It's Presidents Day! So Let's Talk About The President--And His Veep

We go to the legal guys for their views.

As soon as the first EOs began to drop, law prof Jonathan Turley was perhaps the first out of the gate to point out that the EOs were well thought out. What he meant—and made clear that he meant—was that the EOs went beyond coherently addressing their subject matter and showed clear evidence that they had been framed with an understanding of the likely legal challenges they might face. Turley professed himself to be quite impressed.

For my own part, I’ve been at pains to point to the person who is almost certainly the architect behind all this, who came up with the detailed plan for bringing the building down and understood how to structure the teams that would be needed to both accomplish the task and defend it in court. That person is almost certainly Russ Vought, Director of OMB both then (Trump 1.0) and now. Vought discussed all this at length with Tucker Carlson before his (Vought’s) confirmation, but it was all in place long before the inauguration. After all, Vought was also a key person behind Project 2025.

Shipwreckedcrew, another legal guy I’ve been referring to frequently for the ongoing lawfare assault on Trump 2.0, has weighed anchor and written a substack on the EOs. He begins on the same note as Turley—Trump 2.0, unlike the first time around, appears to be fully prepared for the battles ahead:

Sometimes The Battle Is Well Worth The Fight -- The Upside To The TRO's Coming With The Imperial Judiciary

Who was Humphrey and why is his Estate such a big deal for the Trump Administration?

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There has always been a plan this time around.

The Executive Orders (EOs) that are the source of the lawfare now being waged by the Democrats’ Marxist/Progressive allies were carefully written — unlike in 2017 when the new Trump Administration was largely unprepared for the surprising upset of Hillary Clinton.

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In 2025, the Trump Transition Team had a plan. Dozens of EOs were carefully drafted with a coherent theme — directly attacking the Administrative bureaucracy — the “Resistance” — that strangled his first term in its cradle. There was never any question that the Democrats and the Administrative bureaucracy would rerun the same playbook — charge into federal courts where they knew they would find politically sympathetic judges (GOP did the same to Biden in Texas in 2021) and seek TROs and Injunctions to grind all the new reform efforts to a halt.

But I don’t think the Democrats/Progressives anticipated Elon Musk and his engineer boy-geniuses, nor did they expect that the first target that would take multiple incoming torpedos from DOGE would be the federal programs that have funneled huge sums of money to the left-wing NGOs through a variety of slush funds.

For the rest of the story you’ll need to pay. However, SWC does tell us in a tweet the direction he’s headed in:

Shipwreckedcrew @shipwreckedcrew

Earlier today I posted a Substack article arguing that the TROs being sought against the Trump Admin are, in many respects, great opportunities for the Admin to assert its Article II authority over the Admin[istrative] State and push back against encroachments by Congress and the lower courts into Executive power.

The article deals with the eroding -- and maybe reversal of the 1935 Supreme Court decision in Humphrey's Executor v. U.S.

This New Deal case (1935) held that the president has no authority to remove “executive officials of a quasi-legislative or quasi-judicial administrative body for reasons other than what is allowed by Congress.”

As I wrote in the article published this morning, maybe the cleanest challenge to Humphrey's is the TROs blocking the termination of Hampton Dellinger as head of the "Office of Special Counsel" (not a "Special Counsel" like Smith/Mueller).

Last week a district judge REVERSED the Trump decision to fire Dellinger, and restored him to office, citing Humphrey's Executor as a limit on POTUS' authority to fire the head of the Office of Special Counsel.

The Admin sought a stay of the TRO pending appeal but was denied such by the D.C. Circuit Court of Appeals.

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8:14 PM · Feb 16, 2025

DoJ immediately sent an emergency appeal to the SCOTUS, where Roberts, CJ, handles such matters originating in the DC circuit. While the appeal cites extensively from the cogent dissenting opinion of Judge Katsas (start reading, if you wish, at p. 16, here), one suspects that DoJ was totally prepared for this.

The Humphrey’s Estate case would force Trump to retain the official in question here, one Dellinger. However, as SWC notes, “SCOTUS has danced around the continuing vitality of the Humphrey's decision for many many years.” And most unfortunately for the lawfare addicts, it was precisely CJ Roberts who clipped Humphrey’s wings in a 2020 case, Seila Law LLC v. Consumer Financial Protection Bureau.

In Seila, Roberts held that

… the structure of the Consumer Financial Protection Bureau (CFPB), with a single director who could only be removed from office "for cause", violated the separation of powers. Handed down on June 29, 2020, the Court's 5–4 decision created a new test to determine when Congress may limit the power of the president of the United States to remove an officer of the United States from office.

The Court recognized that the president may generally remove officers at will. …

As it happens, Dellinger’s agency—the Office of the Special Counsel—is exactly the type of agency that Roberts addressed in Seila.

Many readers have, in the past, questioned my defenses of Roberts’ approach, viewing him as a judicial squish. In fact, I have no particular brief for Roberts, but he is the CJ and it is helpful to understand what he’s about. From the standpoint of jurisprudence, Roberts—at least in my view—does have a decidedly federalist and originalist tilt to his thinking. However, he is also extremely cautious, as a general rule, about overturning precedents and is also generally very sensitive about maintaining—to the extent possible—a degree of unity on the SCOTUS. That tendency has often led to compromise or incremental rulings—rulings that are limited to specific circumstances, rather than having a broad impact beyond the facts of the particular case.

