No, you can't just defy court orders.

JD Vance tweets about defying court orders. Is Vance right about the law? Is Trump gearing up to defy all the judges who keep ruling against him?

JD Vance may not actually be Trump’s successor, according to Trump — and he seems to be increasingly irrelevant and powerless in his actual role as vice president. Instead, he seems to have settled into an odd role as an official administration influencer on Twitter.¹ From that precarious perch, he gave a hint of the Rubicon the administration may soon cross on its road to fascism, one that we must examine with the utmost vigilance.

In his latest attempt to be relevant, Vance tweeted the following:

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.

This instantly qualifies as one of the most colossally and insidiously incorrect things a government official has ever said in all of American history.² Let us count the ways.

First, the insidiousness of this statement is much of the problem with it — Vance conflates military with civil administration, thus implying that the two should be collapsed into one, that the executive should have as much power in the civil realm as he does in the military realm. This is halfway down the slippery slope to martial law.³ It is a half-truth in service of a diabolical lie: civil judges do not have any role in telling generals how to wage war, but that says absolutely nothing about whether civil judges have any role in interpreting and issuing judgments on civil and constitutional law. The two things are completely separate and distinct.

Second, Vance’s statement regarding prosecutors is also insidiously shaded: while a judge does not “command” a prosecutor, a judge absolutely has a strong role in checking abuses of prosecutorial discretion. When prosecutors bring cases that should not have been brought, judges can and do dismiss them; judges will also admonish prosecutors, hold them in contempt, and fine and sanction them. And in the Georgia case against Trump and his January 6 co-conspirators, judges even halted what should have been one of the most important prosecutions in American history to consider whether to disqualify a prosecutor, Fulton County DA Fani Willis — surely an exercise of judicial power over prosecutors that Vance cheered.

So Vance’s premises are completely flawed — and his conclusion is even worse.

Judges are, in fact, allowed to control the executive’s power — and to determine whether that power was legitimate or illegitimate. This is, again, part of the insidiousness of Vance’s statement: by sneaking the word “legitimate” in there, Vance tries to create an unassailable declaration. Yet the real question, the tough question, is whether an exercise of executive power was legitimate or illegitimate. That is what the judiciary is charged with deciding.

Along with making similar decisions regarding legislative power, this is in actuality the entire point of judges in our constitutional structure! It is the whole role of the judiciary branch, its raison d’être. Each branch has its power to check and to balance the others, and the judiciary’s power over the other branches is to rule on whether those other branches — the executive and the legislative — are following federal law and the Constitution.

This is not a new concept, to put it lightly. It is the bedrock principle of the bedrock case of constitutional law, Marbury v. Madison — from 1803.

“It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall⁴ declared in Marbury — a case involving a would-be federal employee suing the Jefferson administration for refusing to process his paperwork to assume his position (in other words, a court challenge of an illegal executive action).

This is literally something that every first-year law student is taught during the first week of the typically required course in constitutional law. And yes, that course is required even at Yale Law, where Vance attended but evidently did not pay attention. Actually, that is incorrect: Vance almost certainly knows that the judiciary has the power to rein in the executive, but he is engaging in cheap sophistry to convince the online crowd otherwise.

The real question, though, is whether Vance’s tweet is a harbinger — or merely the annoying cry of someone desperate to be relevant and to have his superiors pay attention to him. Was Vance floating a trial balloon? Or was he a toddler crying because he lost his balloon?⁵

Are Donald Trump and Elon Musk actually preparing to defy all the court orders that keep getting issued against the administration?

The historical parallels are a bit awful to contemplate, except for the fact that Baron von Bonespurs never commanded his own animal appetites, let alone an entire legion.

This is the aforementioned Rubicon. The phrase has been badly watered down through overuse,⁶ but in this instance it is chillingly appropriate. The origination of the phrase “crossing the Rubicon” comes from the Rubicon River in northern Italy. Under the law of the Roman Republic, a governor-general of a province could only rule in that province; he could not lead his troops back into Italy proper; it was a capital offense both for the general and his troops. The Rubicon was part of the northern border separating Italy from Gaul. Julius Caesar, who had been governor-general of Gaul, illegally crossed the Rubicon with his legion of troops, beginning a bloody civil war that ended with Caesar becoming the first Roman emperor-for-life.

Defiance of court orders is thus one of the Rubicons that stands between Trump and the death of the Constitution and imposition of an autocratic dictatorship. It does not matter if Trump or his lackey lawyers at DOJ believe that the court orders themselves are wrong. The legal, constitutional course of action is not to defy the order but to continue litigating and then, if you lose, to appeal. Anything less is to install an unchecked executive, with no rule of law at all to stop him. One can either have a government of laws, or a government of tyrants.

This is one of the ramparts that we must undeniably defend.

Are we ready?

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We will undoubtedly be returning to this topic soon — at which point we will discuss what we can do to rise to the defense.

1. And even then, he’s weirdly way far down the pecking order given that he’s supposed to be the vice president of the United States of America. When the president and his multi-billionaire master and sugar daddy both have two of the largest social media footprints around, with hundreds of millions of followers each (even if a lot of them are likely bots) — and when the two of them respectively own the two primary social media platforms that all these people use — Vance (with a mere 3.5 million on Twitter) just seems oddly superfluous. I mean, Charlie Kirk has 4.6 million. It seems like Vance is trying to be even more extreme just to get attention.

2. Congrats, JD! You finally did something!

3. Or Marshall law, if you’re Marjorie Taylor Greene.

4. Wait! This is it! Now we finally know what “Marshall law” is!

5. In this metaphor, Vance’s lost balloon is his loss of the already quite limited relevance of the traditional vice-presidential role, which is now basically filled by Donald Trump.

6. It now gets used as a fancified way of saying that someone is bold or daring. Rather than someone engaging in an illegal, unconstitutional, murderous coup and insurrection.