Activist Judges’ War on the Separation of Powers

The U.S. Constitution delimits the boundaries of authority among the legislative, executive, and judicial branches respectively, which is inherent to the Constitution’s fundamental principle of the separation of powers. Article II of the Constitution states that “The executive Power shall be vested in a President of the United States” who must “take Care that the Laws be faithfully executed.”

The Supreme Court has upheld the power of the nationally elected president to supervise and control the exercise of executive authority by his subordinates within the executive branch.

On the other hand, there is no constitutional or statutory authority for any federal district court judge to impose a nationwide ban on the implementation of a president’s executive orders involving his supervision and control of internal executive branch matters. Only the Supreme Court has nationwide jurisdiction. But activist lower court judges are ignoring the constitutional limits on their own judicial authority and infringing on the powers reserved for the president as the head of the executive branch.

President Trump has hired the Department of Government Efficiency (DOGE) technical experts, led by Elon Musk, as special government employees to investigate misspending and inefficiencies within the vast executive branch bureaucracy and recommend specific improvements. The president or his delegated senior officials decide whether and or not to accept and actually implement the recommendations, not DOGE.

The DOGE team members work out of the White House Executive Office of the President and are assigned to specific executive branch agencies. Their presence and activities as the president’s eyes and ears within the deep recesses of the executive branch bureaucracy have sent the Trump-haters into a hissy fit. Democrats and their sycophants in the legacy media have falsely accused President Trump of trampling on the separation of powers and thereby precipitating a so-called “constitutional crisis.”

The deep state’s protectors are pulling out all the stops, including running to friendly courts, to stop President Trump from succeeding in wiping out waste, fraud, and abuse in executive branch spending. Past presidents from both parties have tried to accomplish this formidable task but failed.

During Barack Obama’s 2008 presidential campaign, for example, he promised to “cut funding for programs that are wasting your money...” In his second term, Mr. Obama established the United States Digital Service (USDS), which tapped talent from the private technology sector to help improve digital efficiencies within the executive branch. Yet there is even still today a paperwork mine where government employees’ retirement forms are stored and processed by hand, as DOGE recently revealed!

It is not as if Congress is unaware of the problem of fraud, waste, and abuse in executive branch government spending. Congress’s own watchdog, the General Accounting Office (GAO), reported that for fiscal year 2023 alone, federal agencies estimated $236 billion in improper payments, which include fraud. Since fiscal year 2003, it is estimated that improper payments by executive branch agencies have totaled about $2.7 trillion.

Congress has done next to nothing to fix the problems identified by its own watchdog. It has held oversight hearings for years and approved numerous appropriations with the opportunity to mandate specific spending cuts and reforms. But rhetoric and words on paper are no substitute for real action.

For President Trump, failure was never an option. He took immediate action to reduce the size of the executive branch bureaucracy and provide government services more efficiently.He renamed the Obama-created U.S. Digital Service as the U.S. DOGE Service. DOGE is uncovering fraud, waste, and abuse at breakneck speed and reporting opportunities for steep spending cuts totaling many billions of dollars, as directed by President Trump.

President Trump’s executive orders temporarily freezing some executive branch spending, pending completion of DOGE’s audits and the implementation of internal reforms meant to run the executive branch more efficiently, do not infringe on Congress’s power of the purse. To the contrary, President Trump is fulfilling his constitutional duty to take care that “the laws be faithfully executed.” He is doing so by taking care that the monies Congress has appropriated by law for the executive branch are not willfully or negligently misspent.

But the entrenched Washington establishment and its hangers-on are digging in their heels. Aside from street protests and the like, the resisters seeking to thwart President Trump are bringing federal lawsuits challenging his actions in jurisdictions where they are more likely to have sympathetic judges hearing their cases. Blue state attorneys general, unions, non-governmental organizations, and some individuals have filed dozens of lawsuits so far. Their lawfare strategy has already yielded some successes.

Take U.S. District Judge of the Southern District of New York Jeannette Vargas, who was nominated by former President Biden and confirmed in 2024, for example. She has banned DOGE personnel, at least temporarily, from accessing the Treasury Department’s payments systems that track, pay out, and collect trillions of dollars every year.

Treasury Secretary Scott Bessen approved two DOGE special government employees assigned to the Treasury Department to work alongside a group of longstanding Treasury employees. The DOGE employees were given limited “read only” access. They had no ability to modify or cancel payments. Treasury Secretary Bessen described what the DOGE employees were doing, alongside the longstanding Treasury employees, as “an operational program to suggest improvements.”

DOGE managed to discover mind-boggling deficiencies in the Treasury Department’s payments systems while they still had limited access. According to DOGE’s website, “The Treasury Access Symbol (TAS) is an identification code linking a Treasury payment to a budget line item (standard financial process). In the Federal Government, the TAS field was optional for ~$4.7 Trillion in payments and was often left blank, making traceability almost impossible... this is now a required field, increasing insight into where money is actually going.”

