The opinion pages are full of reactions to the Trump Administration’s ignoring of court orders staying the deportation of alleged Tren de Aragua members. A sample are:
Michael A. Fragoso at City Journal
Ray Brescia at MSNBC
Philip Bump at the Washington Post
just to name a few. Some of these refer to the situation as a “constitutional crisis”. Is there an actual constitutional crisis? I think there is but it’s not limited to the issues that are being called a “constitutional crisis”.
As I see it the crisis extends to the presidency, the Congress, and the judiciary. Nobody wants to do their own jobs. Maybe more precisely everybody is treating their jobs as a sort of cafeteria, picking and choosing the components they want to do.
Rather than focusing on the deportation issue, let’s consider the recent decision by district court judge Theodore D. Chuang with respect to USAID. It falsely asserts that USAID was created by Congress. USAID was created by President John F. Kennedy by executive order. Its reorganization by the Congress did not define its role, leaving that to the executive.
Those are egregious errors of fact in Judge Chuang’s opinion. As of this writing the Supreme Court has not reversed the decision but Chief Justice Roberts has expressed disapproval of President Trump’s calling for Congress to impeach Judge Chuang. What’s wrong with calling for the impeachment of judges who commit egregious errors of fact in their decisions?
The Congress, too, has been remiss. The budget is its responsibility and the continuing resolution is not a budget. Its kicking the can down the road instead of enacting a budget. More on the budget later.
The list of derelictions is practically endless.
Didnt read the ruling did you. On page 42 the judge explicitly says that USAID was created by an Executive Order but in 1998 Congress specifically established USAID by statute in FARRA. To be fair it’s long so I suspect few will read it but just copy what others say. You may want to broaden your reading sources,
Steve
Congress did not establish it in 1998—it just said that the president couldn’t abolish it at will. It left defining its duties and role to the president.
Dave Schuler: Congress did not establish it in 1998—it just said that the president couldn’t abolish it at will. It left defining its duties and role to the president.
That is also not quite correct. The statute, the Foreign Affairs Reform and Restructuring Act of 1998, established USAID as an agency of the government, and it gave the President 60 days to reorganize or abolish the agency. President Clinton reorganized USAID and retained it as an agency independent from the U.S. Department of State. Now, only Congress can abolish USAID. How USAID functions is largely based on Congressional funding laws, Congress allocating funds for various programs, such as PEPFAR, which provides funds for AIDS relief.
Firing all of USAID workers is clearly meant to undermine the will of Congress. If Trump wants to eliminate USAID, he has to go to Congress. That makes his actions a Constitutional issue. Whether it becomes a crisis depends on whether Trump continues to defy the courts and the law.
The legislation is online to read:
https://www.congress.gov/bill/105th-congress/house-bill/1757/text/enr?format=txt
It doesn’t formally establish the agency, it requires some reforms to its authorities and structures. It doesn’t say anything that I can find about who or how it can be disestablished, probably because no one really imagined that eventuality.
The more compelling argument for it, IMO, is the fact that Congress has continually appropriated funds for the agency. As long as Congress appropriates funds, they must be spent for the appropriated purpose.
As far as a constitutional crisis, I think we are heading in that direction, but we aren’t there yet.
Andy: It doesn’t formally establish the agency, it requires some reforms to its authorities and structures.
So, there IS such an agency, unless Congress says otherwise. Of course, as you note, Congress could just not fund any of its functions, or abolish it completely through new legislation.
Sorry Dave. The judge, if you actually read it, said USAID was created as an EO. You were wrong in implying that the judge didnt know that. . The judge did not make an error of fact on that issue. Reading FARRA (see above) it does by statute recognize USAID as a real govt agency that only Congress can abolish. Congress then went on to fund USAID of almost 30 years. Judge wins.
Steve
The Congressional Research Service wrote a pretty comprehensive review.
https://www.congress.gov/crs-product/IN12500
Zachriel,
Thanks for finding that section.
I’ve also learned about the Reorganization Act, which requires congressional approval for any agency reorganizations in the Executive branch.
Interesting times. One of the things I’ve learned is that under federal law temporary restraining orders are not appealable. This is not the case under Illinois law. Congress only allows injunctions to be appealed.
To use a hypothetical, a judge might enter a temporary restraining order directing a parent to kill one of their children. Reasonable objections might be that the relief is not “temporary,” but quite permanent. It does not “restrain” so much as compel action. And the judge has no authority to order murder. Similar complaints can be made about the USAID case, ordering payments wasn’t temporary, nor did it restrain the government from doing something but required actions, and federal sovereign immunity requires damages to be made through the court of claims. I am aware there are arguments on the other side, but without appeal rights the decision is simply discretionary with the trial judge.
I don’t know much about USAID, but TROs are entered without accurate information all of the time. They are emergency motions, and it’s a reason given for not allowing them to be appealed, there is no supporting record and frequently issued without giving the defendant an opportunity to participate. While I’ve only heard of one ex parte TRO, the TRO motions I’ve glanced at are based upon newspaper articles like those from Politico — hearsay presumably based upon leaks or speculation about what the Trump administration is up to.
