MAGA’s incoherent social engineering

In another sign of MAGA irrationality, e.g., belief in false realities, a WaPo opinion discusses federal infrastructure spending guided by a false image of traditional family structure (not paywalled): 

The Trump administration recently issued new guidelines for the Transportation Department, surprisingly prioritizing spending and infrastructure for “communities with marriage and birth rates higher than the national average.” In other words, communities with large traditional families. .... That means rural and small-town America — presumably President Donald Trump’s core constituency — will disproportionately benefit from these funds.

Our research shows that over the past three decades, among women ages 15 to 44, marriage rates have fallen much faster for rural women than for their urban counterparts. Between 1988 and 2018, the proportion of rural women who were married fell from 55% to 33%. Marriage among urban women also declined, but to a lesser degree. 

The opinion points out that in rural areas, cohabitation rose more sharply and divorce has declined more slowly. By 2018, rural women were more likely than urban women to be in an unmarried cohabiting partnership (19 percent vs. 14 percent). The proportion of urban women who never marry is still slightly higher, mainly because urban women marry at older ages. In addition, the “baby bust” in America is larger among rural women than urban. 54% of rural children are born outside marriage compared to 45% of urban children.

Collectively, the data indicate that using marriage and family size to guide transportation funding is going to disadvantage rural regions. Once MAGA elites come to understand the stupidity of their plans, assuming they ever do, maybe they will rethink and try to come up with sensible, cost-effective transportation policy based on reality, reason and empirical data. 

Ha! MAGA understanding? Fat chance.

Three bits: MAGA and corporate attacks on consumer protections

As promised in Project 2025, DJT and MAGA elites are making massive attacks on regulations and protections for workers, consumers and the environment. NPR writes about the killing of the CFPB, which is the federal agency that protects consumers from massive corporate greed, theft and fraud in finance: "The Trump administration has stopped work at the CFPB. Here's what the agency does -- The main U.S. agency tasked with overseeing the financial products and services used by everyday Americans — from credit cards to checking accounts to home loans — is the latest target of the Trump administration's effort to remake the federal government. The Consumer Financial Protection Bureau's new leader has shuttered the agency's headquarters and told staffers to stay at home and refrain from doing any work. .... An independent bureau within the Federal Reserve, the CFPB's job is to ensure that the financial products and services offered to American consumers are fair and transparent."

The Hill comments: "The Trump administration is moving rapidly to gut the Consumer Financial Protection Bureau (CFPB), halting the agency’s work, cutting off its funding and shutting down its headquarters. .... “I think everyone assumes this is the USAID playbook, and I think everyone’s operating off of the assumption that we’re about to get annihilated, the way that they were annihilated,” a CFPB employee told The Hill, referring to the U.S. Agency for International Development."

So, there we have it, MAGA is doing exactly what Project 2025 promises and what DJT claims to be 100% ignorant of, while falsely claiming to not like some of it. How can anyone not know anything about something, but still not like some of it? They can't. But, they can lie about it.

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And, it's not just MAGA government that is going after worker, consumer and environmental protections. Brass knuckles capitalists are gleefully joining in the massacre. Techdirt writes: 

"Automakers Sue To Kill Maine’s Hugely Popular ‘Right To Repair’ Law -- A little over a year ago, Maine residents voted overwhelmingly (83 percent) to pass a new state right to repair law designed to make auto repairs easier and more affordable. More specifically, the law requires that automakers standardize on-board diagnostic systems and provide remote access to those systems and mechanical data to consumers and third-party independent repair shops. But as we’ve seen with other states that have passed right to reform laws (most notably New York), passing the law isn’t the end of the story. Corporate lobbyists have had great success not just watering these laws down before passage, but after voters approve them. They’ve also been swarmed by coordinated industry lawsuits and falsehood-spewing attacks. -- But the Alliance For Automotive Innovation also just filed a new lawsuit saying the law isn’t fully cooked and therefore violates the law. .... The group is correct that Maine’s right to repair law isn’t fully cooked yet. What they don’t say is they’re one of the reasons the law isn’t fully cooked. Or that they oppose the popular law either way."

It's just business as usual. Capitalism always does the same thing. It looks for new and exciting ways to screw the customer harder and harder. It always seeks to charge what the market will bear, and a little more if it can pull it off, e.g., via plutocracy or oligarchy. When capitalism is under-regulated, there are lots of new and exciting ways to screw the customer harder and harder.

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Another target of MAGA and Project 2025, is the right to privacy. MAGA and its Project are generally hostile to privacy rights for average people. It is hostile to the right to privacy, particularly in areas like reproductive care, data collection for marginalized groups, and in the broader context of consumer data privacy. Its proposals and policy directions reduce privacy protections. That transfers to power inherent in privacy from citizens and consumers to government and the business sector. With the loss of privacy power prioritize, government and business interests are free to take whatever advantage of newly exposed individuals there might be. 

Senator Charles Percy (R-IL, 1967-1985)

Commenting in the hearings on the Privacy Act of 1974

Lawfare writes about DJT and Musk grossly violating federal privacy law:

DOGE Betrays Foundational Commitments of the Privacy Act of 1974

Musk’s attempts to gain access to agency databases is an egregious violation of the act, which protects personal information from abuse

Under the auspices of the so-called “Department of Government Efficiency,” Elon Musk and former staffers—all recent college and high school graduates—have been given access to agency databases teeming with sensitive personal information. The group has entered the Treasury Department’s payment system, which stores federal tax returns, Social Security numbers, home addresses, and birth dates; the Office of Personnel Management’s system, which contains background checks, medical information, bank account information, and biometric data of current, former, and prospective federal employees, contractors, and family members; and the General Service Administration’s system, which stores similarly sensitive personal data.

Condemnation and lawsuits followed, and rightfully so. No one—not even special government employees—should access agency “systems of records” without proper authorization under the Privacy Act of 1974. Nothing suggests that Musk or his employees have such authority. Privacy Act violations are not trivial. Profound harms to privacy and democracy are at stake.

What are the consequences of abandoning the right to privacy? Things like (i) unlimited government and corporate surveillance without oversight, (ii) abuse of power by unrestrained law enforcement, corporations and religion, and (iii) reduced data security to save money. China's digital tyranny relies very heavily on it unrestricted power to surveille its people and its corporations. There, all the power is with the government. In the US, all the lost privacy power will flow to governments, corporations and Christianity.

Asymmetry in power 

Wealthy and powerful elites will have their privacy and private affairs (figurative and literal) protected as much as they want. How much? Essentially all of it, if that's what they want. How can that be possible? Easy. They can live their lives and run their businesses shielded behind privacy laws they demand remain intact, e.g., tax privacy laws, business privacy laws and NDAs (non-disclosure agreements). Elites and big corporations routinely use NDAs to hide wealth, personal activities and illegal activities. How many NDAs shield you? I bet none. 

Qs: Do you think that DJT, Musk or MAGA elites generally care at all about our loss of privacy rights and abuses that will entail? Do you think that obliterating the Privacy Act of 1974 will lead to more transparency in the federal government, wealthy people and large corporations?

Two bits: MAGA attacks on pro-democracy guardrails, including ethics; The Musk wrecking ball

The AP reports:

In the first three weeks of his administration, President Donald Trump has moved with brazen haste to dismantle the federal government’s public integrity guardrails that he frequently tested during his first term but now seems intent on removing entirely.

It’s all being done with a stop-me-if-you-dare defiance by a president who the first time around felt hemmed in by watchdogs, lawyers and judges tasked with affirming good government and fair play. Now, he seems determined to break those constraints once and for all in a historically unprecedented flex of executive power.

Princeton University presidential historian Julian Zelizer is quoted: “The end goal is to avoid accountability this time. Not just being protected by his party and counting on the public to move on when scandals or problems emerge, but this time by actually removing many of the key figures whose job it is to oversee. .... It’s a much bolder assertion than in his first term, and if successful and if all these figures are removed, you’ll have a combination of an executive branch lacking independent voices that will keep their eye on the ball and then a congressional majority that at least thus far isn’t really going to cause problems for him.”

In direct attacks on ethics, Trump fired (1) the head of the Office of Special Counsel, which processes whistleblower complaints and handles the Hatch Act that prohibits federal employees from partisan activities on the job (that firing is now contested in court), and (2) the head of the Office of Government Ethics. To head watchdog agencies DJT named Doug Collins. Collins is a loyal DJT ally. 

Ethics in the federal government is now a true oxymoron. Ethics is dead and buried.

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The NYT reports (not paywalled) about another deeply troubling blast of MAGA damage to respect for truth, democracy and transparency in government:

The billionaire Elon Musk said in an extraordinary Oval Office appearance on Tuesday that he was providing maximum transparency in his government cost-cutting initiative, but offered no evidence for his sweeping claims that the federal bureaucracy had been corrupted by cheats and officials who had approved money for “fraudsters.”

The goal is to “restore democracy,” Mr. Musk said. “If the bureaucracy’s in charge, then what meaning does democracy actually have?”

Among Mr. Musk’s claims, which he offered without providing evidence, was that some officials at the now-gutted U.S. Agency for International Development had been taking “kickbacks.” He said that “quite a few people” in the bureaucracy somehow had “managed to accrue tens of millions of dollars in net worth while they are in that position,” without explaining how he had made that assessment. He later claimed that some recipients of Social Security checks were as old as 150.

Musk is quoted as saying “We are actually trying to be as transparent as possible. So all of our actions are maximally transparent. I don’t know of a case where an organization has been more transparent than the DOGE organization.” Musk was referring to some postings by his team on X as evidence of transparency. But as the NYT points out, Musk’s team operates in secrecy. They surprise federal employees by barging unannounced into agencies to get access to vast amounts of sensitive data. 

In another act of secrecy, since Musk is a “special government employee,” DJT says that his financial disclosure filing will not be made public. That is the opposite of transparency. But, it is the epitome of corruption. 

In all of this, DJT claims that he is just delivering the radical overhaul of the federal government he promised in his campaign. What he fails to say is that his intended radical overhaul was authoritarian and kleptocratic. His dark free speech rhetoric subtly led people to believe that his reforms would be pro-democracy and anti-corruption. This is somewhat like DJT claiming he mentally declassified all the classified government documents he stole and refused to return.

 

So, what MAGA delivers so far is secrecy, corruption and allegations of vast criminal activity in government. The allegations are yet not supported by one shred of evidence. That is just like DJT’s completely unsupported allegations of vast vote fraud and criminal activity in the 2020 election. We're still waiting for the Pillow Guy to release all the evidence.

Qs: If Musk’s allegations of vast criminal activity in government are true, should we expect that the DoJ would start dozens or hundreds of investigations and then criminal prosecutions of the criminals? If few or no prosecutions happen, would that constitute solid evidence that Musk is lying? Do MAGA elites lies to the public no longer matter because denying or ignoring inconvenient facts and truths no longer matter because most people still like what DJT is doing?

Legal analysis: Can the US Constitution accommodate authoritarianism or kleptocracy?

For years, my understanding was that (1) if a small group of committed authoritarians and kleptocrats could gain enough power and public support, and (2) the US Constitution is ambiguous enough that the US could become a nation that is more authoritarian, clandestine and kleptocratic than democratic, transparent and honest. 

The issue now seems ripe. 

Q: Is the US Constitution ambiguous enough to allow for the rise and maintenance of a federal regime that is more authoritarian and kleptocratic than democratic and honest? Take into account Supreme Court decisions like Citizens United, Trump v US, Snyder v US and other inherently anti-democratic or pro-corruption cases.

A: The U.S. Constitution, while designed to establish a framework for democratic governance, contains inherent ambiguities that have been interpreted in ways that could potentially facilitate the rise and maintenance of a more authoritarian and kleptocratic federal regime.

Ambiguities in Constitutional Text

1. Separation of Powers and Checks and Balances: The Constitution's system of checks and balances, as noted by James Madison in Federalist No. 51, assumes that ambition will counteract ambition among the branches of government. However, the development of political parties has often led to branches acting in concert rather than in opposition, potentially undermining this system 6.

2. Vague Language: Terms like "executive power," "judicial power," and "necessary and proper" are inherently ambiguous, allowing for broad interpretations that can shift the balance of power 4.

Supreme Court Decisions 

1. Citizens United v. Federal Election Commission (2010): This decision held that independent spending on political campaigns by corporations and unions could not be limited, arguing that such spending does not pose a substantial risk of corruption. Critics argue this ruling has allowed for an influx of "dark money" into politics, potentially enabling kleptocratic behaviors by allowing wealthy individuals and corporations to exert disproportionate influence over elections 3 27.

2. Trump v. United States (2024): The Supreme Court's decision granted the president absolute immunity from criminal prosecution for "core constitutional powers" and presumptive immunity for "official acts." This ruling could be seen as expanding presidential power in ways that might facilitate authoritarian tendencies by reducing accountability 11 30.

3. Snyder v. United States (2024): This case narrowed the definition of corruption under federal law, making it harder to prosecute state and local officials for accepting gratuities after official actions. This decision could encourage corrupt practices by reducing the legal risks associated with such behavior 22 24 29 32 34.

Potential for Authoritarian Constitutionalism

Authoritarian Constitutionalism: Scholars have discussed the concept of authoritarian constitutionalism, where constitutional mechanisms are used to maintain power rather than limit it. This could theoretically occur within the U.S. framework if constitutional ambiguities are exploited to centralize power or protect corrupt practices 2 7 9.

Federalism and Anti-Commandeering: While federalism provides a check against centralized authoritarianism by preserving state autonomy, it also means that federal efforts to combat corruption at the state level can be limited, potentially allowing for kleptocratic practices at lower levels of government 8.

Conclusion

The U.S. Constitution's ambiguities, combined with certain Supreme Court interpretations, provide a landscape where authoritarian and kleptocratic tendencies could theoretically flourish. However, these tendencies are not inevitable outcomes of the Constitution's design but rather potential interpretations and exploitations of its ambiguities. The balance between democracy and authoritarianism largely depends on the political culture, the integrity of elected officials, and the vigilance of the judiciary and the public in upholding democratic norms and values.

While the Constitution provides a framework for democracy, its effectiveness in preventing authoritarianism or kleptocracy relies heavily on the interpretation and application of its principles by those in power.

According to that, and assuming it is a basically correct analysis, I conclude that the US can legally become mostly authoritarian and mostly kleptocratic. 

I see that as possible, maybe likely in the next 2-4 years, despite the opposing will of the American people, who overwhelmingly say they are pro-democracy in opinion polls. However, despite 80% in one poll saying they are pro-democracy, 41% also say they also support “having a strong leader who does not have to bother with parliament or elections”, which they see as is a very good or fairly good system. And, an annual poll indicates that for 2024, ~65%, are "afraid" or "very afraid" of government corruption.

Data source

A final point -- the human mind: How can some people be both pro-democracy and pro-authoritarianism at the same time? Easy. They unconsciously rationalize it. They do not think deeply or even rationally. This is not a matter of people being stupid. It is a matter of humans being human. In two recent posts, here and here, I tried to articulate this idea. In short, lots of people rationalize reality into comfortable illusions and they don't have any inkling they did it. They sincerely believe in their illusions. Two prominent social scientists wrote this about political reasoning in 2016:

“. . . . the typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognize as infantile within the sphere of his real interests. . . . cherished ideas and judgments we bring to politics are stereotypes and simplifications with little room for adjustment as the facts change. . . . . the real environment is altogether too big, too complex, and too fleeting for direct acquaintance. We are not equipped to deal with so much subtlety, so much variety, so many permutations and combinations. Although we have to act in that environment, we have to reconstruct it on a simpler model before we can manage it.”

The rise of global and MAGA kleptocracy

This appears to be a very big deal. For years US companies complained that they could not compete with other countries in international business because US law made bribing foreign officials illegal. That law, the FCPA, was a major bulwark against the rise of kleptocracy in the US and abroad. Now DJT, himself a kleptocrat, is unilaterally killing the law, whether it is legal or not (probably not). The NYT writes: 

President Trump on Monday ordered a pause in the enforcement of a federal law aimed at curbing corruption in multinational companies, saying it creates an uneven playing field for American firms.

The law, the Foreign Corrupt Practices Act, makes it illegal for companies that operate in the United States to pay foreign government officials to secure business deals. Though the law was enacted in 1977, federal authorities have more heavily enforced it since around 2005, cracking down on bribery, especially in countries where it is a common business practice.

The article goes on to report that companies and billionaires are very angry at being prosecuted for running afoul of the FCPA. The Indian billionaire Gautam Adani (worth ~$85 billion), stands accused of bribing Indian officials (~$250 million in bribes). He is charged with fraud in raising money from US investors. Various companies that have paid fines under the FCPA. The engineering conglomerate Siemens and the Swedish telecommunications company Ericsson have both been fined. In 2020, Goldman Sachs agreed to pay about $2.9 billion to resolve charges that employees at its Malaysian subsidiary had paid $1 billion in bribes to foreign officials. 

DJT justified letting vast bribery run free, wild and butt naked in international commerce like this: The law has been “abused in a manner that harms the interests of the United States.”

So what's wrong with kleptocracy?

Now that bribery is significantly legalized in US governments and commerce, one has to take a hard look at how kleptocracy plays out for regular people. Corruption expert Sarah Chayes takes a very dim view of it. In her book, Thieves of State: Why Corruption Threatens Global Security, points out that (i) vast amounts of money that are subverted from public works, and (ii) once kleptocracy is sufficiently settled and powerful, it is essentially impossible to get rid of. Chayes learned first hand about kleptocracy and its staying power while working with NGOs in Afghanistan.

She argued that corruption leads to a breakdown in economic and social structures: "Corruption, it made plain, was not solely a humanitarian affair, an issue touching on principles or values alone. It was a matter of national security—Afghan national security and, by extension, that of the United States. And if corruption was driving people to violent revolt in Afghanistan, it was probably doing likewise in other places." Chayes described corruption in some countries as a vertically integrated criminal organization, where corruption flows from the bottom up, making it deeply entrenched and practically impossible to dislodge. 

In the US, corruption seems to mostly flow from the top down, so it may not be too late to combat the plague. In the US, major corruption usually manifests through the influence of wealthy individuals and corporations over government decisions. This includes "pay to play" politics.

In terms of governance, kleptocracies are characterized by a high degree of authoritarianism. The ruling elites typically use state institutions to shield and enable their corrupt activities. That empowers and maintains personal enrichment and political control. Kleptocratic authoritarianism is not just a byproduct but a core feature of kleptocratic governance. Kleptocracies usually show a profound lack of concern for the common good or the general welfare. Since the primary focus is on personal enrichment and maintaining power, public services, infrastructure, and economic development suffer. Corruption in kleptocracies leads to inadequate resources for public services, and often repression of dissent, which fuels radicalization, state fragility, and conflict.

So, kleptocracy is bad governance. But it looks like the US is moving briskly in the direction of kleptocracy, whether we want it or not. 

Michel argues that the US as not just a participant but a leader in the global offshoring of illicit wealth, facilitated by its own legal and financial structures, which have been exploited by some of the world's most corrupt individuals and regimes

Looks like things will get a whole lot worse real soon!

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.