Friday Round Up! 2/14/25

No, it's not automatically legal if the president does it.

The top story today is the Thursday night massacre at the Justice Department, something that is giving me, at least, a ray of hope in all of this insanity. But, I will be writing about that for my CAFE Note that comes out next week, so I will leave it at that for now.

I do, however, want to write about this extra special tweet by J.D. Vance last weekend:

Vance’s tweet was no doubt partly, if not fully, the impetus for the statement made the following day by the president of the American Bar Association, William R. Bay, which I reprinted earlier this week on my Substack. In that statement, Ray emphasizes that “the administration cannot choose which law it will follow or ignore.” Indeed, on the surface, Vance’s tweet reads as though the administration does not believe it has to obey the authority of any court.

That is definitely the subtext, but it’s even worse. Vance’s tweet is very carefully worded. If you read closely, he says that judges can’t control an executive’s legitimate power. I mean, duh. And he uses as examples two scenarios that involve exclusive and core executive branch functions: the Commander in Chief and Take Care authorities under Article II of the Constitution. Again, duh.

In framing his tweet this way, Vance pulls a Jedi mind trick on the reader, including an unquestioned premise for his conclusion: That the challenged actions being taken by the current administration are legitimate. Of course, that’s not for him to decide. Anyone who remembers Schoolhouse Rock knows that the question of whether the President is exercising his power legitimately is precisely for courts to decide.

In fact, one of the most basic constitutional law cases on executive power is Youngstown Sheet & Tube Co. v. Sawyer (1952), which was a challenge to President Truman’s executive order directing his Secretary of Commerce to seize steel mills to avert a steelworkers strike during the Korean War. Truman argued that his Commander in Chief authority gave him the power to do this, in order to ensure continued steel production needed for the war. The Supreme Court disagreed, finding that Congress had declined to give him the authority to do so, and that he had no independent Art. II authority to exercise this kind of power. Basically, a major benchslap for the President.

It’s true that in the almost three quarters of a century since that case, the executive branch has usurped more and more congressional authority, especially in the area of war powers (and often with Congress not making too much of a fuss about it). Nevertheless, the idea that courts are not the arbiter of whether the exercise of executive power is legitimate has never been questioned. Indeed, even presidents acting within the sphere of “core” executive functions can violate the law and the Constitution. For example, President Reagan diverting third party funds to finance the Contras in violation of the Boland Amendments was a big legal no-no, despite it falling the realm of foreign affairs, in which the President has great latitude. Ditto for President Bush’s attempt to create military tribunals by executive order — under his Commander in Chief authority — to try detainees after 9/11, which also got a smackdown from the Court. And as long as we’re on the topic of presidential benchslaps, it’s funny, I didn’t see Vance complaining about courts’ authority after the Supreme Court told President Biden that canceling student loans exceeded his executive authority and required legislation from Congress.

Hmmm…it’s almost like courts get to — what’s the word I’m looking for here — oh yeah, check the power of the executive branch. (In fact, Justice Robert Jackson’s concurrence in Youngstown lays out the analytical framework that is typically used to determine the legitimacy of an exercise of executive power.)

Hopefully, Vance will dust off an old Con Law casebook and reread Youngstown (or at least watch Schoolhouse Rock), given Justice Frankfurter’s prescient words in the Court’s opinion:

A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale.…

The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.

More on unchecked executive power to come in next week’s posts. For now, here is my and Renato’s pod discussion on the human wrecking ball currently destroying our government:

Article reup:

• This CAFE piece I wrote in 2021 on why the maxim, “Never let your skill exceed your virtue” matters for lawyers — which is more relevant than ever today

Upcoming events:

• Freedom Academy Book Club, Date/Time TBA (sometime in March). I’m so excited that the Freedom Academy Book Club selection for this quarter is Breaking Twitter: Elon Musk and the Most Controversial Corporate Takeover in History by Ben Mezrich. You are likely already familiar with Ben’s work, as his book, The Accidental Billionaires: The Founding of Facebook was the basis for the hit movie The Social Network, and his more recent book, The Antisocial Network, was the basis for the hit movie Dumb Money. I am fortunate to get to hang with Ben and his wife, Tonya, up in Quechee, Vermont, and we are very lucky to have him join us (sometime in March) to discuss Elon, Twitter, social media, and billionaires more generally! (I am actually also reading his other book, Bitcoin Billionaires, because I’m now kind of obsessed with the rise of the broligarchs.) The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted after in case you can’t make it live!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. As noted above, pro bono lawyers are on the front lines to stop Trump and Musk’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Start a democracy group! My college class has started a WhatsApp chat where we share resources on how we can push back. We are also starting a book and movie discussion group (first up, Join or Die, which I recommended in a Round Up not too long ago!). The bonus is that you will create an important support system that you will need as we get through this difficult time (and we will get through it!)

3. Exercise self-care. I’ll try to post a self-care tip each week. This week, make a list of all the things that feed your soul. Then do one of them. (Feel free to mention them in the comments!)

Hang in there, everyone — we will make it through this.