Observing Lincoln's Birthday by seeing what the judges have seen in the past 23 days.

Beginning with the law, continued: "Contrary to constitutional right, power, privilege, or immunity."

Judge’s Gavel.

(oneag news, Wikimedia Commons.jpg)

Judges have the power to hold unlawful and set aside agency action, findings, and conclusions that the judges find to be proven by the evidence before them to be "contrary to constitutional right, power, privilege, or immunity." The power to do this is given to them by Congress in the Administrative Procedure Act, or APA.

Not every situation playing out in front of us is subject to the APA, not every action is by an agency, and not every action is actionable. Let's take a look at some examples that like flags, are plain to see because they are unfurling or have unfurled before us right now.

The Press. Big Broadcasters like ABC and CBS used to be distinguished for the journalism that was included in their programming. A federal agency, currently still called "the Federal Communications Commission" or FCC, may have taken some action against them concerning their licenses to use the public airwaves.

They have also been sued, but apparently not by the FCC. ABC famously settled, and CBS is reportedly in settlement negotiations. Perhaps they have concluded that even if they win because they can defend themselves by requiring the plaintiff (the party suing them) to prove actual malice under the long-existing precedent established in New York Times Co. v. Sullivan, they will lose in the current Supreme Court.

The current majority of the supreme court has overturned pre-existing precedent for many reasons before, and they have shown that when they cannot find reasons, they will not hesitate to make them up. If the Press wins at trial but the case is sent back for retrial under looser standards, they may calculate that the price of their settlements may be less in the end than their defense expenses in attorney's fees and costs.

Parenthetically, Disney and Meta have also settled, but neither of them implicates Constitutional issues including the First Amendment, for example. Big broadcasters and the press generally like to include Disney and Meta whenever the subject of their own settlements comes up, but they are not the same.

When the Press does not know something, they generally say it is not clear. It is not clear whether their settlements will affect the FCC.

My guess is "Probably not." But the FCC as an agency is subject to the law in any case.

One broadcaster in the news is also a news organization: PBS. The First Amendment may be implicated in litigation against PBS, but I have not seen litigation as yet.

Again, the FCC has reportedly put pressure on PBS to fire a broadcaster who said things that the FCC and its overlord did not like, but it is unclear if the FCC pressure has manifested itself in press releases or something else. If the FCC's conduct implicates the First Amendment, its action will implicate the law's protection against agency actions "contrary to constitutional right, power, privilege, or immunity." This could be a good issue to raise while defending FCC agency proceedings.

Or what is more likely to be successful, filing a lawsuit based upon the law in a court of law.

To summarize what we have seen about the Press and particularly about the Big Broadcasters, to my knowledge no issue has been raised in any forum, that is, in agency or in judicial proceedings, of the "contrary to constitutional right, power, privilege, or immunity" provision of the Administrative Procedure Act. But it has lately been given to us to see what it is like not to have a credible press we can rely on for reporting and identification of issues that are important to our lives. "And it ain't pretty," as the saying goes.

The Inspectors General. You have undoubtedly heard about the firing of some 18 Inspectors General whose job it was to keep an eye on the legality of their agencies' conduct. Now they are gone and they do not keep an eye on things. As of this writing, it appears that none have sued as a result of their firing.

One person often lumped in with the IGs by the Press is the head of the Office of Special Counsel, but he is neither an Inspector General or a Special Counsel like Jack Smith was. His name is Hampton Dellinger.

Briefly, the Office of Special Counsel exists to protect whistleblowers by enforcing the laws protecting them, and to enforce the Hatch Act by pointing out prohibited political activity by federal employees, and, finally, to resolve complaints from veterans who claim discrimination after they are discharged from military service to the United States. (You can see at a glance why he was dismissed, I think.)

According to the law setting up the Office of Special Counsel, the "Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office." Apparently the EMail sent only last Friday from the White House's Director of "the Presidential Personnel Office" (who gave them any authority in the matter?) did not recite any of these reasons, even if it could have.

The EMail only said, basically, "You're fired," reminiscent of a line once written for entertainment in a TV show called The Apprentice.

On Monday of this week, Hampton Dellinger filed a lawsuit challenging his purported firing. U.S. District Judge Amy Berman Jackson entered a Temporary Restraining Order barring the firing until she can decide the issue at a full hearing. It is noteworthy that before Judge Jackson ruled, she asked the government lawyer, one Madeline McMahon, if the government would pause the firing until Judge Jackson could sort things out. Ms. McMahon told the judge that she did not have the government's authority to do that.

Mr. Dellinger's case presents a greater issue than his own independence, as important as that is. His case holds up the belief central to all the actions of the people who are currently in charge of the United States, or think that they are. Their core belief is that they can do anything they want with the Executive Branch in their pocket. In their minds, there is no Congress and no Supreme Court and nothing else. Only them. See what they do: This is their theory of Unitary Executive in action.

The courts may decide in individual cases whether a given agency action is unlawful and should be set aside because, perhaps among other things, it is "contrary to constitutional right, power, privilege, or immunity." With our own eyes and ears, you and I have seen and heard enough by now to decide that the action behind all other actions is action against the Constitution.

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

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Thanks for reading Claims and Issues! Subscribe for free to receive new posts and follow my work here. I also published an article on this topic on February 12, 2025 on Claims and Bad Faith Law Blog.