Phase 2: An authoritarian MAGA attack on separation of powers

CONTEXT

Item 1:

There are at least two possibilities here: Vance is just blowing off steam, or he is

signaling a plan by the administration to take the step of defying federal 

court orders, creating a constitutional crisis

Item 2: The Hill reports that some federal judges have temporarily blocked some of DJT’s executive orders (EOs). Dozens of lawsuits have been filed that challenge the EOs. Musk called for impeaching the federal judge who decided the Treasury Department should not allow anyone other than civil servants to have access to the federal payment system. He posted several times online, calling the judge corrupt and saying he “needs to be impeached NOW.” Musk repeated and expanded his threat online, saying that “it’s time” to impeach judges who rule against DJT.

  

The authoritarian threat

Here, both Vance and Musk are openly and unquestionably attacking the separation of powers. DJT and MAGA elites want to obliterate federal court jurisdiction to review and restrain certain presidential powers. That is the clear goal. By attacking and denying the kinds of actions that federal courts have power to review, DJT and MAGA elites seek to vastly expand presidential power by taking power from federal courts. In normal times with a normal GOP and generally pro-democracy politics, this would be an ongoing but relatively tame problem.

A major problem here, as is often or usually the case, there is significant ambiguity in the law. Not surprisingly, the problem is that what is considered to be off-limits to federal review and what isn't is bitterly contested. Another major problem is the unprincipled nature of the current authoritarian, radical right USSC. Long standing court decisions and mainstream constitutional interpretation has found that some presidential actions are off limits for federal court review. This USSC shows little respect for precedent or legal principle. Instead, the rule of law for this court is a means to an end, not a fair system that applies equally to everyone.

The Constitution vests the President with some inherent powers, such as the authority to execute the nation's laws, command the military, and conduct foreign affairs. These powers are often seen as beyond the direct control of the federal judiciary, particularly when they involve national security or foreign policy decisions. Also, there is the Executive Privilege doctrine that allows a president to withhold information from the public, Congress, and the courts. This is not explicitly mentioned in the Constitution, but it is generally recognized as an inherent executive power. The big power in play right now is the president's authority to remove executive officials is another area where judicial review is limited. Congress can impose some restrictions on firing of federal employees, but the Supreme Court has upheld the a president's power to remove employees at will, particularly for principal officers, as part of the executive power. That is what DJT's Schedule F is all about, i.e., firing thousands of federal employees or any reason or no reason at all. Other explicitly stated constitutional powers are the power of a president to veto legislation, appoint and remove executive officers, make treaties, grant reprieves and pardons, convene or adjourn congress, receive ambassadors, issue executive orders, and a few other things. The big ones in play now are issuing EOs and firing federal employees.

On top of all of that, there is the July 1, 2024 Trump v US USSC decision that presidents have (i) absolute immunity for acts committed as president within their core constitutional purview (whatever that means), and (ii) at least presumptive immunity for official acts within the outer perimeter of their official responsibility (whatever that means). Neither core constitutional purview nor the outer perimeter of their official responsibility are clearly defined. Precedent, which is fragile, defines core power, but the outer perimeter of official responsibility is as clear as mud. That decision is solid evidence of the authoritarian sympathies of this USSC.

 
Long, complex story short: The exact scope of executive power that is beyond the reach of federal courts is not well-defined. It is a subject of intense debate. Scholars and jurists differ on how broadly or narrowly to interpret the President's inherent powers. There are major concerns that DJT's actions, particularly his executive orders and the statements from his administration, are an authoritarian attack on our constitutional separation of powers. DJT is challenging the judiciary's authority to review and potentially block some of his executive actions.

Before this gets to be TL/DR, end of post

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For wonks:

A legal analysis on JD Vance saying DJT can ignore the courts:

The relevant language from the 1803 Marbury v. Madison decision is as follows:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive . . . The acts of such an officer, as an officer, can never be examinable by the Courts.

But when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others.

The conclusion from this reasoning is that, where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.”

In short, what Marshall says is the following:

• If the power is discretionary or political in nature (for example, the pardon power or the prosecutorial power), then the courts cannot examine it. A similar principle is expressed in Trump v. United States.

• But if the power is prescribed by law (such as Congress authorizing spending or saying that an action must be taken), then courts can order it to be taken. Another way of expressing such a power is characterizing it as “ministerial” power. The executive actor is nothing more than a messenger in that act, and the executive discretion does not control their actions there.

While Marbury only extends to the Heads of Departments in its analysis, NTEU v. Nixon (DC Circuit) extended this to the President as well. As far as I’m aware, the Supreme Court has never explicitly addressed this question.

Vance seems to be arguing, in effect, that either the President is exempt from court orders on ministerial acts (the narrow interpretation of his statement), or that no such ministerial acts exist and that the courts cannot order the executive to do anything (the broad interpretation of his statement). It’s certainly not helped by his inapposite analogies to examples of purely political/discretionary power.

Either way, that’s certainly not an argument with any real merit unless and until the Supreme Court grants certiorari on the very question. Given that the DC Circuit is seen as the “leader” of the circuit courts, I find it highly unlikely that any circuit except perhaps the 5th Circuit would decide to create a split. And I think it even less likely that the Supreme Court will willingly strip their own power to order the President.

All that to say, the precedential and constitutional backing to this statement is certainly lacking.

