The Daily Populous Wednesday February 12nd, 2025 night edition
Authored by abovethelaw.com and submitted by Exciting_Teacher6258

Is this a tyranny? (Photo by Apu Gomes/Getty Images)

Judge Paul Engelmayer issued a Saturday temporary restraining order blocking Elon Musk’s band of teen tech bro interns from siphoning Treasury Department data onto private hard drives next to their BitTorrent Hobbit porn. Anyone taking the time to actually READ the opinion would see that it momentarily halts turning over the personally identifiable data of U.S. citizens to anyone who has not “passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations” and ordered any such person who has already copied that data to delete it pending the full hearing on February 14.

The government has already moved to kill the TRO arguing that it’s a violation of Article II to require the executive branch to wait LESS THAN A WEEK to make sure it’s not operating in violation of multiple explicit statutes and regulations.

Normally, requiring security clearances to look at secure data wouldn’t be controversial. But it’s 2025 and half the country already adjusted their schemas to accept hoarding nuclear codes by a toilet, so there’s a population already primed to get BIG MAD that the judiciary might not give our social security numbers to teenagers who’ve already lost jobs for being cybersecurity risks.

He needs to be impeached NOW! https://t.co/zgnwZuOz2Y — Elon Musk (@elonmusk) February 9, 2025

Somehow “A corrupt judge protecting corruption” — a message with almost 190,000 likes — is not about the Supreme Court’s refusing to enact ANY enforceable ethics code while members gobble up under-the-table luxury gifts from the rich. What a time to be alive!

To Beck’s point, it’s not so much that the Treasury Secretary cannot access any data, it’s that they cannot hand that data over to someone else on a whim. This is a function of the Privacy Act of 1974, which stated in relevant part that an agency can give access to its records “to those officers and employees of the agency…who have a need for the record in the performance of their duties.” The Tax Reform Act of 1976 says more or less the same thing about Treasury data. As you might guess from the dates, the Privacy Act of 1974 and the Tax Reform Act of 1976 exist because Richard Nixon liked using data collected for innocent purposes by one agency to illegally harass his various “enemies.” As for the claim that the Secretary can’t even get this specific data, there are regulations in place designed to prevent government employees including the Secretary from having access to certain data — like non-truncated SSNs.

Which is all to say an unelected Ketamine-head with deep ties to China and random, unvetted teens cannot just be handed access to everyone’s unfiltered financial data in the ordinary course. There are procedures laid out for the administration to get around these provisions… Trump and Musk have done none of them. That they’re melting down over the prospect of having to actually comply with the law until at least Friday tells you all you need to know about their intentions here.

Yale Law grad JD Vance did his part to justify the school’s impending downgrade in the U.S. News rankings by offering a batshit take on constitutional order.

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

By God, that’s Andrew Jackson’s music!

The apocryphal author of “John Marshall has made his decision; now let him enforce it,” has come back stronger than a 90s trend.

In what reads like an LSAT logic puzzle response worthy of the Correspondence College of Tampa Law School rather than Yale, Vance says the courts can’t dictate military operations or micromanage prosecutorial discretion — two instances without explicit relevant statutes — to conclude that therefore courts can’t control executive power.

Consistency is the hobgoblin of good faith actors, but it’s noteworthy that Vance and his supporters had a very different take when, say, Biden ordered Treasury to forgive various fees and interest payments on student loans. Not only was that an exercise of “the executive’s legitimate power,” but — unlike Trump’s order that violates multiple privacy laws — Biden actually had statutory support for that move. Yet, Republicans relished using the courts to rein in Biden’s authority over the Treasury. To this day, they’ll show up screaming that Biden “ignored the Supreme Court” when he launched later, more minor debt forgiveness programs even though those were so much more minor because Biden used different laws to authorize them and the courts never objected to those.

Chief Justice John Roberts — the human shrug emoji overseeing the collapse of judicial credibility — used last year’s annual report to bemoan the idea that the government should ignore court orders. At the time, Roberts mostly meant liberals arguing that Trump judges in far-flung, single courthouse districts shouldn’t be able to issue nationwide injunctions (and no one really argued for ignoring court orders as much as demanding reforms to the assignment process). Now that the administration he midwifed back into being is in charge, we’ll see how long his indignation over assaults on legitimacy last.

