A weekend tweet provides a useful opportunity for articulating some nuance in understanding what federal courts can—and can't—do when reviewing the executive branch.
You can't tell me you didn't come to shill your daddy Trump, especially when you restacked some bullshit "Navigating the era of High Trumpism" claiming Trump has essentially won. You've made up your mind and chosen your side in history. I hope you realize it's the evil side.
When Trump got elected, one of the first questions I posed on other blogs was: will the federal courts apply to Trump the same rules they applied to Biden? Or will hypocrisy prevail? Certainly, hypocrisy dominates the discussions on X. X, however, is not real life.
I appreciate the general discussion but trying to parse Vance's tweets too closely is silly. He knows people are not going to read it with this level of nuance. Doesn't intend them to either.
The "right" way has failed us over and. over with Trump. He walks free, he freed violent criminals, he stole classified documents. SCOTUS says he can't be touched by the judicial branch. Perhaps it's time to be more aggressive about what exactly the "right" way is.
Actually, He freed “mostly peaceful” protestors, he didn’t steal any documents nor has he been indicted for doing so, SCOTUS said no such thing. Biden had more questionable documents in his garage. Biden had no respect for law - like when he allowed millions of illegals to flow in against the rule of law in the US. Now Doge is just uncovering a small portion of the hideous things Biden has been covering up and all the left can do is
Excellent summary of judicial power. However, I believe the intent is to cross the rubicon. We will find out in the next few days and weeks and should be prepared. The Vance tweet and others by the administration and its proxies is designed to test the public’s reaction to their planned unprecedented expansion of executive power.
How do you prepare for this? How do you respond to it? I feel as if we are watching our entire system of government being dismantled and doing nothing more than commenting on it.
Valerie - in short: 1) stay informed - read Timothy Snyder for ways to oppose autocracy, read how tyrants fall by Dirsus, read about what others have done historically - Havel and charter 77, read Applebaum and HCR; 2) stay connected with pro-democracy community, as you are; 3) attend lawful protests when your schedule permits - they are happening all over the nation but not reported by frequently by mainstream media; 4) write and call elected leaders - the impact of this is minimal but not trivial; there have been some surprising comments resulting from constituent push back; 5) don’t reflexively oppose all positions - only those that are important to you and threaten democracy. 6) don’t despair - remain hopeful and strong.
We very much need something like Charter 77 right now--some organized effort to push back. Thanks for the recommendations. One question, sorry, what or who is HCR?
Yes, this is an excellent review of judicial power to restrain exercises of discretion by executive branch officials. Of course, Article III generally vested such power in (and imposed such duty on) federal courts. Of course, former-Senator Vance's sweeping contentions were absurd-- especially for a former member of Congress.
Article I vested in Congress the power to make all laws that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Such power necessarily imposes the duty on Congress to determine what exercises of power actually are "necessary and proper." Of course such laws limit exercises of discretion, including by executive and judicial branch officers. Of course, Article III expressly vested in courts the power to adjudicate violations of limitations that Congress or our Constitution impose. In fact, courts restraining exercises of official discretion was a primary point of what we often call our Bill of Rights (the first 10 amendments to our Constitution). They were included in our Constitution precisely to restrain exercises of discretionary power by any public servant against the people.
However, it is dangerous to us and our Constitution to take the position that discussion of judicial conduct and power is illegitimate because such conduct is called "illegal." Of course, the conduct of judges--like the conduct of any other public servant--can be (and very often is) illegal. The Founders even anticipated that judicial conduct would be illegal. For that very reason, Article VI expressly emphasized that our "Constitution" and federal "Laws" that are "made in Pursuance" of our Constitution "and all Treaties" are "the supreme Law of the Land" and all 'Judges" everywhere are "bound thereby."
Hundreds of years of experience proves that many, many judicial actions are illegal. We even expect judicial actions to be illegal. That's why we have multiple levels of judicial review of judicial violations of law. Every successful appeal necessarily addresses illegal conduct by one or more judges. It is not healthy to presume or pretend otherwise. It is clearly contrary to the Declaration of Independence of 1776, the U.S. Constitution, federal law, copious U.S. Supreme Court precedent and common sense “to play make-believe and to assume that men in gowns are angels.” Pennekamp v. Florida, 328 U.S. 331, 359 (1946) (Frankfurter, J., concurring).
Violating our Constitution necessarily is the epitome of an illegal action. Any judge knowingly violating his or her oath (to support and defend our Constitution) is “worse than solemn mockery.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (Marshall, C.J.). Any judge “usurp[ing]” any power “not given” in the Constitution commits “treason to the Constitution.” United States v. Will, 449 U.S. 200, 216, n.19 (1980) (Burger, C.J.) quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.). Let's not pretend that just because a judge does something, it's not illegal or it shouldn't be called out as illegal.
