In response to adverse judicial rulings, the President's advisers and supporters are claiming courts lack the power to halt domestic use of the military. A critical early precedent is to the contrary.
When Trump's use of the military on domestic soil is ruled on by the Supreme Court, I have no doubt that the court's originalists will be blinded by their own biases and somehow miss the original thoughts of the Founders. Thank you for this education!
You seem a bit apologetic for the only position that makes sense. If the judiciary is powerless to stop a rogue executive from slaughtering American citizens, there is no such thing as a balance of power, there is only power. We're then a nation of brute force and not of laws. Entertaining that conclusion as legally sound is batshit lunacy.
"Thought of Justice—As if Justice could be anything but the same ample law, expounded by natural judges and saviors,
As if it might be this thing or that thing, according to decisions." -- Walt Whitman
The Supreme Court majority seems to be intentionally losing itself in a thicket of technical decisions so as to keep the overarching principles of justice that shine above it out of sight.
Thanks for this bit of history I've been looking for places where originalism will bite the justices in the butt. This chomp does not seem to bother them much; they just switch to unitary executive theory which seems to be about as "unoriginalist" as you can get.
We are in a weird situation with ICE behavior, where the ones who who are opposing the execution of the laws of the US are ICE goons themselves. Can the governor of a State call out the national guard to whop ICE agents who are refusing to follow the laws, much less the spirit behind the laws?
How will the Extremes respond when faces with the fact that protests are peaceful UNITL ICE starts lobbing tear gas and fizz bangs and "non lethal missiles" at the protestors. I keep wondering when self defense starts being recognized. One that comes to mind is indeed in Portland, in JUNE, where one protestor is accused of assaulting ICE officers WITH a smoke bomb. Where did he GET the smoke bomb? It has to have been lobbed AT HIM.
But I can easily see this court simply twisting the facts to suit, as they did in the Bremerton Coach case, where Gorsuch states that the coach "offered his prayers quietly while his students were otherwise occupied" when the dissent included PICTURES of the scrum in mid field of the whole team bowed in prayer.
I applaud the judges who meticulously after testimony make detailed findings of fact. It scares me that this Extreme Court will find all those facts to be "clearly erroneous" simply because they don't want to believe them.
The Trump method of defending its actions is to throw as much legal shit against the wall and see what sticks. In this case, I'm guessing John Sauer, Trump's SG, will argue Congress' 1795 repeal of the ex ante judicial review requirement supports their argument that the courts have no jurisdiction over the matter while the President has the full power and authority under (a compliant) Congress to exercise this authority.
The immediate question, however, is whether the Supreme Court, on emergency appeal, will stay the lower courts' TRO/injunctions (as is their MO) and chastise the lower courts for exceeding their authority because ONLY this Extreme Court can divine what is "a great level of deference to the Presidential determination" (tethered to fact or not); whether protests against the Federal or red states governments (especially with flashlights) are now considered forms of "rebellion"; or, if posting videos/photos of protests are forms of *creating* "a danger of a rebellion."
In the event the Extreme Court does issue a Shadow Docket stay in favor of the Trump regime (as is their MO), Trump's order will be considered constitutional until the matter meanders its way back to the High Court several years from now. In the meantime, the armed forces will be hard pressed to oppose Trumps' order - it will be *temporarily* constitutional. The result: we may have federal troops, including the 82nd Airborne, deployed to every major city in the Blue states.
Thanks for the history, Prof. Vladeck. I know it's not supposed to matter and Chief Justice John Roberts insists it doesn't, but Judge Karin Immergut was appointed by Trump during his first term. That fact should at least limit MAGA criticism of her ruling as partisan, although it never seems to stop Trump.
It's great to see originalists beaten at their own game. Thanks for the historical information.
But how do the president's advisors deal with the Posse Comitatus Act? Are they claiming that the act is unconstitutional; or that the president alone can determine when its exceptions apply and his determination is not reviewable by the courts? Is there a third possible claim I'm not aware of?
