Vance's Dangerous Head Fake

He is dog-whistling the ultimate constitutional crisis.

Source: Phil Mistry / Shutterstock.com

Vice President JD Vance’s incendiary suggestions about executive branch noncompliance with judicial orders should, for now, be taken as a feint--but a feint in the direction of a steep cliff that leads to constitutional devastation.

With words that triggered various degrees of concern and panic throughout the legal community, Vance tweeted on Sunday that “judges aren’t allowed to control the executive’s legitimate power.” This came after another Sunday tweet in which Vance stated that judges can’t “tell a general how to conduct a military operation” or “command the attorney general in how to use her discretion as a prosecutor.”

Vance was being cagey, if not downright deceptive. The all-important wiggle word in both his tweets is “legitimate.”

That enormous hedge permits him to claim that he was merely explaining that there are certain distinct areas of executive power not generally considered subject to judicial scrutiny. That proposition is uncontroversial.

The concern lies in the context of Vance’s tweet. It came in response to an order from Manhattan federal district judge Paul Engelmayer temporarily enjoining the Department of Government Efficiency (DOGE) from accessing the US Treasury Departments payment and data systems, which contain personal data for millions of Americans.

Engelmayer’s action came in a lawsuit brought by 19 Democratic attorneys general, alleging a series of constitutional and statutory violations in letting DOGE and the politically unaccountable mini-me ransack the sophisticated and ultra-sensitive Treasury payment systems.

The Outlandish and the Lawless

The judge found that the states would face irreparable harm if DOGE were permitted to access the systems and that they were likely to succeed on the merits of their legal claims. Engelmayer further ordered that anyone who had downloaded material from the systems delete all copies.

In the context of federal courts’ everyday workload, all this is routine. States or individuals who can be harmed by controversial assertions of executive power commonly file suit in federal court, and ask for a temporary injunction pending a full adjudication of their claims. More than 40 lawsuits already have been filed alleging various legal violations by the young administration. And where the harms are serious and hard to reverse, and the legal claims strong, federal courts grant the temporary request and proceed to a full determination on the merits. It's the American way.

It's also becoming par for the course for the various unconstitutional power grabs by Trump in the last three weeks. Six district courts and counting have ordered the Administration to put a halt on various Trump Administration actions until the plans’ lawfulness could be determined. And each of those required a finding by a federal district court judge that the challengers a) were likely to prevail on their legal claims and b) were being harmed as a result of the conduct.

(For those keeping score at home, the six instances of court brushbacks of the Administration are: 1) The Office of Management and Budget’s spending freeze, in which the district court already took the Administration to task for failing to comply with its “clear and unambiguous: order; the First Circuit this morning denied the government’s motion for an emergency stay. 2) The executive order ending birthright citizenship; 3) The transfer of transgender female prisoners to male-only prisons; 4) The proposed buyout of federal workers; 5) The shuttering of U.S.A.I.D.; and 6) Judge Engelmayer’s order concerning the Treasury payments system.)

Judge Engelmayer is highly respected for his fairness and intellectual horsepower. I can add my own endorsement of his strengths as a judge, having known him since we clerked together at the Supreme Court some 35 years ago.

So in firing a shot across the bow in clear response to Engelmayer’s injunction, Vance, a Yale Law School grad, was implying much more executive power than just the undisputed discretion presidents hold in military matters or prosecutorial decisions. Rather, Vance was aiming at the run of cases like the one before Engelmayer in which courts enjoin lawless executive action.

Vance’s insinuation that those sorts of orders are illegitimate looks to be softening the road for a future standoff with the judicial branch. That sort of constitutional hubris would be of a piece with the current stance of the Administration vis-à-vis Congress, whose binding commands it is simply flouting. And of course, the Republican Congress’s repeated rollovers are a large reason why we are already at the threshold, if not firmly in the territory, of constitutional crisis.

But if the Trump administration makes good on its hints at ignoring court mandates, we would be in the epicenter of that territory.

Indeed, while it’s a longer story, Trump and his acolytes, in particular Elon Musk, are intimating what would be the first instance in the country’s history of a president’s rank disregard of judicial commands.

Andrew Jackson, historical legends aside, didn’t do it: He probably never said “John Marshall has made his decision; now let him enforce it,” and in any event, the case in question was against the state of Georgia, and the Supreme Court never ordered him to do anything. Abraham Lincoln didn’t do it: He exercised extreme emergency powers understood to inhere in the presidency since the beginning of the republic, rooted in the Founders’ veneration of John Locke.

