Trump And Vance Aren’t Defying The Constitution

Under the Constitution, “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion.” For his decisions, “he is accountable only to his country in his political character, and to his own conscience.” His choices cannot be questioned in court because “the subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”

Who penned these outrageous words? Democrats and many pundits might answer Vice President J.D. Vance. Over the weekend, Vance provoked an onslaught of criticism for suggesting that federal district judges “aren’t allowed to control the executive’s legitimate power.”

But the usual suspects would be wrong. The right answer is John Marshall, the greatest chief justice in Supreme Court history. And he did not squirrel this view away in a private journal. Instead, Marshall publicly explained that courts could not review presidential decisions on “political” subjects “entrusted to the executive” in a Supreme Court opinion.

He announced this principle not just in any case, but in Marbury v. Madison, the greatest opinion in Supreme Court history. The very same Marbury that concluded that federal judges should reject unconstitutional statutes, also recognized that courts could not intrude into the president’s exercise of his constitutional — dare we say “legitimate” — powers. Marshall’s opinion has given rise to the “political question doctrine,” which prohibits courts from reviewing decisions vested in the Constitution in the other branches, such as making war, prosecuting cases, and conducting impeachments.

Nevertheless, Democrats and pundits have exaggerated Vance’s remarks into a “constitutional crisis.” They claim that the Trump administration is threatening to defy court orders before overthrowing the constitutional structure, governing by presidential decree, and ruling without regard to the law. To be sure, all of us ought by now to be accustomed to such bizarre and overwrought reactions from Trump’s and Vance’s critics — and to write them off. Marshall himself would have seen these claims as a deliberate misrepresentation of the separation of powers. Americans should today as well.

Separation of Powers

Here is what Vance said:

If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.

Vance’s words do nothing more than explain the separation of powers at work. Under the Constitution, the president has his sphere of authority and the judges have theirs. The Constitution grants the president “the Executive power,” requires him to execute the laws faithfully (of which the Constitution is the highest law), and charges him to protect national security. Among other things, these constitutional authorities give him the power to supervise the personnel in the executive branch, from Cabinet officials on down. Neither the federal judiciary nor Congress can “control the executive’s legitimate power” (as Vance put it) within that sphere, just as the president cannot dictate to the Supreme Court how to decide a case or controversy.

An obvious example is the one Vance provides: war. The Constitution vests the president with the role of commander-in-chief of the armed forces, while it gives to Congress the power to declare war. The courts have no power to direct the president in the exercise of his wartime authority.

During the Vietnam War, Rep. Elizabeth Holtzman sued to stop the bombing of Cambodia (which President Richard Nixon had ordered). Holtzman obtained an injunction from a district court. The court of appeals promptly stayed the district court order. Holtzman petitioned Supreme Court Justice Thurgood Marshall, who oversaw that court of appeals, to vacate the stay. Marshall properly refused, writing “the proper response to an arguably illegal action [by Nixon] is not lawlessness by judges charged with interpreting and enforcing the laws.” Holtzman then reapplied to liberal Justice William Douglas, an outspoken critic of the war, who rejected the executive’s argument that reimposing the ban on the bombing would cause a “constitutional confrontation.” Douglas then ordered the military to stop the bombing. The military ignored Douglas’ order. Douglas’ colleagues on the court immediately overturned his unconstitutional order. No federal court has ever attempted to stop military hostilities, or — for critics of Vance would have to accept this possibility — ordered them to begin.

Vance also correctly recognizes that courts cannot direct the president’s exercise of the power of prosecution. The Constitution grants the president broad discretion over what cases, criminal or civil, to bring or not to bring, and what level of federal resources to dedicate to the enforcement of federal law. The Supreme Court affirmed the breadth of prosecutorial discretion in the 1985 case of Heckler v. Chaney. Supporters of the Biden administration should be the last people to question the breadth of the president’s prosecutorial discretion. Biden virtually suspended control of the border by claiming the right not to enforce immigration law. The Biden administration claimed that same discretion to pursue not just the Jan. 6 rioters, but even the past president and the leading opposition candidate for the same office, Donald Trump.

Prosecutorial discretion is not absolute. Prosecutions begun on the basis of race violate the Fourteenth Amendment, as recognized by the Supreme Court in the 1886 Yick Wo v. Hopkins decision. Prosecutors also cannot target defendants because of their speech, political views, or religion. But these are not separation of power principles — these rules apply to the courts and Congress too.

