If one were to believe the voices of outrage on the twitters, Southern District of New York Judge Paul Engelmayor just stopped Treasury Secretary Scott Bressent from being allowed into his own computer system, from overseeing his own department’s payment system. The alternative to losing one’s head is reading the decision, but too few are sufficiently interested in thinking to be bothered. I am not.
The States contend that this policy, inter alia, violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., in multiple respects; exceeds the statutory authority of the Department of the Treasury; violates the separation of powers doctrine; and violates the Take Care Clause of the United States Constitution.
Whether or not you care about any of this, and many don’t care because of the syllogism*, the duty of a court is to apply law. You can’t just like that when it works in your favor, but either you accept the premise that we are nation of laws or you don’t. If you’re of the view that Trump’s election renders him omnipotent, then don’t bother reading any further and don’t forget to swallow. But just in case you are of the view that the law still matters even when it doesn’t give you everything you want, then consider Judge Englemayor’s findings.
The Court’s firm assessment is that, for the reasons stated by the States, they will face irreparable harm in the absence of injunctive relief. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). That is 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. The Court’s further assessment is that, again for the reasons given by the States, the States have shown a likelihood of success on the merits of their claims, with the States’ statutory claims presenting as particularly strong. The Court’s further assessment is that the balance of the equities, for the reasons stated by the States, favors the entry of emergency relief.
Bruce Schneier, who knows his way around cybersecurity, agrees.
Bruce Schneier, a cybersecurity expert at Harvard and the author of a series of books on security vulnerabilities, including “Click Here to Kill Everybody,” called the entry of Mr. Musk’s force “the most consequential security breach” in American history.
Mr. Schneier noted that the intrusion came “not through a sophisticated cyberattack or an act of foreign espionage, but through official orders by a billionaire with a poorly defined government role.”
Yet again, you may not care. You may believe that it’s a risk worth taking. You may believe that it has to be done, so shut your eyes and dive into the abyss. But then, the security of the nation, not to mention the faithful application of its laws, doesn’t care what you believe. More importantly, your belief doesn’t change whether this impetuous action is wrong, ranging from improper to catastrophic. Nor, for that matter, is it up to Trump or Musk. Hard as it may be to believe, they are not our new overlords, and while Trump is the putative steward for a term of office, no one quite knows what Musk is. You think you do, but you don’t, no matter how hard you clench your sphincter.
So Judge Englemayor did what any good judge would do. He shut down, pending hearing before the assigned Judge Jeannette A. Vargas, the wild and crazy shenanigans for which the law makes no exception.
ORDERS that, sufficient reason having been shown therefor, pending the hearing of the States’ application for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the defendants are (i) restrained from 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 of payees, 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) restrained from granting access to all 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 (iii) ordered 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, if any;
What is remarkable about Judge Englemayor’s order is its unremarkability. For those inclined to histrionics like “everything is corrupt,” “it’s all fraud” and “burn it all down,” requiring the Treasury Department to adhere to basic law and not give Musk and his lost boys run of the place will seem outrageous. It’s not. It’s just the law.
*The syllogism:
Something must be done.
This is something.
This must be done.
So this order bars the President, or his designees, or the Secretary of the Treasury from accessing information that the Executive Branch of the Federal Government Treasury Department maintains? Does the law really require that the Treasury Department hide confidential or secret information from the President, who is the head of the Executive Branch of the Federal Government?
[Ed. Note: Reading is hard and gives people headaches. So does thinking.]
Are you being sarcastic? The order doesn’t stop trump himself
[Ed. Note: No, he’s not being sarcastic.]
Does it not restrain anyone who is a political appointee and only allows civil service personnel with the appropriate training access? Trump is neither civil service nor has he had the requisite training. It also explicitly bans political appointees. last I saw, the Treasury Secretary is a political appointee.
Many non-lawyers are confused (or have been rendered confused by deceptive or ignorant views) by the order. Both Trump and Bessent are named defendants. The order enjoins the defendants from granting access to others, not from having access themselves. Please never use “last I saw” anymore.
“ If you’re of the view that Trump’s election renders him omnipotent, then don’t bother reading any further and don’t forget to swallow.”
Standing ovation sir!!
And let’s just hope that someone will take note of the decision and enforce it.
It would seem to me that if this and other federal agencies have been wasting and abusing federal resources for a long time, the evidence of those activities will be hard to eliminate. Except for irreparable loss of evidence, why rush in? Wait for the scheduled hearing and make your case, Don-lon. Sure, the corrupt, the woke, the radical, the thug will try to cover up and dodge exposure and obstruct legitimate change. Supposedly, Don-lon’s effort is about transparency and accountability. If it is, then these actions can earn legitimacy by following appropriate protocols and obeying the law. If it’s not, his actions will be judged as illegitimate and harmful and without warrant. Waste and abuse will continue because these co-emperors will be neutered.
At this point 2 choices appear in the public discourse: rash and potentially unlawful attacks on government agencies or endless waste and abuse. I would like to believe there is a 3rd option: urgent but lawful change. I cringe when judges intervene on political motivation and I fear the power of federal agencies. But this judge’s ruling seems to be the right thing for the right time.
On this date in 1964, the Beatles appeared on Ed Sullivan.
What a nice present for a little boy’s sixth birthday.
My grandmother, or “Mamaw” as we say here in the hills, was taking a break from watching a way younger version of me by conversing with one of her friends on her landline phone and I heard her say this.
“Betty, I don’t know if we’ll be able to raise a garden this year. I hear on the news that beatles are coming over from England.”
Serious.
I find it ironic (and so did the anti-Federalists) that the Marbury versus Madison president that established the Supreme Court as the arbiter of constitutional judgement ruled that the court didn’t have the power to order the Secretary of State to do his job and hand out judicial commissions.
You have the right to build a house, but you can’t hire a contractor. You have the right to defend yourself in court, but you can’t hire your own attorney, you have to use someone from the prosecutor’s office. Etc.
If the President can’t delegate his power to a subordinate of his choice, he doesn’t have it. Time and time again, the courts have eventually ruled that, if the President has the power (and Treasury is most certainly the Executive’s power), Congress has limited room to control who the President gets to execute that power excluding Advise and Consent.
I will not defend the use of the 4 nerds, but if they were able to get “tiger team” access like described, then we should expect that every major intelligence service in the world already has every bit of information they do. My computers upstairs would take at least a day (or a $2 wrench to my knee) to get that kind of access into, even with physical access.