And “temporary” should mean something like a week or a week-and-a-half TRO. Enough time to schedule and conduct the preliminary injunction hearing.
PD Shaw: One of the things I’ve learned is that under federal law temporary restraining orders are not appealable.
Under Rule 65 of the Federal Rules of Civil Procedure, a party can move to have the order dissolved if the cause or the order itself are defective.
PD Shaw: Similar complaints can be made about the USAID case, ordering payments wasn’t temporary, nor did it restrain the government from doing something but required actions
The restraint is on the Executive Order; otherwise, the payments would already have been made. The court held a hearing, and there was an appeal heard by the Supreme Court.
When i was in high school over 40 years ago, my US History test had a true/false question:
“The Supreme Court rules that according to the First Amendment, everyone must be Baptist.”
While this is obviously meant to be a False statement, my friend Stacy marked it as “True.” His argument was that while the Constitution contains checks and balances, there is no constitutional check on the power of the Supreme Court. If the Supreme Court rules we must all be Baptist by their interpretation of the first amendment, what recourse exists?
While I believe many of Trump’s executive orders are not constitutional (i.e. birthright citizenship), I think the same applies to many of the judicial rulings which are also unconstitutional. They are exercising powers not granted to them.
@Zachriel:
1. Rule 65 does not address appeals. 28 U.S.C. Sec. 1292(a)(1) only authorizes the Court of Appeals jurisdiction over appeals of injunctions. Congress determines the jurisdiction of the courts. Rule 65 allows a party against whom a TRO was entered without notice an opportunity to appear before the same judge and move for the TRO be dissolved.
2. The initial TRO restrained the government from pausing payments pursuant to the executive order. A second order also described as a TRO was entered by the judge mandating that the government pay $2 billion within 36 hours. It was the second order that the government attempted to appeal (it was no longer relying on the EO to stop payments) and while the SCOTUS ended up giving some of the relief requested, it did so while denying the application so nothing is clear about these issues.
I think the take home here is that the constitution is seriously flawed. It actually places little other than impeachment as a means to control executive overreach if Congress is of his own party so they actually support what he is doing. Too much is placed upon the assumption that POTUS will act within historical norms. The MAGA types dont really care if what Trump does is legal as long as it appears to be sticking it to the liberals. My guess is that they will pretty happy when the next Dem POTUS decides to also ignore norms and Congress and ignore the courts when convenient.
Steve
PD Shaw: Rule 65 does not address appeals.
That’s correct. Rule 65 addresses a hearing over the sufficiency of the restraining order.
PD Shaw: 28 U.S.C. Sec. 1292(a)(1) only authorizes the Court of Appeals jurisdiction over appeals of injunctions.
The government appealed under Rule 23 and the All Writs Act, 28 U.S. Code § 1651.
The point, of course, is that the government had all manner of due process.
steve: I think the take home here is that the constitution is seriously flawed.
Turns out that the Constitution has been on the honor system for two centuries. Thank George Washington for setting the example when, after winning the Revolution, he surrendered his sword to the
back-stabbing, corrupt, two-faced, f@@*@ !!@#$representatives of the People.PD Shaw: 28 U.S.C. Sec. 1292(a)(1) only authorizes the Court of Appeals jurisdiction over appeals of injunctions.
Regarding 28 U.S.C. Sec. 1292(a)(1) , see Carson v. American Brands, which held that the court’s order was effectively an injunction and was therefore appealable. Your example of a so-called temporary restraining order for “a parent to kill one of their children” would fail under this ruling, as it would also fail due to the non-temporary result. In the case concerning USAID, the courts did not reject the appeal out of hand, but took it into consideration.
Asking a judge to reconsider their own decision is not an appeal.
Appeals are made to the Courts of Appeals and in this case the government tried to appeal to the D.C. Circuit which rejected the appeal on the grounds that it lacks jurisdiction to review TROs. There was no appeal. In Illinois, the Appellate Court would have not been able to reject the appeal because TROs are appealable.
The Supreme Court received a motion to vacate the trial judge’s second TRO. It stayed the second order to consider the motion and eight days later denied the motion without explanation, though referencing an ongoing preliminary injunction hearing. We don’t know whether the Court disagrees with the procedural posture or with the government’s position on the merits. Or if the Court simply declined to exercise its discretion one way or the other. We know four Justices agree with the government procedurally and on the merits, stating that the second TRO was “too extreme.” Four justices are sufficient to grant a writ of certiorari, meaning that the case would likely be appealed once an appealable order is entered.
The TROs were dissolved five days after the Supreme Court decision and replaced with a preliminary injunction that addressed the government’s concerns. I would argue that while the government was unsuccessful in getting another court to review the TRO, the concerns from the SCOTUS encouraged the judge to moderate their position.