The Trump administration is struggling to win court disputes over its various “shock and awe” policies (my description) in its war on the federal bureaucracy.
The problem is not judicial review of government actions. It is the issuance of sweeping nation wide injunctions by individual district judges. This cannot be allowed to continue. It simply cannot. Ideally Congress would step in and explicitly make it clear that trial level judges do not rule on matters beyond their jurisdiction and the case in front of them and cannot issue nationwide edicts. Since we all know Congress is paralyzed and can do nothing it is imperative that the USSC issue a clear and firm ruling that this kind of action is illegal.
I agree with Paul's analysis, but will take a short whack at the merits, and here I think the focus should be on a single word in the Constitution. The Constitution vests all executive power in the president, and it demands that he "take care that the laws be faithfully executed." The take care duty requires and empowers him to administer and implement the laws. The "faithfully" requirement goes beyond that, empowering the president to determine whether the laws are being executed in a way consistent with their terms and purposes. Bloated bureaucracies are not a faithful execution of the laws. Agencies, programs and expenditures that are not authorized or don't serve the laws' purposes are not faithful execution of the laws. Excessive or improper expenditures are not faithful execution of the laws. A trial court's meddling on a nationwide basis with presidential exercise of his constitutional duties and powers is not a faithful execution of the laws. The list goes on. Ultimately, of course, the Supreme Court will determine the extent of presidential power, but "faithfully" gives the president the first crack, and a large crack, at many of the matters that will soon crowd the Court's docket. Jim Dueholm
That's a very expansive construing of "faithfully," in which you could make it mean almost anything you wanted it to mean. If "faithfully" means anything, it seems to me that it would mean consistent with the generally understood meaning of the text of the law and the intent of Congress in enacting it. One better versed in the law than i would refine that, but that at least gets us in the ballpark. Do you not agree?
As a general matter, courts assume statutory words or terms are not superfluous, so faithfully means something more than mere execution of the laws. The president is empowered to determine whether the laws are being faithfully executed, for the Constitution would not impose a duty without conferring the power to discharge the duty, and that power is readily found in the president's broad and exclusive executive authority. I agree the words and purposes of the laws are the lodestars, and I cite a number of instances in which the president could reasonably conclude bureaucratic implementations of the laws are not faithful to those lodestars. Since it's up to the president to determine whether the laws are being faithfully executed, courts should accept that determination unless it's clearly erroneous. Jim Dueholm
I agree with the first sentence of your critic, Jim. In my opinion, your argument proves too much, and a Democratic president would be all too happy to use it to support whatever radical actions he or she decides to implement.
The courts would step in if there's clear presidential overreach, but we're not dealing here with the meaning or scope of laws, but with the executive power of the president to execute the laws, and to execute them faithfully. To the extent DOGE actions are upheld, I think they will be upheld as appropriate exercise of executive power, not because they have properly applied the law. Jim Dueholm
The problem is not judicial review of government actions. It is the issuance of sweeping nation wide injunctions by individual district judges. This cannot be allowed to continue. It simply cannot. Ideally Congress would step in and explicitly make it clear that trial level judges do not rule on matters beyond their jurisdiction and the case in front of them and cannot issue nationwide edicts. Since we all know Congress is paralyzed and can do nothing it is imperative that the USSC issue a clear and firm ruling that this kind of action is illegal.
On what basis would the Supreme Court rule it illegal? What would be the argument? Genuinely asking, because this non-lawyer would like to know.
I agree with Paul's analysis, but will take a short whack at the merits, and here I think the focus should be on a single word in the Constitution. The Constitution vests all executive power in the president, and it demands that he "take care that the laws be faithfully executed." The take care duty requires and empowers him to administer and implement the laws. The "faithfully" requirement goes beyond that, empowering the president to determine whether the laws are being executed in a way consistent with their terms and purposes. Bloated bureaucracies are not a faithful execution of the laws. Agencies, programs and expenditures that are not authorized or don't serve the laws' purposes are not faithful execution of the laws. Excessive or improper expenditures are not faithful execution of the laws. A trial court's meddling on a nationwide basis with presidential exercise of his constitutional duties and powers is not a faithful execution of the laws. The list goes on. Ultimately, of course, the Supreme Court will determine the extent of presidential power, but "faithfully" gives the president the first crack, and a large crack, at many of the matters that will soon crowd the Court's docket. Jim Dueholm
That's a very expansive construing of "faithfully," in which you could make it mean almost anything you wanted it to mean. If "faithfully" means anything, it seems to me that it would mean consistent with the generally understood meaning of the text of the law and the intent of Congress in enacting it. One better versed in the law than i would refine that, but that at least gets us in the ballpark. Do you not agree?
As a general matter, courts assume statutory words or terms are not superfluous, so faithfully means something more than mere execution of the laws. The president is empowered to determine whether the laws are being faithfully executed, for the Constitution would not impose a duty without conferring the power to discharge the duty, and that power is readily found in the president's broad and exclusive executive authority. I agree the words and purposes of the laws are the lodestars, and I cite a number of instances in which the president could reasonably conclude bureaucratic implementations of the laws are not faithful to those lodestars. Since it's up to the president to determine whether the laws are being faithfully executed, courts should accept that determination unless it's clearly erroneous. Jim Dueholm
I agree with the first sentence of your critic, Jim. In my opinion, your argument proves too much, and a Democratic president would be all too happy to use it to support whatever radical actions he or she decides to implement.
The courts would step in if there's clear presidential overreach, but we're not dealing here with the meaning or scope of laws, but with the executive power of the president to execute the laws, and to execute them faithfully. To the extent DOGE actions are upheld, I think they will be upheld as appropriate exercise of executive power, not because they have properly applied the law. Jim Dueholm
A loud Amen to Paul's last sentence.