U.S. District Court Judge Paul Englemeyer in the Southern District of New York, serving on the court’s emergency docket (there’s always a judge available), has granted an emergency temporary injunction to the State of New York and over a dozen other blue states putting on hold the access that U.S. Treasury Department Secretary Scott Bessent had given to DOGE (the Department of Government Efficiency) to Treasury payment systems as part of Trump’s effort to locate and eliminate waste and fraud.
[Note: It’s a little unclear if the Order was entered on Friday night or Saturday morning, it’s dated February 8 but the language is written as if it were decided February 7.]
It was an unusual procedural context. I’ve reviewed the court’s electronic docket, and it appears to have been ex parte. There’s no indication of notice to the government and opportunity to be heard before the Judge ruled. The procedure was a Proposed Order To Show Cause including a Temporary Restraining Order. It’s the type of procedure used in only the most extreme emergencies (the OSC is not unusual, but including an ex parte TRO is unusual).
What was the emergency that couldn’t wait until the next day for the government to have a chance to be heard?
It was a Friday night move to deny access that, by the papers submitted, had been going on for over two weeks. The 60 page Complaint, and 40 Page Memorandum (plus a short Affirmation) obviously took a long time to prepare, arguing against an emergency so dire and time sensitive on a Friday night the court couldn’t even wait until the next morning for the government to be heard. It also reeks of judge shopping, because plaintiffs would have known who was the emergency duty judge so by going in on a Friday night they evaded the normal random assignment system for this purpose.
Whatever the ultimate merits, depriving the Secretary of Treasury of the ability to run the Department of Treasury as he deems proper is not something that should have been decided this way, even temporarily. I understand that litigants play these games, but it’s a bad look that damages faith in the judiciary when a court allows it.
The short version of the complaint and claims is that Secretary Bessent violated various procedural requirements and that there is a threat that sensitive private information could be exposed. Considering that the Chinese government thoroughly hacked the Treasury computer systems under Biden, it’s odd that the mere possibility that DOGE might mishandle the information required a Friday night court intervention. I think there are serious ‘standing’ issues with the states bringing the case as well as the harm being speculative.
I can’t really assess the underlying merits on such short notice, other than it seems like what it is, a political objection in search of a legal theory. The Executive Branch gets to run the Executive Branch, and this seems like an overstep by a different branch of government.
This seems to be a repeat of 2017, where the Resistance had good luck with District Court Judges, less luck with Appeals Court Judges, and very little luck with Supreme Court Justices. But that’s besides the point, this is all about slowing down the Trump agenda, and wasting months or years before a final resolution is reached. Democrats don’t have to win in the end to achieve Democrats’ goals.
Here’s the Order entered this morning, it’s not only a freeze on access, it required deletion of any information already obtained.
…. ORDERS that, sufficient reason having been shown therefor, pending the hearing of the States’ application for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the defendants are (i) restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees; and (iii) ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems …. [emphasis added.]
As others have pointed out, as worded, this would appear to bar Bessent himself from access to these systems even though he is the Treasury Secretary, because he is a “political appointee.”
The case is on for hearing next week in front of a different judge, Jeannette A. Vargas, one of Biden’s last appointments. I don’t think the ruling survives very long, and Musk still is working out the details of how to track fraud and waste.
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