Legal briefs

Separation of powers

On March 20, 2025, President Trump issued an executive order directing the U.S. Secretary of Education to ensure that “programs or activities receiving any remaining Department of Education funds will not advance DEI…” Following the executive order, Education Secretary, Linda McMahon, undertook a review of DOE grants to determine compliance with the executive order. McMahon found that two DOE grant programs had recently issued 109 grants, for a total of $65 million dollars, to schools and universities across the country. The Secretary cancelled all but five of those grants because they contained materials inconsistent with the executive order.

Eight states, led by California, sued the Administration in federal court in Massachusetts seeking reinstatement of the grants. U.S. District Court Judge, Myong Joun, issued what he called a temporary restraining order requiring that the grant money be paid out and preventing the Administration from terminating any other grants. The Trump Administration appealed to the First Circuit U.S. Court of Appeals. The Appellate Court declined to vacate the restraining order, but did fast track the case on its merits. The Administration then asked the U.S. Supreme Court to address the restraining order issue. Last week, the Supreme Court lifted the District Court’s temporary restraining order, allowing the DOE to keep the grant funds and to continue the grant rescission process. You can read the order here.

This case raises separation of powers issues. The Administration contends that the executive has authority to control how executive agency funds are spent because Article II, Section 1 of the U.S. Constitution vests all executive power in the President and requires the President. The other side cites the Administrative Procedures Act, which, among other things, lets people or organizations sue claiming they have been negatively impacted by agency actions. Because the schools may suffer a loss of funds due to the grant rescissions, they can sue under the APA and claim that proper procedures were not followed. The Supreme Court, by lifting the restraining order, simply put a hold on the funds. The case will now be decided on its merits.

To what extent does the APA limit, if at all, the President’s ability to direct agency funds? Can the judiciary substitute its judgement for the President when deciding whether or not to expend agency funds? My guess is that this Supreme Court will ultimately side with the President on this one. The Court has had a focus on asserting separation of powers. It is also suspicious of the overgrowth of agency power, as evidenced by last year’s overturning to Chevron deference. Keep reading Judex and I’ll make sure you are informed.

More separation of powers

While we are on the topic of nationwide injunctions, the U.S. House of Representatives passed a bill this week that would limit the power of federal district court judges to issue them. The bill would allow district judges to limit what the parties to a case can do, but would not let the judges apply those limits to non-parties nationwide. Article III of the U.S. Constitution creates the U.S. Supreme Court but gives Congress the power to create lower federal courts, which they have done. Congress, then, can also define the limits of the jurisdiction for inferior federal courts. Thus, this bill squares with the authority of Congress, without running afoul of the separation of powers.

This comes up because federal district judges may—almost certainly—have been abusing their authority to issue nationwide injunctions with regard to President Trump, infringing on the authority of the executive branch and violating the separation of powers. From 1963 to 2023, U.S. federal district courts issued a total of 127 national injunctions. Over half of those, 64, were issued in Donald Trump’s first term as President. Ninety-two percent of those injunctions were issued by Democrat appointed district judges. So far in Trump’s second term, there have been as many as 30 nationwide injunctions issued, again by overwhelmingly Democrat appointed district judges.

To be fair, Trump has been exceptionally aggressive in issuing executive orders, which is what most of the injunctions have been applied to. Trump has issued the most executive orders in this term of any President in the last 100 years. So, you would expect increased court activity. The question, though, is whether an unelected district judge should have the power to stop a President’s actions nationwide, especially when there is an appearance of political bias.

Some of the recent injunction cases have already made their way to the Supreme Court, where the Trump Administration has been successful. I expect that trend to continue. Perhaps that will temper the need for legislation. There is a lesson here, though. When judges appear to get too far outside of their lane, the other branches will notice and respond.

Crime

You’ve been there—stuck a confined space with someone talking on a cell phone using the speaker function. They act like they are the only people on Earth, and that for some reason everyone else needs to be subjected to the inanity of their conversation. I know you hate it, too. Almost everyone does. In fact, a recent survey found that 86% of people think that the use of a speakerphone in a shared environment is unacceptable.

Well, the French Transit authorities have decided to do something about it. Recently, a Frenchman was talking to his sister using his speaker phone while on a subway train. Transit personnel approached him, made him hang up, and issued him a ticket for 200 euros. The French Transport Code allows transit authorities to fine people who use “sound devices or instruments” or “disturb the peace of others by noise” in areas used for public transport. Personally, I would have gone with the death penalty, but the fine may work. We’ll see. You can read more here.

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