MAGA's push for a constitutional showdown sparks unexpected resistance

In response to the flurry of cases brought against the Trump administration for its radical attempts to slash and burn all aspects of the federal government without constitutional authority, we're seeing some arguments from Republicans that lead to the conclusion that there is at least some consideration being given to simply ignoring the court's orders. Some have evoked the likely apocryphal statement attributed to President Andrew Jackson in which he was said to have declared, "[Chief Justice] John Marshall has made his decision; now let him enforce it" — which raises the question if Trump is planning to abide by court rulings he doesn't agree with.

The New York Times described the famous quote as "potent" because it perfectly illustrates perhaps the most important "norm" in our system of government, the acknowledgment and acceptance of the idea set forth by the Marshall Court in the landmark 1803 case Marbury v. Madison that "it is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule." Jackson asked the frankly logical question of how such a thing could be practically enforced by the co-equal judicial branch against the executive if it has no coercive power of its own. Obviously, it depends upon the agreed-upon norm by all three branches of government as well as the states that the federal judiciary is the ultimate interpreter of the U.S. Constitution.

Therefore, this concept that the judiciary is the final arbiter has always been built on a somewhat shaky premise that really comes down to "somebody's got to be the one to decide," and I assume the idea is that the court was considered to be the most insulated from crude political concerns so it was the most likely to make a dispassionate decision. We know that's a very dicey assumption but continue to hope that they will, at least, have an eye on the bigger picture when it comes to momentous constitutional crises. We may be about to find out if that's true.

This concept has been contested, particularly by the states, even as recently as the 1950s and 1960s. Presidents Abraham Lincoln and Franklin Delano Roosevelt both questioned the idea of "judicial supremacy" and took actions that arguably ignored judicial rulings by continuing to pursue them through the courts and attempting to change them through legislation during grave national crises. But there was never an outright dare to the Supreme Court to force them to acquiesce.

The vice president is the most high-profile official to advance the notion that the president isn't required to adhere to judicial orders. Over the weekend, in response to the various judicial actions requiring the Trump administration to pause much of its program to destroy the federal government, he tweeted that "judges aren't allowed to control the executive's legitimate power":

https://twitter.com/JDVance/status/1888607143030391287

As the Times noted, this issue was addressed by Chief Justice John Roberts in his year-end report:

“Every administration suffers defeats in the court system — sometimes in cases with major ramifications for executive or legislative power or other consequential topics,” he wrote. “Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed, and the nation has avoided the standoffs that plagued the 1950s and 1960s.”

“Within the past few years, however,” the chief justice went on, “elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”

He added, "The role of the judicial branch is to say what the law is," but “judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees.”

Good luck with that. Any thought that this Congress will act to restrain Trump or have the court's back is a fantasy. The GOP majority has turned over its constitutional prerogatives to Trump and Musk and is slinking away like a pack of beaten dogs. Constitutional lawyer and Speaker of the House Mike Johnson pretty much turned over his gavel to Elon Musk and his teenage Dogeboys:

Or take the comment from Thom Tillis, the allegedly moderate GOP senator from North Carolina, saying that what Trump is doing “runs afoul of the Constitution in the strictest sense" but “nobody should bellyache about that.”

Even a community note on Elon Musk's platform, X, noted that the courts decide what the law is in response to an ignorant comment from Trump's personal lawyer and counselor Alina Habba:

But an interesting thing happened on Tuesday afternoon that made me think there's a possibility that all isn't as it seems with this strategy. Trump held one of his executive order pageants in the Oval Office and he was joined by a bizarrely attired Elon Musk and his little toddler son, X. He asked Musk to take some questions, which he did, as his son crawled all over him and Trump looked on, visibly annoyed. It was very strange.

We know that Trump often degrades and insults judges who rule in ways he doesn't like. (Musk has suggested that they need to be impeached.) So when Trump was asked if he planned to comply with court orders I assumed that he would rant and rave about crooked judges and rigged cases as he usually does. But he didn't.

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This is what he said:

“I always abide by the courts and then I’ll have to appeal it. But then what he’s done is he’s slowed down momentum. And it gives crooked people more time to cover up the books. The answer is I always abide by the courts, always abide by them. And we’ll appeal. But appeals take a long time.”

He went on to say that he didn't think any court would tell him that they aren't allowed to audit the agencies and look for fraud. But nobody's saying the president doesn't have the right to do that. This is about whether the executive branch has the authority to usurp the power of Congress to appropriate and spend money, create or end agencies and fire people with civil service protections without cause (among other things.) It's about whether they are required to follow the law and procedures that govern how the executive branch operates under the Constitution.

The answer was very unlike him and it occurred to me after watching him look on as Musk was bizarrely attempting to justify his radical actions that Trump isn't really on board with all this. Does he want the courts to slow everything down? Is he hoping that the Supreme Court will rule against this Musk and Project 2025 dumpster fire?

I wonder. He ran against the "deep state" to wreak revenge on the Justice Department and the intelligence community for pursuing his criminal behavior. But I never got the idea that he was hellbent on destroying the federal government. He doesn't care about deficits, that's for sure, repeatedly assuring the voters that tariffs and "growth" were going to eliminate them. This isn't really his agenda.

Watching the look on his face as Musk held court, I couldn't help but think that Trump is now rueing the day that he hooked up with him. He doesn't really understand what he's doing and he doesn't know how to stop him. Maybe his pals on the Supreme Court will do him yet another solid and stop Musk for him.