By Lambert Strether
Ruling on a late Friday request by 19 mostly Democrat State Attorney’s General in State of New York v. Donald J. Trump, Judge Paul Engelmayer of the Southern District of New York granted a temporary restraining order halting access by Elon Musk’s so-called Department of Governmental Efficiency (DOGE) to Treasury Department data (this being the post-Inaugural DOGE, a temporary organization in the Executive Office of the President, not the gauzy entity it had been pre-Inaugural). In summary:
Trump created DOGE by executive order and appointed Musk to lead what they describe as an effort to modernize federal technology and identify spending cuts. But the move immediately raised legal concerns.
Attorneys general from states including New York and California alleged Trump and Bessent placed at risk the personal data of millions of people as well as billions of dollars in payments that states receive through the Treasury’s Bureau of Fiscal Services, or BFS.
The states allege the move violated the federal Administrative Procedures Act by failing give an explanation for the policy or allow public comment. The temporary court order requires that anyone who is granted access must pass background checks and receive proper security clearances. The states will seek to make all of the TRO’s requirements permanent.
Implementation of the policy, allowing “Musk and his DOGE team to access BFS’s payment systems, was adopted without any public announcement or explanation,” the states said. “Defendants have provided no reasons at all to justify the new policy, nor did Treasury conduct a privacy impact assessment prior to implementing the change.”
The Court accordingly:
ORDERS that the defendants show cause before the Hon. Jeannette A. Vargas, at Courtroom 14C, United States Courthouse, 500 Pearl Street, New York, New York, at 2 p.m. on , why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure preliminarily enjoining the defendants during the pendency of this action from granting to political appointees, special government employees, and any government employee detailed from an agency outside the Treasury Department access to Treasury Department payment systems or any other data maintained by the Treasury Department containing personally identifiable information; and further
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) ; (ii) ; 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 , if any….
Harsh, but fair (and while it’s excellent that Engelmayer ordered any data taken to be destroyed, it would have been even better had he ordered that any backdoors installed in Treasury systems be removed). This is much stronger than Judge Colleen Kollar-Kotelly’s order on Thursday, which still allowed Tom Krause, CEO of Cloud Software Group, and Marko Elez “access.”
Musk was, of course, not happy, and called for Engelmayer’s impeachment (which he did not do with Colleen Kollar-Kotelly’s order, interestingly).
In this post, I will first look briefly at six causes of action raised by the plaintiffs. I will take a turn into left field, and examine the theory of The Unitary Executive, the ideology that undergirds the Administration’s views on what Federal government employees can and cannot be ordered to do, in the light of Federalist 51. IANAL, of course, but I think that theory is untenable, amounting to a Big Man view of politics (and there are far less polite ways of making that claim).
Plaintiffs: Causes of Action
These are all drawn from State of New York v. Donald J. Trump (PDF) which though long is worth a skim, if not a read; there’s a lot of exciting detail about how Federal payments are actually made and processed at state level; for example, New York operates on a reimbursement model (and so you can imagine what would happen if New York spent the money that by statute (appropriation) it was entitled to receive, and then Treasure decided to reimburse it for less than that). I think you will agree with Engelmayer that the states presented a strong prima facie case. And now to the Counts, which start on page 46:
Count One: Violation of APA § 706(2) – Exceeding Statutory Authority
156. Defendants may only exercise authority conferred by statute. City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013).
157. Defendants have no authority under the federal laws or regulations to adopt or implement the new policy of granting BFS payment system access to political appointees or special government employees and/or for the unauthorized purpose of blocking or impeding payments (the “Agency Action”).
158. The Agency Action exceeds Defendants’ authority under the statutes that govern the collection, storage, handling, and disclosure of PII and confidential financial information because it grants payment system access to political appointees and special government employees and/or for unauthorized purposes.
159. The Agency Action also exceeds Defendants’ authority under the statutes that govern the collection, storage, handling, and disclosure of PII and confidential financial information because it permits payment systems to be accessed on non-government third-party servers.
(APA = Administrative Procedure Act.)
