Desperately Seeking Separation of Powers
A federal judge's schooling of defendants rocks
A federal judge again has ruled against the parent agency of U.S. international broadcasting, but the bigger headline is buried deep in the order’s concluding pages.
U.S. District Court Judge Royce Lamberth’s memorandum issued Tuesday in RFE/RL, Inc. v. Kari Lake grants the plaintiff’s temporary restraining order for USAGM to immediately disburse $12,178,950 in congressionally-appropriated funds to cover the broadcaster’s expenditure for the month of April.
“Judge Lamberth appeared to close a loophole from his previous ruling, which allowed the Trump administration to effectively hold all funds for Radio Free Europe/Radio Liberty while facially complying with the court mandate,” writes Minho Kim in The New York Times.
The government, through its Justice Department lawyers, has done everything it can to drag its feet despite decisions from the bench in this case and others [including the one with which I am directly involved Widakuswara (VOA) v. Lake (USAGM) ] that the Trump administration has over-reached and acted in a manner “arbitrary and capricious” (an important legal phrase) in shutting down the Voice of America and trying to smother Radio Free Europe and Radio Free Asia.
The government’s contention is that preventing all staff from going to work and doing reporting and shutting off the radio transmitters and satellite TV transponders is merely a “pause,” while the administrators of USAGM figure out how to operate, in line with a presidential executive order, within the statutory minimum. It’s a legal argument equivalent to the Monty Python ‘Dead Parrot’ sketch in which a disgruntled customer (played by John Cleese) returns to a pet shop to complain that the parrot he just purchased is dead. The shopkeeper (Michael Palin) insists the parrot is simply “resting” or “stunned,” despite the obvious signs it's lifeless.
Humor aside, Judge Lamberth in his latest order in the RFE/RL case, is deadly serious in the final pages of his script. Our lead attorney in Widakuswara v. Lake, David Seide of the Government Accountability Project, describes the judge’s writing as “profound.”
As the Associated Press observes, Lamberth “tucked a lesson on the three branches of government inside Tuesday’s ruling, cautioning that the system of checks and balances established by the U.S. Constitution must remain intact if the nation is going to continue to thrive.”
Ronald J. Hansen, in his Arizona Republic story on the decision against the aspiring politician who twice failed to win elections in the Grand Canyon State, characterizes Lamberth’s writing as a “lengthy rebuttal to the hostility Lake has helped lead in conservative circles for a string of losses in court that have slowed Trump’s upheaval across the government.”
NPR media correspondent David Folkenflik, on social media, sees it as a “stirring defense of the independence of judges and the importance of the judiciary - and an implicit rebuke of claims by Trump, Lake and others about ‘out of control’ judges.”
In Wednesday’s Cabinet meeting, with White House pool reporters in the room, President Donald Trump, speaking about controversial deportations without due process, declared “we have some judge problems.”
If you are accustomed to reading sedate, straightforward and dry legal opinions, buckle up for the paragraphs ahead as you’re in for a ride with an 81-year-old who uses a walker to reach his benc. As one of courtroom observer puts it, this judge turns out to be a bad-ass demonstrating more testicular fortitude than the masses of bodies on Capitol Hill.
Lamberth begins his conclusion: “As a parting word on this matter, the Court sees fit to briefly address some ideas and tropes that have been percolating in the national media for the last few months. In interviews, podcasts, and op-eds, people from both inside and outside government have variously accused the courts— myself included—of fomenting a constitutional crisis, usurping the Article II powers of the Presidency, undercutting the popular will, or dictating how Executive agencies can and should be run. The subtext, if not the headline, of these accusations is that federal judges are motivated by personal political agendas.”
The Reagan-era appointee makes clear that “the media zeitgeist” has not influenced any of his decisions and chastises his critics (obviously including defendant Kari Lake) for lacking a “fundamental understanding” of the federal judiciary’s role.
A civics lecture ensues. While it’s not quite written in fifth grade language, Lamberth appears to be taking pains to make it manifestly clear how our system of government works and uses the cases filed against USAGM that ended up in his courtroom as a lesson – Congress makes the laws, ordains how money should be spent and the president signs the bills.
