When Two Branches Overreach: Rethinking the Balance of Power in the WilmerHale Decision
by Michael Stevens
Sometimes, the Constitution doesn’t give us clean winners—it demands discipline. The recent legal standoff between the Executive Branch and the Judiciary over Executive Order 14250 is one of those moments.
At stake was not just the fate of a single law firm, but the structure of constitutional government itself. What we saw was both branches pressing too far. The executive acted with a heavy hand. The judiciary responded with a sweeping strike. And in the space between, we were reminded why the Founders carved lines—and asked each branch to stay in its lane.
Executive Order 14250: Heavy-Handed, But Not Lawless
On March 27, 2025, the President issued Executive Order 14250, instructing agencies to suspend security clearances, restrict federal access, and consider terminating contracts with WilmerHale. The justification? National security concerns tied to the firm’s litigation posture, past representations, and—more controversially—its DEI-related pro bono activities.
No question, the order overreached. It lacked nuance. It didn’t carve out exceptions. But let’s be clear: its foundation rested on solid constitutional ground.
The President has exclusive control over security clearances. That’s not opinion—it’s law. Department of the Navy v. Egan (1988) settled that. Agencies can walk away from contracts for reasons of convenience or concern, under federal acquisition rules. And the Executive can absolutely restrict access to secure government facilities, as long as that doesn’t block people from exercising their legal rights.
What the order needed—what it lacked—were standards, safeguards, and the common sense to avoid appearing like a political hit.
The Court’s Opinion: A Swing Too Wide
U.S. District Judge Richard Leon struck down the order in full on May 27, 2025. He did so with strong language and a stirring defense of the legal profession. His opinion warned that the order punished a law firm for doing what lawyers are supposed to do—representing clients, even those who are unpopular. And on that point, he’s right. We don’t want a country where representation is criminalized by executive decree.
But the ruling went too far.
Instead of trimming the order back or demanding safeguards, the court struck it down entirely. That moves beyond constitutional review and into rewriting executive policy, which courts aren’t supposed to do.
The ruling claimed the order violated due process and even invoked the Sixth Amendment right to counsel. But let’s be honest here: not every government action implicates the Constitution.
Due Process? Not Quite
Under Board of Regents v. Roth (1972), due process only kicks in when a person or entity is deprived of a protected liberty or property interest. The Court in Roth was clear: not every expectation is a constitutional right. A law firm has no guaranteed right to security clearances. There’s no entitlement to a federal contract. And reputation—while important—is not enough to trigger due process unless it’s tied to denial of legal rights or public stigmatization. That bar wasn’t met here.
The Sixth Amendment Argument Falls Flat
The court’s invocation of the Sixth Amendment—a right to counsel—misfires. That right applies in criminal prosecutions. WilmerHale isn’t representing criminal defendants in this context, and the government has not banned the firm from appearing in court or representing clients. It limited physical access to facilities. That’s not ideal, but it’s not unconstitutional either, especially when exceptions can (and should) be written into the order.
Prisons, military bases, and intelligence installations—they all have protocols for legal access. The key isn’t unlimited access, but reasonable accommodation. That’s where the Executive erred—but it’s also where the court overstated the harm.
Separation of Powers: Not a Talking Point—A Guardrail
The Founders didn’t assume good behavior. They assumed ambition. That’s why they separated powers.
Judge Leon’s opinion sounds like a defense of liberty, and in part it is. But it also inches toward judicial supremacy. The judiciary can strike down unconstitutional acts. But it can’t dictate how the executive handles national security or rewrite policy with a bench order. That’s not review—that’s command.
In Federalist 78, Hamilton made clear: the judiciary would be the “least dangerous branch”—with neither sword nor purse. That holds true only when courts remember that judgment is their power, not policymaking.
A Better Path Forward
None of this means the Executive Order should stand as written. It shouldn’t. It needs to be rewritten with:
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Narrow targeting based on actual, articulable security concerns;
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Defined procedures for review and appeal;
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Carveouts for legal access to court proceedings;
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Clear implementation standards for agencies;
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A reminder that representation is not cause for suspicion.
That’s what lawful governance looks like—power exercised with restraint, and orders tailored to fit the Constitution.
Final Thought
We didn’t just watch a legal battle. We watched the limits of power tested—by both sides.
The Executive moved too fast. The Judiciary swung too wide. The law doesn’t live in that kind of overreach. It lives in the space between.
It’s not enough to defend your authority. You have to know where it ends.
🔗 Key Documents
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Executive Order 14250 – Addressing Risks From WilmerHale
Full Text (Federal Register) -
Judge Richard Leon’s Memorandum Opinion (TRO Granted)
PDF via Courthouse News -
Docket – WilmerHale v. Executive Office of the President
CourtListener
⚖️ Legal Citations
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Department of the Navy v. Egan, 484 U.S. 518 (1988)
Read on Justia -
Board of Regents v. Roth, 408 U.S. 564 (1972)
Read on Justia -
Marbury v. Madison, 5 U.S. 137 (1803)
Read on Justia