Count Two: (Violation of APA § 706(2)(A) – Contrary to Law)
164. Section 208 of the E-Government Act of 2002, 44 U.S.C. § 101 et seq., mandate that an agency conduct a privacy impact assessment before “developing or procuring information technology that collects, maintains, or disseminates information that is in an identifiable form.” Section 208(b)(1)(A)(i). The purpose of this provision “is to ensure sufficient protections for the privacy of personal information” maintained by government agencies. Section 208(a). There is no authority under this statute to develop a plan to disseminate PII or other sensitive information without conducting in advance a privacy impact assessment, which Defendants did not do before adopting and implementing the Agency Action.
165. Pursuant to the Code of Federal Regulations, title 31, subtitle A, Part 1, section 1.32, there are restraints concerning Treasury’s collection, use, disclosure and protection of SSNs. Specifically, the Office of the Secretary of the Treasury, within Treasury, has specific guidelines on when the Secretary must collect and maintain full SSNs, as well as the prohibitions on disclosure of SSNs.
(PII = Personally Identifying Information.)
A similar argument is made in 166 (The Privacy Act of 1974), 167 (the Tax Reform Act of 1976), and 168 (“regulations that govern Treasury’s collection, use, disclosure and protection of SSNs”). In addition, 169 raises the question that SGEs are “governed by these ethics rules.”(SSN = Social Security Number; SGE = Special Government Employee.)
Count Three: (Violation of APA § 706(2)(A) – Arbitrary and Capricious)
172. The APA provides that courts must “hold unlawful and set aside” agency action that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).
173. The Agency Action is arbitrary and capricious because when adopting and implementing the Agency Action Defendants failed to provide a reasoned explanation for the change in longstanding Treasury policy restricting access to BFS payment systems to career civil servants who need access to perform their job functions and who have demonstrated compliance with the numerous privacy and security requirements for access to the system and sensitive information contained therein.
174. The Agency Action is arbitrary and capricious because when adopting and implementing the Agency Action Defendants failed to consider harms that flow from expanding access to BFS payment systems to political appointees and special government employees, especially where as here they have stated that their objective is to block payments to
beneficiaries who are not aligned with the President’s agenda.
(BFS = Bureau of Fiscal Services.)
Count Four: (Ultra Vires)
Defendants have no authority under the federal laws or regulations to adopt or implement the new policy of granting BFS payment system access to political appointees or Case 1:25-cv-01144 Document 1 Filed 02/07/25 Page 51 of 60 52 special government employees and/or for the unauthorized purpose of blocking or impeding payments.
(Ultra vires (‘beyond the powers’) = an act that requires legal authority but is done without it.)
Count Five: (Violation of the Separation of Powers Doctrine—Usurping Legislative Authority)
189. Here, the only reason that has been publicly articulated for the Agency Action is to enable the DOGE team to block payments to States and their residents of federal funds that have been appropriated by Congress.
190. The only basis to explain the Agency Action is an attempt to usurp Congress’s power of the purse in violation of the Separation of Powers doctrine.
Count Six: (Violation of the Take Care Clause)
196. In many instances, Congress has delegated to federal agencies the authority to implement laws through regulation.
197. By directing that the Agency Action be adopted and implemented, the President has failed to faithfully execute the laws enacted by Congress in violation of the Take Care Clause.
Defendants: What Were They Thinking?
Needless to say, the Defendants have a different view of Executive power from that expressed by the plaintiffs in the causes of action: “Unitary Executive Theory.” From ABC News:
The so-called “unitary executive theory” has various iterations but centers on the idea that the Constitution gives the president sole control over the executive branch of government.
Its advocates point to Article II, which reads in part: ‘The executive Power shall be vested in a President of the United States of America.’
‘I think that means he has the power to control subordinates throughout the executive branch, including in the independent agencies and how they exercise power. And as a corollary to that, he has the power to remove or fire subordinates in the executive branch,’ said Steven Calabresi, a Northwestern University law professor and former Reagan administration official who co-authored a book on the unitary executive theory.
Trump in 2019 said: “I have an Article II, where I have the right to do whatever I want as president.”