That’s part of what makes the Seila case notable. Seila was a 5-4 decision that was handed down on June 29, 2020, when Trump was still Trump 1.0 but was under siege by the political establishment. The Court was strictly divided from a political standpoint—although we can surmise, without actually reading the full opinions, that at least some members of the majority would have preferred to have gone even further than Roberts did:

Majority Roberts (Parts I, II, and III), joined by Thomas, Alito, Gorsuch, Kavanaugh

Plurality Roberts (Part IV), joined by Alito, Kavanaugh

Concur/dissent Thomas, joined by Gorsuch

Concur/dissent Kagan (concurring in the judgment with respect to severability and dissenting in part), joined by Ginsburg, Breyer, Sotomayor

Seila was a very important case, as the sharp divisions of opinions indicate. The justices obviously sensed that major consequences lay ahead, and the current case confirms that sense. The current appeal seems to fall entirely within the wheelhouse of the Seila majority—barring some weird distinctions. Clearly DoJ was waiting for an opportunity such as this one.

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So much for the specific case—which, however, is likely to have broader applicability as events unfold.

Since offering his initial observations on the EOs (above), Turley has largely refrained from detailed comments on particular instances. Instead, he has—rightly, in my view—treated the reactions to the EOs as political in nature. Which is to say, political overreach by partisan judges. In that light, I highly recommend the entirety of Turley’s latest article, the substance of which goes well beyond the somewhat narrow title:

“Taking Away Everything We Have”: Democrats and Unions Launch an Existential Fight Over Buyouts

Turley begins with some general observations, citing Thomas Paine.

Democrats have declared the effort [to “reduce the size of government”] to be pure “evil” and responded with rage rhetoric and profanity in public demonstrations. In a town with only one industry, reducing government is a sacrilegious act. It is one thing to run on reducing government and quite another thing to actually mean it.

Turley’s overall theme is that, while Trump is doing exactly what he was elected to do, Dems are trying to nullify Trump’s landslide victory through lawfare—with the assistance of overreaching politically motivated judges. These efforts are backfiring, as Trump’s popularity and approval remain at unheard of levels. He then turns to the federal employee buyouts, cleverly labeling them “a form of self deportation.” Then comes the important final section of the article—again, framed in general and political terms, in the broad sense of the word:

President has the authority to manage the executive branch

... Under Article II of the Constitution, the president is given ample discretion in running the executive branch, including the work status of federal employees.

Congress clearly has a role in controlling use of the federal purse. For example, Congress can determine whether to allocate money to build certain Navy vessels. However, once the ships are built, it is the president who decides where to send them and who will serve on the crew. The commander in chief also can expand or shrink the size of the crew.

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Federal employees are entitled to protections in their employment. But they’re not entitled to permanent employment. Congress is entitled to appropriate money for specific purposes. But it is not entitled to manage the executive branch.

Trump is very willing to fight on this hill. He holds a strong constitutional position and an even stronger political position.

For those who proclaimed themselves as defenders of democracy throughout last year’s election cycle, this is what democracy looks like. Voters made clear that they want changes in the size and the focus of government.

Those voters are unlikely to be convinced by the warning of Senate Minority Leader Chuck Schumer, D-N.Y., that Musk is “taking away everything we have.”

That is precisely what Americans asked for in reelecting Donald Trump.

My point is that, while Turley doesn’t mention the judiciary here, his strictures on the constitutional role of Congress apply equally to the Judiciary. The executive branch of government is managed by the Chief Executive—not by Congress, not by judges, and not by the Civil Service or agency heads. This is a very strong constitutional and political position for Trump to hold, and I’d be very surprised to see Roberts—with his record of substantial agreement with those propositions—trash the entire separation of powers structure of our constitutional order.

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Finally, Turley—in a series of tweets—highly approves of Veep Vance’s speech to the Euros. Also other matters, but overall we see a continuation of the theme of Dems floundering in their attempts to come up with a coherent counter to Trump 2.0, ultimately resorting to over the top rage and smear:

After Vance gave a historic defense of free speech in Munich, many in the media joined Europeans in denouncing him. CBS's Margaret Brennan had a bizarre spin: that Vance was "standing in a country where free speech was weaponized to conduct a genocide."

One of the first acts of the Nazis in coming into power was to ... engage in massive censorship. After World War II, Germany continued to engage in speech criminalization and censorship. ... Only 18% of Germans feel free to express their opinions in public.

Vance spoke with a quintessentially American voice. It was clear, honest and unafraid. There was no pretense or evasion. It was a speech about who we are as a nation and the values that still define us — and no longer define our allies. European diplomats (and the usual American press and pundits) dismissed Vance as a virtual hillbilly, an American hayseed who does not understand transnational values. For the rest of us, it was a true elegy — part lament and part liberating.

Bravo, Mr. Vice President, Bravo.

Politico reported that Special Counsel Jack Smith received $140,000 in free legal services from Covington & Burling, a firm with strong Democratic ties including partner Eric Holder. If the DOJ approved this arrangement, it should be able to confirm the general purpose.

Generally speaking, freebies from the private sector are No-nos.

There are legitimate concerns over such free services from a firm with such deep ties to Democratic figures as Smith completed his work as Special Counsel. That does not mean that there were ethical or legal violations, but it does warrant greater disclosure on the arrangement

There may be confidentiality issues involved in such disclosures, but if the work was related to the Special Counsel investigation, the public has a right to some information on the scope and purpose of the legal representation.