Credit: Gage Skidmore/Flickr
The Trump administration has filed an emergency motion to vacate an ex parte temporary restraining order issued by the U.S. District Court for the Southern District of New York.
This order egregiously interferes with the executive branch’s operations by limiting access to crucial Treasury Department systems.
On Saturday, Obama appointee Judge Paul A. Engelmayer issued an ex parte temporary restraining order that restricted access to Treasury systems exclusively to “civil servants,” explicitly excluding “all political appointees” from accessing these systems.
Ex parte means the “Trump administration lawyers weren’t given notice, weren’t allowed to argue, and weren’t even in the room. Only Democrat attorneys general were heard, ensuring a predetermined outcome.”
LAWFARE: In an egregious and unconstitutional assault on executive authority, Judge Paul Engelmayer has unilaterally forbidden all of Trump’s political appointees—including Treasury Secretary Scott Bessent—from accessing Treasury Department data. This ruling, concocted without… pic.twitter.com/gauqMKURvY
— @amuse (@amuse) February 8, 2025
The order temporarily blocks the Department of Government Efficiency (DOGE), led by Elon Musk, and Secretary of the Treasury Scott Bessent, from accessing a sensitive payment system that distributes Americans’ tax returns, Social Security benefits, disability payments, and federal employee salaries.
It also mandates the immediate destruction of any information that may have been copied or downloaded by Musk’s DOGE team since January 20, the date Trump was inaugurated.
This order will remain in effect until a further hearing is scheduled for February 14, when the court will consider whether to extend or modify the restraining order.
On Sunday night, the Trump administration filed an emergency motion to dissolve, clarify, or modify an ex parte temporary restraining order issued by Engelmayer, asserting his ruling violates Article II of the Constitution.
Article II of the United States Constitution establishes the executive branch of the government and the role of the President.
The Trump administration argues that Engelmayer’s decision represents a “remarkable intrusion” on executive authority, emphasizing that the separation of powers doctrine protects the president’s right to supervise the executive branch, including all politically appointed leaders within the Treasury Department.
According to the motion:
“At approximately 1:00 a.m. on Saturday, February 8, 2025, this Court issued an exparteTemporary Restraining Order that purported to limit access to a vast swath of Treasury systems to only “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 Secretary Bessent.
This is a remarkable intrusion on the Executive Branch that is in direct conflict with Article II of the Constitution, and the unitary structure it provides.
There is not and cannot be a basis for distinguishing between “civil servants” and “political appointees.”Basic democratic accountability requires that every executive agency’s work be supervised by politically accountable leadership, who ultimately answer to the President.
A federal court, consistent with the separation of powers, cannot insulate any portion of that work from the specter of political accountability.
No court can issue an injunction that directly severs the clear line of supervision Article II requires. Because the Order on its face draws an impermissible and anti-constitutional distinction, it should be dissolved immediately.
At minimum, the Court should either clarify or modify its Order, so as to avoid its most direct 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 with overseeing and administering the Department without interruption.
To the extent the Order applies to senior political appointees at Treasury, it is an extraordinary and unprecedented judicial interference with a Cabinet Secretary’s ability to oversee the Department he was constitutionally appointed to lead. Interfering with those basic functions, even for a day, will cause irreparable harm to the government.
By contrast, Plaintiffs have not even attempted to show how they would suffer any irreparable harm as a result of Treasury’s political leadership being excluded from the temporary injunction.
If the Court is unwilling to grant relief from its Order, the United States respectfully requests that the Order be stayed pending the disposition of any appeal that is authorized, or at a minimum that such relief be administratively stayed for a period of seven days to allow the United States to seek an emergency, expedited stay from the Court of Appeals.
To be clear, notwithstanding the Order’s defects, Defendants are in compliance with it. As described below, Defendants have taken what they believe to be all necessary steps to comply with the Court’s Order. But this is not a durable status quo.
To remedy the serious problems beget by the Order’s breadth, the Court should immediately dissolve, clarify, or modify the Order while this matter is being briefed, argued, and decided on the merits.
The issuance of this ex parte TRO has outraged millions of Americans.
Vice President JD Vance criticized the judge’s decision, stating that it undermines the executive branch’s legitimate authority to manage government operations.
“If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power,” Vance wrote.
If a judge tried to tell a general how to conduct a military operation, that would be illegal.
If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.
Judges aren’t allowed to control the executive’s legitimate power.
— JD Vance (@JDVance) February 9, 2025
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