(Surely the Framers of the Constitution, having just fought a revolutionary war to escape (in their view) a tyrannical despot, would not have had Trump’s interpretation of Article II top of mind.) From the National Review:
[P]er the plain terms of the Constitution, ‘the executive Power shall be vested in a President of the United States of America,’ and not in anybody else. The two key terms of that provision are ‘the executive Power’ — which limits the jurisdiction to the powers of the executive, and thereby prohibits usurpation of the powers of the other two branches — and ‘vested’ — which is applied only to the president himself. And why would it be otherwise? The United States is a democratic republic in which elected officials are held accountable for their decisions. The only elected official who holds power within the executive branch is the president. For anyone else to exercise power without the permission or endorsement of the sole electee would be to create a fourth branch of government, unmoored from oversight, and thereby to undermine the whole apparatus.
And if the “exercise of discretionary executive power” involves Cultural Revolution-style dunce caps for recalcitrant officials, so much the better. From the Yale Law Journal:
The executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him.
The Unitary Executive theory might well be characterized as Hobbesian[1]:
THOMAS HOBBES, LEVIATHAN 109 (Edwin Curley ed., 1994) (1651). (“[T]he multitude so united in one Person, is called a Commonwealth, in Latin Civitas. This is the generation of that great Leviathan, or rather (to speak more reverently) of that Mortal God to which we owe, under the Immortal God, our peace and defence [sic].”).
Now I will step out into the unknown and introduce a new idea. As always with Constitutional questions, I return to the Federalist Papers[2], in this case Federalist 51, which discusses the powers of the Executive. The author, James Madison, begins:
[We must so contrive] the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
Those mutual relations are those of interest:
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.
Madison applies this policy only to the legislative, executive, and judicial branches. However, because he expects the legislative branch to be the strongest, he divides it into “different branches” (House and Senate). He does not, I would argue, consider doing so with the executive branch because he expects it to be “the weakest.” However, today that’s not so, but I believe that Madison’s words — “might be traced through the whole system of human affairs” — license me to extend the same policy to the executive branch.
Here is a toy example. Let us postulate a Game of Thrones-like world where officials are constantly being poisoned by rivals. In that world, there is also a government of three branches, though we’ll call the executive branch a King, and the legislative branch his Council. To prevent the King from being poisoned — at least overly often and too easily — his Council mandates that a food taster must taste all the King’s food. Further, the Council provides the foodtaster with a comfortable sinecure, on the King’s dime (his “place”), besides the penalty of death if the King be poisoned on his watch. Clearly the interests of the foodtaster align with those of the Kingdom; he has all the interest in the world to prevent the king from being poisoned.
The key question: Should the King — who is, after all, the King — ever be permitted to over-ride his foodtaster’s mandate to taste all his food? The Unitary Executive faction would say yes: “[H]e has the power to control subordinates,” otherwise there would be “a fourth branch of government,” “I have the right to do whatever I want.” But that’s absurd, because that puts the King at risk of being poisoned, which is bad for the kingdom. There is no “fourth branch” or government; there is simply a branch of government into which a divsion has been introduced, so that the branch checks itself for the good of the kingdom.[3]
Further, the Unitary Executive faction have an impoverished notion of power (possibly because they think of the President as a sort of CEO). Stepping further into the unknown, I would argue that the key word “faithfully” in the Take Care clause implies that a President does not merely execute official acts but is a steward of his office (“dress it and to keep it,” Gen 2:15). It would be entirely possible for an unchecked President to carry out a sequence of acts, each legal in itself, that leads to the degradation of his — or rather, the people’s — office. A central aspect of Madison’s policy:
Ambition must be made to counteract ambition. .
(This was certainly true for foodtaster, above!). When the Framer’s wrote “place,” we today would say “office” (a placeman, back then, was an office holder). Now, the President’s actions in creating DOGE and setting it in motion run counter to Madison’s principle; “places” are unclear, hence interests are unclear, hence checks are unclear, hence “interior structure of the government” is out of whack. From Wired:
The engineers all hold nebulous job titles within DOGE, and at least one appears to be working as a volunteer.
