Adler: Trump defies judicial orders: Which branch has authority to say what the law is?
A U.S. federal judge in Rhode Island has declared President Donald Trump in violation of his order to release billions of dollars in federal grants and has directed the president to comply with the court’s mandate. The Trump Administration’s recalcitrance, punctuated by Vice President J.D. Vance’s social media post, in which he asserted that “Judges aren’t allowed to control the executive’s legitimate power,” has moved the nation closer to a constitutional crisis with a frontal assault on Marbury v. Madison. That 200-year-old landmark precedent, set forth by Chief Justice John Marshall in 1803, states that “it is emphatically the province and duty of the judicial department to say what the law is.”
Vice President Vance’s puzzling reasoning, set forth in a statement on X, laid bare his challenge to a bedrock principle of the separation of powers and the rule of law. “If a judge tried to tell a general how to conduct a military operation, that would be illegal,” Vance wrote, adding, “If the judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.” But Vance, a graduate of Yale Law School, not only ignores Chief Justice Marshall’s seminal ruling in Marbury, to this day typically the first constitutional case that law school students encounter, but also another of his landmark decisions, Little v. Barreme (1804), in which Marshall did, precisely, what Vance denies courts may do.
In Barreme, the Court held that the president and all military officers are subject to statutory commands during wartime and ruled that President John Adams had exceeded his authority when he ordered the seizure of ships during America’s war with France from 1798-1800. The president’s actions, while undertaken in his capacity as Commander in Chief, are nonetheless amenable to judicial review. It was decided in a series of cases at the dawn of the republic that the Court’s jurisdiction extends to war powers cases. The “war power,” John Quincy Adams observed, “is strictly constitutional” and reflected in the language of the War Clause. To put a fine point on the supervisory authority of the judiciary, Article III, section 2 of the Constitution specifically applies judicial review to the realm of foreign affairs, including powers textually granted to the executive.
Vance’s second example, that of judicial meddling or review of a prosecutor’s decision, fares no better. In the landmark case of U.S. v. Nixon (1974), the Watergate Tapes Case, the Supreme Court upheld a lower court ruling that Solicitor General Robert Bork had illegally fired Special Prosecutor Archibald Cox, a move that ignited national outrage and propelled Richard Nixon’s ouster from the White House. The Court, moreover, doubled down on Marbury v. Madison and rejected Nixon’s claim of an absolute executive privilege which, like Vance’s expansive assertions of “legitimate executive powers,” was asserted to be a core constitutional power of the executive. The Court reminded Nixon, and the nation, that it is the judiciary, not the president, that determines whether a power is constitutionally vested in the presidency and, if so, whether it has been exercised “legitimately.”
If Nixon’s contention that the president possesses unilateral, and final, authority to determine both the inventory and scope of the executive’s constitutional authority were accepted, then arbitrary, self-interested presidential preference would have overturned Marbury v. Madison and the Framers’ design of the judiciary as the ultimate interpreter of the Constitution. It would also have toppled the rule of law, essentially installing the president as an autocratic ruler and the judge of his own cause.
The Supreme Court, in a historic ruling, rejected the Nixon doctrine – government by executive decrees and ipse dixits – just as lower federal courts are now rejecting the Trump administration’s resurrection of Nixon’s discredited constitutional views and values. Although he disagreed with the rulings that brought down his presidency, Nixon, to his credit, complied with them – based, in a complicated way, on his view that the president is required to obey Supreme Court decisions.
It remains to be seen whether President Trump will follow Nixon’s path of compliance or whether he will seek to extend the premise once waged but ultimately abandoned by Nixon. Disobedience by either Congress or the president would set at naught the carefully wrought constitutional limits on the presidency. To make the effectiveness of those limits turn on the likelihood of obedience would feed defiance of law.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.