Legal progressives have strayed far from the Constitution. Credit: Getty
JD Vance caused a firestorm on Sunday when he posted on X, formerly Twitter: “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.”
The vice president’s remarks came in response to the growing list of lower-court judges who have attempted to halt the new administration’s agenda with a slew of injunctions. They have directed Team Trump to release federal grants to nonprofits that the administration has frozen for auditing, for example, and blocked the administration from applying its interpretation of the 14th Amendment, according to which children born to illegal immigrants aren’t automatically entitled to US citizenship.
Vance hit back at the judges for trying to restrict the president in his own sphere and overriding his decisions as to how best to carry out the law (the execute in the “executive branch”). As the Harvard law professor Adrian Vermeule put it an X post, reshared by Vance, “judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers”.
But the judges’ actions raise another vexing constitutional question: can a lower court with narrow local jurisdiction render so-called nationwide injunctions that purport to bind every American citizen? By seemingly refusing to comply, the Trump administration is effectively answering: no. In doing so, according to The New York Times, the Trumpians have triggered an unprecedented “constitutional crisis”. In recent years, as legal progressives have sought to limit presidential power when it’s held by the other side, it’s become a sort of truism that a lower court in Hawaii or, say, New Hampshire can put a stop to a federal policy covering the whole nation.
In fact, the argument isn’t obvious at all, and there is good reason to believe that America’s Founding Fathers would have been baffled by such gross assertions of judicial hegemony.
Start with the constitutional text. The first clause of Article III of the Constitution reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Read that carefully once more. This so-called vesting clause has at least two notable elements.
First, the only court that shall be established is the US Supreme Court. All other lower courts exist solely at the discretion of Congress, as they have since the Judiciary Act of 1789 — one of the first statutes the First Congress passed. But something created by statute can be taken away by statute. The Federalist’s Sean Davis might have appeared to be trolling when he noted on X that “Congress would be well within its right to just eliminate” any lower courts. In fact, Davis was restating a basic fact about America’s constitutional structure. That precarious state of the lower courts should already tell us something about their authority to neuter executive-branch policy for the whole country.
Second, and more relevant, is what the “judicial Power” means as it is used in Article III of the Constitution. As the University of Chicago Law School professor Will Baude argued in a highly influential 2008 law-review article, “the judicial power is the power to issue binding judgments and to settle legal disputes within the court’s jurisdiction”.
The deepest question raised by this is the following: what is a federal court’s legitimate jurisdiction when it comes to issuing injunctions — a form of “equitable remedy” in legalese, meaning the court tells one party to perform some act (rather than award damages). In this case, for example, it’s courts ordering the executive branch that it has to automatically grant US citizenship to children born to unlawful migrants.
The answer is simple: when it comes to this kind of remedy, only the named parties to a particular lawsuit are bound by the judgment. So to follow our example: a lower court can only order the federal government to treat as an automatic citizen a specific infant born on US soil to an illegal mother from Honduras. Call him Baby Doe. But a lower court lacks the authority to force the executive branch to grant automatic citizenship to Baby Doe and all other similarly situated children nationwide.
As then-Stanford law professor Jonathan Mitchell argued in a 2018 law-review article, an “injunction is nothing more than a judicially imposed non-enforcement policy” that “forbids the named defendants to enforce the statute” — or executive order — “while the court’s order remains in place.” There is no broader “writ of erasure” that permits a lower court to simply “strike down” a statute or an executive order.
Nationwide injunctions applying to all people across a vast continental nation have no basis in the Anglo-American legal tradition. Rather, the proper scope of a federal court’s power to issue such remedies is restricted to “the defendant’s conduct only with respect to the plaintiff”, as Samuel L. Bray, the Notre Dame legal scholar, argued in a 2017 law-review article
Sceptics of nationwide injunctions aren’t limited to the legal academy. They include Justice Clarence Thomas of the Supreme Court. As Thomas explained in his 2018 concurring opinion in the landmark Trump v. Hawaii case, historically, “American courts of equity did not provide relief beyond the parties to the case”, because “for most of our history, courts understood judicial power as fundamentally the power to render judgments in individual cases”. Presciently, Thomas concluded his opinion by warning: “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so”.
That day has not yet come, but it might soon enough, as the clash between the second Trump administration and legal progressives reaches a crescendo.