Perplexity explains that: https://www.perplexity.ai/search/explain-the-following-analysis-0fNHjXquSImUIs.o9z5WGQ:

Q1: Explain the following analysis of JD Vance's recent comments on X that judges are not allowed to control a president's "legitimate power": The relevant language from Marbury v. Madison is as follows: “By the Constitution of the United States, the President is invested with certain important political powers, . . . . . (reddit comment above) ....

A1: Chief Justice John Marshall's opinion in this case laid out the distinction between political/discretionary acts and ministerial acts of the executive branch.

Discretionary Acts: These are actions where the executive uses their judgment or discretion, such as the pardon power or prosecutorial discretion. Courts generally do not interfere with these acts as they are inherently political 1 10.

Ministerial Acts: These are actions prescribed by law where the executive has no discretion, and the law mandates a specific action. Here, the judiciary can intervene if these acts are not performed, as they involve individual rights and legal obligations 1 10 37 40.

Judicial Review: The Supreme Court's role is to interpret the law, including the Constitution, and to ensure that all branches of government act within their constitutional bounds. This includes the power to issue writs of mandamus to compel the performance of ministerial duties 1 3 10.

Interpretation of Vance's Comments

Narrow Interpretation: Vance might be suggesting that the President is exempt from court orders concerning ministerial acts, which contradicts established legal precedents. This interpretation would imply that even when the law mandates a specific action, the President could ignore judicial orders, undermining the separation of powers 16.

Broad Interpretation: If Vance means that no such ministerial acts exist for the President, this would effectively argue that the President is above judicial oversight in all executive actions, a position that directly challenges the foundational principles of checks and balances and judicial review 16.

Legal and Constitutional Implications

Precedent: The Supreme Court has not explicitly addressed whether the President is subject to judicial orders for ministerial acts, but lower courts, like the DC Circuit in NTEU v. Nixon, have extended the principles from Marbury to the President 16.

Separation of Powers: Vance's comments could be seen as advocating for an unchecked executive power, which would disrupt the balance of power established by the Constitution. This view is at odds with the judiciary's role as a co-equal branch of government 2 5 8 9.

Potential for Constitutional Crisis: Critics argue that such a stance could lead to a constitutional crisis by setting a precedent where the executive branch could ignore judicial rulings, thereby weakening the rule of law1 2 5.

Conclusion 

JD Vance's comments challenge the established legal framework where the judiciary has the authority to enforce laws through judicial review, particularly concerning ministerial acts. His assertions lack substantial legal backing unless the Supreme Court explicitly revises its stance on judicial oversight of executive actions. Given the current legal landscape and the historical precedents set by cases like Marbury v. Madison, Vance's position appears to be more of a political statement than a legally sound argument. The judiciary's role in checking executive power remains a cornerstone of American constitutional democracy, and any significant alteration to this balance would require a profound shift in legal interpretation, likely through Supreme Court intervention.

Q3: What are the historical examples of executive branches defying judicial rulings?

A3: Marbury v. Madison (1803): Although not a direct defiance, President Thomas Jefferson threatened to defy any judicial order instructing his secretary of state to install William Marbury as justice of the peace in Washington, D.C. This case established the principle of judicial review, but Jefferson's stance highlighted the potential for executive resistance 5.

Worcester v. Georgia (1832): President Andrew Jackson's alleged statement, "John Marshall has made his decision; now let him enforce it!" reflects his refusal to assist with enforcing the Supreme Court's order to release a state prisoner. Georgia's governor also defied the Court's decision, and Jackson did not intervene, maintaining that Georgia had the right to apply its laws within its borders 3 6.

Ex parte Merryman (1861): President Abraham Lincoln authorized the suspension of habeas corpus during the Civil War, which Chief Justice Roger Taney declared unconstitutional. Lincoln ignored Taney's ruling, continuing to suspend habeas corpus without congressional approval 4 6.

Youngstown Sheet & Tube Co. v. Sawyer (1952): President Harry Truman ordered the seizure of steel mills during the Korean War, acting without congressional authorization. The Supreme Court struck down this executive order, but Truman's initial defiance of Congress's authority set a precedent for executive overreach 1.

United States v. Nixon (1974): President Richard Nixon initially claimed executive privilege to withhold recordings from investigators. Although he eventually complied with the Supreme Court's unanimous decision to hand over the tapes, his initial resistance and the potential for defiance were notable 4 7.

Korematsu v. United States (1944): While not a direct defiance, President Franklin D. Roosevelt's Executive Order 9066, which authorized the internment of Japanese Americans, was upheld by the Supreme Court. However, Roosevelt's suggestion to try German saboteurs in military tribunals, regardless of the Supreme Court's stance, indicates a willingness to challenge judicial authority 9.

Brown v. Board of Education (1954): Southern states' "Massive Resistance" to the Supreme Court's decision declaring racial segregation in public schools unconstitutional led to widespread disobedience. Presidents Eisenhower and Kennedy had to use military force to enforce court orders in some instances 6.

Executive Defiance in Immigration Context: Recent examples include the Board of Immigration Appeals (BIA) failing to follow federal appeals court remands and deportations that violate federal-court orders, indicating a pattern of executive defiance in immigration enforcement 2.

These historical examples illustrate that while direct defiance of judicial rulings by the executive branch is rare, there have been significant instances where presidents or executive officials have challenged or ignored court orders, often in times of national crisis or when asserting broad executive powers. The judiciary's ability to enforce its rulings often relies on the cooperation of the other branches, particularly the executive, which has the power to enforce or resist judicial mandates.