The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Muskgate
Another week, another court order restraining the President from violating the law - only 205 more weeks to go!
Last night, the federal district court in New York (SDNY) issued a temporary restraining order in State of New York et al. v. Donald J Trump et al., a lawsuit filed by the AGs of 19 States against Trump and Treasury Secretary Scott Bessent.
The suit (and a separate lawsuit filed by Public Citizen in D.D.C.) challenges one of the more outrageous actions taken by President Trump in his first three weeks: granting Elon Musk and members of the "Department of Government Efficiency" - private citizens, all - full access to the Treasury Department's main payment system, the one through which virtually all of the $6 trillion or so disbursed by the federal government each year - to bondholders, social security recipients, NIH grantees, Medicare providers, university laboratories and hospitals, military contractors, armed services personnel, etc. - is channeled.
Is anyone not riled up about this? The President simply picks one of his cronies - one who just happened to have contributed tens of millions of dollars to his successful campaign for office - and says "Go at it"? Can he really do that? Lawfully?
As it turns out, no, he can't do that - not lawfully.
I suppose there are those who think: "Well, he's the head of the Executive Branch, and he runs the Treasury Department, and he can (apparently) fire pretty much anyone and everyone in it - so why can't he tell them who does and who doesn't have access to the payment databases?" And the answer, of course, is: Because his conduct as head of the Executive Branch is bound and constrained by law, in this case, by the relevant provisions of both the Privacy Act of 1974 and the Administrative Procedure Act, each of which restricts the government's ability to collect, store, and disseminate confidential personal information of the kind in the Treasury systems in ways that are completely inconsistent with Trump's actions here.
This isn't the place for a detailed statutory analysis of two rather complicated statutes. The AGs' memorandum accompanying their motion for a TRO [available here] has a cogent and brief summary of the requirements these statutes impose on the government in its handling of confidential and personal information ,and why the president cannot simply authorize, unilaterally, a private citizen to access this information.
It's what stands between "the President" and "one-man rule."
It is just a TRO; the court has not ruled on the merits of the States' claims beyond noting that the States have (as required for a TRO) demonstrated a "likelihood of success on the merits of their claims" - adding "with the States' statutory claims presenting as particularly strong." !
The order itself is an interesting document. The Treasury Department is, at least temporarily, prohibited from:
(i) granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information … other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations;
(ii) granting access to political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees.
And the Department is further ordered:
(iii) to direct any person prohibited above from having access to such information, records, and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department's records and systems.
I take it that "any person prohibited above" refers to the "political appointees, special-government employees, and government employees outside the Treasury Department."Â I wonder if the court will demand proof from the Treasury Department that, in compliance with the order, the information collected up to this point by Musk and the DOGE has, in fact, been destroyed.
A hearing on whether the TRO should be converted into a preliminary injunction against Trump and the Treasury Department has been scheduled for this coming Friday. The court, I predict, will issue the injunction - does anyone out there think otherwise?
This episode raises, once again, the question of whether Trump cares one whit about whether his actions are or are not lawful. The pattern's becoming pretty clear, no? The now-you-see-it-now-you-don't freeze on federal grants, the closing of US AID, the supposed elimination of birthright citizenship via Executive Order, Muskgate . . . So far, the courts, fortunately, have been there to restrain him from violating the law.
What happens when he ignores one of these restraining orders? Is there anyone out there who doesn't believe that day is coming? What will we do then?
