have often expressed the sentiment that the Constitution is not a suicide pact. It’s not meant to kill democracy. But the current occupant of the the White House and his minions want to twist it into an unrecognizable form that lets them do just that. The Constitution is designed to prevent a president from becoming a dictator, a tyrant who rules based on his own whims instead of the principles that guided the Founding Fathers. It’s sadly ironic that conservatives who claimed for decades to be “strict constructionists” or “textualists” when it came to the Constitution are now willing to depart from it in service to Trump, especially the lawyers who are willfully denying the role they know is assigned to the judiciary in checking presidential overreach.

Power—and keeping it—is apparently trumping principle in the executive branch and in Congress. It’s up to the courts and the people now. Don’t buy into the myth that we don’t have power together. We’re beginning to see opposition to Trump take shape, and if it is persistent enough, it can check when he’s trying to do. We saw that happen in the courts last week. Don’t obey in advance, and don’t let anyone convince you your voice doesn’t matter. That’s how dictators come to power.

We’re in this together,

Joyce