The opening sentence of Article II of the U.S. Constitution is straightforward and grants one person, the president, broad powers: “The executive Power shall be vested in a President of the United States of America.”
Nineteen rebellious states are now attempting to usurp that executive power, which the Constitution vests solely in the president. This case, which seeks to wrest control of the Department of the Treasury away from President Trump and Secretary of the Treasury Scott Bessent, is part of the ongoing campaign of lawfare by which the Democrats seek to frustrate the will of a majority of voters and states, thereby overturning the results of the presidential election. They have been aided and abetted thus far by a pliable, low-level federal judge in New York. The case is now proceeding with another judge. We shall see.
Background and Updates
As I detailed in two previous articles about the New York case, the Constitution gives the president sole executive power. However, New York’s anti-Trump Attorney General Letitia James and 18 other rogue state AGs, in concert with low-level New York federal Judge Paul Engelmayer, have tried to usurp this executive power by prohibiting Trump and Bessent from effectively reviewing Treasury records to eradicate waste and fraud in federal spending. As I wrote:
The judge has taken it upon himself to be the first judge ever to grant a temporary restraining order (“TRO”) against the President of the United States that also to forbids a cabinet secretary from accessing his own records without giving them an opportunity to respond, with zero analysis of his Constitutional authority to make such a radical ruling, zero analysis of the Federal Rule governing injunctions and temporary restraining orders, and zero analysis of why he is enabling fraud and grift by blocking access to records that show who got government money and for what.
After those two articles were published, the defendants filed an emergency motion to dissolve, clarify, or modify the TRO that Judge Engelmayer — the judge on duty to handle “emergency” after-hour matters on Feb. 7, the night it was filed — had entered. Judge Jeannette Varga, the judge the case was actually assigned to, then made a modification to the TRO. After that, the government filed a memorandum of law opposing the plaintiffs’ requested injunction. The plaintiffs’ response was filed Thursday, and a hearing on the request for a preliminary injunction is scheduled for Friday afternoon.
A Primer on Injunctions and TROs
First, one point not mentioned in my prior articles is the difference between a temporary restraining order (TRO), which has now been issued, and a preliminary injunction, which will be decided after Friday’s hearing.
An injunction is a form of what the law refers to as “extraordinary relief.” Unlike a judgment that awards a successful plaintiff a monetary sum, an injunction prohibits the defendant from performing or continuing some illegal act or dangerous condition (such as a homeowners’ association attempting to enforce racially discriminatory rules). A “mandatory injunction” may order the defendant to perform a specific act (such as convey real estate that is the subject of an enforceable contract).
Getting an injunction often is a two-stage process. A plaintiff may obtain a preliminary injunction on an expedited basis that typically lasts for a limited time until discovery can be conducted and a full trial on the merits can be held. A full trial can then result in a permanent injunction for a successful plaintiff. Sometimes a hearing on a preliminary injunction and a full trial on the merits may be consolidated, although that has not happened in this case.
In cases of extreme emergency, where “irreparable harm” will occur immediately if the court does not act swiftly, a judge may enter a TRO granting the requested relief. But a TRO can only last for a maximum of 14 days, unless the court extends it for compelling reasons.
Defenses to a TRO That Defendants Did Not Raise
There are several defenses to a TRO and an injunction that the defendants have not yet raised and which they apparently do not intend to raise. One of those defenses is the lack of meaningful notice of the application for a TRO.
Suffice it to say that New York’s “Special Trial Counsel” Colleen Faherty tried to give the appearance of having provided notice that they were asking for a TRO, but it was a sham notice that provided the defendants no meaningful opportunity to respond. The defendants did not raise this issue in either their emergency motion to dissolve, clarify, or modify the TRO or their memorandum of law opposing an injunction. This decision to conserve their resources by not fighting this battle may have been an application of Clausewitz’s principle of “economy of force,” so I will not second-guess it now.
A second defense that the defendant eschewed is somewhat more concerning, if only because it evidences a certain lack of an aggressive defense. As I previously pointed out, a TRO is not effective until a bond or other security is posted. Judge Engelmayer ordered a nominal $10,000 to be posted as security before the beginning of the hearing at 2:00 p.m. on Feb. 14. The express terms of Rule 65(a) provide that a TRO is not in effect until that security is posted.