Meanwhile, talk of the administration ushering tyranny by defying nationwide injunctions is overblown, to put it generously. Throughout US history, presidents have contested the scope and the binding nature of the “judicial Power”. As the Yale scholar professor Keith Whittington laid out in his 2009 book, Political Foundations of Judicial Supremacy, the debate over who exactly has the last word when it comes to interpreting and enforcing the Constitution goes back to the beginnings of the republic.
Thomas Jefferson, in a 1804 letter to Abigail Adams, asserted that to give “to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch”.
Jefferson’s ideological arch-rival, Alexander Hamilton, agreed with him on this count. It was Hamilton, after all, who famously argued in The Federalist No. 78 that the judiciary is the “least dangerous” branch because it has “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”.
President Andrew Jackson took that Hamiltonian sentiment to its logical conclusion when, in 1832, he responded defiantly to Chief Justice John Marshall’s ruling in an Indian-removal case: “The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.” (Jackson is widely quoted as saying, “John Marshall has made his decision; now let him enforce it”, but his actual precise quip was similar enough.)
Yet no figure in the American tradition embodied the rejection of judicial supremacy quite like Abraham Lincoln. His 1858 Senate debates with Stephen Douglas focused, more than anything else, on the scope of the Supreme Court’s decision in Dred Scott v. Sandford, in which the high court held that black people weren’t citizens under the federal Constitution. Lincoln argued that the decision should be respected when it came to the named litigants to the suit, the slave Dred Scott and his “owners”, but that it shouldn’t be extended a millimetre further.
Three years later, in his First Inaugural Address as president, Lincoln warned that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers”.
JD Vance, in short, is in good company, with Jefferson, Hamilton, and Lincoln on his side. There is no such thing as a legitimate “nationwide injunction”. And the notion that the judiciary is the sole legitimate final arbiter of constitutional questions, including those having to do with the separation of powers, is also belied by US history. Perhaps the Trump administration will follow through on Vance’s sentiment — the birthright citizenship litigation seems as good an example as any. Or perhaps the lower-court #Resistance will first stand down or get put in its place by the Supreme Court.
Josh Hammer, a former law clerk at the US Court of Appeals for the Fifth Circuit, is Newsweek senior editor-at-large and author of the forthcoming book Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West.
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SubscribeInteresting, but I am still not clear about this. The Supreme Court is entitled and bound to rule whether action by State governments, and the US government, is constitutional. Is it possible to initiate a suit in the Supreme Court itself, or is it necessary to begin proceedings in a lower (presumably federal) court and work up to the SC through the usual appeals process? If the latter, then I don’t see why a suit in, for example, Vasquez v the President of the US, should not be commenced in the District Court of Alabama, for a mandatory injunction requiring either that all babies born in the US are citizens, or at least that Mr Vasquez’s baby should be granted citizenship.
Perhaps a US lawyer can help?
Yes, most cases are going to start at the lower level (the Supreme Court has “original jurisdiction” in certain very narrowly-defined instances). The question is when a lower court finds that the Administration is acting illegally, how far does that decision go. Most of the time, it only applies in the district where the court sits, and the Supreme Court uses conflicts in interpretation between districts as one signal that they need to take a case. But some courts have attempted to say because they’ve found that the Administration is acting illegally in this case, they should issue an order barring the Administration from doing the same thing in all similar cases nationwide. Justice Thomas clearly doesn’t believe they have the ability to do that, but SCOTUS in general hasn’t stepped into to stop it yet.
Thanks! Very clear.
The issue here is a little different than what is portrayed in this article. The problem is that cases take their time to wend their way through the court system. Meanwhile, things are happening in the real world. People are not just sitting waiting for the courts to decide.
So courts issue temporary orders that try to keep things as they are for a little while until the case can move along to a decision. So far that’s all that’s happening. No court has issued a permanent injunction saying that an executive order is invalid. They’ve issued preliminary injunctions that pause things for a while.
In the case of the USAID, for example, the court has just stepped in to pause orders from going into effect until February 14. If Elon Musk shuts the agency down, then even if the court later rules that is improper, the agency cannot be brought back to life. It’s dead. It’s like stopping an execution — a bullet to the head makes any death sentence final and stops an injustice from being overturned by a court.
