Donald Trump’s administration is teetering on the precipice of another constitutional crisis with the courts that has been prompted by a single rogue district judge. This time, not only does he have Congress on his side, he also has a strong case that the judge is trying to spend money from the Treasury before the executive branch can exercise its right to appeal, in derogation of the powers of all three branches of government. Only a staggering act of judicial recklessness could bring us to this pass. But here we are.
On Thursday, July 3, Congress passed the “One Big Beautiful Bill,” which President Trump signed into law on July 4. It included a provision designed to stop sending Medicaid funds to Planned Parenthood, including its multifarious affiliates, for a period of one year. The core business of the nation’s leading abortion provider is one that many Americans find repugnant and that is now properly illegal in many states. (That’s even aside from its growing sideline in gender transitions.) Less than two weeks ago, the Supreme Court ruled 6–3 that only the executive branch, not the courts, is empowered to decide when states may remove Planned Parenthood from their Medicaid programs.
On the afternoon of Monday, July 7 — the first business day after the law was signed — Planned Parenthood filed suit in federal court in Massachusetts. The complaint started with a flimsy legal theory: that defunding a corporation from federal contracts is a constitutionally forbidden bill of attainder — a punishment comparable to legislatures throwing people in jail or executing them. Courts have rejected that theory in cases defunding and debarring ACORN and a Russian cybersecurity firm from federal work. Planned Parenthood’s legal theories of retaliation for speech and violations of the equal protection clause get more tenuous from there.
The case went to Judge Indira Talwani, a Barack Obama appointee. Before even waiting to hear the Justice Department’s defense of a duly enacted federal law, she issued a “temporary restraining order” (TRO) ordering that the federal government, starting immediately and continuing the next two weeks, “shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood” and affiliates. Planned Parenthood is already asking the court to extend the order further before giving the federal government its day in court.
Judge Talwani did not issue a legal opinion explaining why she was overturning an act of Congress. Her order made none of the findings required under the Federal Rules of Civil Procedure for a TRO. Nor is this a proper TRO. As we have previously observed, “a TRO is supposed to restrain one side of a case temporarily, so that nothing changes until the court can issue a final order changing things, which then can be appealed. But [the district judge] tried to force the government to pay money it can’t get back.” By ordering that moneys be irrevocably withdrawn from the Treasury without an act of Congress — indeed, in direct contravention of an act prohibiting them — she is flatly contradicting the Constitution’s allocation of powers.
We continue to believe that it would be a perilous step for the executive branch to defy or ignore the order of a federal court, and that many bad things can flow from crossing that particular Rubicon. But Judge Talwani has given the administration no other choice — at least so long as it has the power to appeal her order to a higher court that gives the American people due process of law. The Justice Department is obligated to defend any act of Congress unless it is firmly convinced that the act is unconstitutional — which this one is not, and which the president endorsed by signing it into law just last week. The president is duty-bound by his oath of office not to disburse funds to Planned Parenthood simply on the basis of an ex parte order telling him to violate a federal statute and giving the United States Treasury no remedy to get the money back if the TRO is overturned on appeal. Those three factors together — the presumption of regularity that a federal law is constitutional and must be obeyed by the president, the impropriety of an order that changes the status quo and would vitiate the right to appeal, and the fact that this involves spending taxpayer money without an appropriation — justify the drastic step of refusing to comply with the order unless and until it has been reviewed on appeal.
The Supreme Court’s recent decisions, including the Trump v. CASA ruling limiting equitable injunctions and a Tuesday ruling staying an injunction against a Trump order reducing the federal workforce, show that its patience is running short with district judges who think they can create new facts on the ground rather than limiting themselves to the proper judicial role of declaring what the law is. The Court should act swiftly, if asked, to suspend this order, too — not because it should sanction executive defiance of the courts, but because it should never sanction judicial defiance.