Unitary Executive The Theory Behind Trump's Power Grab -

 

The Extreme Legal Theory Behind Trump’s First Month in Office

  The Brief­ing, Michael Wald­­­­­man’s weekly news­­­­­­­­­let­ter. Receive it in your inbox.

Over President’s Day weekend, Donald Trump posted, “He who saves his Country does not violate any Law.” This is a quote attributed to Napoleon — you know, the guy who crowned himself emperor. For a long time, the trope went that people who were delusional thought they were Napoleon. No one’s laughing now.

Less incendiary but perhaps more consequential, yesterday Trump signed an executive order that purports to seize control of independent agencies such as the Federal Trade Commission, the Federal Communications Commission, and the Federal Deposit Insurance Corporation. These expert bodies fight monopolies, police bank safety, organize the broadcast industry, and more. They are central to the entire edifice of modern government, built up over the past 140 years, which ensures that the free market does not devolve into an abusive free-for-all.

The new president’s power grab may get clothed in legalistic garb by the highest court in the land, and some academics and advocates will applaud the decision. Very soon, we will be hearing a lot about the “unitary executive theory.”

The framers of the Constitution were vague about what the president could and could not do. They knew that George Washington would be the first, but beyond that, things were a bit fuzzy. Supreme Court Justice Robert Jackson wrote in 1952 that what they intended “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

Sunstein: The `Unitary Executive' Theory behind Trump's actions

“I have an Article II,” Donald Trump has announced, citing the US Constitution, “where I have the right to do whatever I want as president.”  

 John Roberts: Trump v. Mazars USA,: “[t]he President is the only person who alone composes a branch of government “

n  “The accumulation of all powers...may justly be pronounced the very definition of tyranny James Madison, The Federalist No. 47.  Such “accumulation...is a central feature of modern American government.” 

Roberts in Arlington v. FCC, 509 U.S. 290 (2013)

Alexander Hamilton – No 47 – Federalist papers:

…the preservation of liberty requires that the three great departments of power should be separate and distinct.

Hamilton's message is given much lip service but the tsunami of Executive Orders issued by Donald Trump since he took office six weeks ago tells a different story.  

This Theory Is Behind Trump’s Power Grab

Feb. 26, 2025By Cass Sunstein

***Mr. Trump is operating under the theory that the executive branch is unitary, in the sense that Article II of the Constitution places executive power in a single person, the president, who gets to control every high-level official who executes federal law (and plenty of lower-level ones, too).

If Mr. Trump succeeds in court, the country will see a significant shift in power from the independent agencies to the White House.or better or for worse, that shift would be profoundly unsettling. And in some respects it could be dangerous — if, for example, a president is allowed to control monetary policy, or if he is in charge of the Federal Communications Commission, and thus able to play politics with national communications policy.


The president is not a king. In its most extreme version, the unitary executive theory is a form of invented history, a modern creation that threatens to change, and in important ways to undermine, the operations of the national government.

The theory of the unitary executive means that the president can fire, at his pleasure, the heads of the Federal Trade Commission, the National Labor Relations Board and other independent agencies. In its strongest form, the unitary executive theory means that the president can control the policy choices of those agencies. So if the F.T.C. wants to issue a rule to protect consumers, and the president thinks that’s a terrible idea, then he can prevent that rule from seeing the light of day.

DOGE-terminated civil servants reinstated by Merits Systems Protection Board

 

The Merit Systems Protection Board has announced that it has 

     granted the stays of  probationary employee terminations as sought by the Office of Special Counsel .  The Director Hampton Dellinger has thus blocked the discharge of seven civil service appointees at seven agencies.  Unknown is their longer term fate and that of thousands of fellow federal employees who fell under the axe of the Elon Musk-led "Department of Government Efficiency". 

Special Counsel Dellinger  declared on Monday:

“Since the Civil Service Reform Act was passed in 1978, the merit system principles have guided how federal government agencies hire, manage, and, if necessary, remove federal employees. These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance."

