Looking over judges' shoulders at the past 3 weeks.

Ruling. (Public Domain; Wikimedia Commons)

First, The Law.

So much has happened in the past 3 weeks that it's tough for you and me to keep track of it all. Even narrowing down our search to the actions of federal agencies may not help very much.

All of this makes it well worth our while to consider the scope of judicial review under the Administrative Procedure Act. That is the law that governs the actions of federal agencies. It has been invoked to great effect in the past 4 years, for example. In the past 4 years, that law has been the focus of numerous lawsuits that were filed in Amarillo, Texas, in the Northern District of Texas.

Now the actions of those who control the current federal government, or think they do, are under challenge from the law in many more places. A growing crescendo of lawsuits is being filed in the United States District Courts in the District of Columbia, Illinois, Massachusetts, New Hampshire, New York, and the State of Washington, so far. The courts in each of those Districts are ruling much the same way as the courts in all the others. It's not as if the law is unclear here.

These decisions are welcome. They raise the question, though, whether and how long the courts can continue as they are now. This is not a question of whether the people who think that they are currently in charge of the United States will refuse to comply with Court Orders or do something else that is un-American. There is no question but that they will refuse to comply with Court Orders that they do not like, and perhaps did not anticipate. At least there is no question in the mind of any person who has watched what they have done these past 3 weeks.

I say ‘watched what they have done’ as opposed to ‘listened to what they have said’ because frequently what they say does not matter in the end. Most of what they say, and they seem to speak all the time, are threats. Not infrequently, what they say is an empty threat. So I direct attention, yours and mine, to watch what they have done in the past 3 weeks to predict what they are likely to do here and now and tomorrow.

The question instead is what the American people will do then.

In the meantime: What can courts do now with agency actions and refusals to act?

It is well worth our while to take things one at a time under the present circumstances. In the face of so many things to look at, let's look at these things one at a time here.

Under the law, a court of competent jurisdiction can "compel agency action unlawfully withheld or unreasonably delayed."

For example, federal judges have ordered the United States Treasury Department to restrict access to its computer records. It is unclear whether that agency will comply. But suppose it does not comply, which seems at least possible even if it does not necessarily seem probable to everyone looking at the current situation.

In the event that the agency does not comply with the Court Orders, there is an issue whether, under the Administrative Procedure Act, the judges can compel the agency to comply and no longer to "unlawfully withhold" that agency action, i.e., to refuse to restrict access to its computer records.

Of course, there are will be other issues in that event, including the federal courts' powers of contempt. The federal courts' powers of contempt include the power of holding a defendant in criminal contempt, possibly sending him or her to jail -- such as, say, the Secretary of the Department -- if they refuse to comply with a federal court's orders. But that is not our focus here, not at this time. Our focus now and here is on the Administrative Procedure Act authority for a federal court to "compel agency action unlawfully withheld or unreasonably delayed."

In at least one of the cases, the federal judge also ruled that all copies of all records taken by private individuals should be destroyed immediately. There is a question, at least under this law, whether this federal judge has jurisdiction in this case over the private individuals in question.

Parenthetically, if federal courts do not have jurisdiction over those private individuals in any case, your guess is as good as mine where our records end up.

This the beginning of our investigation into the scope of judicial review authorized under the Administrative Procedure Act. This investigation necessitates a focus on individual actions, findings, and conclusions because our judicial system works by focusing on specific claims and cases; broader questions of policy are left to others but not to judges in the United States. Nonetheless, we will always take a closer look along the way at the overall threat we face to our continued United States. This investigation was inspired by an excellent summary of many such issues by Michael Hiltzik in his recent column, These Are the Legal Obstacles That Could Stop Trump's Assault on Government in its Tracks, LOS ANGELES TIMES (online Feb. 6, 2025) ($).

To be continued in the next installment of "Reviewing the Judicial Review."