Authority over Executive Branch Personnel

Second, critics say that Vance is claiming the courts have no business interfering with the president’s personnel policies. Vance did not in fact say or imply that. But even assuming that he did, his critics would be mostly wrong. The president’s constitutional responsibility to see that the law is faithfully executed gives him general supervisory authority over executive branch personnel, from Cabinet officials and heads of federal agencies on down. The Supreme Court has held as long ago as Myers v. United States in 1926 (authored by former president, Chief Justice William Howard Taft) and as recently as Seila Law v. CFPB in 2020 (authored by Chief Justice John Roberts) that this authority gives the president the authority to fire Senate-confirmed officers, including those who by statute are given protection from removal.

The question whether the president can fire heads of “independent” agencies such as multi-member commissions is still debated, but the clear trend of recent Supreme Court decisions indicates that the president can remove these officers if they refuse to carry out presidential orders. No doubt Trump’s recent removal of members of the National Labor Relations Board are intended to set up a case to settle this question at the Supreme Court. Our prediction is that Trump will win that dispute — decisively.

What about lower-ranking federal civil servants who, by statute, enjoy tenure protections and can only be dismissed for cause? That question is more complicated, because under Supreme Court cases, statutory protections for federal employment create a “property” right of a kind, and under the Fifth Amendment, a federal employee can only be deprived of such property if provided with “due process.” (The relevant Supreme Court case here is Lachance v. Erickson (1998)). What process is “due” is variable and dependent on a host of factors. And Congress has provided procedures (which may or may not satisfy Fifth Amendment standards) for terminating federal employees from their jobs.

Whether mass layoffs of tenured civil servants within a particular federal agency would meet applicable statutory and constitutional standards is a question that may soon be litigated. So too are the distinct questions about agency-wide buyouts and agency-wide paid administrative leave. We shall see what ensues from such litigation. But there is nothing in Vance’s remarks to indicate that the administration would defy the judicial rulings in such cases.

Defying Injunctions

Third, did Vance’s remarks hint that the administration intended to defy any of the recent district court injunctions against implementing Trump’s executive orders? Of course not: just read Vance’s statement. That doesn’t mean, however, that a single district judge’s order is the last word on the matter. At least when the order is a “preliminary injunction” (as distinct from a “temporary restraining order,” which simply freezes the situation), the administration can seek review of the district court’s order in a federal court of appeals. At least some of the current crop of adverse district court orders against Trump’s executive orders seem to have serious legal flaws and would likely be overturned on review.

For example, Judge Paul Engelmayer’s Feb. 8 order barring Trump’s political appointees from having access to Treasury Department payment systems would appear to preclude even the secretary of the Treasury from having such access. It is of course possible that Engelmayer’s order was unconsidered and poorly written: he issued it after an ex parte hearing at which no one from the administration was present. But as written, the order is simply too cursory and one-sided and should be reversed on appeal.

Vance has another issue on which to challenge the raft of injunctions on the Trump administration. A federal court has authority only within a specific judicial district (there are 94; some states have more than one). Judges can grant relief to the plaintiffs who appear before them in that territory. But the trial judges who have issued stays against the Trump administration believe they have the power to grant relief everywhere in the nation, even for those who do not appear before them in court.

Trump can, and should, challenge this practice of nationwide (or universal) injunctions, which has no support in federal statutory law or the Constitution. This is not a partisan issue. Conservative district judges also stymied Presidents Joe Biden and Barack Obama’s initiatives with nationwide injunctions — and their use of them seems to us equally mistaken. Justice Clarence Thomas, in a concurring opinion in Hawaii v. Trump (2018), questioned the legal authority of such injunctions. “I am skeptical that district courts have the authority to enter universal injunctions,” he wrote. “These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts.” Justice Thomas’ concurrence calls upon the executive branch to challenge the practice of nationwide injunctions at the Supreme Court. If such injunctions are considered lawful, the administration should ask Congress to rein them in.

No Constitutional Crisis

Far from presaging a constitutional crisis, Vance’s argument only represents the workings of the separation of powers. Presidents from Thomas Jefferson, through Andrew Jackson and Abraham Lincoln, up to Franklin D. Roosevelt, have believed that each branch of government has the right to interpret the Constitution in the execution of its unique duties. They claimed, correctly in our view, that the separation of powers prohibits a branch from imposing its views on the others.

Trump has the right to adopt an independent interpretation of the Constitution and to attempt to persuade the court to adopt it; likewise, the court is free to adopt its own opinion and enforce it through its cases. As long as the Trump administration executes the judgment of the federal courts — whether the plaintiff or defendant wins or loses — it does not have to adopt the judiciary’s reasoning.

“If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln said in his first inaugural address, “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Presidents can advance their own visions of the Constitution, which the Supreme Court can choose whether to adopt or reject. Trump is only following in the footsteps of his predecessors in continuing this essential political and constitutional dynamic.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and Senior Research Fellow at the Civitas Institute, University of Texas at Austin; Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute. Robert Delahunty is a Fellow of the Claremont Institute’s Center for the American Way of Life in Washington, D.C.