Dellinger added: “Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force. Because Congress has directed that OSC 'shall' protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws."

The ultimate fate of even the handful of  civil servants saved from termination by the Musk-led "DOGE" remains uncertain. But Merit Systems Protection Board member Raymond A. Limon today ordered a 45 day stay of the terminations which were not rooted in any misconduct by the civil servants.

Probationary employees, after one year, have certain rights recognized by the Merit Systems Protection Board.  The Board itself has published a fact sheet on the rights of probationary civil servants.

Attorney Hampton Dellinger, confirmed by the Senate in February 2024,  is the Director of the Office of Special Counsel which protects civil service employees from partisan or other improper discipline or discharge.  Dellinger was himself discharged by Trump but reinstated - at least temporarily - by US. District Judge Amy Berman Jackson.  She is preparing an opinon, likely to support an appealable preliminary injunction in favor of the Senate-confirmed Dellinger. Dellinger successfully obtained a TRO putting back on the job six employees of six government agencies.

 Today, the New York Times reports,  Raymond A. Limon, a Merit Systems Protection Board member, ordered the civil servants reinstated, just before the TRO expired.  Although only six are the subject of the order, the ruling could serve as precedent to protect  the twenty thousand or more United States government civil servants who have been fired by the Elon Musk-led non-statutory entitly labeled "Department of Government Efficiency", reports NPR.

The fate of the federal workers is highly uncertain if the Trump administration pursues the matter.  

 

Thomas Zimmer on the rise of the German far right.

 https://open.substack.com/pub/thomaszimmer/p/maga-the-german-far-right-and-the?utm_source=share&utm_medium=android&r=zv1g

Dellinger - Special Counsel, reinstated, appeals fed civil service firings to Merit Systems Protection Board

 

Hampton Dellinger - who heads the United States Office of Special Counsel* was on February 10, 2025 discharged by  Secretary of the Treasury Bessent, presumably at the direction of Donald Trump. Last week the Supreme Court stayed its hand until the expiration of the TRO granted by U.S. District Judge Amy Berman Jackson who has  extended the TRO for a few days as she prepares her ruling on a decision certain to be appealed.

There are miles of bad road ahead for Dellinger as Associate Justices Neil Gorsuch and Samuel Alito objected to the majority's alloiwng the TRO to expire - rather than reverse it.  Gorsuch and Alito argued that at the time of the founding no English court would have issued such an order against an agent of the King.  Gorsuch and Alito therefore complained that "[t]he court effectively commanded the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office." [emph. added]

Dellinger's agency principally protects civil service employees from harassment and discrimination.

 It prosecutes cases before the Merit Systems Protection Board.  The Director - Dellinger - was himself temporaily reinstated by a divided D.C. Court of Appeals.  

Upon his restoration by District Judge Amy Berman Jackson Dellinger issued an appeal to  the Merit Systems Protection Board.  It names six employees at six agencies - who represent a potential class of thousands threatened with discharge by the Musk-led so-called `Department of Governmental Efficiency', and the OMB's assertedly temporary "pause memo" suspending federal grants, barring "DEI" measures and the "green new deal" etc.. 

 The MSPB 

“Since the Civil Service Reform Act was passed in 1978, the merit system principles have guided how federal government agencies hire, manage, and, if necessary, remove federal employees. These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance."

Dellinger added: “Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force. Because Congress has directed that OSC 'shall' protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws."

The Special Counsel believes other probationary employees are similarly situated to the six workers for whom he currently is seeking relief. Dellinger is considering ways to seek relief for a broader group without the need for individual filings with OSC.

“Since the Civil Service Reform Act was passed in 1978, the merit system principles have guided how federal government agencies hire, manage, and, if necessary, remove federal employees. These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance."

Dellinger added: “Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force. Because Congress has directed that OSC 'shall' protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws."

The Special Counsel believes other probationary employees are similarly situated to the six workers for whom he currently is seeking relief. Dellinger is considering ways to seek relief for a broader group without the need for individual filings with OSC.