Nevertheless, Judge Vargas bowed to the demands of blue state attorneys general to block DOGE special government employees’ continued access to the Treasury Department’s payment systems. Her preliminary injunction, which has prevented DOGE from proceeding with its vital audit of those systems as directed by the president and overseen by the Treasury Secretary, violates the separation of powers. Judge Vargas has infringed upon President Trump’s constitutional authority to run the executive branch.

An Obama-nominated federal district court judge in Washington, Amy Berman Jackson, also violated the separation of powers. She issued a temporary restraining order requiring the immediate reinstatement of the head of a congressionally designated “independent” agency within the executive branch whom President Trump had fired without citing any specific cause. This so-called “independent” agency is the Office of Special Counsel, which is responsible for protecting government whistleblowers and enforcing various ethics laws. This position is distinct from the special counsels appointed by the Justice Department to investigate alleged presidential misconduct.

The applicable statute cited by Judge Jackson states that the head of this agency “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office.” Judge Jackson allowed the head of the agency, Hampton Dellinger, to keep his job temporarily while she ponders whether to impose a preliminary injunction preventing his removal by the president except for a cause specified by Congress.

The Trump administration filed an emergency motion for a stay of this ruling at the U.S. Court of Appeals for the D.C. Circuit, where two Biden-nominated judges in a three-judge panel denied the motion. The administration has taken its case for an immediate stay to the Supreme Court, writing that “This court should not allow lower courts to seize executive power by dictating to the president how long he must continue employing an agency head against his will.” Late in the afternoon on February 21st, the Supreme Court punted any decision until at least February 26th when Judge Jackson’s current temporary restraining order was scheduled to expire. Judge Jackson extended her order until March 1st.

Judge Jackson remarked that if the position is “unsatisfactory to the current president, isn’t the remedy to marshal congressional support to change it as opposed to disregard it?” The question should have been whether Congress had the authority under the Constitution to limit the president’s discretion in firing executive branch officials in Mr. Dellinger’s position. A 2020 Supreme Court decision gave a clear answer to that question in the case of Seila Law LLC v. Consumer Financial Protection Board (CFPB). The Supreme Court struck down as unconstitutional another statute limiting the president’s discretion to remove the director of a supposedly “independent” agency that sits within the executive branch.

Supreme Court Chief Justice John Roberts wrote for the majority that “in our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.” Noting that it is the president who is elected by, and accountable to, the people, the Supreme Court’s Seilaopinion stated that while “individual executive officials will still wield significant authority…that authority remains subject to the ongoing supervision and control of the elected President.” (Emphasis added)

Chief Justice Roberts did intervene directly in one current case. He paused an order issued by U.S. District Judge Amir H. Ali, a Biden nominee, which had required the Trump administration to immediately release $2 billion in foreign aid funds to contractors by midnight Thursday February 27th. Chief Justice Roberts gave the plaintiffs who had sued the Trump administration until noon on February 28th to respond to the pause that Chief Justice Roberts put in place.

In another example of judicial overreaching at the lower court level, the chief judge of the U. S. District Court of Rhode Island,John J. McConnell, issued a temporary restraining order unfreezing the pause that President Trump imposed on executive branch spending. This Obama-nominated judge opined that thepause on spending of monies already appropriated by Congressinfringed on Congress’s exclusive appropriations authority, which binds the president to spend the monies Congress appropriates for the purposes that Congress specifies. Judge McConnell also referenced the Impoundment Control Act of 1974, which places strict conditions on how a president can effectuate a legally permissible spending pause.

In his zeal to obstruct President Trump from pausing some executive branch spending temporarily pending the completion of thorough audits, Judge McConnell ignored the Impoundment Control Act’s deferral provision. It permits the president to defer an obligation or expenditure of appropriated funds until no later than the end of the current fiscal year “to achieve savings made possible by or through…greater efficiency of operations.”

Yes, Congress does have the power of the purse. However, there is no evidence that Congress allocated any of the appropriations it approved to pay specifically for the multitude of extravagantly wasteful programs that DOGE has exposed and are now finally on the chopping block. For example, the Department of Education terminated twenty-nine DEI training grants totaling $101 million that DOGE discovered. One such grant sought to train teachers to “help students recognize areas of privilege and power on an individual and collective basis.” Congress did not mandate that its appropriations for the Department of Education be used to fund this critical race theory propaganda. Executive branch bureaucrats made that decision on their own. President Trump has the constitutional authority to stop it.

Not all federal district court judges have abused their judicial authority in deference to the Left’s demands. Several judges have allowed DOGE some leeway to help President Trump clean up executive branch bureaucrats’ gross misspending and have permitted the president to proceed with long overdue downsizing. However, the activist lower court judges who have arbitrarily imposed nationwide –even worldwide – bans on actions the president has ordered to manage the executive branch more efficiently are the ones who have precipitated a real constitutional crisis.