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.
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.
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.
It’s
Q.E.D.
for
morons.
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.
They
are
not
the
same.
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.