Elon Musk knows this so he has launched a shock and awe campaign to make his actions irrevocable. It’s good that the courts are slowing him down. I hope they continue to do so. The last thing we need is the richest person in the world wielding government power too. He should be writing a report as an advisor, not taking actions himself.
Yeah, but you also know that if he just wrote a report, nothing would ever come of it. “Tweak and iterate” is often a better way to bring about large-scale organizational change. The courts should be giving him enough deference to allow some of that to happen, within bounds.
The problem is that Elon Musk runs three large and influential companies, is the richest person in the world, and what the government does will affect his companies and his wealth. He has no business implementing government policy.
Writing reports, fine. We can all see what he wrote and those without conflicts of interest can decide what to do. That’s transparent. But for him to audit these agencies, and then take action on his findings, that’s beyond the pale.
People worry about a revolving door between business and government, and rightfully so. Officers of drug companies going into government agencies like the FDA, and vice versa. But at least those people go out one door and in through another.
Elon Musk doesn’t even bother. He works for his companies and for the government at the same time. That’s fas*c.ism.
All of those points are immaterial if the President decides otherwise. And no, it’s not fas*c.ism.
You’re right, labeling it fas*c.ism is not really correct. It’s more just the corporatism aspect of fas*c.ism, and a rather ad hoc, informal version of corporatism at that. But it still brings the dangers of traditional corporatism that come from the blending of private business interest with governmental authority. Like:
— Conflict of interest: When a business leader has a significant influence over government decisions, their personal or corporate interests might take precedence over the public good.
— Erosion of democratic processes: When decisions are made by a powerful individual rather than through democratic processes, it can undermine public trust in the government and weaken democratic institutions.
— Reduced accountability: Informal influence and lack of transparency can make it harder to hold a leader accountable for their actions, leading to abuses of power.
— Inequitable policies: Policies might disproportionately benefit specific businesses or sectors, leading to increased inequality and neglect of broader societal needs.
Better to maintain clear boundaries between public and private sectors to ensure that government actions serve the broader public interest and uphold democratic values. If Elon Musk wants to have government power, he needs to give up his corporate power. Serve one or the other. It’s too conflicting to try to serve both.
And none of those dangers are mitigated by anything Donald Trump can do. Indeed, it’s the president who is causing the problem.
Yes, the point is that the jurisdiction of the federal courts, all courts actually, is over the persons before the court only. No courts can bind a person by its judgment if that person was not named in the lawsuit and was not permitted to appear and put on a defense. The “person” in question is not DJT personally but in his capacity as president of the USA. DJT as president is a stranger to DJT personally. If a court enters a judgment against DJT in his capacity as president, the judgement is binding only within the territorial range of the court’s jurisdiction. A federal judge in a neighboring jurisdiction could enter a ruling to the contrary, and it too would be binding only in that jurisdiction. There are some judges, however, who lust for more power than they really have, thus the nationwide judgement.
The deference isn’t to Elon Musk, it’s to the President of the United States. Limiting power is never easy, government always needs oversight and it’s clear that Government spending is out of control. If unelected bureaucrats can dig in and defy Congress and the President taxpayers are powerless.
Musk is NOT taking any decisions himself. The decisions are Trump’s. Musk is simply recommending.,
Not so. Both the president and Elon Musk have made it clear that the president has delegated the power to make decisions to Elon Musk. He’s not simply recommending, he’s shutting down agencies and stopping payments.
So you just said it “The President gave Elon Musk the power”. So it is all coming from President Trump. Where was your outrage when your Democratic party influencers pushed out President Biden and put in Ms. Harris as your candidate? What voice of the Democratic constituency was heard? None. Who was in charge when President Biden was clearly incapacitated? We don’t know and we’ll never know. Here you have President Trump front and center holding press conferences after press conferences and telling and showing all Americans what he is doing?
It’s very normal in many democracies that in order for someone to be given that kind of power, they need to digest themselves of potential conflicts of interest, particularly business related ones. That kind of process really should be applied to Musk if he’s going to actually wield power, rather than just make recommendations.
“the president has delegated the power” your words and the whole point – Musk only has powers Trump has granted as chief executive. He can rescind those powers when he wants.
Another important point – Obama created a class of Special Government Employees to whom he delegated powers to fix his disastrous Obamacare roll-out.
Biden would use SGE’s also.
Trump is following their precedent but for a much better purpose.