At this point, I almost expected the judge to insert a link to Schoolhouse Rock’s ‘I’m Just a Bill.’
🎵 And if they vote for me on Capitol Hill, then I’m off to the White House where I’ll wait in a line with a lot of other bills for the president to sign. 🎵
In the long conclusion of his order, Lamberth points out that on March 15 of this year, “in accordance with this constitutional design, President Trump signed the very continuing resolution that allocated the funds discussed herein to RFE/RL, as well as Voice of America and the network grantees named in the related Widakuswara case. In other words, the Court did not make the law at the center of these disputes; the people’s duly elected representatives, in the legislature and the Oval Office, did that.”
The judge continues his lecture to the plaintiffs and a wider audience, adamantly stating that the courts are not dictating how to run the executive branch “or to subvert the country’s political process.”
Lamberth notes he has praised the work of VOA and RFE/RL but that he has no personal stake in the outcome of the legal case and he doesn’t have an opinion on how USAGM “should be run in the future—or even if it should continue to exist.”
In my own media appearances related to the USAGM cases, I have stressed that our position is the laws must be followed.
Congress, not the White House, has the power to defund U.S. international broadcasting. It also is the body that can abolish the VOA firewall and charter, both previously approved by Congress and signed into law by presidents. But unless Congress mandates changes, VOA’s journalists will insist that the firewall be respected, which prohibits government interference (including from USAGM) in our journalistic content. The charter compels that our reporting and programming must reflect significant American thought and institution, meaning we will be balanced and not exclusively the Voice of the Democrats or the Voice of the Republicans. VOA is required by Congress to present the policies of the United States clearly and effectively and will also present responsible discussions and opinions of these policies. (emphasis mine)
Returning to Lamberth’s legal missive, he provides a history lesson on why he is “not a political actor and I have no agenda to press,” adding he believes that it is also true of his colleagues on the federal bench.
Scott Nover and Spencer S. Hsu, in their Washington Post dispatch, note that “barring the dismantling of the Radio Free Europe and Radio Liberty networks, Lamberth wrote that he was fulfilling his small part in a ‘framework that has propelled the United States to heights of greatness, liberty and prosperity unparalleled in the history of the world for nearly 250 years.’ He added, ‘If our nation is to thrive for another 250 years, each coequal branch of government must be willing to courageously exert the authority entrusted to it by our Founders.’”
Lamberth cites two of the Federalist papers, Alexander Hamilton’s No, 78: The federal judiciary as the branch of government “least dangerous to the political rights of the Constitution.” And from James Madison’s No. 51: The great security against a gradual concentration of the several powers in the same department, “consists in giving to those who administer each department the necessary constitutional means . . . to resist encroachments of the others.”
Of course, this is an anathema to the acolytes of expansive executive power, such as Steve Bannon, who accuse federal judges of “judicial insurrection” at “a time of war.” Again, such rhetoric overlooks the clause of the Constitution (Article I, Section 8) that only Congress has the authority to declare war.
Bannon and company will likely be rankled by Lamberth reminding them that in the USAGM cases it is clear laws have been violated.
“Under the Administrative Procedure Act, actors within the Executive Branch do not have carte blanche to unilaterally change course, withhold funds that the President and the Legislature jointly agreed to spend, and functionally dismantle an agency that the President and Legislature jointly agreed to support. If the Executive wishes to withhold or reallocate these funds, there is a statutory rescission process in place for them to seek the approval of Congress to do so. This process assures that the will of the people, expressed through their elected representatives, is borne out. But the defendants have not followed that process here. As I see it, if the defendants are aggrieved by these decisions, their problem is not with the Court, but with Congress and the President, and it is with them that the defendants should seek redress,” writes Lamberth.
The judge does note that any federal district court decisions that go astray can be reversed by the Court of Appeals, which is where the USAGM cases are likely next to be heard, or ultimately the Supreme Court of the United States.