Unconstitutional Interference by the Judicial Branch in the day to day operations of the Executive Branch

Crucial Constitutional issues as to separation of powers may need to be resolved by the United States Supreme Court

For the past month, we have seen President Trump undo, and then some, a series of executive orders from President Biden.  Most (but not all) of the orders Biden put in place were not challenged because even if one maintained they were wrong-headed, they mostly involved how the Executive Branch functioned, something the President may issue orders regarding, as noted in the discussion below of Article II.  

 

But during this past month, dozens of trial court judges, authorized only to consider cases in their "District Court" as one of 677 nationwide "judgeships" authorized by Congress, have issued "injunctions" telling the President of the United States what he can and cannot do, including orders relating to how money is spent, what employees do what, and how regulations are to be and not to be interpreted.  Though these orders mirror, in large part, the promises made to those who voted for President Trump, these orders have been "frozen" by local Federal Judges who have issued injunctions that apply to the entire Federal government, nationwide, and even to the actions of the President himself. 

But does Article III give the Judicial Branch sweeping powers to control, and some would even say supervise, the Executive Branch by way of orders (styled as injunctive relief) telling the Executive Branch what to do in terms of its core functions, even going so far as to telling the Executive Branch what its personnel may and may not do and how money is disbursed? 

Article II, of course,  grants extensive powers to the Executive Branch, and while these powers are not unlimited, there does not even appear to be even a hint that the Judicial Branch is expected to supervise the Executive Branch any more than the Executive Branch is granted the power to supervise the Judicial Branch:

Section I

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

. . .

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.(Emphasis added.)

Article III, of course, grants certain powers to and, more importantly, denotes the jurisdiction of the Federal Judiciary.  In reading such note the lack of any authority to direct the specific actions clearly within the scope of the Executive Branch, such as how the military treats its enlisted soldiers and what benefits, including health care, soldiers are to be given:

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. . . .

(Emphasis added.)

Some will argue Marbury v. Madison (1803) 5 U.S. 137, the seminal opinion on judicial review of a federal statutes written by Chief Justice Marshall, gives the judiciary the power to review just about any action by the Executive Branch.  But the very fact these people — who believe an unelected trial court judge may issue an injunction directing the actions of the duly elected President of the United States, and his subordinates, to do or not do something — cite to Marbury and not the Constitution itself is very telling.    

This citation is, in fact, an admission that the Constitution does not give a sole trial-level judge any such power, and such power must be derived from Justice Marshall’s opinion as to his own power as a Supreme Court justice.

What can and should be done to curb invasive micromanagement of the executive branch by the judicial branch?

At some point, the United States Supreme Court will need to consider the scope of the power of a single trial-court-level judge to provide detailed guidance to the President of the United States on what he may or may not do in terms of disbursing funds and other matters ordinarily considered the province of an executive.  In the meantime, it is interesting to note that the Executive Branch has, up to this point, not yet returned the favor.
 
Meaning the Executive Branch has not yet issued Executive Orders providing detailed instructions to the Judicial Branch in the same manner the latter has done to the former.  It would be interesting to see the reaction of these trial-court Judges and, even more so, appellate Justices and the Chief Justice of the United States Supreme Court, John Roberts, to equally detailed and invasive instructions from the Executive Branch directing the actions of the Judicial Branch. 
 
For example, one could only imagine the reaction if an Executive Order were given which in turn micromanaged how the Judicial Branch spent its money and/or operated its courthouses.  The judiciary would no doubt respond by striking down these orders from this or any other President. 

It remains to be seen, then, if they will set any limit upon themselves and the desire of local judges to control the day-to-day operations of the Executive Branch.

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The Two Most Important Unanimous Supreme Court Decisions of 2024 Have One Thing in Common

In our last post, "Six of the most important California and Federal Appellate Opinions of 2024," (https://appellatespectator.blogspot.com/2025/02/six-of-most-important-california-and.html)

we noted two unanimous United States Supreme Court opinions in 2024 which broadly interpreted the Bill of Rights:

1.  National Rifle Association v. Vullo (May 30, 2024) no. 22-842

 
https://appellatespectator.blogspot.com/2024/06/nra-v-vullo-unanimous-supreme-court.html

 

2.  Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024)

https://appellatespectator.blogspot.com/2024/04/breaking-news-supreme-court-rules.html

What is so remarkable about these two decisions is not only that they were unanimous, nor that Justice Sotomayor wrote a strongly-worded opinion against government overreach against individual freedom of expression where these individuals utilized a corporate entity to express these viewpoints.  What is most remarkable is  how wrong-headed the lower courts in the respective states of California and New York were.  Worse, appellate courts were shockingly stubborn in not addressing blatant legal errors even when presented the clear opportunity to do so upon appellate review. 

This is even more shocking because, in an era of Westlaw, Lexis/Nexis, and, ChatGPT, one may find relevant precedent in seconds.  Which means a court and its research attorney may find such precedent instantly as well.  So why did courts in New York and California risk being overturned by a unanimous United States Supreme Court when a quick ChatGPT search would have revealed adverse authority in mere nanoseconds?