Here is the problem I am having. Congress sets forth a statute granting certain powers to the President. The argument emanating from the Executive branch is that the courts have no ability to review the exercise of that power - a power granted by Congress. The idea that the courts have no ability to interpret the executive's use of a power granted by Congress is absurd on its face. That is what courts do. I think the question lurking beneath the executive's argument is: would the President have this power in the absence of a statute? If the answer is yes, then the statute has nothing to do with this, and the default becomes the unitary executive theory; if the answer is no, then the courts have the power to review the statute.
It isn’t the constitutional argument, though that’s cleanly made, carefully sourced, and sound.
It’s the quiet astonishment that, after two centuries, we’re still forced to *prove* that power must answer to law.
The Founders, for all their flaws and contradictions, feared the unchecked hand. They built a country out of suspicion, suspicion of kings, of standing armies, of men who thought themselves ordained rather than elected. And now here we are, replaying their anxieties in real time, watching a President turn soldiers inward, against the very soil that birthed them.
When Steve says there’s “no Founding-era aversion to a robust judicial role,” what I hear is this: the architects of this republic *expected* judges to stand in the breach when the executive lost its mind. They wrote it that way because they’d lived through the madness of monarchs. The irony is unbearable, the same people today who claim to worship “original intent” are the first to trample it when it obstructs their will.
But the deeper question isn’t just legal; it’s moral. What kind of country needs to debate whether its leader can unleash troops on its own citizens? What kind of citizenry grows numb to the sound of boots on its own streets?
Law can restrain a man’s hand, but only conscience can restrain his ambition.
And conscience, in this country, has grown perilously quiet.
Still ... it’s heartening that some are still fighting the good, tedious fight of reason and record. Because tyranny doesn’t always come roaring; sometimes it comes with citations. And every voice that remembers what the law is for, not just what it can do, keeps the fabric from burning entirely.
So yes, this piece is necessary. Not because it argues brilliantly (it does), but because it insists, almost pleadingly, that we remember: courts aren’t obstacles to power. They are the last proof that the nation still has a soul.
What about this, from Martin v. Mott? "The authority to decide whether the exigencies contemplated in the Constitution of the United States and the Act of Congress of 1795, ch. 101, in which the President has authority to call forth the militia, 'to execute the laws of the union, suppress insurrections, and repel invasions' have arisen is exclusively vested in the President, and his decision is conclusive upon all other persons."
The fundamental mistake being made by supporters of Trump or any other excessively enthusiastic executive is that they ignore or fail to consider the most obviously controlling text of our Constitution. One of the most obvious and important truths about the rule of law in the U.S. is the rule that Congress's duty is to make the law, the president's duty is to execute laws, and the judiciary's duty is to construe laws. Any law that the president can execute the judiciary can construe.
In The Federalist No. 51, Madison emphasized, “In republican government, the legislative authority necessarily predominates.” The most obvious “legislative authority” is Congress. That is true as far as it goes. As the Necessary and Proper Clause established, Congress predominates over the executive and judicial branches by having the power and duty to make all laws that are necessary and proper for governing the powers of the executive and judicial branches: Congress has the power and the duty "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" (including the president). But our Constitution established that the people (who "ordained and established" our Constitution) are the supreme legislative authority and sovereign.
James Wilson was the only person who signed both the Declaration of Independence and the Constitution and served on SCOTUS. He was responsible for starting our Constitution with its most profound and important words "We the People." Later, Justice Wilson wrote some of the most important, insightful words in any SCOTUS opinion. Justice Wilson succinctly explained and proved the great power of the Preamble. He emphasized that the most important word relevant to our Constitution wasn't even written into our Constitution. It was merely implied.
The heart and soul of our Constitution is only implicit in its text and structure: “the term SOVEREIGN” is not used in our “Constitution.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 454 (1793) (Opinion of Wilson, J.). But the Preamble is the “one place where it could have been used with propriety.” Id. Only those “who ordained and established” our “Constitution” could “have announced themselves ‘SOVEREIGN’ people of the United States.” Id.
The first and foremost separation of powers in our Constitution is between the sovereign people and all public servants. So “The PEOPLE of the United States” are “the first personages introduced.” Id. at 463. After introducing the sovereign (the people), the text and structure of Articles I, II and III further emphasized the people’s sovereignty. They introduced our directly-elected representatives (Congress), then, our indirectly-elected representative (the president), and, last, our unelected representatives (judges). The people “vested” only limited powers in public servants in and under “Congress” (U.S. Const. Art. I, §1), the “President” (Art. II, §1) and the “supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish” (Art. III, §1).
Judges not only may construe the relevant law, they must do so. As Article VI emphasizes, the first, foremost and constant duty of every legislator and "all executive and judicial Officers" (state and federal) is "to support" our "Constitution" in everything they do. As Article II more particularly emphasizes, the president's first, foremost and constant duty is to "preserve, protect and defend the Constitution of the United States" to "the best of" his "Ability." Regarding Trump's domestic use of U.S. Armed Forces or state national guard against U.S. cities, federal judges are at least as qualified as Trump to determine whether Trump is violating his oath or fulfilling it.
In Gundy v. United States, 588 U.S. 128 (2019), Justice Gorsuch (joined by Chief Justice Roberts and Justice Thomas) published a dissenting opinion that emphasized the following about the separation of powers between the sovereign people and all public servants and among the three departments of government.
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President [the power and duty to 'take Care that the Laws be faithfully executed']. And in Article III, it gave independent judges the task of applying the laws to cases and controversies."
"Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power" to restrict "the people’s liberty." "Other purposes animated the framers’ design as well." They knew well that "men are not angels and majorities can threaten minority rights," so they designed our Constitution "to guard unpopular minorities from the tyranny of the majority." Contrary to much recent conduct by SCOTUS justices (often anonymously purporting to protect and empower a president who is usurping tyrannical powers), our "Constitution sought to ensure that the lines of accountability would be clear: The sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow."
"The framers warned us against permitting consequences like these. As Madison explained, '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’ The framers knew, too, that the job of keeping the legislative power confined to the legislative branch couldn’t be trusted to self-policing by Congress; often enough, legislators will face rational incentives to pass problems to the executive branch. Besides, enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
When Trump's use of the military on domestic soil is ruled on by the Supreme Court, I have no doubt that the court's originalists will be blinded by their own biases and somehow miss the original thoughts of the Founders. Thank you for this education!
Excellent and very timely historical reference. Thanks
You seem a bit apologetic for the only position that makes sense. If the judiciary is powerless to stop a rogue executive from slaughtering American citizens, there is no such thing as a balance of power, there is only power. We're then a nation of brute force and not of laws. Entertaining that conclusion as legally sound is batshit lunacy.
"Thought of Justice—As if Justice could be anything but the same ample law, expounded by natural judges and saviors,
As if it might be this thing or that thing, according to decisions." -- Walt Whitman
The Supreme Court majority seems to be intentionally losing itself in a thicket of technical decisions so as to keep the overarching principles of justice that shine above it out of sight.
Thanks for this bit of history I've been looking for places where originalism will bite the justices in the butt. This chomp does not seem to bother them much; they just switch to unitary executive theory which seems to be about as "unoriginalist" as you can get.
We are in a weird situation with ICE behavior, where the ones who who are opposing the execution of the laws of the US are ICE goons themselves. Can the governor of a State call out the national guard to whop ICE agents who are refusing to follow the laws, much less the spirit behind the laws?
How will the Extremes respond when faces with the fact that protests are peaceful UNITL ICE starts lobbing tear gas and fizz bangs and "non lethal missiles" at the protestors. I keep wondering when self defense starts being recognized. One that comes to mind is indeed in Portland, in JUNE, where one protestor is accused of assaulting ICE officers WITH a smoke bomb. Where did he GET the smoke bomb? It has to have been lobbed AT HIM.
But I can easily see this court simply twisting the facts to suit, as they did in the Bremerton Coach case, where Gorsuch states that the coach "offered his prayers quietly while his students were otherwise occupied" when the dissent included PICTURES of the scrum in mid field of the whole team bowed in prayer.
I applaud the judges who meticulously after testimony make detailed findings of fact. It scares me that this Extreme Court will find all those facts to be "clearly erroneous" simply because they don't want to believe them.
You are amazing! Thank you. You stay safe! We need you!
