The Swamp knows its enemy, and is already fighting

 

The Swamp, or the Deep State, or whatever you want to call it, is well aware that it's fighting for its life against President Trump's agenda.  It's spent months, if not years, preparing its counterattacks against the onslaught it knows is coming.

The first evidence of that occurred literally minutes after President Trump was sworn in yesterday.  No less than three lawsuits were instantly filed against the proposed "Department of Government Efficiency", or DOGE, alleging that it had to comply with the provisions of the Federal Advisory Committee Act (FACA), but that it had not done so.  Therefore, according to one plaintiff, "This shortcoming renders DOGE’s membership imbalanced and unfit for the function it has been directed to perform".

Sounds impressively legalistic, doesn't it?  The only problem is, DOGE is still conceptual.  It's been proposed, and its agenda discussed, and senior appointees' names have been mentioned:  but as far as I'm aware, President Trump has not yet signed any executive order or other official document that establishes it in law.  It's still only a concept.  In other words, those lawsuits have been filed against a defendant that does not yet legally exist.  Furthermore, FACA's constitutionality has been called into question, so the Trump administration may ask the courts to rule on that issue before anything else is done.

It's also worth noting who filed the lawsuits:  Public Citizen, the American Public Health Association, and National Security Counselors.  Those three organizations, and anyone working for and/or representing and/or supporting them, have thereby publicly identified themselves as members of, or allied with, the Swamp/Deep State/whatever.  Those of us who regard the Swamp as the primary internal enemy of our Republic and its Constitution should take note of that, try to identify links between them and each other and other organizations and individuals, and watch them carefully.  "Know your enemy" remains a cardinal rule, in lawfare as much as warfare, and the Mikado's "little list" is a useful thing to keep up-to-date.

The Swamp knows full well that if DOGE functions as expected, it will dismantle many of the foundational elements of the Deep State, and probably fire many thousands of the employees needed for it to function.  It dare not risk that, so it's trying to derail the process before it can even begin.  It will argule legalese until the cows come home, and seek suitably liberal courts where it can file its cases.  I've no doubt some judges will be found to lend a sympathetic ear to its arguments.

However, this also gives the Trump administration a chance to re-focus DOGE's task, purpose and structure.  If its lawfare opponents are attacking it on grounds A, B and C, DOGE can be reoriented to avoid those legal pitfalls and instead use legal elements D, E and F as its foundation.  Furthermore, it need not necessarily be established as a government department at all.  The Swamp has used non-governmental organizations (NGO's) to do its dirty work for years:  things like censoring public discourse, or indoctrinating the education system, or what have you.  There's no reason (at least in theory) why something similar to DOGE could not be set up by conservative NGO's, existing or new, and its reports submitted to the Administration just as left-leaning NGO's have done.  After all, the three organizations filing these lawsuits advertise themselves as "think tanks", "advocacy groups", and influencers of government policy.  As far as I know, none of them are subject to the provisions of FACA.  Why can't DOGE be set up (under a different name, of course) as precisely the same type of organization, if push comes to shove?  I'm sure the funds needed to do things that way would be forthcoming.  Heck, one might even categorize some of the expenses involved as falling under President Biden's Inflation Reduction Act, and use funds already allocated under that Act for the purpose.  (And wouldn't that make the Swamp see red???)

The lawfare lobby is going to try to tie the Trump administration in legal knots in any and every way they can.  It might be time to define the specific area or scope that a given level of federal court can affect.  At present, even an entry-level federal court can issue an order affecting an issue nationwide.  It may be time to codify a system whereby low-level courts' orders affect only that area under their local jurisdiction;  appeals courts affect only the states under their jurisdiction;  and only the Supreme Court can issue an order binding on the entire country.  That would render a lot of low-level cases useless to the lawfare lobby, which would have to appeal cases higher and higher in the system to achieve their objectives.

I'm not a lawyer, so I don't know if that's practical.  Would any lawyers among my readers care to weigh in on the matter?

Peter