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.
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.
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?
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.
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.
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.
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
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.
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.
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?
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 don’t believe the rubicon is being crossed any more now than it was when Biden “obeyed” the courts ruling. The current administration has done nothing to expand educative power. In fact, almost every move is to make the government smaller, which by its nature reduces the power of the executive branch.
If the “military operation” was, say, the hunting down and killing of every [fill in the disfavored minority of the day, say trans people] in country X, a federal judge could not enjoin that? You bet she can.
As to directing a prosecutor’s discretion, isn’t that what federal judges do every day when they consider a defendant’s motion to dismiss? By granting the motion, isn’t the court telling the U.S. attorney, “you abused your discretion”?
I respectfully submit that a better example of a President declaring the action of judges (and juries and legislators) illegal was highlighted by a unanimous SCOTUS in New York Times Co. v. Sullivan, 376 U.S. 254 (1964):
"Jefferson, as President, pardoned those who had been convicted and sentenced under the [Sedition Act of 1798] and remitted their fines, stating: ‘I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.’ "
James Madison (whom many rightly considered the Father of our Constitution and who obviously later became president) and the Virginia Assembly (in the Virginia Resolutions of 1798) decried federal judicial abuses of power when they invoked the Sedition Act of 1798. Judges’ usurpations were “deliberate” and “dangerous,” demonstrated “reproachful inconsistency” and “criminal degeneracy,” and “subvert[ed]” the “principles of free government” and many “provisions of” our “Constitution.” See https://founders.archives.gov/documents/Madison/01-17-02-0128.
One of the foremost villains about whom Madison and the Virginia Assembly were speaking was SCOTUS Justice Samuel Chase. When Jefferson was president, Justice Chase was impeached by the House, and the Senate nearly convicted him and removed him from office.
Not a lawyer but a subscriber to your Substack. Thank you for your most excellent analysis!
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.
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?
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
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.
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.
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.
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.
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.
If an egghead tried to pretend they were VP of a great nation, this is what you’d get. He’s a hillwilliam if I ever saw one!
VANCE IS A MENACE
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
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?
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 don’t believe the rubicon is being crossed any more now than it was when Biden “obeyed” the courts ruling. The current administration has done nothing to expand educative power. In fact, almost every move is to make the government smaller, which by its nature reduces the power of the executive branch.
If the “military operation” was, say, the hunting down and killing of every [fill in the disfavored minority of the day, say trans people] in country X, a federal judge could not enjoin that? You bet she can.
As to directing a prosecutor’s discretion, isn’t that what federal judges do every day when they consider a defendant’s motion to dismiss? By granting the motion, isn’t the court telling the U.S. attorney, “you abused your discretion”?
He obviously doesn’t understand the law. Maybe Yale could rescind his law degree.
I respectfully submit that a better example of a President declaring the action of judges (and juries and legislators) illegal was highlighted by a unanimous SCOTUS in New York Times Co. v. Sullivan, 376 U.S. 254 (1964):
"Jefferson, as President, pardoned those who had been convicted and sentenced under the [Sedition Act of 1798] and remitted their fines, stating: ‘I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.’ "
James Madison (whom many rightly considered the Father of our Constitution and who obviously later became president) and the Virginia Assembly (in the Virginia Resolutions of 1798) decried federal judicial abuses of power when they invoked the Sedition Act of 1798. Judges’ usurpations were “deliberate” and “dangerous,” demonstrated “reproachful inconsistency” and “criminal degeneracy,” and “subvert[ed]” the “principles of free government” and many “provisions of” our “Constitution.” See https://founders.archives.gov/documents/Madison/01-17-02-0128.
One of the foremost villains about whom Madison and the Virginia Assembly were speaking was SCOTUS Justice Samuel Chase. When Jefferson was president, Justice Chase was impeached by the House, and the Senate nearly convicted him and removed him from office.
This is a much better lucid explanation thank you @Bill Maher