Biden refused to observe a Supreme court ruling on forgiving student loans and nobody batted an eyelash.
There was a lot of eyelash batting at Joe Biden’s actions on student loans. But there was nothing anyone could do to stop him.
It was nothing compared to what is happening now.
Are you talking about 2 genders only (horror, horror, horror!!!)?
This article is deeply irresponsible. The Trump Administration is not “refusing to comply” with any court orders. Trump was asked directly about it the other day, and said he didn’t even know what the reporter was talking about.
I think the predominant point of the article is that lower courts probably don’t have the ability to strike down executive branch actions. The mention about refusing to comply was essentially a blink-and-you’ll-miss-it moment in the whole piece.
Anyway, I had never heard of the argument that lower courts exist on tenuous constitutional grounds. I wonder if the dizzying network of courts could be reviewed for legitimacy?
Sure, Congress can review the legitimacy of the lower courts at any time and decide to make almost any changes they want, including eliminating those courts completely. There are some constitutional constraints that even Congress cannot change, but they have a lot of latitude. Both the Senate and the House have very active judiciary committees that keep the courts in check.
Lower courts DO have such ability, but I agree with the article that such ability extends only to the degree that Congress permits. For example, the Admiralty Law court in New York determines U.S. law on the high seas across the globe. The District of Columbia courts exercise inordinate power due to their location. So, it stands to reason that the various District courts cannot rule over events outside their jurisdictions.
“a lower court lacks the authority to force the executive branch to grant automatic citizenship to Baby Doe and all other similarly situated children nationwide”
The Executive Branch doesn’t grant citizenship, the Constitution does. It is not the Executive Branch that is sovereign in the United States, it is We The People. This article is unAmerican bullshit.
On that point, I agree with you. But a local court does not have authority beyond its jurisdiction, by definition of the word jurisdiction. So a Vermont judge can make a binding injuction on Vermont activities, but not for the rest of the USA. When two jurisdictions come into conflict SCOTUS steps in.
This is the basic point, not sure why SCOTUS hasn’t declared this yet. They should’ve done so long ago.
The reason the Court has not considered this is because no case with the basic point has reached it. The Court does not make rulings out of thin air.
No, the 14th Amendment is unclear on birthright citizenship, and the Trump EO tries to respect the one case in which the Supreme Ct addressed the matter, in the 1890s. This issue is very ripe for discussion.
Possibly, but the clause on qualifications for president are arguably less unclear.
Of course the Constitution grants citizenship. And the courts ultimately decide such issues (personally I think Trump is wrong on this one, but the legal precedent is not as clear cut as you seem to think). The jurisdictional issues raised in this article are not BS at all.
John A. Lucas is a retired attorney who is documenting this judicial lawlessness on Substack.
https://johnalucas6.substack.com/
Remember that article way back in this publication when it’s author was disparaging astrology? LOL. We just surpassed the Pluto return in the US natal chart, (which occurred in Capricorn, the sign of governments, institutions, and all social structures), where Pluto always represents energies of death, transformation and rebirth. As well as the exposure of corruption and all things buried. Raw power. Essentially this transit reflects a time where we as a country would be either re-affirming our founding principles, or walking away from them, forever. Transit was exact in early 2024 (and of course plays out in years, if not decades).
Now Pluto has transgressed into Aquarius. Same planetary energies in a new sign, one representing rebellion, detached humanitarianism, individualism, sovereignty, fights around censorship, technology, decentralization, chaos, out of the blue twists, and breakthroughs. Pluto was last in Aquarius during the American Revolution. You know that old adage about history not necessarily repeating but certainly seeming to rhyme? Well, we’re about to experience the rhyme, big time. American Revolution 2.0 baby!
Oh, one last thing… on December 21st of 2020, we saw a conjunction of Jupiter (ethics, law, belief systems) and Saturn (discipline, constraints, and all other types of structures. the RULE of law) at the zero degree of Aquarius. That last happened around 800 years ago. During the introduction of the Magna Carta. Our legal systems are about to evolve in a major, major way.
Trump was born not only on a full moon, but during the influence of a lunar eclipse. With Uranus (planet of chaos, disruption and breakthrough) in his tenth House of career, public face, and legacy.
Maybe that author should revisit the topic now that things are getting interesting. Fact is, the astrology of this year is more momentous than at any time in centuries.