Dwight Eisenhower, Richard Nixon, and Al Gore all didn’t do it. They did the exact opposite—respecting a higher court opinion with which they disagreed. In Nixon’s case, it cost him the presidency; in Gore’s, it ended his hopes for the highest office. Eisenhower, whose support for civil rights was considered tepid, nevertheless did not hesitate to execute the Supreme Court’s command to integrate Arkansas schools, famously sending in federal troops from the 101st Airborne to overcome local political resistance. He explained to the nation that, “the very basis of our individual rights and freedoms rests upon the certainty that the President and the Executive Branch of Government will support and ensure the carrying out of the decisions of the federal courts, even when necessary with all the means at the President’s command."

Should Trump combine his disregard for Congress with an equal contempt for the courts, simply ignoring their commands, it would be the demise of constitutional rule in the very terms that the Framers warned us about. As Madison put it in Federalist No. 47, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many... may justly be pronounced the very definition of tyranny."

The Perversity of Trump’s DOJ

It also would be a stinging rebuke to Chief Justice Roberts, whose 2024 year-end report featured a paean to judicial independence in the Federalist papers; he called it one of the “crown jewels of our system of government.” And, in a clear invocation of Trumpian forces if not Trump himself, he went on to urge that calls to ignore federal court rulings must be “soundly rejected.”

It's important to keep in mind that branches have established ways of negotiating with one another in the exercise of their official powers. A small example happened this week in the DOGE case itself when the Department pushed back gently on Judge Engelmayer and requested clarification of his order. And in two cases already, the department has taken the formal action it is supposed to take when it disagrees with a district court decision—an appeal to a higher court.

For its part, the Supreme Court too has ways to push back against executive recalcitrance with a stern “and we mean it” message. Yet at the end of the day, as Alexander Hamilton cautioned in Federalist No. 78, the judicial branch “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

A famous example in which the Court put its foot down against potential recalcitrance occurred in the 1958 case of Cooper v. Aaron. That case occurred four years after the landmark opinion in Brown v. Board of Education, which Governor Faubus of Arkansas forcibly resisted by calling out the Arkansas National Guard to prevent the Little Rock Nine from entering Little Rock Central High School.

Rejecting Arkansas’s request for a long delay in implementing Brown to account for public hostility, the court proceeded to sound a forceful warning against defiance of its own orders. Begin with the proposition that the “basic principle that the federal judiciary is supreme in the exposition of the law of the constitution… a permanent and indispensable feature of our constitutional system.” Citing Chief Justice John Marshall, the author of Marbury v. Madison, the court emphasized that neither the President not any other state or federal office “can war against the Constitution without violating his undertaking to support it…” If it were otherwise, “the constitution itself becomes a solemn mockery.”

The Supreme Court in Cooper v. Aaron not only was unanimous; each of the Justices signed his individual name to the opinion, a striking reaffirmation of consensus that to my knowledge is unique in the Court’s history.

There’s not much hope of the same degree of accord from the current court, which has at least two members who seem willing to side with Trump on nearly any claim. But given Roberts’s year-end report and my sense of the court’s overall views of its own power, I would expect the justices to forcefully push back against flagrant defiance from Trump.

What we can’t assume is that Trump will fall into line as Faubus did after Cooper v. Aaron. And if the president persists in defiance, we will be in uncharted territory in which all bets are off and the words of the constitution cannot save us. At that point, the future of the democracy could well come down to a terrible battle between raw executive force and public sentiment.

Never before, and certainly never in our lifetimes, has the prospect of such an ultimate showdown been remotely in sight. Vance and Trump have brought it into plain view, and their Republican colleagues in Congress are unmoved, or at least not moved enough to defy them.

The saber rattling from Trump, Vance, and Musk does not yet amount to a full-blown constitutional crisis, nor does DOJ pushback in the courts, so long as it’s followed by acquiescence to the courts’ determinations. In his bizarre press conference Monday with Musk in the Oval Office, Trump assured the country,“I always abide by the courts, and then I’ll have to appeal it.” That was, to put it mildly, an overstatement of his practice during his first term, when rather than respect some 60 courts’ adverse decisions and stand down, he attempted violently to reverse his election loss.

If he adheres to that commitment in the face of many more court losses to come, the prospects that constitutional rule survive his administration brighten.

But on what basis should we expect that measure of consistency and straight talk from the most mendacious President in the country’s history, and one who has repeatedly demonstrated his indifference towards constitutional norms and limits?

We are at only the very beginning of an administration that already has been marked by far greater levels of hubris and outright lawlessness than any in our lifetime and probably the lifetime of the republic. There are only so many steps between comments like Vance’s and brazen disregard of federal court orders. On the evidence of these last three weeks, none of us can rest easy that Trump can be counted on not to drive the country over the cliff. The time to fight this prospect with every available tool is now, before battle lines between Trump and the courts are even more sharply drawn.

Talk to you later.