 *[The OSC is a prosecuting agency protecting civil service employees, not a  special counsel like Jack Smith who, inter alia,indicted Donald Tump for inciting the January 6, 2021 attempt to obstruct the lawful transfer of power to President Joe Biden.]

- 2/26/25

Oversight agency [OSC] finds Trump’s federal  worker firings unlawful, asks for some employees to be reinstated - GOVERNMENT EXECUTIVE

The findings could have sweeping impacts for the tens of thousands of recently dismissed workers.

An independent federal oversight agency - the Office of Special Counsel - has deemed at least some of President Trump’s mass firings of probationary period employees unlawful, creating a pathway for those employees to regain their jobs.   The news site Government Executive reports:

The Office of Special Counsel, the agency responsible for investigating illegal actions taken against federal employees, issued its decision for six employees, each at different agencies. While the decision was technically limited in scope, it could have immediate impact on all terminated staff at those six agencies and could set a wide- ranging precedent across government. It has not been made public and was provided to Government Executive by a source within the government. OSC, which did not provide the document to Government Executive, verified its authenticity. 

OSC has turned the case over to the quasi-judicial Merit Systems Protection Board for enforcement of its findings and is so far requesting a 45-day stay on the firing decisions. The agency said it will use that time to further investigate the dismissals and determine the best way to mitigate the consequences from the apparent unlawful actions. 

MSPB has three business days to issue a decision on the stay request. If it does not act by that deadline, the stay will go into effect. Henry Kerner is thought to have recused himself from the case as he previously led OSC. 

Differing Violations

Before the expiration of the stay, OSC can issue a request for a corrective action to the employees’ agencies. That would likely seek to get the employees reinstated with back pay. If the agencies refuse OSC’s request, it can initiate corrective action litigation before MSPB. OSC can also seek disciplinary action against the individuals responsible for taking the unlawful personnel actions against the employees. 

Special Counsel Hampton Dellinger, who leads OSC, found differing violations for the complainants on the case: for one set, he said, the government has violated the federal statute that governs the termination of employees in their probationary periods. For the second set, Dellinger said in the decision that was co-signed by Deputy Special Counsel Bruce Fong that the Trump administration had essentially issued layoffs without engaging in the government's reduction-in-force procedures.

Eric Adams prosecution: Judge Ho appoints Paul Clement - former Solictor General

U.S. District Judge Dale Ho

Acting Deputy Emil Bove appeared in court to defend his proposal (with defendant's consent) to dismiss the federal indictment of the Mayor of New York for accepting illegal foreign contributions  and using that to unlawfully receive New York matching campaign funds.  He appeared himself because seven of his subordinates had resigned rather than argue for dismissal of the corruption case against the Mayor.

​Because Adams himself consented to the proposed dismissal - a Nolle prosequi -  there was no one to argue against the proposal.  The Justice Department did not allege a failure of its proofs - simply that the indictment would interfere with his responsibilities as Mayor, and ability to cooperate with the   program of deportation as expressed in the Trump Executive Order Preventing Americans from Invasion and as a candidate for re-election.  None of these considerations suggests any weakness in the substantive case againsst Adams.

Given the sensitivity and importance of the issue of Adams prosecution and that the rationale for his proposal to dismiss the indictment was not based on legal flaws or factual weaknesses in the proofs of Adams guilt, the issue is novel and of great public importance.  On what grounds should a court dismiss an indictment when the grand jury has found probable cause?

Rule 48 (a) of the federal Rules of Criminal Procedure provdes simply "The government may, with leave of court, dismiss an indictment, information, or complaint." But the rule sets no grounds for approval In such circumstances courts sometime appoint counsel - technically as friend of court - because ours is an adversary system.

Judge Ho did that.  He named Paul Clement - an interesting choice.  Clement is a former Solicitor General of the United States.  He has probably appeared more often before the U.S. Supreme Court than has anyone else.

He served under President George W. Bush and is now in his own firm.

His biography (link above) is both impressive and intriguing.