If a District Court issues an TRO or a Preliminary injunction and the administration ignores it, what happens next? The Administration is more likely to obey the Supreme Court than a district court. But if the district court holds the Administration in contempt, and unlike the Shipp case described in this morning's newsletter, federal marshals refused to enforce the court's contempt process, how can the case get to the Supreme Court if the Administration ignores the ruling rather than appeals it? Can the Plaintiff's appeal if the they won in the District Court?
We should all worry about what happens when that Rubicon is crossed. But we should also be careful to not mistake inflammatory rhetoric and ambiguous tweets for Caesar’s legions fording the river.
Professor, I deeply appreciate your analysis of what Vance “said”. I missed the nuance and thought the worst. You’re really aiding those of us trying to make sense of these extraordinary times. Please keep doing what you’re doing.
So not true. The real facts are that both Marshall and Taney made no statement of compulsion to follow their orders in Worcester and Merryman, specifically, presumably because they knew that such a statement would get an explicit dismissal by Jackson and Lincoln, specifically. (As is, Merryman sat in jail for months, and the Lincoln administration ignored multiple other habeas writs or blocked them from being served, including via arrest of the person serving them.)
And, in a bit of what I see as petard-hoisting, Vladeck actually addressed what this shows is the real issue — the judicial branch knowing not to test the issue of actual powers vs theoretical ones — in his book. Off to write myself in more detail! https://www.goodreads.com/review/show/6389668406
Note: I'm sure Vladeck knows all I wrote in the first paragraph. If not, he should, including that Lincoln, AFTER the July 4 special session of Congress to boot, had at least one server arrested and at least one other blocked — which Congress had not addressed, merely the presidential power when it was not in session. And as, part of this, it's interesting that "Illegal" is in scare quotes in his statement: But the reality is that there is no history or tradition in this country of presidents ignoring judicial rulings on the ground that they are “illegal.”
Dancing on the head of a pin to some but sane washing JD’s challenge to the court for others. Is it possible JD is not being too cute or subtle as suggested and is out and out challenging the courts? Sometimes a banana is just a banana.
Sir, this is a Wendy's.
(And my grandparents were socialists, not communists.)
lol
This old lady learned a new meme! I assume Drew is not a paid subscriber ... unless he is a masochist or a troll.
You can't tell me you didn't come to shill your daddy Trump, especially when you restacked some bullshit "Navigating the era of High Trumpism" claiming Trump has essentially won. You've made up your mind and chosen your side in history. I hope you realize it's the evil side.
When Trump got elected, one of the first questions I posed on other blogs was: will the federal courts apply to Trump the same rules they applied to Biden? Or will hypocrisy prevail? Certainly, hypocrisy dominates the discussions on X. X, however, is not real life.
I appreciate the general discussion but trying to parse Vance's tweets too closely is silly. He knows people are not going to read it with this level of nuance. Doesn't intend them to either.
The "right" way has failed us over and. over with Trump. He walks free, he freed violent criminals, he stole classified documents. SCOTUS says he can't be touched by the judicial branch. Perhaps it's time to be more aggressive about what exactly the "right" way is.
Actually, He freed “mostly peaceful” protestors, he didn’t steal any documents nor has he been indicted for doing so, SCOTUS said no such thing. Biden had more questionable documents in his garage. Biden had no respect for law - like when he allowed millions of illegals to flow in against the rule of law in the US. Now Doge is just uncovering a small portion of the hideous things Biden has been covering up and all the left can do is
Complain that Musk wasn’t elected.
Excellent summary of judicial power. However, I believe the intent is to cross the rubicon. We will find out in the next few days and weeks and should be prepared. The Vance tweet and others by the administration and its proxies is designed to test the public’s reaction to their planned unprecedented expansion of executive power.
How do you prepare for this? How do you respond to it? I feel as if we are watching our entire system of government being dismantled and doing nothing more than commenting on it.
Yeah that's what everyone is doing now, they don't care about the government system
Valerie - in short: 1) stay informed - read Timothy Snyder for ways to oppose autocracy, read how tyrants fall by Dirsus, read about what others have done historically - Havel and charter 77, read Applebaum and HCR; 2) stay connected with pro-democracy community, as you are; 3) attend lawful protests when your schedule permits - they are happening all over the nation but not reported by frequently by mainstream media; 4) write and call elected leaders - the impact of this is minimal but not trivial; there have been some surprising comments resulting from constituent push back; 5) don’t reflexively oppose all positions - only those that are important to you and threaten democracy. 6) don’t despair - remain hopeful and strong.
We very much need something like Charter 77 right now--some organized effort to push back. Thanks for the recommendations. One question, sorry, what or who is HCR?
Heather Cox Richardson
ps, may I share this?
Yes, this is an excellent review of judicial power to restrain exercises of discretion by executive branch officials. Of course, Article III generally vested such power in (and imposed such duty on) federal courts. Of course, former-Senator Vance's sweeping contentions were absurd-- especially for a former member of Congress.
