So many TRO requests, so little time: court rulings coming fast
"And that means we don’t live in a democracy; we live in a bureaucracy."
“If the will of the President is not implemented, and the President is representative of the people, that means the will of the people is not being implemented. And that means we don’t live in a democracy; we live in a bureaucracy.
“And so, I think what we’re seeing here is the sort of---the thrashing of the bureaucracy as we try to restore democracy and the will of the people.”
That was Elon Musk, during Sean Hannity’s fascinating interview of him and President Trump that aired Tuesday night. (And, yes, we know our country is not a pure democracy but a democratic republic. That wasn’t the point of what Elon was saying.) This remark from Musk seems especially appropriate in light of all the current judicial interference with “the will” of duly-elected President Trump, which we have updates on today.
There’s more about this phenomenal interview elsewhere in the newsletter. As for judicial updates that do impact the President’s ability to reflect the will of the people, we’ll start with the ruling that came down Tuesday from DC Judge Tanya Chutkan.
As you know, last Friday Judge Chutkan wouldn’t rule immediately in New Mexico v. Musk on whether or not to grant a temporary restraining order (TRO), one of numerous such requests that have been filed with various judges to try to at least delay the implementation of President Trump’s Executive Orders through Elon Musk and DOGE. Chutkan wanted the plaintiffs --- all Democrat state attorneys general who said Musk had “unchecked” power --- to narrow their broad request, which apparently they said they would do.
On Tuesday, amazingly, she did deny the request for the restraining order against DOGE.
These AGs had argued that Musk shouldn’t have been given the power he has, as he hasn’t been Senate-confirmed. As we asked earlier in the week, where were they when Jack Smith, NEVER Senate-confirmed, was appointed by then-U.S. Attorney General Merrick Garland to be “special counsel,” a job that definitely is supposed to have Senate confirmation? Ironically, it was Judge Chutkan who denied Trump’s motion to dismiss the case against him, when his motion was based on the same argument that Smith was “special counsel” in violation of the Appointments Clause! (Florida Judge Aileen Cannon did later dismiss the case, saying Smith’s appointment WAS in violation.) So all eyes were on Chutkan regarding what she would do here.
As reported in GATEWAY PUNDIT, “Blue states such as Arizona, Michigan, Rhode Island, New Mexico, California, Massachusetts, and others filed a lawsuit arguing President Trump violated the Appointments Clause of the Constitution when he created DOGE and gave Elon Musk ‘unchecked power.’” Since he wasn’t Senate-confirmed, the AGs said, “he should be barred from issuing orders to anyone inside the Executive Branch.”
But on Tuesday, Judge Chutkan wrote, “Based on the parties’ briefing, oral argument, and the current record, the court finds that Plaintiffs have not carried their burden of showing that they will suffer permanent, irreparable harm absent a temporary restraining order, and therefore Plaintiff’s motion is DENIED.”
HOWEVER, she’s still considering whether or not Elon Musk’s work violates the Appointments Clause: “Plaintiffs legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight. In these circumstances, it must be indisputable that this court acts within the bounds of its authority.”
So, even though the plaintiffs couldn’t show harm, she might still try to use the Appointments Clause as a “way in” to cause trouble for DOGE and try to short-circuit President Trump’s intentions. Still, it would probably just mean a delay while the case is appealed. As Joshua Fisher, White House Director of the Office of Administration, has said in a sworn statement, Musk is an employee of the White House. “He holds the position as a non-career Special Government Employee (SGE).” And, of course, we know he’s not operating with unchecked authority. He’s working under the authority of President Trump, who could limit or end it at his own discretion.
For some perspective on the importance of this case, Margot Cleveland wrote about it over the weekend, while we were still waiting for Judge Chutkan’s ruling.
“...Unlike the various TROs entered to date in other cases which served merely as paper nuisances,” she wrote, “a TRO freezing out Musk and DOGE would be devastating --- both to the President’s agenda and our constitutional structure.”
The emergency TRO had asked the court “to immediately enjoin Musk, DOGE, “along with personnel associated with these entities,” from accessing any data from the various federal agencies, freezing or canceling any federal grants or contracts, or taking steps to fire or place employees on administrative leave.” Not just firing them (which Trump or agency heads would presumably do). But even TAKING STEPS.
In its response to the plaintiffs’ Friday request, Trump administration attorneys said the TRO was so broad that it “would even ban the President and Senate-confirmed officials from accessing data or terminating employees if they collaborate with Musk or DOGE in the decision-making process.”
Claims being made by the plaintiffs, they said, are premised on Musk and DOGE having the “authority to make decisions for the U.S. government.” This is what we’ve been saying is wrong with their argument. Musk and DOGE have no authority to make decisions. They’re just fact-finding.
As White House attorneys argued, “[Plaintiffs’] premise is, of course, wrong.” Their theory “rests entirely on conflating influence and authority.” Musk has influence, but no authority. In their words, “...the States do not cite a single example of where Musk [or anyone at DOGE], has been given formal authority to exercise the sovereign power of the United States.” The only “example of any tangible action even affecting the States is a single paused grant from USAID,” but the record shows that “those decisions were made by properly named officers of USAID who were ultimately acting pursuant to an executive order issued by the President --- nowhere is there any governmental action taken in the name of [DOGE].”
