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.
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.
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.
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.
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.
So I think I read somewhere among the myriad of court cases against the Trump administration that there is a temporary restraining order to reverse the freezing of funds by DOGE that has indeed been violated and a judge has agreed this is the case. Is this not an example of refusing to obey the law?
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.”
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
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.
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.
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.
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.
So I think I read somewhere among the myriad of court cases against the Trump administration that there is a temporary restraining order to reverse the freezing of funds by DOGE that has indeed been violated and a judge has agreed this is the case. Is this not an example of refusing to obey the law?
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!
I wonder how well "Marbury v Madison" is trending on Google right now.
VANCE IS A MENACE
Curious about the claim that Jackson did not violate / ignore Worcester. I thought it was generally accepted that he did?
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.
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.”