A Constitutional Crisis?
Roger Berkowitz
02-16-2025 Around every corner is talk of a constitutional crisis. Is there one? What would that even mean? One of the more talked about incidents is a tweet by Vice President J.D. Vance, a Yale Law graduate, who wrote that judges are not allowed to control executive power.
"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."
And Elon Musk, with less of a legal background, wrote: 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."
"I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us if they’re going to blatantly disregard the constitution for their own partisan political goals?"
Federal Courts are issuing injunctions and stays that are halting or delaying some of the Trump administration's most aggressive attempts to hold back money appropriated by Congress, reinterpret the 14th Amendment, empower DOGE to oversee Congressionally mandated agencies, radically reduce the federal workforce, and transfer trans women to male prisons. As of this writing, the Trump administration has complied with all of these orders and has appealed them. While there may be some bluster about not following legal orders, thus far it is just that. The bigger question is: what is the appropriate relationship between the courts and the President. One view is that the courts are the branch of government that is empowered to interpret the Constitution. Another view is that all three branches can interpret the Constitution, but that the Courts have a certain legitimacy the other branches do not since they are the weakest branch. That said, the President and Congress also have legitimacy insofar as they are democratically elected, unlike judges. Constitutional crises have emerged in American history when various branches of the government have insisted on opposing interpretations of the Constitution. In most instances, the Courts have emerged victorious, but not always. And part of the way that Courts have maintained their supremacy in interpreting the Constitution is to refrain from intervening in controversial cases where “political questions” are at stake.
One of the intellectual leaders of the movement for greater presidential power, Adrian Vermeule, argues that appeals by the Executive for the Judiciary to limit its authority are part and parcel of constitutional argument and hardly constitute a constitutional crisis. He writes:
"T]here is a long tradition of departmentalism in American law, under which Presidents have sometimes exercised their constitutional power and duty to interpret the law for themselves, and even refused to enforce court orders or threatened to do so — a possibility to which Alexander Hamilton referred in Federalist #78, as itself an aspect of checks-and-balances. But no such threat was apparent on the face of the Vice President’s comments. The much more straightforward and less hysterical reading is that those comments referred to ordinary legal doctrines of justiciability, reviewability, standing, and the so-called political question doctrine, which are themselves legal principles that courts apply to restrain their own jurisdiction to review executive action. All these principles are ultimately rooted in the constitutional separation of powers, or in statutes embodying and implementing separation of powers considerations.
To illustrate by reference to the Vice President’s example of prosecutorial discretion, the Court recently declined to entertain a suit by states challenging executive enforcement priorities in immigration, saying that “our constitutional system of separation of powers contemplates a more restricted role for Article III courts.” And as to his other example, some version of the principle that courts may not directly control battlefield command and the conduct of operations by the President abroad, or even by governors in cases of domestic riots or public emergency, is an venerable one in our law - the law announced and applied by the courts themselves, out of respect for the separation of powers and the judicial role.
The basic confusion here is that although departmentalism is sometimes discussed under the heading of the separation of powers, it is also true, and perhaps more importantly true, that the separation of powers operates as an internal doctrinal principle that courts apply in our legal system. Courts themselves often invoke the separation of powers to limit their own authority, to put certain classes of executive action off limits from judicial review, or to shape and constrain the remedies they themselves provide. This has been true for as long as we have had courts and judicial review. In other words, because the separation of powers operates as a central legal principle within the legal decisionmaking of courts, the question “who decides?” comes in two different forms; failing to distinguish them causes confusion. As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue. Reviewability, standing, the political question doctrine, and so on all have this effect.
To date, all of the Trump administration’s responses in court have embodied ordinary appeals to these ordinary principles."
You can read more about Vermeule’s arguments and also counter arguments in this article by Mattathias Schwartz. You can also read this account from Steve Vladek. To illustrate by reference to the Vice President’s example of prosecutorial discretion, the Court recently declined to entertain a suit by states challenging executive enforcement priorities in immigration, saying that “our constitutional system of separation of powers contemplates a more restricted role for Article III courts.” And as to his other example, some version of the principle that courts may not directly control battlefield command and the conduct of operations by the President abroad, or even by governors in cases of domestic riots or public emergency, is an venerable one in our law - the law announced and applied by the courts themselves, out of respect for the separation of powers and the judicial role.
The basic confusion here is that although departmentalism is sometimes discussed under the heading of the separation of powers, it is also true, and perhaps more importantly true, that the separation of powers operates as an internal doctrinal principle that courts apply in our legal system. Courts themselves often invoke the separation of powers to limit their own authority, to put certain classes of executive action off limits from judicial review, or to shape and constrain the remedies they themselves provide. This has been true for as long as we have had courts and judicial review. In other words, because the separation of powers operates as a central legal principle within the legal decisionmaking of courts, the question “who decides?” comes in two different forms; failing to distinguish them causes confusion. As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue. Reviewability, standing, the political question doctrine, and so on all have this effect.
To date, all of the Trump administration’s responses in court have embodied ordinary appeals to these ordinary principles."
Another worry about a constitutional crisis concerns the Justice Department’s decision to instruct the Southern District of New York of the U.S. Attorney’s Office to drop a corruption case against New York Mayor Eric Adams. From all the evidence submitted, it does seem that Adams took bribes and also engaged in a straw voter scheme that allowed him to qualify for matching funds that he was not permitted to receive. In a review of the controversy, the New York Times concludes that Emil Bove III of the Justice Department ordered the case to be dropped so that the Trump administration could better pursue its political goals.
The agency’s justification for dropping the case was explicitly political; Mr. Bove had argued that the investigation would prevent Mr. Adams from fully cooperating with Mr. Trump’s immigration crackdown. Mr. Bove made a point of saying that Washington officials had not evaluated the strength of the evidence or the legal theory behind the case.
That is partly true. And the Times’ analysis captures an essential truth in this case, that the Trump Justice Department is willing to use the law for political purposes. This is a dangerous precedent.
However, if one reads Bove’s letter explaining his decision, the core of his argument to drop the prosecution seems to be based in a similar worry about the politicization and weaponization of the law by the attorneys at the U.S. Southern District. Bove argues that the Trump administration’s Justice Department has decided that the law has been weaponized by federal legal officials and that, it “is the policy of the United States to identify and take appropriate action to correct past misconduct by the Federal Government related to the weaponization of law enforcement." Bove’s reasons for arguing that the Southern District Prosecutors had weaponized the legal system are laid out in his letter, and include claims that the decision to charge Adams was rushed for political purposes and that the U.S. Attorney in charge of the office had politicized the charges to support his own career ambitions. Bove concludes: “The Justice Department will not ignore the fact that the timing of charges authorized by a former U.S. Attorney with apparent political aspirations interferes with Mayor Adams' ability to run a campaign in the 2025 election.”
It is worth reading the letter from Danielle Sassoon laying out why she refuses to drop the case, the letter from Emil Bove III about why he thinks she is wrong, and also the letter from Hagan Scotten, who also resigned rather than drop the case against Mayor Adams. Scotten writes:
"There is a tradition in public service of resigning in a last-ditch effort to head off a serious mistake. Some will view the mistake you are committing here in the light of their generally negative views of the new Administration. I do not share those views. I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me."
And simply because it is so good, take the time to read the famous speech by Justice Robert H. Jackson, “The Federal Prosecutor.” Both Bove and Sassoon appeal to Jackson’s speech, which famously begins and ends:"The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway…. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility."