Since Marbury v. Madison, judicial review has been a bedrock principle of American constitutional jurisprudence. Some don’t care for it, given that it presents a limitation on the authority of the president to do whatever he pleases, and yet it has served this nation well. You would think a Yale Law grad would recognize this, even if it meant he had nothing to say in defense of his boss whose knowledge and grasp of law, governance and Constitution ranged from none to none. You would be wrong.
This is a very tricky twit by someone who has shed his hillbilly origins and, a la Ted Cruz, backed a pissant who would normalize hate toward Vance’s wife.
If a judge tried to tell a general how to conduct a military operation, that would be illegal.
As with most things legal, the correct answer is “it depends.” If the general’s conduct involved torture, was in violation of a treaty or lacked authority such as a general deciding on his own to bomb Paris, it would very likely be a proper exercise of judicial authority to “tell a general.” Even if not, it would not be illegal, meaning in violation of law, but ultra vires, meaning in excess of his authority.
If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.
This depends as well. If the exercise of discretion, a prosecutorial prerogative generally, was used in an unlawful fashion, say to prosecute or not based on race, a judge would most assuredly have a say in the attorney general’s exercise of discretion. Judges have a duty to assure compliance with the Constitution (even if that duty is observed mostly in the breach), so if the attorney general uses her authority in a manner that violates the Constitution, a judge has a role to play. To fashion it as a “command” is peculiar, just as call it illegal is the wrong word, but it’s unlikely that Vance’s followers will be troubled by his word choice.
Judges aren’t allowed to control the executive’s legitimate power.
And Vance finally gets to the point of his twit, that neither Judge Engelmayor nor any of the other judges enjoining President Musk’s actions are “allowed” to stop Trump from exercising his “legitimate” power. Vance’s inclusion of the word “legitimate” might seem to provide the necessary squishiness to salvage his otherwise nonsensical assertion. After all, if the exercise of power is legitimate, what possible basis could a judge have to control it?
The problem arises from the determination of what constitutes “legitimate” power and who gets to decide. That authority resides in the judiciary. Remember that old Marbury case, where President Andrew Jackson is reputed to have said, “Marshall has made his decision. Now let him enforce it”?*
When the issue before the court is whether the executive has the lawful authority to do something, it is very much in the judge’s control. That’s why they build courthouses. Perhaps the judge’s temporary restraining order will be vacated upon the hearing of the cause. Perhaps the executive will ultimately be vindicated, his authority approved whether by trial or appeal. Perhaps not.
But when a challenge is brought before a judge to the president’s, or his money-buddy’s, authority to take certain actions, the only constitutional response is defend and, should the executive lose, appeal. There is no constitutional option to defy the order of a court, no matter how much you disagree with it or how wrong you believe it to be, under our constitutional order.
Vance calling Musk’s burning down the house a “legitimate” exercise of executive power serves only one purpose, to inflame the groundlings who might be deluded by bad reasoning and inapt analogies, who would then brashly call for their beloved to pull an Andrew Jackson, but this time for real. After all, if it’s illegal, is there not a patriotic duty to fight against this illegality, much as there was a patriotic duty to fight against the stealing of an election four years ago?
*As corrected in the comments, this Jackson quote was to Worcester v. Georgia.
I found Liz Cheney’s assessment of Vance’s outburst especially apt, “If you believe any of the multiple federal courts that have ruled against you so far are exceeding their statutory or Constitutional authority, your recourse is to appeal. You don’t get to rage-quit the Republic just because you are losing. That’s tyranny.”
AdVance’s taking his lunacy to social media sez it all: Namely advertising to obtain the most eyeballs and clicks. Hundreds of thousands of clicks are no substitute for a clear-eyed judge doing his job.
Hey, we don’t particularly care for judges of any ilk. But they seem not to be giving away any time soon. We told RGK, “That judge is best who judges least.” We trust he appreciated our humorous insight from a commoner.
I don’t want to be a pedant, but as a former constitutional law professor . . . . Jackson’s (almost certainly apocryphal) response was to Worcester v. Georgia (1832), the Cherokee removal case. In Marbury (1803), Marshall famously scolded the Jefferson administration for Secretary of State Madison’s refusal to deliver Marbury’s commission, but then declined to order Madison to deliver it (by finding that the statute giving the Court jurisdiction was unconstitutional, solidifying judicial review) probably partially because he was worried that Madison might deny it.
[Ed. Note: You’re right. Thanks for correcting my error. I’ve noted my mistake in the post.]
On New Year’s Eve Supreme Court Chief Justice John Roberts warned that elected officials should not disregard the rulings made by the court.
The chief justice alluded to how in the past, southern states sought to disregard rulings on segregation.
“Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings,” Roberts wrote. “These dangerous suggestions, however sporadic, must be soundly rejected.”
It remains to be seen, however, what, if anything, can be done to prevent the current administration from ignoring the judiciary. It appears that Trump has a well thought out plan and has the support of all three branches.
Unfortunately, the Chief Justice neglected to say what the remedy would be to stop tyranny.
[Ed. Note: There is a reason why the judiciary is called “the least dangerous branch.”]
He takes up the mantle of such former greats as Dick Nixon, Spiro Agnew, Bill and Hillary Clinton, and Joe Biden. A lawyer who is actually any good at law doesn’t have to go into politics to put beans on the table.
I don’t mind that you trash my comments. Most of your commenters are hopelessly brainwashed, and my comments wouldn’t help them. I have hope for you, and it’s to you that my comments are directed. You’re not an idiot, and you seem to have some integrity. I’m hopeful that eventually the reality will become so obvious to you that you will no longer be able to pretend, not even to continue being invited to those nice dinner parties that tend to be hosted by hopelessly brainwashed individuals. I have hope that you will realize that almost everything you have believed throughout your life is a lie; that the NYT is a lying establishment mouthpiece, and that the establishment that you have believed and trusted is so incredibly corrupt that even a clumsy and reckless effort to reform it will do more good than harm, and that you will start to apply the same thoughtful analysis to political issues that you have always applied to legal issues.
At this point it’s obvious that Trump was for sale to the highest bidder, and he was purchased by Miriam Adelson. He is unapologetic about this; he routinely proclaims his loyalty to her, and to her pet cause, and his comments during the Super Bowl gaggle made that clearer than ever. This isn’t necessarily an indictment; every politician is owned by his donors, and Trump’s unique openness about his ownership is refreshing to me.
More importantly, Trump got something very valuable by selling out to donors. He got the power of the presidency, and while his #1 issue will obviously be profiting personally, while paying his debt to the donors who put him there (priorities that he shares with every politician), he is also using that power to root out corruption in unique, unprecedented and (based on the squawking from the worst swamp creatures) highly effective ways, and that’s a good thing.
I give you credit for tenacity, given that I trash about 90% of your comments. But I shouldn’t be the only one to appreciate your wisdom. This time.
Sometimes the rest of us need to be reminded of the heavy price of having a readable comments section.
I can’t imagine how insufferable you would be if you were woke.
I bet you host fantastic dinner parties!
From what I’ve read of cult deprogramming, challenging him won’t help at all. He already believes you and I are “hopelessly brainwashed”, so he’s already defended himself against any attack from us. He hates that he sometimes agrees with the Host, so he has to keep banging his head against a wall that he can’t even fathom.
All the same, I will forever relish, “I have hope that you will realize that almost everything you have believed throughout your life is a lie. . .” Such insanity is indeed too good to hide in the garbage bin.
PGP, reality is always here if you want to rejoin it. I wish you the best.
On X Mr. Musk amplified the implicit claim that Samantha Power engaged in financial malfeasance during her time at USAID. The claim referenced only the high end of her estimated net worth, not the low end, yet the span was threefold. It did not clarify whether the net worth was hers or hers and her husband’s money, and no evidence of wrongdoing was provided or has emerged since. If one is serious about rooting out corruption, one hires forensic accountants (not programmers); one does not drag someone else’s good name through the mud on the basis of charges that look baseless. Nor is this incident an isolated one, even regarding only USAID.
Man, I had “openly defying the courts” happening about 2-3 months in. Wasn’t expecting it at 3 weeks. Then again, Cheeto has spent the last 2.5 years telling the courts that the laws don’t apply to him, so i guess it shouldn’t be surprising that he’s moved into it quickly as President.
To be fair to the current administration, they haven’t refused to obey the courts yet (as far as I am aware). It’s just the Vice President stating that they are willing to do so.
I’m wondering how it will start. Will they start by blatantly refusing to follow court orders, such as when a court reaches a decision about something DOGE is defunding? Or will they start by defying rulings in smaller ways and work it up?