From Business Insider, “Elon Musk’s newest job title is literally ‘unlisted’:
Elon Musk officially works for the government now. But what, exactly, is his job? More precisely, what is his job title?
It’s a surprisingly hard question to answer. A White House record seen by Business Insider says his job is simply “unlisted.”
Though Musk has a White House access badge as of January 20 and has been widely described as the leader of DOGE, the White House has not officially confirmed Musk’s title. His X profile describes him as “White House Tech Support.”
When Donald Trump folded Musk’s “Department of Government Efficiency” into the White House, he did it by rebranding the US Digital Service — an Obama-era effort to bring modern software-development practices to the federal government — as the “US DOGE Service.” He also moved it under his chief of staff, Susie Wiles, and created a “temporary organization” that would enable the new USDS administrator to recruit people faster, without going through standard federal hiring procedures.
But the order didn’t say who the USDS administrator was, nor did any of Trump’s statements designating leaders of various departments and offices. Ted Carstensen, who had been the deputy administrator of the USDS since last year, told staff on Thursday that it would be his last day.
The Unitary Executive faction would say DOGE’s hazy structure is jake with the angels; they’re government employees, so Trump can do what he wants. I say DOGE’s deliberately obfuscatory structure is anti-Madisonian in principle because it prevents the proper operation of checks and balamces, and I further say it’s bad stewardship of the Office of the President of the United States because it will undermine confidence in the legitimacy of officials and government generally[4]. All this is not to say that a suit can be brought on this basis; but it does reduce the Unitary Executive to Absurdity. So there’s a bright side.
Conclusion
It’s difficult to make predictions, especially about the future, and so we don’t know what the outcome of State of New York v. Donald J. Trump will be. Certainly the possibility is that Trump is flooding the zone with lawsuit material to raise the issue before the Supreme Court, there to make the the Unitary Executive Theory law. From WaPo:
Donald Trump’s rapid-fire efforts to expand presidential authority seem likely to prompt key test cases at the Supreme Court he helped shape, according to legal experts, with the conservative supermajority signaling in past rulings that it may be open to landmark changes in the balance of power.
In the opening weeks of his second term, Trump has fired inspectors general, frozen federal grants and loans, removed the leadership of independent agencies and dismantled civil service protections.
Behind the seemingly scattershot array, analysts see a common goal: A decades-long effort by conservatives to boldly grow the power of the presidency through a principle that says the executive branch has sole authority to hire and fire agency employees and control their policies.
The Supreme Court has also embraced the “unitary executive theory,” as the legal idea is known.
Legal experts and Trump allies said some of the new administration’s opening moves appear calibrated to tee up cases that rely on the theory, before a friendly Supreme Court that includes three appointees from Trump’s first term. Rulings in favor of the executive branch could cement a vision of the presidency defined by untrammeled authority.
Then again, not all jurists are happy with the Trump Administration. From Politico:
President Donald Trump’s “shock and awe” assertion of executive power has hit a wall in the courtroom — at least for now.
At least nine federal judges — from Washington, D.C., to Washington state — have halted aspects of Trump’s early-term blitz, from his effort to rewrite the Constitution’s birthright citizenship guarantee to his sweeping effort to freeze federal spending to his plans to break and remake the federal workforce.
That trend reached a crescendo Friday when U.S. District Judge Carl Nichols — a Trump appointee — blocked a plan by Trump and Elon Musk to put 2,200 USAID employees on leave, part of a rapid-fire effort to dismantle the foreign aid agency. Hours later, a federal judge in New York blocked Musk and his allies from accessing sensitive Treasury records, citing a risk of improper disclosure or hacking. The ruling by U.S. District Judge Paul Engelmayer, an Obama appointee, was the most sweeping of its kind so far
.
And:
In some cases, judges are voicing distress and even visceral fury as they stand in Trump’s way. ‘It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals,’ said U.S. District Judge John Coughenour, a Seattle-based , as he blocked Trump’s birthright citizenship policy. ‘The rule of law is, according to him, something to navigate around or simply ignore.’
