The quiet case that could put the courts under executive control

Article III of the Constitution established the federal judiciary as a separate and independent branch of the federal government. The Constitution is silent on the governance and administration of the federal judiciary, however. As a result, Congress has enacted legislation on the management of the federal courts.

President Donald Trump and his allies continue to centralize power in the executive branch. In a recent Executive Order (EO), for example, Trump declared that "The President and the Attorney General, subject to the President's supervision and control (emphasis added), shall provide authoritative interpretations of the law for the executive branch (White House, Feb. 18, 2025)." All executive branch officials and employees are subject to this directive. The EO effectively abolishes the checks and balances within the executive branch itself.

The appetite for executive control potentially extends to the management of the federal courts and comes from an under-reported case. On April 22, the America First Legal Foundation (AFLF), a Trump-aligned legal group that was founded by White House political advisor Stephen Miller, has filed a Freedom of Information Act (FOIA) lawsuit against Chief Justice John Roberts (Presiding Officer of the Judicial Conference (JC)) and Robert Conrad (Director of Administrative Office (AO)) in their official capacities (AFLF v. Roberts, et al., 1:25-cv-01232 (D.D.C.)). A response to the complaint has not yet been filed.

The JC is the principal policy-making body for the federal courts and, among other duties, investigates federal judges for wrongdoing and possible impeachment. The AO is responsible for carrying out the JC policies. It is the administrative arm of the federal courts and provides a broad range of support services to them.

FOIA primarily applies to records held by Executive Branch federal agencies. It allows private citizens to obtain access to certain government records (5 U.S.C. § 552). The complaint has far greater reach than FOIA because the court is asked to "Declare that the Defendants are subject to FOIA as independent agencies within the executive branch (emphasis added)."   

The defendants have refused to comply with the FOIA request for records involving Justices Clarence Thomas or Samuel Alito and all communications with Senator Sheldon Whitehouse, Representative Hank Johnson or any of their staff. Thomas and Alito have been sharply criticized by Whitehouse and Johnson. The Justices have been publicly pilloried for reporting and ethical lapses, and AFLF appears keen on investigating the matter and setting the record straight. But to quote Sherlock Holmes, a broader game may be "afoot." 

AFLF argues "the Judicial Conference and Administrative Office exercise executive agency functions and are accordingly subject to FOIA."  The Administrative Procedure Act (APA) definition of agency "means each authority of the Government . . . but does not include-- the courts of the United States" (5 U.S. § 551(1)(B)). AFLF argues that JC and AO are not "courts" because they don't decide cases, so the exception doesn't apply. Rather, they are like other federal agencies that exercise regulatory powers.

It also argues that the Chief Justice appoints members of the JC committees and thus acts as "an agency head" for purposes of FOIA. The JC places proposed rules governing the federal courts in the Federal Register, which also is required by other executive branch agencies. With respect to the AO, AFLF argues that it "is an independent agency within the executive because it engages in executive functions."

Federal court jurisdiction over a FOIA claim is dependent upon showing that an agency improperly withheld agency records. Congress established the JC (1922) and AO (1939) to bolster the federal judiciary's independence, not reduce it. Moreover, the phrase "courts of the United States" has been interpreted as applying to the entire judicial branch of the government (Banks v. Department of Justice, 538 F. Supp. 2d 228 (D.D.C. 2008). As such, persuasive arguments exist that the JC and AO are not subject to FOIA. But the Supreme Court has opened the door for cases like AFLF.

In a broader sense, the case is a foreboding harbinger of our time. The AFLF lawsuit is an attack on the independence of the judiciary by attempting to subject the Judicial Conference and Administrative Office to Executive Branch control.