Thread by @rparloff

Will courts ever declare that Trump is unlawfully dismantling Congressionally created agencies? Or will they just treat his actions as if they were ordinary cuts & trims—albeit on an unusually large scale? Will courts ever see the forest for the trees? Thread ... 1/11

In 2 remarkable recent orders, judges saw the forest. In one, on Friday, Judge Ilston of SF issued a broad temporary restraining order freezing efforts to dismantle 21 federal agencies. In the other, on 4/22, Judge Lamberth of DC saved, for the moment, Voice of America ...
/2

... The hurdle both orders face on appeal is this: Ordinary federal employment disputes get shunted off to administrative bodies that can’t issue injunctions or address constitutional questions. The govt says that that’s what should’ve happened in these cases, too ... /3

Judge Lamberth refused. Doing so in the VOA case, he wrote, “would ignore the facts in the record and on the ground. ... VOA [had] gone completely dark. ... [It’s parent] USAGM’s leadership [had] called the agency ‘not salvageable’ & ‘a giant rot from top to bottom.’” ... /4

... On appeal, 2 conservative DC Circuit judges tried to halt Lamberth’s order and relegate the plaintiffs to administrative remedies. They wrote that the dismantling of USAGM/VoA was just a “collection of ‘many individual actions' that cannot be packaged together.” ...
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But their colleague, Judge Nina Pillard, disagreed: “I would not indulge any such fiction. Defendants themselves never did. They took broad, decisive actions to gut USAGM & VOA. ... Nothing about each decision or its executionwas individualized.” ...
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... Though Pillard wrote in dissent on 5/3, the full en banc DC Circuit has since restored Lamberth’s order while it weighs hearing the merits of the case. Meanwhile, Judge Ilston’s order, blocking reductions-in-force at 21 agencies, is sure to face the same scrutiny. ...
/7

Though we don't yet know the size of all the planned RIFs—Judge Ilston ordered that info disclosed by 4pm PT on 5/13—the plaintiffs' evidence was shocking:
VA: 87K people
HHS: 8-10K
DoEnergy: 8.5K
NOAA: >50%
DOL: 70% hdqtrs staff
IRS: 40%
Americorps: >50%
SBA: >40%
/8

... If judges are permitted to reach the merits of what Trump is doing, the illegality seems pretty clear. There is a lawful way for a president to reorganize government. He or she can propose a reorganization plan to Congress, and Congress either passes it or it doesn’t. ... /9

... “Between 1932 and 1984, Ilston writes, presidents submitted 126 reorganization proposals to Congress, of which 93 were implemented and 33 were affirmatively rejected by Congress.” ...
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... Since then, presidents GWBush, Obama, and Trump, during his first term, also submitted such proposals, but Congress rejected those. So Trump knows how to do it lawfully. He just chose not to try that this time. ...
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... Accordingly, Judge Ilston found that Trump’s executive order 14210 of 2/11 (calling for “large-scale” RIFs focusing especially on “agencies ... my Administration suspends or closes”) was “without constitutional nor, at this time, statutory authority.” ...
/12

... Will plaintiffs prevail? The law seems to be on their side. But to reach the merits, a majority of SCOTUS must first choose to see the forest, and not just the trees.
No prediction there.
13/13-end

Full Judge Ilston ruling here:
storage.courtlistener.com/recap/gov.usco…

Full Judge Lamberth ruling here:
storage.courtlistener.com/recap/gov.usco…