The Trump method of defending its actions is to throw as much legal shit against the wall and see what sticks. In this case, I'm guessing John Sauer, Trump's SG, will argue Congress' 1795 repeal of the ex ante judicial review requirement supports their argument that the courts have no jurisdiction over the matter while the President has the full power and authority under (a compliant) Congress to exercise this authority.
The immediate question, however, is whether the Supreme Court, on emergency appeal, will stay the lower courts' TRO/injunctions (as is their MO) and chastise the lower courts for exceeding their authority because ONLY this Extreme Court can divine what is "a great level of deference to the Presidential determination" (tethered to fact or not); whether protests against the Federal or red states governments (especially with flashlights) are now considered forms of "rebellion"; or, if posting videos/photos of protests are forms of *creating* "a danger of a rebellion."
In the event the Extreme Court does issue a Shadow Docket stay in favor of the Trump regime (as is their MO), Trump's order will be considered constitutional until the matter meanders its way back to the High Court several years from now. In the meantime, the armed forces will be hard pressed to oppose Trumps' order - it will be *temporarily* constitutional. The result: we may have federal troops, including the 82nd Airborne, deployed to every major city in the Blue states.
We are reaching another inflection point.
Hoping the Supremes read your Substack. Do you think they do?
Thanks for the history, Prof. Vladeck. I know it's not supposed to matter and Chief Justice John Roberts insists it doesn't, but Judge Karin Immergut was appointed by Trump during his first term. That fact should at least limit MAGA criticism of her ruling as partisan, although it never seems to stop Trump.
"Stay safe out there, all" is sadly the most poignant part of this excellent analysis.
To each person who accesses this piece: Please forward it to at least 10 others. The time is coming and we must be prepared in resistance.
It's great to see originalists beaten at their own game. Thanks for the historical information.
But how do the president's advisors deal with the Posse Comitatus Act? Are they claiming that the act is unconstitutional; or that the president alone can determine when its exceptions apply and his determination is not reviewable by the courts? Is there a third possible claim I'm not aware of?
Here is the problem I am having. Congress sets forth a statute granting certain powers to the President. The argument emanating from the Executive branch is that the courts have no ability to review the exercise of that power - a power granted by Congress. The idea that the courts have no ability to interpret the executive's use of a power granted by Congress is absurd on its face. That is what courts do. I think the question lurking beneath the executive's argument is: would the President have this power in the absence of a statute? If the answer is yes, then the statute has nothing to do with this, and the default becomes the unitary executive theory; if the answer is no, then the courts have the power to review the statute.
Jan 6th taught We Peasants how our laws are meaningless to power.
You know what chills me most in this piece?
It isn’t the constitutional argument, though that’s cleanly made, carefully sourced, and sound.
It’s the quiet astonishment that, after two centuries, we’re still forced to *prove* that power must answer to law.
The Founders, for all their flaws and contradictions, feared the unchecked hand. They built a country out of suspicion, suspicion of kings, of standing armies, of men who thought themselves ordained rather than elected. And now here we are, replaying their anxieties in real time, watching a President turn soldiers inward, against the very soil that birthed them.
When Steve says there’s “no Founding-era aversion to a robust judicial role,” what I hear is this: the architects of this republic *expected* judges to stand in the breach when the executive lost its mind. They wrote it that way because they’d lived through the madness of monarchs. The irony is unbearable, the same people today who claim to worship “original intent” are the first to trample it when it obstructs their will.
But the deeper question isn’t just legal; it’s moral. What kind of country needs to debate whether its leader can unleash troops on its own citizens? What kind of citizenry grows numb to the sound of boots on its own streets?
Law can restrain a man’s hand, but only conscience can restrain his ambition.
And conscience, in this country, has grown perilously quiet.
Still ... it’s heartening that some are still fighting the good, tedious fight of reason and record. Because tyranny doesn’t always come roaring; sometimes it comes with citations. And every voice that remembers what the law is for, not just what it can do, keeps the fabric from burning entirely.
So yes, this piece is necessary. Not because it argues brilliantly (it does), but because it insists, almost pleadingly, that we remember: courts aren’t obstacles to power. They are the last proof that the nation still has a soul.
What about this, from Martin v. Mott? "The authority to decide whether the exigencies contemplated in the Constitution of the United States and the Act of Congress of 1795, ch. 101, in which the President has authority to call forth the militia, 'to execute the laws of the union, suppress insurrections, and repel invasions' have arisen is exclusively vested in the President, and his decision is conclusive upon all other persons."
The fundamental mistake being made by supporters of Trump or any other excessively enthusiastic executive is that they ignore or fail to consider the most obviously controlling text of our Constitution. One of the most obvious and important truths about the rule of law in the U.S. is the rule that Congress's duty is to make the law, the president's duty is to execute laws, and the judiciary's duty is to construe laws. Any law that the president can execute the judiciary can construe.
In The Federalist No. 51, Madison emphasized, “In republican government, the legislative authority necessarily predominates.” The most obvious “legislative authority” is Congress. That is true as far as it goes. As the Necessary and Proper Clause established, Congress predominates over the executive and judicial branches by having the power and duty to make all laws that are necessary and proper for governing the powers of the executive and judicial branches: Congress has the power and the duty "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" (including the president). But our Constitution established that the people (who "ordained and established" our Constitution) are the supreme legislative authority and sovereign.
James Wilson was the only person who signed both the Declaration of Independence and the Constitution and served on SCOTUS. He was responsible for starting our Constitution with its most profound and important words "We the People." Later, Justice Wilson wrote some of the most important, insightful words in any SCOTUS opinion. Justice Wilson succinctly explained and proved the great power of the Preamble. He emphasized that the most important word relevant to our Constitution wasn't even written into our Constitution. It was merely implied.
The heart and soul of our Constitution is only implicit in its text and structure: “the term SOVEREIGN” is not used in our “Constitution.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 454 (1793) (Opinion of Wilson, J.). But the Preamble is the “one place where it could have been used with propriety.” Id. Only those “who ordained and established” our “Constitution” could “have announced themselves ‘SOVEREIGN’ people of the United States.” Id.
The first and foremost separation of powers in our Constitution is between the sovereign people and all public servants. So “The PEOPLE of the United States” are “the first personages introduced.” Id. at 463. After introducing the sovereign (the people), the text and structure of Articles I, II and III further emphasized the people’s sovereignty. They introduced our directly-elected representatives (Congress), then, our indirectly-elected representative (the president), and, last, our unelected representatives (judges). The people “vested” only limited powers in public servants in and under “Congress” (U.S. Const. Art. I, §1), the “President” (Art. II, §1) and the “supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish” (Art. III, §1).
Judges not only may construe the relevant law, they must do so. As Article VI emphasizes, the first, foremost and constant duty of every legislator and "all executive and judicial Officers" (state and federal) is "to support" our "Constitution" in everything they do. As Article II more particularly emphasizes, the president's first, foremost and constant duty is to "preserve, protect and defend the Constitution of the United States" to "the best of" his "Ability." Regarding Trump's domestic use of U.S. Armed Forces or state national guard against U.S. cities, federal judges are at least as qualified as Trump to determine whether Trump is violating his oath or fulfilling it.
In Gundy v. United States, 588 U.S. 128 (2019), Justice Gorsuch (joined by Chief Justice Roberts and Justice Thomas) published a dissenting opinion that emphasized the following about the separation of powers between the sovereign people and all public servants and among the three departments of government.
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President [the power and duty to 'take Care that the Laws be faithfully executed']. And in Article III, it gave independent judges the task of applying the laws to cases and controversies."
"Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power" to restrict "the people’s liberty." "Other purposes animated the framers’ design as well." They knew well that "men are not angels and majorities can threaten minority rights," so they designed our Constitution "to guard unpopular minorities from the tyranny of the majority." Contrary to much recent conduct by SCOTUS justices (often anonymously purporting to protect and empower a president who is usurping tyrannical powers), our "Constitution sought to ensure that the lines of accountability would be clear: The sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow."
"The framers warned us against permitting consequences like these. As Madison explained, '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’ The framers knew, too, that the job of keeping the legislative power confined to the legislative branch couldn’t be trusted to self-policing by Congress; often enough, legislators will face rational incentives to pass problems to the executive branch. Besides, enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”