Article I vested in Congress the power to make all laws that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Such power necessarily imposes the duty on Congress to determine what exercises of power actually are "necessary and proper." Of course such laws limit exercises of discretion, including by executive and judicial branch officers. Of course, Article III expressly vested in courts the power to adjudicate violations of limitations that Congress or our Constitution impose. In fact, courts restraining exercises of official discretion was a primary point of what we often call our Bill of Rights (the first 10 amendments to our Constitution). They were included in our Constitution precisely to restrain exercises of discretionary power by any public servant against the people.
However, it is dangerous to us and our Constitution to take the position that discussion of judicial conduct and power is illegitimate because such conduct is called "illegal." Of course, the conduct of judges--like the conduct of any other public servant--can be (and very often is) illegal. The Founders even anticipated that judicial conduct would be illegal. For that very reason, Article VI expressly emphasized that our "Constitution" and federal "Laws" that are "made in Pursuance" of our Constitution "and all Treaties" are "the supreme Law of the Land" and all 'Judges" everywhere are "bound thereby."
Hundreds of years of experience proves that many, many judicial actions are illegal. We even expect judicial actions to be illegal. That's why we have multiple levels of judicial review of judicial violations of law. Every successful appeal necessarily addresses illegal conduct by one or more judges. It is not healthy to presume or pretend otherwise. It is clearly contrary to the Declaration of Independence of 1776, the U.S. Constitution, federal law, copious U.S. Supreme Court precedent and common sense “to play make-believe and to assume that men in gowns are angels.” Pennekamp v. Florida, 328 U.S. 331, 359 (1946) (Frankfurter, J., concurring).
Violating our Constitution necessarily is the epitome of an illegal action. Any judge knowingly violating his or her oath (to support and defend our Constitution) is “worse than solemn mockery.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (Marshall, C.J.). Any judge “usurp[ing]” any power “not given” in the Constitution commits “treason to the Constitution.” United States v. Will, 449 U.S. 200, 216, n.19 (1980) (Burger, C.J.) quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.). Let's not pretend that just because a judge does something, it's not illegal or it shouldn't be called out as illegal.
Not a lawyer but a subscriber to your Substack. Thank you for your most excellent analysis!
I am grateful for your clear analysis and insights on a very important topic.
If a District Court issues an TRO or a Preliminary injunction and the administration ignores it, what happens next? The Administration is more likely to obey the Supreme Court than a district court. But if the district court holds the Administration in contempt, and unlike the Shipp case described in this morning's newsletter, federal marshals refused to enforce the court's contempt process, how can the case get to the Supreme Court if the Administration ignores the ruling rather than appeals it? Can the Plaintiff's appeal if the they won in the District Court?
We should all worry about what happens when that Rubicon is crossed. But we should also be careful to not mistake inflammatory rhetoric and ambiguous tweets for Caesar’s legions fording the river.
I meant to put quotes around that key point.
Professor, I deeply appreciate your analysis of what Vance “said”. I missed the nuance and thought the worst. You’re really aiding those of us trying to make sense of these extraordinary times. Please keep doing what you’re doing.
I’m happily supporting your efforts.
So not true. The real facts are that both Marshall and Taney made no statement of compulsion to follow their orders in Worcester and Merryman, specifically, presumably because they knew that such a statement would get an explicit dismissal by Jackson and Lincoln, specifically. (As is, Merryman sat in jail for months, and the Lincoln administration ignored multiple other habeas writs or blocked them from being served, including via arrest of the person serving them.)
And, in a bit of what I see as petard-hoisting, Vladeck actually addressed what this shows is the real issue — the judicial branch knowing not to test the issue of actual powers vs theoretical ones — in his book. Off to write myself in more detail! https://www.goodreads.com/review/show/6389668406
Note: I'm sure Vladeck knows all I wrote in the first paragraph. If not, he should, including that Lincoln, AFTER the July 4 special session of Congress to boot, had at least one server arrested and at least one other blocked — which Congress had not addressed, merely the presidential power when it was not in session. And as, part of this, it's interesting that "Illegal" is in scare quotes in his statement: But the reality is that there is no history or tradition in this country of presidents ignoring judicial rulings on the ground that they are “illegal.”
Dancing on the head of a pin to some but sane washing JD’s challenge to the court for others. Is it possible JD is not being too cute or subtle as suggested and is out and out challenging the courts? Sometimes a banana is just a banana.
Thank you for the analysis. But it appears to not have aged well https://www.nytimes.com/2025/02/10/us/trump-unfreezing-federal-grants-judge-ruling.html
Bullshit. You should Know better than that with your Yale law degree. I hope they rescind it
Suzanne:
Could you clarify who your reply was directed to? I find the layout of these Q and A's confusing.
Curious about the claim that Jackson did not violate / ignore Worcester. I thought it was generally accepted that he did?
VANCE IS A MENACE