(Edited to add….. God and the Universe are one!)
The left has engaged in judicial activism for a long time. What leftists cannot win at the ballot box, they will try to mandate through the courts. And the don’t care what the Founders thought.
The right does the same thing. People on both sides push the same bounds.
With due respect Carlos, You either do not know what you are talking about or you are trolling.
In just one example, conservatives forum-shopped to bring an antiabortion case in the Northern District of Texas before Judge Matthew Kacsmaryk, a Donald Trump appointee who is as staunch an antiabortionist as has ever sat on the bench. The judge issued an injunction on April 7, 2023 ordering the FDA to revoke its approval of the abortion drug mifepristone. This would have effectively banned the drug across the United States.
After the Fifth Circuit modified the injunction but let it stand, the US Supreme Court quickly stepped in to stay the injunction and then unanimously rejected the challenge to mifepristone’s approval on June 13, 2024. The justices ruled that the original plaintiffs lacked standing to sue, and the FDA’s approval of mifepristone remains in effect.
Let’s put the shoe on the other foot. Rewind to Jan. 20, 2021. President Joseph Biden declares a state of emergency and invokes the Insurrection Act, ordering the arraignment before military tribunals of all involved in J6. Only court that issues an injunction is in Idaho, where one of the indicted is a legal resident, although not arrested in that state. Court powerless?
If the action is in Washington DC, and the only federal court that issues an injunction is in Idaho based on a tenuous legal theory, then the overall system is dysfunctional, and devolving power to one outlying court is not going to be any solution.
I understand your desire to frame a case with the shoe on the other foot, but I don’t think your particular hypothetical works well. That doesn’t mean that the question you are trying to pose is not a good one though.
I would say, yes, the Federal District Court for Idaho would be powerless.
This is such bs, right from claiming vance created a “firestorm.” A more appropriate take would be, Vance was heavily mocked for a ridiculous and inaccurate post. And “anti-trump judges” in place of almost anything else, such as judges who respect American law. Absolute inaccurate propaganda.
Mocked by who? Woke people that voted for Climate Catastrophism, Gender Ideology, Defunding the Police and Race Essentialism. Oh yes, your “mockery” should be taken seriously.
Hi Stacy shill. I certainly didn’t ridicule and mock Vance’s statement. And you gave no reasons why his post was inaccurate propaganda. The ball is in your court.
This is an excellent article by someone who seems to understand the constitutional issues. If we acquiesce to the courts controlling the executive branch of government, we’ll have lost the separation of powers. Rule by judges (kritarchy) presents some grave problems, not the least of which is that the will of the people can be ignored. The quotation by Lincoln given above is worth repeating: “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers”.
An odd article, making a lot of arguments in the abstract and ignoring what really matters in the real world. It doesn’t matter, for example, that the lower courts are not put into place by the Constitution but only by Congress. They do exist, and their decisions matter. Yes, Congress could eliminate them, but until Congress does, that doesn’t make the lower courts any less powerful.
The practical reality is that American presidents exercise too much power. Their executive orders look just like laws, and in reality that’s what they are. Congress needs to step up and do its duty of passing budgets and other laws so that presidents don’t try to do their work for them. Presidents can’t make law, but only execute it.
The courts are not as bad at shirking their duty as Congress is, but they need to do better too. The courts also need to interpret the law, not write it. They need to apply the law to specific cases, not opine on what works best as a general rule for the country. But they also need to keep the other branches in check, especially the president.
The Constitution does a pretty good job setting up the basic structure of the American government, but each branch of the government needs to cooperate as well as compete. A president doing things just because he can get away with them is not doing his job well. Exercise better judgment, Donald Trump, for the country’s sake.
I appreciate alot of what you’ve been saying recently. I can even appreciate the need for a moderate contrarian but I think you’re ignoring some crucial aspects of reality. Where exactly is it written that a Federal District Court can nationally bind the Federal Executive?
The Democratic blob as you probably know pays only lip service to the separation of powers. Every time a democratically elected Republican Executive sets out an order that they don’t like, Democrats use their loosely affiliated organizations to file cases in coastal districts and gain injunctions freezing the order. They then engage in an endless process of delay until the original order becomes futile. They do this at scale. Its just another form of lawfare.
The best analogy that I would use for what they’re doing is a Squatters Rights agenda. The squatter can’t promptly be evicted from the premises by the owner because an activist judge won’t invalidate the technical loophole where statutory language is vague.
