A Flaw in Law
Learning from Failure
When you see a gun pointed at you, you are entitled to be alarmed. When you know that gun has been used very recently in your immediate vicinity to do great harm, you will want to take immediate action to protect yourself. The law places restrictions on your options.
It has been said that the law limits your right to swing your fist to about 2 inches from someone else’s nose.
Yesterday, 18 Feb 25, fourteen states lost their bid to stop further harm to their interests by Elon Musk and the Department of Government Efficiency (DOGE). The issue was decided on very narrow grounds. As We the People regroup, applicable aphorisms (and correlative qualifiers) spring to mind.
1. Win some. Lose some. (Learn, grasshopper.)
2. Patience is a virtue. (It also can be ill-advised.)
3. Haste makes waste. (It also can limit damage.)
4. A stitch in time saves nine. (Try to avoid a tear or excessive wear.)
Quit Fixin’ What Ain’t Broke
On Monday, 17 Feb 25, fourteen states asked U.S. District Judge Tanya Chutkan to issue a temporary restraining order. The plaintiffs sought to bar Musk and the Department of Government Efficiency (DOGE) from accessing data systems at the Office of Personnel Management and the Departments of Education, Labor, Health and Human Services, Energy, Transportation and Commerce. The states also asked the court to prevent Musk and DOGE from terminating, furloughing, or placing on involuntary leave federal employees in those agencies.
Once the case was assigned to her, the judge moved the pleading forward expeditiously. She heard arguments on Tuesday and issued a 10-page ruling on Wednesday. She refused the request for emergency action on the issue. She also noted an alternative pleading with a better chance of success.
The Losing Argument
The states characterized Musk as an "unelected, unconfirmed government official" who is "exercising unprecedented executive authority.”
"An individual accountable only to the president — if he answers to anyone at all — is exercising apparently limitless power within the Executive Branch…Mr. Musk's conduct has wreaked havoc on the federal government and caused mass chaos and confusion for state and local governments, federal employees, the American public, and people around the world who depend on the United States for leadership and support.”
The states begged the court to block further illegal actions by Musk and DOGE.
The Winning Argument
Trump’s mockery of a Department of Justice successfully argued:
1. The States could not identify immediate, irreparable harm that warranted the court’s intervention.
2. The relief requested was too broad. It would sweep in anyone affiliated with DOGE, as well as Senate-confirmed administrative officials.
3. The claim that Musk has the authority to make decisions for the government was "wrong," and "rests entirely on conflating influence and authority…. An advisor does not become an officer simply because the officer listens to his advice. And stripped of their lengthy rhetoric, the states do not actually cite a single example of where Elon Musk (or anyone at US DOGE Service) has been given formal authority to exercise the sovereign power of the United States.”
The Ruling
"The court is aware that DOGE's unpredictable actions have resulted in considerable uncertainty and confusion for plaintiffs and many of their agencies and residents..But the 'possibility' that defendants may take actions that irreparably harm plaintiffs 'is not enough.'"
A Flaw in Law
Courts will issue orders to restrain the conduct of a proven abuser. In the common case of a woman seeking protection, the sad truth is a bullet very effectively can pierce the piece of paper purporting to protect her from further harm. We all can agree that murder does irreparable harm. Ineffective protection is a flaw in law.
Even if the States had given grounds that would raise the threat of irreparable harm from possible to certain, the remedy sought was only temporary in nature and would not have reached back to heal damage already inflicted.
The Strength and Justice of the Flaw
We must gird our loins for a continuing lesson in the attempts of law to balance issues on a proverbial knife’s edge. Where judges consider close issues in good faith, the law attempts to give specific relief without injury to unaffected parties. Where judges bring a partisan attitude to the contest, a close ruling can inflict injury on the broader intent to protect all parties equally.
Going Forward in Law
Implementation of the disputed part of the Project 2025 playbook will continue. It will move Trump’s disastrous self-coup closer to fruition.
Judge Chutkan provided guidance for future success in similar pleadings. She said that Musk’s actions violating the Appointment Clause have “serious implications.” She cited Supreme Court precedent in noting that Musk’s actions may be viewed as “executive abuses” violating the Appointments Clause. (The Appointments Clause is Article II, Section 2, Clause 2 of the U.S. Constitution. It gives the President the power to appoint certain officers, but requires the Senate's "advice and consent".)
"Musk has not been nominated by the president nor confirmed by the U.S. Senate, as constitutionally required for officers who exercise 'significant authority pursuant to the laws of the United States…bypassing this 'significant structural safeguard of the constitutional scheme,' Musk has rapidly taken steps to fundamentally reshape the Executive Branch."
Another Red Flag
In an effort to work around the “serious implications” noted by Judge Chutkan, on 17 Feb 25, the DOJ filed a clarification of Trump’s Day One executive order creating DOGE. The filing stated that Musk is not the head of DOGE. He is a senior White House advisor with oversight responsibilities.
In this position, Musk can escape the rigors of an inquiry into his character and qualifications, as well as scrutiny by the Senate of a formal nomination of him as a person with authority within the constraints of the Constitution to which he must swear faith and allegiance in performance of his administrative duties.
Well, okay. Let’s hope Donald John Trump does not try to name Vladimir Putin another trusted “senior White House advisor.”
Going Forward in Person
We the People will not cease resisting each and every attempt to convert our democratic republic into an oligarchy using a weak-willed and corrupt old man as its hand puppet of a monarch. We will learn from our mistakes. We will invent new and more effective manners and modes of timely intervention.
We will keep the faith.
We will not just survive implementation of Project 2025.
We will prevail against it.
The President has lost his furry little mind. Call in the folks with the butterfly nets and the jacket that ties in the back.
Thank you for reminding us we are in charge of our life and our choices. We can be angry or we can be kind. Trump counts on angry. The people who love us and the people we care about count on kindness.
Even the people whose job is to follow the overwhelming, rapid shock announcements can't possibly do it.
As you are showing us, every day, that is exactly the right thing to do--specifically, take one day at a time and pick one area for action. For example, are you concerned about economic impact? Then work on your plan B and plan C for the unimaginable, such as the madman accessing your (and everyone's) bank accounts.
Concerned about measures to stop you from voting? Then do the steps now to make sure you have the original or official copy of your birth certificate, plus a driver's license, plus a U.S. Passport as issued by the State Department, plus go through the steps to make sure your first, middle, and last names all match up. If you married and took someone else's name, you'll need the marriage certificate, too, to prove the shift.
Hell yes, that's a lot of inconvenience for you but when you see the train coming straight at you with no intention of stopping, use the time you have left before it reaches you to neutralize it and essentially, stop the threat to you, personally.