123. What Vice President Vance Did—and Didn't—Say About Judicial Power

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.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Although the regular weekly issue dropped earlier this morning, I wanted to take a minute to briefly reflect upon Vice President Vance’s tweet over the weekend—which, for understandable reasons, has set off something of a firestorm about whether/when this administration may seek to openly defy a federal court order:

It seems to me that Vance’s tweet, given its timing, appears to be much more sinister than it is—since it’s coming in the midst of a series of very loud (and largely inaccurate) criticisms of exactly what a Manhattan federal judge actually ruled over the weekend in litigation over Elon Musk’s access to various Treasury Department information. (Vance didn’t help his cause by re-tweeting an even-more-aggressive version of this sentiment from Harvard law professor Adrian Vermeule, who was himself quote-tweeting an attack by Senator Tom Cotton against the Manhattan judge—who Cotton called an “outlaw.”) Sean Davis from The Federalist didn’t do anyone any favors with this tweet—which, among other things, leads me to wonder where he was the last four years.

The reality is that much of what Vance is saying, in context, is at least loosely accurate. We have long accepted that both the Constitution and many acts of Congress invest in the executive branch a wide range of discretion to set a lot of federal policy. Courts generally don’t have the authority to review exercises of that discretion; indeed, that’s the basic premise of the political question doctrine; the discretionary function exception to the Federal Tort Claims Act; and a fair amount of modern administrative law more generally. I’m not sure that I’d call a judicial decision wrongly invading that discretion “illegal,” since it’s not violating any specific law. But it would be, in my view, an abuse of judicial power—much like, in my view, the lower-court decisions that sustained Texas’s effort to use federal courts to control how the Biden administration set its immigration enforcement priorities (decisions, it should be noted, that the Supreme Court vacated).

What’s unspoken in Vance’s tweet is the well-established power of courts to police the limits of that discretion, i.e., to decide which exercises of power by the executive branch are, in fact, “legitimate.” Thus, there are examples of courts interfering in military operations—granting habeas petitions to individuals in military custody; blocking military commission prosecutions; and even, during the Biden administration, blocking the military’s COVID vaccination mandate as applied to certain active-duty troops. There’s even a single example of a federal judge blocking an active military operation—Judge Judd’s July 1973 injunction against President Nixon’s bombing of Cambodia, the litigation over which provided the opening vignette for The Shadow Docket. That ruling might have been wrong; it certainly wasn’t “illegal.”

Indeed, we can debate ‘til the cows come home whether each of these decisions were right or wrong on the law; but they all fell under the guise of enforcing constitutional or statutory limits that apply to—and can be judicially enforced against—the executive branch. One can say the same about the power of courts to block criminal prosecutions on the ground that they are unconstitutionally selective (a claim that President Trump himself advanced in the Mar-a-Lago classified documents case). By asserting that “judges aren’t allowed to control the executive’s legitimate power,” Vance assumed away the central issue in almost all of the pending cases against the Trump administration—whether these assertions of executive power are legitimate insofar as they conflict with statutes imposing a number of unambiguous mandates. Courts get to answer that question—just as they always have.

I suspect Vance is smart enough to know exactly what he was—and wasn’t—saying. But a lot of his supporters may have missed the nuance. After all, calling a judicial decision “illegal” certainly sounds like a basis for refusing to abide by it—especially if one believes, as Vermeule suggested in his tweet, that such rulings are “a violation of the separation of powers.” The proper remedy, of course, is to appeal a decision you believe is wrong. And if the Supreme Court, the federal court of last resort, reaches the “wrong” decision, there are legal ways to seek to overturn it; refusing to follow it isn’t one of them.

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.” The Andrew Jackson quote about Chief Justice Marshall that is so often invoked is not just apocryphal; there was no actual defiance of the Supreme Court’s ruling in Worcester v. Georgia. Likewise, President Lincoln didn’t dispute Chief Justice Taney’s authority to issue a writ of habeas corpus in Ex parte Merryman; he just thought Taney was wrong that Lincoln’s suspension of the writ had been unlawful—an argument Lincoln took to Congress when it next assembled.

And for as much as a certain crowd insists that President Biden defied the Supreme Court on student loans, he didn’t—his confusing public remarks to the contrary notwithstanding. Losing in the Supreme Court on one legal theory (that the program was authorized by the HEROES Act), and attempting to achieve a comparable policy outcome through a different legal theory (that a different version of the program could be tied to the SAVE Act), isn’t defying … anything (indeed, changing the legal arguments is exactly what Trump did with the travel ban during his first administration—the third iteration of which was ultimately upheld by the Supreme Court).

Nor, at any point, did President Biden, Vice President Harris, or anyone else in the administration even insinuate that it would not abide by an adverse court ruling in one of those cases—or that a ruling against the administration would be “illegal.” (Ironically, the only public figure who suggested that the Biden administration would defy an adverse court ruling was Justice Alito—who advanced such a claim, without any support, in the mifepristone case.) My own view, as I wrote in this newsletter, is that the Supreme Court’s standing holding in the first student loan case, Biden v. Nebraska, was “lawless” (a term I did not, and do not, use lightly). But I also believe that it was nevertheless binding in all of the relevant respects.

This may seem like dancing on the head of a pin, but, in my view, it’s a really important pin. The point is not that courts have limitless power; anyone who has read prior issues of this newsletter will know that’s not my view. But to summarize a whole lot of writing in a few sentences, courts are limited both directly by the statutes Congress enacts that confer (and limit) their jurisdiction, and indirectly by the political and legal checks on their authority—again, as enforced primarily by Congress. Those checks are meant to keep the courts from abusing their formidable authority—so that the rulings they hand down, right or wrong, are broadly consistent with our understanding of judicial power.

But our constitutional system has long been predicated on the idea that there is a right way and a wrong way to challenge judicial decisions with which we disagree—even in cases in which we think courts have arrogated power. This isn’t the only understanding of judicial review in the United States, of course; but it is mine—and, more importantly, the view under which all three branches of the federal government have labored for … a very long time.

Vance may have walked right up to that line in his tweeting over the weekend; and the federal government may be slow-walking its compliance with Judge McConnell’s rulings in the Rhode Island spending freeze case and elsewhere. The reality, though, is that no one in the executive branch has yet called for, or appears to be engaged in, outright defiance of a federal court order. 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.

---

Thanks for reading this special, out-of-sequence issue of “One First.” If you’ve enjoyed it, I hope you’ll consider subscribing for our regular coverage—including Monday’s free issue and Thursday’s bonus content for paid subscribers:

Have a great week, all!