The emergency and ex parte Temporary Restraining Order entered just after midnight Friday night (1 a.m. Saturday, reportedly) by the emergency duty judge in the Southern District of New York, without any opportunity for the government to be heard, has created what legitimately is a constitutional crisis. In addition to the gamesmanship by New York and other blue states of a Friday night filing where there was no legitimate emergency requiring a ruling that night, the Judge effectively decapitated the Treasury Department by forbidding any political appointee from having access to the Treasury payment system. The documents and analysis are in our post, Judge Issues Emergency Order Halting DOGE Access To Treasury Payment Systems.
It’s worse than I thought. In an Emergency Motion to Dissolve the TRO, filed early this morning, the Trump administration demonstrates not just the legal impropriety of the Judicial Branch removing political control from the Executive Branch, but also that there was no widespread access by political appointees. The Emergency Motion only addresses the removal of authority from political appointees, the underlying merits will be addressed in papers in opposition to the plaintiffs’ overall motion.
From the Memorandum of Law in support of the Motion to Dissolve:
At approximately 1:00 a.m. on Saturday, February 8, 2025, this Court issued an ex parteTemporary Restraining Order that purported to limit access to a vast swath of Treasury systems toonly “civil servants,” while prohibiting “all political appointees” from doing the same. On its face,the Order could be read to cover all political leadership within Treasury—including even SecretaryBessent. This is a remarkable intrusion on the Executive Branch that is in direct conflict withArticle II of the Constitution, and the unitary structure it provides. There is not and cannot be abasis for distinguishing between “civil servants” and “political appointees.” Basic democraticaccountability requires that every executive agency’s work be supervised by politicallyaccountable leadership, who ultimately answer to the President. A federal court, consistent withthe separation of powers, cannot insulate any portion of that work from the specter of politicalaccountability. No court can issue an injunction that directly severs the clear line of supervisionArticle II requires. Because the Order on its face draws an impermissible and anti-constitutionaldistinction, it should be dissolved immediately.At minimum, the Court should either clarify or modify its Order, so as to avoid its mostdirect constitutional and practical hazards. As written, the injunction is markedly overbroad.There is no sound reason that it should extend to Treasury’s leadership, who are charged withoverseeing and administering the Department without interruption. To the extent the Order appliesto senior political appointees at Treasury, it is an extraordinary and unprecedented judicialinterference with a Cabinet Secretary’s ability to oversee the Department he was constitutionallyappointed to lead. Interfering with those basic functions, even for a day, will cause irreparableharm to the government. By contrast, Plaintiffs have not even attempted to show how they wouldsuffer any irreparable harm as a result of Treasury’s political leadership being excluded from thetemporary injunction.If the Court is unwilling to grant relief from its Order, the United States respectfullyrequests that the Order be stayed pending the disposition of any appeal that is authorized, or at aminimum that such relief be administratively stayed for a period of seven days to allow the UnitedStates to seek an emergency, expedited stay from the Court of Appeals.
The Affirmation of Thomas Krause, Jr., also was submitted, which showed that there was no crisis and no widespread access to the payment system (and hence, no ’emergency’ requiring judicial action on a Friday night):
3. The purpose of this declaration is to provide factual information in support of Defendants’Emergency Motion to Dissolve, Clarify, or Modify the Ex Parte Restraining Order. Inparticular, I wish to highlight certain issues with the Temporary Restraining Order (TRO)issued in this matter on February 8, 2025, that could have major impacts on Treasury’s abilityto keep the BFS payments systems operational, including in emergency situations, and harmthe ability of Treasury’s high-level political appointees to oversee the work of BFS***5. Treasury has complied with the TRO’s restrictions on granting access by Treasury politicalappointees, Treasury SGEs, and government employees detailed from an agency outside theTreasury Department to payment records, payment systems, and personally identifiableinformation and/or confidential financial information of payees. As detailed below, nopolitical appointees, SGEs, or detailees at Treasury currently have such access. I am the solesuch person that had any level of access to payment records or systems at the time the TROwas issued, and I have not viewed or accessed data restricted by the TRO since it was issuedand understand I am restricted from doing so during the pendency of the TRO. [empasis added]***9. As previously noted, I am the sole SGE who had access to view payment data and systems atthe time the TRO was issued, and I no longer have such access. My access prior to and at thetime of the issuance of the TRO was limited to what is referred to as “over the shoulder”access to view BFS payment data, payment systems, and copied source code that was beingaccessed by other Treasury employees with appropriate access to the data or systems. I donot have, nor have I ever had, direct or personal access to BFS payment data, code, orsystems and I currently do not have “over the shoulder” access.
There was no emergency. There was no threat to personal information. There was none of the drama the plaintiffs’ motion papers invoked and the emergency duty judge used to justify the political interference by the judiciary in the functioning of the Treasury Department.
The judge assigned to the case in the normal course (not the judge who signed the TRO) has scheduled briefing on the Motion to Dissolve to be completedy today:
ORDER. The parties are ordered to meet and confer with respect to the Defendants’ Emergency Motion to Dissolve, Clarify, or Modify the Ex Parte Temporary Restraining Order to determine if the parties can reach agreement on a stipulation that either resolves or narrows the issues presented in the Motion. If no agreement is reached, Plaintiffs’ response to the Motion shall be due by 5:00 p.m. on Monday, February 10, 2025. Defendants’ reply papers shall be due by 11:00 p.m. on Monday, February 10, 2025. (HEREBY ORDERED by Judge Jeannette A. Vargas) (Text Only Order) (Vargas, Jeannette) (Entered: 02/10/2025)
We will continue to follow this, and expect the TRO to be dissolved. The Trump administration should not back down and agree to a compromise, which would only reward the bad behavior.
The states have filed their opposition memorandum:
“Rather than support their requested relief, their emergency motion only serves to highlight the urgent need to maintain the temporary injunction barring the expanded access Treasury’s new policy allows to sensitive and critical records and systems of the Bureau of the Fiscal Service (“BFS”) by political appointees and special government employees (“SGEs”) until the Court has an opportunity to resolve the pending motion for a preliminary injunction.”
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