On Saturday US District Judge Paul Engelmayer, an Obama appointee, barred “political appointees” from accessing internal Treasury Department systems — an utterly baseless, and frankly ludicrous, order.
In effect, Engelmayer prohibited Treasury Secretary Scott Bessent and his politically accountable employees, along with Elon Musk and President Trump’s Department of Government Efficiency, from doing their jobs, in favor of rule by unelected bureaucrats.
The Constitution nowhere empowers the judiciary to issue such a ruling, so in response, Vice President JD Vance correctly posted on X: “Judges aren’t allowed to control the executive’s legitimate power.”
Then the left lost its mind.
Illinois Gov. JB Pritzker described Vance’s post as a warning that “the Trump administration intends to break the law.”
Sen. Chris Murphy (D-Conn.) claimed it was “the meat” of a “constitutional crisis.”
Not to be undone, former GOP congresswoman from Wyoming and Washington, DC native Liz Cheney accused the vice president of “rage quit[ting] the Republic.”
Yet Vance’s statement was correct — and should not be controversial: Engelmayer’s order is ridiculous on its face, and the vice president is right about the limits of judicial power.
The Supreme Court has long recognized that certain government actions are beyond the power of the judiciary to review and control, and its precedents back Vance’s position.
As the court recently put it in Trump v. United States, “when the President acts pursuant to his exclusive constitutional powers, Congress cannot — as a structural matter — regulate such actions, and courts cannot review them.”
Vance in his tweet gave a hypothetical example of how the judiciary might violate legitimate executive power: “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s . . . illegal.”
Not long ago, the Biden administration agreed with him about this exact matter.
In a 2022 brief to the Supreme Court, Solicitor General Elizabeth Prelogar quoted the court’s ruling in Heckler v. Chaney, arguing that the “decision of a prosecutor in the Executive Branch not to indict” is “a decision which has long been regarded as the special province of the Executive Branch.”
Moreover, the Supreme Court in its Seila Law opinion in 2020 explained that political appointees, like the Treasury secretary, “wield significant authority” but remain democratically accountable because they are “subject to the ongoing supervision and control of the elected President.”
By contrast, the ruling noted, our constitutional structure is violated where “significant governmental power” is vested in individuals “neither elected by the people nor meaningfully controlled . . . by someone who is.”
Yet that is what Englemayer’s order required, effectively flipping our constitutional order on its head.
Because Engelmayer’s order has no constitutional basis, more sober voices have rightly sided with Vance.
For example, Jed Rubenfeld, a professor at the VP’s alma mater Yale Law School, described Vance’s post as “exactly right.”
Then what explains the Democratic Party’s complete hysteria over a social media post?
Liz Cheney, Chris Murphy and JB Pritzker are not unfamiliar with prosecutorial discretion, the separation of powers, or the existence of constraints on judicial power.
But they do have a vested interest in manufacturing a supposed “constitutional crisis” in the early days of Trump’s second term.
Their plan is to delegitimize the White House’s policy initiatives and derail the momentum of his early presidency to wipe away the mandate Trump secured with his total victory in November.
Sympathetic press outlets are only too eager assist.
Once the “constitutional crisis” talking point went out, leftist outlets amplified it.
On Monday, The New York Times ran an article headlined: “Trump’s Actions Have Created a Constitutional Crisis, Scholars Say.”
The same day, The Washington Post asked: “What is a constitutional crisis?”
There is precedent for this sort of maneuver, too.
In 2016 and 2017, the mainstream media, the Democratic Party and the deep state worked together to manufacture the Russia-collusion hoax out of whole cloth.
The Democratic Party wrote the script, and the mainstream media performed it.
But the collusion narrative was a farce, just as the so-called “constitutional crisis” is now.
According to the American left, our Constitution is thrown into crisis whenever the president and his appointees are actually allowed to run the Executive Branch.
In 2016, the mantra of the “resistance” leftists and their mainstream media lapdogs was “Russian collusion.”
This time around, we’re wise to their game as resistance liberals intone a new incantation: “constitutional crisis.”
Don’t be fooled.
President Trump and his political appointees, like Treasury Secretary Bessent, are using the power that American voters entrusted to them.
Engelmayer’s order has no constitutional basis, no matter what “crisis” the left attempts to create.
Theo Wold, former solicitor general of Idaho and former acting-assistant attorney general in the Department of Justice, is director of the Claremont Institute’s Administrative State Project.
https://nypost.com/2025/02/12/opinion/left-fakes-a-new-crisis-but-vance-is-right-on-the-law/
