By Noah Feldman / Bloomberg Opinion
The federal district courts have been standing up to Donald Trump’s illegal executive actions, blocking or pausing multiple orders from the denial of birthright citizenship to unprecedented data access for Elon Musk’s “Department of Government Efficiency.”
It’s neither surprising nor especially worrisome that Musk is now attacking the courts; he doesn’t know anything about law or the Constitution and seems to view both as minor irritants. What is of concern is the effort by Vice President J.D. Vance, a law school graduate, to undermine the fundamental constitutional principle that the executive branch must comply with a federal court order.
We can dispense quickly with Musk’s outlandish proposal on X to fire 1 percent of federal judges every year “as determined by elected bodies.” That would violate Article III of the Constitution, which created an independent judiciary by specifying the judges serve “during good behavior.”
It would take a constitutional amendment to implement the idea, so no need to fear that it will come to pass. In any case, Musk’s proposal provides a perfect example of why the framers chose to insulate judges from electoral pressure: Without full independence, judges would come under tremendous pressure to break the rule of law when a populist president and a partisan Congress tried to bully them into it.
That brings us to Vance, who is playing a more dangerous game. In a post of his own, he asserted that “judges aren’t allowed to control the executive’s legitimate power.” He then gave two hypothetical examples of judicial overreach that he labeled “illegal”: A judge telling “a general how to conduct a military operation” or a judge directing “the attorney general in how to use her discretion as a prosecutor.”
The statements aren’t exactly false, legally speaking. But they are wildly misleading; intentionally and irresponsibly so.
It’s true that under the design of the Constitution, the judiciary has the job of saying, ultimately, whether the president is exercising legitimate executive power or has gone too far. If the executive’s use of power is legitimate, the court won’t strike it down. But that’s different from saying the courts aren’t “allowed” to control the executive’s legitimate power. It’s up to the courts to decide whether the power is legitimate or not.
As for the examples, under existing Supreme Court doctrine, it would be incorrect under most circumstances for a court to direct a military operation since that power belongs to the president as commander-in-chief. But it’s a misleading use of language to say that such a judicial order would be “illegal.” It would be wrong as a matter of law, but not itself a violation of law.
And if the Supreme Court issued such an order, it absolutely would be legal. For example, if Congress passed a law expressly prohibiting fighting a war against Canada, and the president then did so anyway, the courts could plausibly direct generals to stop fighting there.
The same is true with respect to prosecutorial discretion. Ordinarily, that’s part of the executive power, and a court would be getting law wrong if it tried to control that discretion. But it wouldn’t be “illegal” in the ordinary meaning of that term. And if the attorney general used her discretion to take bribes to prosecute specific individuals, a court would absolutely have the power to order her to stop.
To be sure, Vance did not directly call for the administration to defy a judicial order. No president since Abraham Lincoln has openly done so, including Trump in his first term. It would be a mistake to panic and declare a constitutional crisis before one exists. What Vance is doing is more subtly pernicious. He’s trafficking in misleading statements in the hopes of weakening the power of the judiciary. After all, the Supreme Court has no troops to command. Our constitutional order depends on the executive choosing to comply with the Supreme Court’s interpretation of law. Weakening the public legitimacy of the judiciary amounts to weakening the foundations of our constitutional structure.
It is black-letter law that the president and the rest of the executive branch must obey a court order directed to them. The reason is straightforward. The Constitution gives the judiciary the power to say what the law is. In contrast, it tells the president to execute the law. The president therefore needs to do what the courts tell him to do, because the law literally is what the courts say it is.
If a president were to defy a court order directed to him or his administration, that would count as a constitutional crisis. We aren’t there yet. The vice president should not be playing with this particular fire.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.” ©2025 Bloomberg L.P., bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.
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