But one thing about the missive Roberts put out a month and a half ago rings true. Roberts struck back at critics of “unelected politicians in robes” by smugly pointing out that judges “typically speak only through their decisions” a callback to Justice Coney Barrett’s admonishing that critics need to “read the opinion.” These protestations may be disingenuous coming from judges who relish issuing orders without written opinions, but entirely correct that the most damning takedowns of shoddy, politically motivated court decisions are those grounded in the text of an opinion.

Were Musk, Vance, and any of the other trolls attacking Judge Engelmayer to actually read the opinion, they’d find a textbook example of a legitimate TRO. The complaint alleges a massive security breach in progress, there are explicit statutes backing up these claims, the order preserves the status quo and prevents the irreparable harm of anyone from turning around and intentionally or unintentionally letting personally identifiable data fall into criminal hands while waiting for both sides to fully and fairly argue the case in LESS THAN A WEEK.

James Ho invented out of the ether a concept of spiritual damages to assert an irreparable harm that “the earthly reward of monetary damages” couldn’t overcome if airline workers had to wait until the case was over to continue spreading COVID on planes. Judge Engelmayer said, here are multiple statutes dating back 50 years on this precise question and if you’re right you can go back to gathering this data next week but if you’re wrong everyone’s SSN is going to be on the dark web.

But these folks aren’t really concerned about this case. If they thought they had a winnable argument on the merits they wouldn’t be so mad at the TEMPORARY order. That’s why they aren’t arguing whether the administration is following the law, but whether laws even apply to the administration in the first place.

To this end, Vance retweeted Professor Adrian Vermeule — Harvard’s resident medievalist cosplaying as a constitutional theorist — to further frame Englemayer’s order as an illegitimate “interference” with executive power.

What a journey Vermeule’s been on from getting actively trolled by the MAGA crowd for failing to embrace Musk to declaring it a “legitimate act[] of state” to give Musk full access to everyone’s SSN.

For most constitutional scholars, “separation of powers” is about the system of “checks and balances” that prevent one branch from doing whatever it wants. There may be internal functions that don’t provide the judicial branch oversight, but the power to ignore duly passed and signed legislation is the heart of the judiciary’s role.

But this is the Andrew Jackson world of 2025. Or maybe the right figure is a bit more recent than Jackson…

Who had Carl Schmitt on their 2025 Constitutional Bingo Card?

It will shock you not at all to learn that Schmitt’s philosophy that legality exists only when it serves the will of the sovereign achieved a good deal of popularity in early 20th century Germany.

It’s cliche to compare contemporary regimes to the Nazis, of course. But, um, one of the administration’s cheerleaders thinks that “any aspiration to eliminate the Schmittian elements of our administrative law” — the rules and regulations governing the executive — “is utopian.”

The idea that Chevron deference had to go and also that any judicial oversight of “internal” agency action — extended for the purposes of Musk to include disseminating our tax records to randos without security clearances — amounts to an attack on the Constitution pretty much sums up Schmitt’s worldview.

This is all a concerted effort to delegitimize the judiciary so that Trumpworld can justify ignoring court orders outright. There are already indications that the White House has ignored other court orders slapped on them up until now. They’ve already taken Wite-Out to white out the Fourteenth Amendment. Deploying the military for domestic law enforcement is openly on the table.

Building a quasi-legalistic rationale for dictatorial powers is existential for this administration.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

toooomanypuppies on February 11st, 2025 at 14:05 UTC »

Jesus Christ the US is in a scary downward slide into extremism rn.

when judges are labeled as Enemies of the People, you're in real trouble.

I hope you lot stay safe, I worry about you.

eugene20 on February 11st, 2025 at 13:58 UTC »

To a privileged person normal is tyranny.

Funnily enough they're purging documents of words like "privilege"

chaos0xomega on February 11st, 2025 at 13:36 UTC »

Yes, bratty children will often act that way when told to behave