Very little self-consciousness here, I’m afraid.
Great Britain never had a Supreme Court, but after reading about all the conflict and division (Roe v Wade, Bush v Gore, etc.) that America’s engendered in the US — and which as the article shows are still ongoing — you must have thought “that looks like fun” and created your own in 2009.
Which is very similar to what you did after watching America’s violent and never-ending race problems explode in the Sixties and Seventies:
“Let’s import our own race problems!”
The problem goes deeper. First, John Marshall’s court expanded the scope of the Supreme Court to include ruling on constitutional issues and the nationwide meaning of federal legislation. The legislative and the executive branches complied. Lincoln in effect asserted that the executive also could interpret both, which was agreeable during the crisis of the Civil War. I am not familiar with any reassertion of Lincoln’s position subsequently. FDR certainly thought that court-packing was his best course.
Second, George Will noted years ago that the presidency has taken on a wartime cast from WWII through the Cold War to today. The legislative branch has delegated massive authority to the president. Legislators find this convenient, in that they are generally insulated from being seen as making decisions that would alienate any voter. This allows Trump to implement actions that might better be laws. But this won’t change, because it is safer to whine on the sidelines for both Democrats and Republicans.
You should think yourself fortunate in the US that your justice system has not fallen as far as that of the wretched UK.
Some years one of our most senior Judges sat on a highly controversial High Court Appeal concerning the President of Chile, one Augusto Pinochet.
Our High Court Judge knew full well that because of a ‘personal’ connection he should ‘stand down’ or RECUSE himself from the Appeal. Did he recuse himself? Did he hell! Thus bringing the British Judiciary into the grossest form of disrepute, from which it will NEVER really recover.
Finally was the said High Court Judge ever disciplined? Charged with “Bringing a Public Office into Disrepute” for example? Off course not, that would be just too much to be expected in today’s UK.
So he escaped “Scott Free” as we say, to his eternal shame, and to that of the concept of ‘British Justice’.
Consummatum est.
The Uber left Dems just can’t help themselves and if they take it too far, it will go before the Supreme Court. I hope it does, as it is bullshit that a federal judge, partisan or not, ruling applies to the entire country. Time to settle this.
Oh come on… “In recent years, as legal progressives have sought to limit presidential power when it’s held by the other side, it’s become a sort of truism that a lower court in Hawaii or, say, New Hampshire can put a stop to a federal policy covering the whole nation.” Both sides have been doing this for decades
In the UK, the high court may make a judgement that sets a precedent in law because we don’t have a Constitution, so the law is flexible and can react to changing circumstances (excepting the EHCR). British barristers frequently cite previous judgements as precedents for their current case. Individuals in the US can challenge orders made against them in Court on the basis of constitutionality, but an affirmative judgment sets no legal precedent, so that each case has to be fought separately.
However, a class action consisting of unlimited number of complainants can be brought against the Federal government for redress and damages pursuant to a constitutional “wrong” proven to have been committed against them. Lawyers will have a field day! This at least is how I understand it, correct me if I’m wrong, Josh.
This is a very excellent and illuminating article, thank you.
Let us be clear about this.
When Trump has Elon Musk going through aid and possibly eliminating the agency, that is an issue, which is internal to the executive branch. To a certain extent, the executive wrench is carrying out the instructions of Congress, and can be mediated by the courts. However, the executive must have the latitude to choose by what means it will fulfil any mandates given it by Congress. This means that the internal matter related to US aid is beyond the comment of both Congress and the judiciary.
It is somewhat less obvious with the immigration issue. However, the border are traditionally under the control of the executive branch, not the judiciary or Congress. It is by no means clear that Congress has the right to decide what people the executive branch will allow into the country as immigrants.
The columnist is correct: this is a constitutional crisis, that brings to the for a long-standing problem within how United States operates. It is not an issue that will be put to rest until someone pushes the issue. Most presidents have been afraid to test the other branches. We will see if Trump is willing.
I might also note that the divisions in the constitution are between the legislative, judicial, and executive branches. There is no division of powers between the public and the private sector.
In fact, Elon Musk, as the richest man in the world, has sufficient power and wealth that he is largely immune from self interest here: he is a little bit like an idealized autarch in the ancient Greek sense.