Kindergarten Konstitutional Law Comes To The Southern District Of New York

In yesterday’s post, reviewing a Washington Post op-ed by Ruth Marcus that called efforts by the duly-elected President to direct the bureaucracy to implement his policies a “power grab” and an “onslaught against the government itself,” I described the piece as reflecting “kindergarten-level constitutional analysis.” After all, my 6 year old first-grader grandson is fully capable of reading the first sentence of Article II of the Constitution (“The executive Power shall be vested in a President of the United States of America”) and figuring out that this guy is given the sole and full power to direct the executive branch of the federal government. Nothing about the elected President exercising such powers is or can be a “power grab.” If you are somehow unable to grasp that simple proposition, you therefore must be at sub-first grade level of comprehension, and thus kindergarten level, at the highest.

Well, today Kindergarten Konstitutional Law came to the Southern District of New York. In response to a motion made by some 19 states (all Democrat-led), a Southern District Judge named Paul Engelmayer issued a Temporary Restraining Order preventing President Trump and Treasury Secretary Bessent from “granting access” to Treasury Department payment systems to anyone other than “civil servants with a need for access to perform their job duties.” Here is a copy of Judge Engelmayer’s Order. Looking at the language of the Order that I just quoted, it seems to mean quite clearly that even President Trump and Secretary Bessent themselves are enjoined from looking at the line-by-line details of who is getting paid by the Treasury. Why? Because the information is “sensitive.” I’m not making this up.

So who is this Engelmayer guy? You will not be surprised to learn that he is someone with the highest of the high credentials of the super-elite who claim the prerogative to run the federal government outside of any democratic control. Here is a Wikipedia biography of Engelmayer. (The bio contains a prominent caveat that “a major contributor” to the bio “appears to have a close connection” to the subject. I take that to mean that Engelmayer probably wrote the thing himself, so you can take it for what it’s worth.). The bio says that Engelmayer is a summa cum laude graduate of Harvard College, and a magna cum laude graduate of Harvard Law School. He clerked on the D.C. Circuit, and then for Thurgood Marshall at the Supreme Court. He served as a prosecutor in the Southern District of New York, and did a term with the Solicitor General’s office in Washington during the Clinton administration. And at some point he slid seamlessly into the job of Managing Partner of the New York office of Wilmer Hale. He was named to the Southern District bench by President Obama in 2011.

Now there is a guy who is indisputably really, really smart. For a few of my prior pieces on rule by people who are really, really smart, try here, here and here.

Engelmayer is so smart that he has figured out that the elected President and his designates cannot be allowed get access to the details of where the government’s money is going, because that information is too “sensitive.” Here is the key line of reasoning (if you want to call it that) from Engelmayer’s Order:

The Court’s firm assessment is that . . . the States . . . will face irreparable harm in the absence of injunctive relief . . . both because of the risk that the new policy presents of the disclosure of sensitive and confidential information and the heightened risk that the systems in question will be more vulnerable than before to hacking.

But of course Engelmayer’s Order specifically exempts from its restraints “civil servants with a need for access to perform their job duties.” Those people somehow have a higher standing to know whom the government is paying than the elected President and his designees? By what constitutional provision? Engelmayer fails to mention that.

A bit farther down in Article II of the Constitution is the line that describes the President’s main job: “[H]e shall take Care that the Laws be faithfully executed.” Now, how exactly is the President supposed to do that if the courts think they can prevent him from getting access to the details of where the government’s money is being spent?

At her blog today, ex-law professor Ann Althouse was quickly on top of this issue:

Is the federal judge taking the position that in the name of enforcing the Take Care Clause, it is the role of the judiciary to oversee whatever the President does with the executive power that the Constitution vests in him? Is there some extra-legal notion that the federal judge should seize the power to put on the brakes when a President with questionable judgment is moving too fast?

Excellent questions. But sorry, Ann, Judge Engelmayer is way, way too “smart” to ask himself such insightful questions. He knows that his main duty here is to his team to prevent the duly elected President from changing the preferred policies of the permanent bureaucracy. The role of his super-brainpower is to come up with some devious logic that can make that result seem somehow plausible under the Constitution.

This one is really too crazy to last long. The only issue is how much left-wing judges like Engelmayer will be able to slow Trump down from fulfilling his promises to the electorate.

UPDATE: A couple of comments from Glenn Reynolds of Instapundit. (1) “It’s a previously unknown clause in Article II: The executive power shall be vested in a President of the United States, unless he threatens the establishment’s feedlot.” (2) “[Engelmayer] is angling for Attorney General in the next Democratic administration.”

Really, ridicule is the only appropriate response to this kind of thing.

UPDATE, February 10:

Here is a picture of Judge Engelmayer from Wikipedia.