OK. This is hard to say, but I agree with what JD Vance said. All right, maybe with his words and not so much with his intent. “Judges aren’t allowed to control the executive’s legitimate power“. He is absolutely right. And no judge, no court will impose on “legitimate power”. The role of the courts is to determine whether or not the acts of the executive, meaning the President of the United States, within the powers granted in Article II of the Constitution and also with any applicable laws, are legitimate. Article III, Section 2 of the Constitution grants the courts this power: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”. It is long established precedent that the courts have this power. The Supreme Court first exercised this power in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). There is, however, a significant problem in our constitutional system of government. It’s what scares me about what Vance likely meant. The Supreme Court decides whether or not an action exceeds presidential authority yet they have no ability to enforce their decisions. And that gets us to the root of the problem.
First, let’s once again jump into the wayback machine (for those of you who are too young, here’s an explanation). This time we’re going back a long time, to when Andrew Jackson was president (incidentally he’s been reported as Trump’s favorite president). A fictionalized version of history says that Jackson replied to a court decision by saying “John Marshall has made his decision, now let him enforce it!” (there’s no evidence that he actually said this). Regardless, the statement exactly captures the problem: the courts have no power to enforce their decisions, it’s up to the executive, the president, to enforce the court’s orders. A perfect case in point is the “Little Rock Nine“. The Little Rock school system was ordered to end segregation, to integrate, based on the decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). They refused. The governor said no, he would not enforce the court order. Enforcement of the order ultimately took President Dwight D. Eisenhower federalizing the Arkansas National Guard and ordering them to execute the court’s desegregation order.
So where does that leave us now? First, the situation: Trump has disbanded and effectively shut down the CFPB. This will he challenged in Federal court. Let’s start with a hypothetical: the court orders the CFPB to be reopened, stating that it was established via an act of Congress and only Congress, not the President, can close the bureau (this is the most likely outcome). Trump (more likely Elon) then refuses to comply with the court order, leaving the CFPB closed. What powers do the courts have to implement this order? They can hold the President in contempt of court, but what does this mean? Would a Republican House impeach the President for failing to follow the law? Do any of us believe that the Senate would convict him and remove him from office if the House actually did impeach him? Another possibility is that the court could order someone within the Trump administration to reopen the CFPB. And what are the courts powers if that person refuses? They can implement fines. They have the power to order the person imprisoned under “contempt of court”. And that gets us to another big problem. It’s the U.S. Marshals Service who executes the arrest and they likely won’t follow the order. Why? Because they report into the Department of Justice headed by someone who previously served as Trump’s attorney. So where would this leave us? Frankly (sorry for the blunt language), with a big fucking mess. We live in a fragile system that relies on the participants to follow the law. We rely on Congress to be a check on executive power, something that the current members on the Republican side of the aisle are failing to do.
And yes, this could be the end of our system of government. Do we really trust Trump to follow the law?
The Ugliness is the Hope.
Resist. Persist. Oppose. Propose. Be the opposition with a proposition.