The ORDER apointing Clement defines the issues the judge wants explored:

[T] he parties and amicus curiae shall address: 

1) The legal standard for leave to dismiss an indictment under Rule 48(a); 

2) Whether, and to what extent, a court may consider materials other than the Rule 48(a) motion itself; 

3) Under what circumstances, if any, additional procedural steps and/or further inquiry would be appropriate before resolving a Rule 48(a) motion; 

4) Under what circumstances, if leave is granted, dismissal should be with or without prejudice; 

5) If leave were denied under Rule 48(a), what practical consequences would follow, including whether dismissal would nevertheless be appropriate or necessary under other rules or legal principles (e.g., for “unnecessary delay” under Rule 48(b) or under speedy trial principles, see United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 453 F. Supp. 462, 463 (S.D.N.Y. 1978)); and 

6) Any other issues the parties or amicus consider relevant to the Court’s resolution of the Government’s motion.

Other parties seeking to be heard as amicus must flle by February 28.

Parties and amicus briefs are due March 7. Oral argument set for March 14.

- GWC

Trump betrays Ukraine, for Putin

This is the most appalling statement by a US President in our history.

https://x.com/realDonaldTrump/status/1892242622623699357?t=1zP06Zp13CdM9HeiJHbPqg&s=09

Ensuring Accountability for all agencies - Executive Order

It's good to be king....

Executive Order February 18, 2025 

However, previous administrations have allowed so-called “independent regulatory agencies” to operate with minimal Presidential supervision.  These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the President, and through him, to the American people.  Moreover, these regulatory agencies have been permitted to promulgate significant regulations without review by the President.  

New York City Bar on U.S. v. Eric Adams

On United States v. Eric Adams

New York City Bar Association

February 19, 2025

***The policy choices of the government of New York City cannot be dependent on or appear to be dependent on the decision of the Justice Department to prosecute or withhold prosecution of corruption charges against the mayor.

Against such a backdrop, the City Bar commends Ms. [Danielle] Sassoon for her courageous decision to offer her resignation from a post she assumed a few short weeks ago.

Democratic State AGs warn Trump

https://www.theguardian.com/us-news/2025/feb/12/democratic-state-attorneys-general-warning-trump?CMP=Share_AndroidApp_Other

Dem AGs: We're on brink of dictatorship

https://www.theguardian.com/us-news/2025/feb/12/democratic-state-attorneys-general-warning-trump?CMP=Share_AndroidApp_Other

DOJ seeks to dismiss Eric Adams indictment. May the trial judge deny leave under Rule 48?

Emil Bove, now his Acting Deputy AG, with Trump at

trial in a New York courtroom

Dale Ho, U.S. District Judge, will

hear the DOJ application to dismiss charges 

against NYC Mayor Eric Adams

Eric Adams - the Mayor of New York - was  indicted  last September for bribery, wire fraud, soliciting contributions from a foreign national, and conspiracy to commit those offenses.  According to the indictment he had for "nearly a decade", while serving as Brooklyn Borough President ,received luxury foreign travel paid by Turkish citizens.  He concealed the unlawful source of campaign contributions, using that to obtain $10,000,000 in public campaign funds.  Despite the gravity of this decade-long pattern of illegality, the Acting Deputy Attorney General of the United States Emil Bove has moved to dismiss the indictment.

There are, writes the former personal attorney of Donald Trump,  now acting Deputy AG, "unique circumstances" warranting dismissal.  Continuing the prosecution "would", Bove asserted in his Nolle Prosequi, "interfere with the defendant's ability to govern in New York City" thus posing "unacceptable threats to public safety, national security, and related federal immigration initiatives and policies."

 Rule 48 Dismissal - Federal Rules of Criminal Procedure provides 

(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.