A cynical answer might be the tendency of our courts, as part of the apparatus of power, to uphold decisions of others likewise in power.  But I think another answer is equally obvious: political bias and the desire to hold on to his bias is so strong it outweighs the risk of being declared wrong in a nationwide public forum by Justices from both sides of the aisle and from different backgrounds and judicial philosophies.

For example, California government is biased against those with private property who wish to do something with their property; in particular, there is a bias against private single-family homeowners, including those who wish to something as simple as build a house without paying rapacious fees.  Likewise, New York and its Attorney General, Letitia James, are so biased against those who argue for their Second Amendment Rights that that the First Amendment be damned — these people must be stopped from joining together to speak.  

Lessons for practitioners

 

This begs the question of what to do when faced with a lower court, or, even worse, a Federal Court of Appeal, that ignores prior precedent due to its bias against interpreting the Bill of Rights to favor citizens rather than the government.  The obvious answer is to stress precedent after precedent to show the long arc favoring applying the Bill of Rights as a constraint against the massive power of cities and states.

 

Another important consideration may be the use of amicus briefs to show that, for example, there is a consensus in favor of giving effect to the Fifth Amendment’s "takings clause" to prevent imposition of a "fee” which has no relation to the supposed service provided.  But even this is may not be enough, because in the case of the National Rifle Association case, lower courts would not fully take into account important First Amendment issues even though the plaintiff’s case was supported by numerous organizations, including the American Civil Liberties Union.

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2024 Recap - the most important California and Federal Appellate Opinions

Six of the most important California and Federal Appellate Opinions of 2024

Blauser v. Dubin (November 19, 2024) G063715 

 
https://appellatespectator.blogspot.com/2024/12/blauser-v-diubin-whether-order-is.html

A California appellate court opined a signed minute order granting a motion for nonsuit could not be appealed as it did not constitute a final judgment or order appealable by statute.  As the Fourth District, Division Three explained, such a “signed dismissal order” or a “judgment” is a prerequisite to filing a notice of appeal:

Though now signed, the minute order is (still) not labeled as a “judgment” and it (still) does not purport to enter “judgment.” (§ 577.) Nor does it order the “dismissal” of appellant’s first amended complaint (though the cross-complaint was dismissed at the request of respondent). (§ 581d [a written, signed dismissal order “shall constitute” a judgment].)


JCC Crandall LLC v. County of Santa Barbara (October 29, 2024) B33320
 

https://appellatespectator.blogspot.com/2024/10/new-case-law-because-cannabis-is.html

The Second District, Division Six, of California has declared that no matter what one may think, possession of cannabis remains illegal under Federal law and therefore cannot be "legal" under the laws of California or any other state:

Many Californians have high expectations that cannabis is legal in California. This is a reasonable assumption because Civil Code section 1550.5 says it is. We regret to inform that cannabis is illegal in California because federal law says so. (Id., p. 1.)


National Rifle Association v. Vullo (May 30, 2024) no. 22-842

 
https://appellatespectator.blogspot.com/2024/06/nra-v-vullo-unanimous-supreme-court.html

In this unanimous decision, issued a mere 73 days after it was argued, the United States Supreme Court confirmed a state government may not seek to block the expression of opinions by a political organization by deliberately interfering with its relations with other companies or organizations.

When one imagines the legitimate role of a sovereign state, one likely does not imagine attempting to silence political views the Governor and Attorney General find repugnant, which political views cannot be banned outright due to those pesky restrictions found in the First Amendment.  Nonetheless, as Justice Sotomayer wrote, the NRA alleged the State of New York did exactly that.  Specifically, the State of New York, targeting "affinity products" in the insurance marketplace, sought  to discourage these businesses from doing lawful business with the NRA in order to "weaken" it.  

The NRA sued Vullo in Federal District court. While the case survived a motion to dismiss, it did not survive a review of this ruling in the Second Circuit, which, much to its discredit, held the NRA could not state a First Amendment claim.  With the assistance of the American Civil Liberties Union, the NRA sought and was granted certiorari by the United States Supreme Court, which found the alleged coercion of other entities, if proven, violates the First Amendment rights of the NRA.  As the unanimous held, a governmnent official may not use their power to do something indirectly that they may not do directly; namely, punish an entity that does not disassociate itself from a political opponent whose advocacy offends those in power.

Shikha v. Lyft (May 17, 2024) B321882

 
https://appellatespectator.blogspot.com/2024/05/ride-sharing-service-has-no-duty-to.html

California's Second District, Division Three, ruled that the general duty of due care one owes to another does not extend to include a duty owed by ride-share platforms to its drivers to perform "background checks" on all passengers.  The Second District explained there was no justification for imposing such a duty despite the general rule that all persons owe a duty of due care to others to act reasonably found in California's Civil Code section 1714.1.  As the Second District opinion teaches, the statutory duty to verify the criminal record of a driver does not extend to doing so for passengers. As to any common-law duty, Shikha found no duty was owed to its own drivers even though Lyft was admittedly in a "special relationship" with these persons. This conclusion required analysis of the factors enunciated by the Supreme Court in 1969's Rowland v. Christian, including the crucial factor of “foreseeability,“ which factor did not indicate the ride-sharing service had a duty to vet the background of each and every passenger.


Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024)

https://appellatespectator.blogspot.com/2024/04/breaking-news-supreme-court-rules.html

A unanimous United States Supreme Court found California courts had it entirely wrong when they found an outrageous "fee" a landowner must pay to build a home -- the fee having no relationship to the services provided or the cost of the project to local government -- did not implicate the Fifth Amendment's bar against the "taking" of private property. The practical effect of ignoring the full effect of the "takings clause" is that "fees" enacted by a legislative body have no upward limit yet a property owner may not even bring a Fifth Amendment claim.

The opinion authored by Justice Barrett found these courts had utterly failed to properly apply relevant prior precedent on the issue of whether a California county could impose a $23,420 "traffic impact fee" upon an ordinary residential landowner unlucky enough to own a lot in El Dorado County and who therefore wished to build a home.

Neither the trial court, the Third Appellate District of California, or the California Supreme Court (which denied review) gave full effect to precedent indicating a fee with no nexus to the effect of the actual property development is a "taking."  However, a unanimous Supreme Court did apply this precedent and agreed the fact a fee was imposed by a legislative body, rather than being imposed by a regulatory power, did not insulate said fee from scrutiny. Simply put, the provisioins against the taking of private property without just compensation apply equally to the executive and legislative branches of government. 
 

Sunholm v. Hollywood Press Association (February 27, 2024) B324842

 
https://appellatespectator.blogspot.com/2024/03/attorney-disqualification-is-improper.html

The Second District, Division Seven, of California ruled that while an attorney who fails to produce documents and/or produce a privilege log may be subject to sanctions, or perhaps even referral to the State Bar, a trial court erred when it instead disqualified said counsel from representing one of the parties.  This is true even though the document withheld may have contained the other party's privileged information and, further, the to-be-disqualified counsel was less than forthright about whether he currently possessed privileged material.

In Sundholdm privileged documents were accidentally filed and served upon counsel for plaintiff, who had sued the Holywood Foreign Press Association.  Counsel Quinto of One LLP, attorney for plaintiff Sundholm, was the subject of a motion to disqualify after it was alleged that he kept a copy of the privileged material. The appellate court overturned the trial court’s grant of the motion to disqualify, but not because it endorsed Quinto’s conduct; rather, such was not the proper remedy for Quinto’s action; this was because, inter alia, there was no real showing of prejudice from Quinto’s retention of the privileged material.

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Gaslighting update - perhaps the most massive cover-up in world history

 

Gaslighting on a global scale - the origins of COVID-19 in a laboratory in Wuhan China

As we have discussed, gaslighting — whether in litigation, governance, or corporate communications — involves not simply spreading a falsehood but doing everything possible to encourage anyone stating the truth to doubt their own sense of reality and/or have others doubt the sanity of the person doubting the falsehood.  See our prior posts discussing several examples of gaslighting:

 

• https://appellatespectator.blogspot.com/2024/08/first-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/08/second-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/08/third-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/11/gaslighting-post-election-update.html

During the Biden/Harris administration, we were told that if we believed COVID originated in a Chinese lab we were racist, xenophobic, and prone to believe conspiracy theories.  No matter the fact the World Health Organization and the Communist Part of China were less than forthright, the legacy corporate media and the Biden/Harris administration made it clear:  if you thought the “lab leak” theory was the most likely explanation for COVD-19 you were censored on social media (at the express urging of the Biden Administration) and therefore your posts and tweets were limited in terms of dissemination; more to the point, it was likely your YouTube videos were demonetized. The problem, of course, was you for believing the lab leak theory, and not China's cover-up regarding a novel virus that killed more than 100 million persons and appeared out of nowhere.

However, as of March 21st the gas-lighting has ended and President Trump and his Republican administration have shone some light on this sordid attempt at government manipulation of the public discourse.  Central Intelligence Agency analysis dating back to the Biden administration has now been made public, and, well, wouldn’t you know it, the most likely source was a leak from a laboratory in Wuhan China. 

As the stenographers for the prior administration, the New York Times (https://www.nytimes.com/2025/01/25/us/politics/cia-covid-lab-leak.html) recently reported after Trump took office:

C.I.A. Now Favors Lab Leak Theory to Explain Covid’s Origins

 

A new analysis that began under the Biden administration is released by the C.I.A.’s new director, John Ratcliffe, who wants the agency to get “off the sidelines” in the debate.

But, you, of course, were irresponsible and anti-Chinese if you looked at the same evidence and came to the same conclusion that the CIA did when Mr. Biden was President.

 

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