As for Judge Chutkan’s continuing “consideration” of the Appointments Clause, White House attorneys have also addressed that: Musk and members of DOGE are “employees,” not “officers” for purposes of the Appointments Clause, as they have no authority to implement their recommendations. Cleveland’s analysis offers more detail relative to this and is highly recommended. Keep in mind, it was written before Chutkan denied the TRO but while she’s still considering the (bogus) Appointments Clause argument.
https://thefederalist.com/2025/02/17/democrats-lawfare-threatens-to-sideline-musk-and-doge/
UPDATE: In similarly great judicial news, federal Judge Randolph Moss has refused to grant a TRO that would’ve blocked DOGE from accessing Department of Education records on student borrowers. He ruled that the Student Association, which had brought the lawsuit, hadn’t shown how they would be irreparably harmed, adding that any concerns about identity theft were “entirely conjecture.”
(Re: the plaintiffs’ lack of harm, some legal experts noted that liberal judges routinely rejected Republican lawsuits challenging alleged election fraud based on “lack of standing,” but some now don’t seem to care when liberal plaintiffs have no standing whatsoever to challenge Trump’s powers.)
As NEWSMAX reported, a DOGE staffer had told the court that his team is “only tasked with auditing contracts, grants and other such programs to determine waste, fraud and abuse.” How amusing it is that opponents of DOGE are finding themselves having to argue in favor of waste, fraud and abuse.
https://100percentfedup.com/federal-judge-randy-moss-sides-doge-will-not/
Speaking of student borrowers, chalk up another judicial win, as the 8th U.S. Circuit Court of Appeals (St. Louis) has ruled that the Biden administration lacked authority to pursue a student loan relief program that excused them from repayment. Well, OF COURSE they lacked authority for that. The explanation could not be clearer...
RELATED BREAKING NEWS: Tuesday night, in a move we thought would’ve happened on Day One but is fine anyway, President Trump has fired all remaining Biden “holdover” U.S. attorneys.
He made his reasons clear on Truth Social: “Over the past four years, the Department of Justice has been politicized like never before. Therefore, I have instructed the termination of ALL remaining ‘Biden Era’ U.S. Attorneys. We must ‘clean house’ IMMEDIATELY, and restore confidence. America’s Golden Age must have a fair Justice System --- THAT BEGINS TODAY!”
NEWSMAX reports that most Justice Department officials “normally remain in office from one administration to the next,” but that’s not really accurate, particularly regarding U.S. attorneys. Frankly, we’re surprised there were any U.S. attorneys who hadn’t already turned in their resignations, but apparently there were several who waited till the last minute (Monday). Perhaps they are quite nearsighted, not to have seen the writing on the wall.
https://www.newsmax.com/politics/doj-attorneys-biden/2025/02/18/id/1199598
One of the DOJ resignations that came Monday was Denise Cheung, head prosecutor for the Criminal Division in DC. As we’ve reported, current interim U.S. Attorney for DC Ed Martin was already waiting in the wings to become the new U.S. attorney. DC is going to take on a very different vibe.
https://dailycaller.com/2025/02/18/denise-cheung-doj-resigns/
However, an Obama-appointed federal judge ordered that a member of the Merit Systems Protection Board (an independent agency that adjudicates employment disputes involving civil service employees) who was fired by Trump be reinstated. She was appointed to a seven-year term by Biden and supposedly can only be fired for “inefficiency, neglect of duty, or malfeasance in office.”
Considering the sweeping executive order Trump just issued to eliminate all “so-called independent” boards, commissions and agencies, that argument might be moot. We’ll have more on that elsewhere in today’s newsletter.
MORE RELATED JUDICIAL NEWS: Congressional Republicans have had enough of a couple of activists in black judicial robes and are pursuing their impeachment.
If you’ve been reading the newsletter for the past week or so, you know there’s ample reason to seek impeachment of Judge Paul Engelmayer. Arizona Rep. Eli Crane will introduce articles of impeachment against this power-mad judge.
The same goes for Rhode Island federal District Court Judge John McConnell, Jr. Georgia Rep. Andrew Clyde is drafting articles of impeachment against this biased and conflicted judge.
We’ve covered it in detail, but if you’d like a refresher on these two judges and why the hammer should come down on both of them, Victoria Taft has a good piece for PJ MEDIA. Come on Republicans, get a spine.
As for what DOGE is really trying to do, Tennessee Rep. Tim Burchett (once the CNN airhead finally lets him talk) has a great reply on that, specifically within the IRS. He even hints at some members of Congress potentially being exposed.
I thought the USA was a constitutional republic? Loved that interview last night w/ the President and his little brother😁
Hopefully, they and the Doge Boys can get ‘er done❣️🇺🇸
Democrats are cancer to the American way of life. Nothing but thieves, liars, and scumbags.