The Acting Deputy Attorney General of the United States, Emil Bove, has filed a "nolle prosequi" seeking dismissal of - "without prejudice"  - of Indictment 24 Cr. 556 [DEH]  against New York Mayor Eric Adams.   Danielle Sassoon, the acting U.S. Attorney for the Southern District of New York and five of the prosecutors of the Public Integrity Section of the Department of Justice refused to seek court permission to dismiss the indictment under Rule 48, above.  Bove himself  then opted to "direct, with leave of the Court" that  "nolle prosequi without prejudice" be filed.  The matter now rests with U.S. District Judge Dale E. Ho in New York.

Prosecutors have wide discretion as to whom to charge and as to the offenses to be charged.  But once it has been placed on the docket, an indictment requires leave of court to dismiss.  

Judge Ho will have to decide whether his authority is merely formal, or if he has substantive discretion.  In that respect he will have to gage Bove's rationale that continuing the prosecution would jeopardize Adams's "ability to govern in New York City", which "poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies".  Among those policies is Adams consent to allow federal marshals to enter the City's jail on Rikers Island to remove deportable aliens - those without visas and those who have "green cards" but who have committed or simply charged with minor offenses, provided by the Laken Riley .

But the State of New York is not defenseless.  It has primary responsibility for maintaining the public safety, as does every state government. Principles of comity between sovereigns suggest that the judgments Bove has made are best left to the Governor of New York State, the Public Officers Law of which provides:

The chief executive officer of every city and the chief or commissioner of police, commissioner or director of public safety or other chief executive officer of the police force by whatever title he may be designated, of every city may be removed by the governor after giving to such officer a copy of the charges against him and an opportunity to be heard in his defense.

 Neither Rule 48 nor the Public Officers Law provides clear guidance for Judge Ho.  But it seems to me to be inherent that Judge Ho must determine the propriety of the request to dismiss.  There is substantial reason to doubt that.  Ms. Sassoon, a former law clerk of Antonin Scalia, stated in her passionate and rigorous letter to the Attorney General, explaining her offer to resign:

Given the highly generalized accusations of weaponization [by Mr. Bove] weighed against the strength of the evidence against Adams, a court will likely question whether that basis is pretextual. See, e.g., United States v . Greater Blouse, Skirt & Neckwear Contractors, 228 F.Supp.483, 487 (S.D.N.Y.1964) ( courts“ should be satisfied that he reasons advanced for the proposed dismissal are substantial and the real grounds upon which the application is based")

Sassoon plainly finds the asserted grounds to be pretextual.  Bove responded angrily.  

 Bove's "Nolle pros" would dismiss the charges against Adams "without prejudice", meaning that Adams would spend the balance of his term looking over his shoulder to Trump who could, at any time, change his mind and indict Adams if the Mayor did not provide the kind of supplication Trump seeks. 

 Hagen Scotten, another SDNY prosecutor, tendered his resignation, saying in a letter to A.G. Pam Bondi:

No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to  bring them again, to induce an elected official to support its policy objectives.

- GWC 

Pope Francis renounces J.D. Vance on Immigrants - Commonweal

 Pope Francis renounces J.D. Vance on Immigrants - Commonweal Magazine 

Somehow amidst his presumably demanding duties as vice president, J. D. Vance also found time to spark an intra-Catholic debate over the meaning of ordo amoris, or “rightly ordered love,” a phrase that appears in Augustine’s City of God as well as Thomas Aquinas’s Summa Theologica. (It also appears indirectly in Dante’s Inferno, as the poet orders the circles of Hell according to inverse gradations of sin, or misdirected love.) As Catholic commentators like America’s James Martin, NCR’s Michael Sean Winters, the Atlantic’s Elizabeth Bruenig, the New Yorker’s Paul Elie, and Commonweal contributor Massimo Faggioli have all pointed out, the Catholic vice president’s temerity in suggesting that the United States Conference of Catholic Bishops has some nefarious financial stake in defending migrants is matched only by his superficial understanding not just of Catholic social teaching, but of the medieval scholastic tradition he invokes in defense of his ethno-nationalist ideology. 

So it was refreshing to read Pope Francis’s brief, pointed letter to the American bishops earlier this week.

