Court orders restricting Elon Musk’s Department of Government Efficiency (DOGE) and other Trump administration actions are sparking a public showdown on a key constitutional question: what are the legitimate powers of the executive branch?
As DOGE plows ahead cutting wasteful programs and axing entire agencies, judges are slowing progress by issuing temporary restraining orders in response to lawsuits from Democrat-aligned groups and state attorneys general — leading some constitutional scholars to suggest, as Vice President JD Vance did on Sunday, that the courts may be overstepping their role.
“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” Vance wrote on X. “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,” he continued.
Judge Paul Engelmayer temporarily blocked political appointees, including Elon Musk and his Department of Government Efficiency (DOGE), on Saturday from accessing Treasury Department records, permitting only “civil servants” to use the information.
Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation there is “no such distinction” between political appointees and civil servants in federal law.
“The executive branch is run by the president and his appointees and no judge has the power to abrogate his constitutional authority over the executive branch,” he said. “Moreover, to prevent the president and his appointees from gathering information on how a department is being run is also far outside the power of a federal judge and fundamentally unconstitutional.”
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
Engelmayer’s decision was swiftly met with calls for impeachment, including from Musk.
“On its face, the Order could be read to cover all political leadership within Treasury—including even Secretary Bessent,” the Trump administration argued in a Sunday filing asking the court to “dissolve, clarify or modify” the order.
“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,” they continued.
Von Spakovsky told the DCNF Engelmayer’s order is “judicial abuse of the worst kind by an incompetent, interfering, partisan judge who is acting as if he thinks he is the president of the United States, not the man elected by the voters.”
There is literally no part of this that amounts to a constitutional crisis
Not even close
The fact that you guys keep calling it that makes me wonder what country’s constitution you’re reading, thinking that it’s ours https://t.co/Qn4KoPKSJa
— Mike Lee (@BasedMikeLee) February 9, 2025
The battle over access Treasury Department records isn’t the only way judges are slowing down Trump administration efforts.
U.S. District Judge Carl Nichols issued a temporary order on Friday blocking plans to put thousands of U.S. Agency for International Development employees on administrative leave, which employees alleged in a Monday filing the administration was not fully complying with.
While issuing a hold Thursday on Trump’s executive order eliminating birthright citizenship, Reagan-appointed Judge John Coughenour accused Trump of believing “the rule of law is but an impediment to his policy goals.”
“So the rub is, what is the executive’s legitimate power?” Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute, told the DCNF, noting Vance was not advocating for ignoring judicial orders but was calling out what he considered wrong decisions.
“I do think that there has been some overreach in these rulings,” Shapiro said. “Some of the rulings are very thin in terms of what precedent they cite or other authorities. The couple of judges that ruled on birthright citizenship, for example, make it sound like there’s no plausible claim to be made to support Trump’s position. And that’s simply not true. There’s an active academic battle over these issues.”
John J. McConnell, Jr., chief judge of the U.S. district court in Rhode Island, found Monday that the Trump administration violated his prior order blocking a federal spending freeze, directing officials to “immediately restore frozen funding” and suggesting failure to comply could result in criminal charges. Before becoming a judge, McConnell donated hundreds of thousands to Democrats.
“If in fact a court is improperly intruding into how the executive branch functions, that order is not proper,” Josh Blackman, constitutional law professor at the South Texas College of Law Houston, told the DCNF.
Responding to questions on Sunday about rulings blocking the Trump administration, House Judiciary Chair Rep. Jim Jordan told CNN that Trump gets to make the calls, pointing simply to the first sentence of Article II of the Constitution, which states the “executive power shall be vested in a president.”
“This is a fundamental difference we have with the Left,” he said. “The Left thinks, ‘Oh, it’s the career experts who make the decisions.’ That’s not how our country works. It’s the guy who puts his name on the ballot, gets elected by ‘We the people.’”
Several liberal scholars claimed in the New York Times Monday that Trump’s actions have created a “constitutional crisis,” characterizing his efforts to make the federal government more efficient as “lawless.” The American Bar Association likewise issued a statement Monday stating Trump’s actions are “contrary to the rule of law.
Former federal prosecutor Andrew McCarthy wrote Monday in the National Review that the temporary order from judges ultimately will not end all of Trump’s efforts, which are likely to reach the Supreme Court.
“Undoubtedly, there are some progressive judges (mainly those appointed by Presidents Obama and Biden) who are philosophically sympathetic to claims that the president is interfering with the safe, professional operation of the administrative state — as if the chief executive has no say in how executive agencies conduct business,” he wrote. “For the most part, though, what we’re seeing are the normal effects of litigation, which slow down government action.”
At the moment, judges are raising “important questions” that slow the process, according to McCarthy.
“That will be frustrating for the president, but our system is designed to be frustrating because the Framers rightly feared concentrating too much power in any one set of hands — even if they also wanted an executive who could act energetically and swiftly if necessary,” he said.
(Featured Image Media Credit: Photo Simon Edelman, Energy Department)
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