Yet even though the TRO is not effective until security is posted, the defendants affirmatively stated both in their emergency motion and in their memorandum of law that they were taking “all necessary steps to comply with the Court’s Order.” So the president and other defendants are complying with an order with which they are not legally obligated to comply. As Alfred, Lord Tennyson said, “All the world wondered.” Perhaps the defense lawyers made another tactical decision not to raise that issue, but it is something to wonder about.
Finally, there is the issue of the insufficiency of the amount of security Engelmayer required. Given the potential damage the country could suffer if DOGE is denied access to the Treasury Department records even temporarily — the hampered ability to control some of the runaway and fraudulent spending that has the country headed toward a financial abyss — a bond that fully protects the government from a wrongful injunction could run into the hundreds of millions of dollars. This is a complex question and could be a trial in itself.
Again, defense counsel may have consciously decided not to make an issue of this for tactical reasons, or they may raise it at the injunction hearing on Friday, but it does grant the plaintiffs considerable latitude to try to shut down DOGE’s operations with minimal cost to themselves.
Must Trump Cooperate with an Attempted Coup Camouflaged as a Court Order?
The short answer is no.
People have been trained to believe that a president must follow the orders of a third-tier federal judge because orders coming from any of the 1,000-plus federal judges in the country are the “law of the land” and must be regarded as supreme.
Such deference should usually be granted as a matter of comity, when judges stay within recognized constitutional bounds. But where a judge veers far from the constitutional path and enters a patently erroneous or unconstitutional order, a president is not required to follow.
First, we start with the proposition that the judiciary is not the supreme branch of the government. It is one of the three co-equal branches. The lack of supremacy of the entire judicial branch is highlighted when you consider that there are more than 1,000 active district judges. When the Constitution vests the executive power of the United States in one person — the president — it defies common sense to think that he is obligated to obey every order from each of those many judges who might try to second-guess his exercise of that power.
Next, when you consider a couple of examples, the fallacy of that broad reasoning becomes even more apparent. What if one of the 1,000-plus district judges were to enter an order forbidding the president from accessing highly classified military documents such as nuclear attack plans, on the grounds that the president has not been properly trained? (That alleged lack of training was one of the bases for Judge Engelmayer’s order prohibiting certain officers and employees from accessing documents.) Would the president be required to follow such an order? I think not.
Neither would he be obligated to litigate the matter through the court system for months or even years before obtaining an answer from the Supreme Court. No, the president should continue to exercise his command authority over the military and say, as President Jackson famously did, “John Marshall has made his ruling now let him enforce it.”
Or what if a low-level judge forbade, say, the secretary of transportation from accessing sensitive documents held by agencies he supervised because he previously had been only a small-town mayor and had not “passed all background checks and security clearances and taken all information security training called for in federal statutes” that some civil servants get to safeguard private information (as Engelmayer also required)? I think that even most Democrats might shrink from such a rule.
Everyone can come up with their own examples. But the answer to the initial question above is a resounding “no.” The president, as the chief executive officer of the country, is not obligated to heel every time an out-of-control federal judge jerks his leash.
And in addition to Andrew Jackson, there is powerful precedent for a president’s refusal to acquiesce in a court order. President Lincoln famously defied an order entered by Supreme Court Justice Taney. Lincoln had suspended the writ of habeas corpus in certain sensitive military areas. Federal troops had arrested and imprisoned a Confederate sympathizer who had been “recruiting, training, and leading a drill company for Confederate service.”
When the prisoner sought release pursuant to a writ of habeas corpus, Justice Taney, sitting as a trial judge, entered an order and opinion that Lincoln’s suspension of the writ was outside his powers. Lincoln did not resolve the matter by appealing the order. President Lincoln just ignored Taney’s order.
This article was originally published on the author’s Substack, “Bravo Blue,” and has been lightly edited.
John A. Lucas is a retired attorney who has tried and argued a variety of cases, including before the U. S. Supreme Court. Before entering law school at the University of Texas, he served in the Army Special Forces as an enlisted man, later graduating from the U. S. Military Academy at West Point in 1969. He is an Army Ranger who fought in Vietnam as an infantry platoon leader. He is married with five children. He and his wife now live in Virginia. John also is published at johnalucas6.substack.com.
Jesus Christ is King