Judge orders USAID funding resume - NY Times

 

https://www.nytimes.com/live/2025/02/13/us/trump-news#court-trump-foreign-aid-freeze

OMB pause memo

https://www.nafsa.org/regulatory-information/omb-memorandum-temporary-pause-agency-grant-loan-and-other-financial

New Executive Order: Implementing the DOGE Workforce Optimization Initiative

Is this an arbitrary or capricious Order, thus subject to being barred under the Administrative Procedure Act which provides at 5 U.S.C. 706?

New Executive Order: Implementing the DOGE Workforce Optimization Initiative

*** Sec. 3.  Reforming the Federal Workforce to Maximize Efficiency and Productivity.  (a)  Hiring Ratio.  Pursuant to the Presidential Memorandum of January 20, 2025 (Hiring Freeze), the Director of the Office of Management and Budget shall submit a plan to reduce the size of the Federal Government’s workforce through efficiency improvements and attrition (Plan).  The Plan shall require that each agency hire no more than one employee for every four employees that depart, consistent with the plan and any applicable exemptions and details provided for in the Plan.  This order does not affect the standing freeze on hiring as applied to the Internal Revenue Service.  This ratio shall not apply to functions related to public safety, immigration enforcement, or law enforcement.  Agency Heads shall also adhere to the Federal Hiring Plan that will be promulgated pursuant to Executive Order 14170 of January 20, 2025 (Reforming the Federal Hiring Process and Restoring Merit to Government Service).

     (b)  Hiring Approval.  Each Agency Head shall develop a data-driven plan, in consultation with its DOGE Team Lead, to ensure new career appointment hires are in highest-need areas.  

 

ProPublica: Musk Team Slashes Department of Education

ProPublica: Musk Team Slashes Department of Education

 ple court orders blocking the federal freeze. Experts say the Trump administration’s actions set the stage for challenges to Congress’ authority — and the limits of the presidency.

by Jake Pearson and Anjeanette DamonFeb. 10, 2025, 3:35 p.m. EST

ABA Calls for Rule of Law, renounces Trump administration actions

 

The ABA supports the rule of law

    

It has been three weeks since Inauguration Day. Most Americans recognize that newly elected leaders bring change. That is expected. But most Americans also expect that changes will take place in accordance with the rule of law and in an orderly manner that respects the lives of affected individuals and the work they have been asked to perform.  

Instead, we see wide-scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity.

We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law. There are efforts to dismiss employees with little regard for the law and protections they merit, and social media announcements that disparage and appear to be motivated by a desire to inflame without any stated factual basis. This is chaotic. It may appeal to a few. But it is wrong. And most Americans recognize it is wrong. It is also contrary to the rule of law. 

The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well.

Just last week, in rejecting citizenship challenges, the U.S. District Judge John Coughenour said that the rule of law is, according to this administration, something to navigate around or simply ignore. “Nevertheless,” he said, “in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.” He is correct. The rule of law is a bright beacon for our country.

In the last 21 days, more than a dozen lawsuits have been filed alleging that the administration’s actions violate the rule of law and are contrary to the Constitution or laws of the United States. The list grows longer every day. 

These actions have forced affected parties to seek relief in the courts, which stand as a bulwark against these violations. We support our courts who are treating these cases with the urgency they require. Americans know there is a right way and a wrong way to proceed. What is being done is not the right way to pursue the change that is sought in our system of government.   

These actions do not make America stronger. They make us weaker. Many Americans are rightly concerned about how leaders who are elected, confirmed or appointed are proceeding to make changes. The goals of eliminating departments and entire functions do not justify the means when the means are not in accordance with the law. Americans expect better. Even among those who want change, no one wants their neighbor or their family to be treated this way. Yet that is exactly what is happening.   