Finally:
None of the cases his orders have triggered has yet reached the appellate courts, let alone the Supreme Court. But as Trump’s Justice Department begins to file appeals challenging the growing list of injunctions, the cases could begin reaching the justices in the coming weeks.
For now, the initial decisions to slow down the onslaught are having widespread effects, forcing federal agencies to disclose more details about their opaque plans for the workforce, establishing guidelines for the handling of sensitive government data that Musk’s “Department of Government Efficiency” has been gobbling up and raising sharp questions about Trump’s effort to impound swaths of government spending authorized by Congress.
Could be worse. The future lies ahead!
NOTES
[1] I cannot at this juncture say I am a Calvinist, although I wish I could!
[2] As many leftists might do; Madison’s perceptions of human nature as expressed through the exercise of power in government is in my view unparalleled, and victorious party leaders (Lenin, Mao) might have done well to study it when the hard work began.
[3] An obvious parallel is the Federal Reserve: “The Congress also structured the Federal Reserve to ensure that
its monetary policy decisions focus on achieving these long-run goals and do not become subject to political pressures that could lead to undesirable outcomes.” Now, you can argue that this is a bad thing, because money creation should be under democratic control, but to argue on those grounds that the Fed is a fourth branch of government — or fifth, or tenth, or forty-second, depending on how the divisions are introduced.
[4] Of course, if you’re a neo-reactionary this is a feature, not a bug.
weakness of the executive, no more obsolete
https://archive.is/tkRrZ#selection-905.12-909.709
https://www.aljazeera.com/features/2025/2/8/do-elon-musk-and-doge-have-power-to-close-us-government-agencies?traffic_source=rss
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4552390
458 John Harrison, The Unitary Executive and the Scope of Executive Power,
126 YALE L.J. FORUM 374, 374 (2017) (giving Justice Alito’s definition of
“unitary executive” as a “single person [whom is] the ultimate policy maker”).
459 As Chief Justice Roberts has said, the “‘President cannot take Care that the
Laws be faithfully executed’ if he cannot oversee the faithfulness of the
officers who execute them.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 484 (2010). For a discussion, see David Zaring,
Toward Separation of Powers Realism, 37 YALE J. ON REG. 708, 718 (2020).
460 What Does It Mean That the Federal Reserve is “Independent Within the
Government”?, BD. OF GOVERNORS OF THE FED. RES. SYS. (Mar. 1, 2017),
https://www.federalreserve.gov/faqs/about_12799.htm [https://perma.cc/F9
CQ-VF4H] (“The Congress also structured the Federal Reserve to ensure that
its monetary policy decisions focus on achieving these long-run goals and do
not become subject to political pressures that could lead to undesirable outcomes.”).
36 THOMAS HOBBES, LEVIATHAN 109 (Edwin Curley ed., 1994) (1651).
(” [T]he multitude so united in one Person, is called a Commonwealth, in Latin
Civitas. This is the generation of that great Leviathan, or rather (to speak more
reverently) of that Mortal God to which we owe, under the Immortal God, our
peace and defence [sic].”).
https://archive.is/3xXMP
extremely unsavory
Carl Schmitt via John Yoo, and a lone dissenting opinion by Scalia, then to pervasive, rather an uncomfortbale what happened to conservatiism
https://www.politico.com/news/2025/02/09/trump-courts-block-early-agenda-00203230
courts not happy across the board
of course, Schmitt won at least one of his cases before the courts, so
timeline
order
https://www.nysd.uscourts.gov/sites/default/files/2025-02/25cv1144%20Order%20on%20TRO%202%208%2025_0.pdf
https://thehill.com/business/5130107-treasury-department-limits-doge-access/
https://www.politico.com/news/2025/02/08/judge-blocks-doge-team-treasury-department-elon-musk-00203248
https://edition.cnn.com/2025/02/08/politics/elon-musk-doge-treasury-payment-system/index.html
https://time.com/7214089/federal-judge-blocks-doge-accessing-sensitive-treasury-department-material/
states
complaint
https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/re1yIUq1FNd0/v0