These actions have real-world consequences. Recently hired employees fear they will lose their jobs because of some matter they were assigned to in the Justice Department or some training they attended in their agency. USAID employees assigned to build programs that benefit foreign countries are being doxed, harassed with name-calling and receiving conflicting information about their employment status. These stories should concern all Americans because they are our family members, neighbors and friends. No American can be proud of a government that carries out change in this way. Neither can these actions be rationalized by discussion of past grievances or appeals to efficiency. Everything can be more efficient, but adherence to the rule of law is paramount. We must be cognizant of the harm being done by these methods. 

Moreover, refusing to spend money appropriated by Congress under the euphemism of a pause is a violation of the rule of law and suggests that the executive branch can overrule the other two co-equal branches of government. This is contrary to the constitutional framework and not the way our democracy works. The money appropriated by Congress must be spent in accordance with what Congress has said. It cannot be changed or paused because a newly elected administration desires it. Our elected representatives know this. The lawyers of this country know this. It must stop.

There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.  

We call upon our elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law.

We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less.

– William R. Bay, president of the American Bar Association

Judge stays birthright citizenship Executive Order

 Fourteenth Amendment

Section 1 Rights

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Despite the clarity of the post-Civil War Amendment's grants of citzenship, Donald Trump has decreed in Presidential EO 14160  styled "Protecting the Meaning and Value of American Citizenship" that not all persons born in the U.S. are "subject to the jurisdiction thereof" and hence not U.S. citizens at birth   if at the time of birth (1) the mother (defined as "immediate female progenitor") was unlawfully present or was lawfully present but temporary, and (2) the father was not a lawful permanent resident or citizen. 

But U.S. District Judge Joseph N. Laplante in New Hampshire has embraced the plain language of the 14th Amendment.  He has issued a preliminary injunction barring President Trump and anyone else from enforcing the terms of the Executive Order.

  

Judge grants TRO against Trump order putting USAID funds on hold

 Judge grants TRO against Trump order putting USAID funds on hold

U.S. files NOTICE of Correction

A US federal judge in Washington, D.C. on Friday granted a temporary restraining order, halting the Trump administration’s attempt to sideline nearly 2,700 US Agency for International Development (USAID) employees by placing them on paid leave and recalling most of those stationed abroad. The ruling delivers a significant setback to the president’s push to curtail US foreign aid and align it with his “America First” agenda.

Friday’s decision comes a day after the American Foreign Service Association and the American Federation of Government Employees filed a federal lawsuit in the District of Columbia. They urged the court to strike down what they described as “a series of unconstitutional and illegal actions taken by President Donald Trump and his administration that have systematically dismantled” USAID without congressional approval. The case landed before Judge Carl J. Nichols, a Trump appointee from 2019, who granted the injunction, citing the “irreparable” harm employees would face if stripped of critical government support such as communications, payment, and security while operating in high-risk environments.

The NSA's "Big Delete" By Judd Legum and Rebecca Crosby

 

Today, the National Security Agency (NSA) is planning a "Big Delete" of websites and internal network content that contain any of 27 banned words, including "privilege," "bias," and "inclusion." The "Big Delete," according to an NSA source and internal correspondence reviewed by Popular Information, is creating unintended consequences. Although the websites and other content are purportedly being deleted to comply with President Trump's executive orders targeting diversity, equity, and inclusion, or "DEI," the dragnet is taking down "mission-related" work. According to the NSA source, who spoke on the condition of anonymity because they are not authorized to speak to the media, the process is "very chaotic," but is plowing ahead anyway.

A memo distributed by NSA leadership to its staff says that on February 10, all NSA websites and internal network pages that contain banned words will be deleted. This is the list of 27 banned words distributed to NSA staff:

Anti-Racism
Racism
Allyship
Bias
DEI
Diversity
Diverse
Confirmation Bias
Equity
Equitableness
Feminism
Gender
Gender Identity
Inclusion
Inclusive
All-Inclusive
Inclusivity
Injustice
Intersectionality
Prejudice
Privilege
Racial Identity
Sexuality
Stereotypes
Pronouns
Transgender
Equality

The memo acknowledges that the list includes many terms that are used by the NSA in contexts that have nothing to do with DEI. [see below]