I’ve been thinking for a while about what happens in the U.S. if the sitting president does a bunch of crazy stuff that is kind of clearly unconstitutional, or interferes with the legitimate democratic process, and this becomes clear to other parts of government.
At a high level, when one of the three branches of government (the executive, the legislative and the judicial branch) in the U.S. starts going off the rails, the other two both have some tools to stop the crazy branch. For now I think it makes sense to focus on what tools the judicial branch has, whose highest authority is the Supreme Court.
Let’s say the supreme court wants to stop a sitting president from destroying democracy in America. First, they release a judgement saying that something the executive branch is doing is unconstitutional. Hopefully the U.S. president agrees and then just stops doing that. But what happens when the executive branch keeps doing it anyways?
All federal officers (which are all part of the executive branch and approximately all under the direct command of the president) swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic”. This generally means that if an officer gets an order to do something unconstitutional, they are supposed to refuse that order (and this seems at least somewhat culturally real and not just a formality).
Now, how does an officer know whether an order they receive is unconstitutional? Historically matters of interpretation of the U.S. constitution have largely been delegated to the supreme court. However, this is not an ironclad rule or something the constitution itself specifies! The constitution does not say who has ultimate authority about its interpretation. In-practice most federal offices have deferred to what the Supreme Court says, but we haven’t really seen what happens when e.g. a sitting president insists on an interpretation of the constitution that disagrees, and the constitution itself provides no clear answer to what is supposed to happen.
So, with this background knowledge, I see roughly 4 big ways the supreme court can try to rein in an out of control executive branch that isn’t listening to a judgement they made:
1. Declare injunctions against specific federal officers
The first thing the Supreme Court is likely to try (likely before declaring an action by the U.S. president illegal/unconstitutional), is to require mandatory injunctions from specific federal officers to stop or provide relief to someone harmed.
This usually puts the officers into a very tricky position. If the president insists on ignoring the injunction, and the officer goes along with the president, the officer faces the risk of the court telling other parties to assist in prosecution of the relevant injunction (like the court asking banks to freeze their bank accounts, who might choose to side with the supreme court over the president, or ordering other parts of the executive to potentially jail or imprison them). Many of those parties are civilian institutions and so might decide to cooperate even under threats from the executive to not do so (and they would have decent legal standing to do so).
Courts can issue injunctions as part of criminal contempt (punishment for harming the functioning of the courts) or civil contempt (restitution to the other party that is being harmed). We are assuming an uncooperative president, and due to the president’s pardon power the criminal contempt is unlikely to be an issue since those can just be pardoned away. The civil contempt however, which would include things like private assets being seized cannot be pardoned away, and so provides a decent incentive for individual officers to at least refuse to execute any illegal orders, if not to go along with the court’s injunction against the president’s orders.
But if the officer refuses, the president is usually just able to fire whoever refuses to obey their orders, and in most circumstances can appoint a replacement (or just give orders directly to lower-level employees). This means in order for this to be effective, there needs to be relatively widespread buy-in for many federal officers to refuse at the same time, such that replacement on realistic timelines becomes infeasible.
2. Send in the Supreme Court Marshal, hope that no one stops them
Turns out, the supreme court has guns! And they are allowed to use them! These guns come in the form of the Marshal of the Supreme Court who is under the direct control of the judicial branch and directs a small (~200 person) police force. He is allowed to make arrests and generally enforce the court’s judgements. This would (as far as I know) include authority to jail the sitting president or other high-level federal officers.[1]
Unfortunately, from the perspective of the supreme court, these are really not very many guns. This basically means that in order for any order to successfully get enforced, approximately all federal law enforcement (and military officers domestically deployed) would need to refuse the orders they would surely receive by the sitting president to prevent the marshals from jailing them or any other high-level officials in the federal government.
This might happen! If enough federal officers do decide to defer to the Supreme Court, and to take their oaths to the constitution seriously, then it is not implausible to imagine that they would let the marshal do their job.
3. Hope that declaring the current president to be violating the constitution causes Congress to impeach
According to the constitution it’s congress’s job to determine whether the sitting president needs to be removed because they are violating the constitution. So one would hope that the supreme court taking a pretty clear stance here would increase the likelihood of congress moving to impeach the sitting president.
Of course, even if they want to do that, a crucial question becomes what tools the president has to prevent congress from impeaching them. I haven’t looked into it enough to have really any idea how this situation plays out.
4. Call for the states to do something about the executive branch
The other big player in the balance of power of the United States are the state governments. My current best understanding is that the states don’t really have any authority to interfere with what the federal government wants to do, but that hasn’t stopped the states in the past. A supreme court judgement might very well catalyze actions by e.g. the state to use state police forces or state-aligned parts of the national guard to prevent federal officers from taking actions judged unconstitutional by the supreme court.
If this kind of thing happens, I think a lot of it ends up coming down to what the U.S. military does. My current model is that due to the Insurrection Act the U.S. president basically can just deploy the military domestically whenever he wants, and this seems unlikely to be disputed, so anything that would approach substantial violent conflict would probably be met with opposition by the full power of the U.S. military, which are quite solidly under the direct command of the president (of course, possibly enough military personnel would refuse orders to make such action not decisive, but at least from a constitutional perspective no one but the president seems authorized to order the military to do anything proactively, e.g. there is no constitutional way for the military to end up supporting the states in conflict against the federal government).
So where does that leave things overall? Overall, when I researched this, I made a bunch of updates that from a constitutionalist perspective, the supreme court does not really have much of any tools to rein in an out of control executive branch, which on the margin seems pretty bad. I was hoping there were more clear guidelines about what to do if there is disagreement between the executive branch and the supreme court on the interpretation of the constitution. I was also hoping there were bigger barriers to the domestic deployment of the U.S. military by the sitting president.
The biggest thing that my curiosity goes towards when understanding the dynamics here is knowing what various high-level military officials would do when faced with the supreme court declaring actions of the executive branch unconstitutional. They are ultimately the people with the guns, and have sworn an oath to the constitution, and understanding how seriously they would take supreme court making a clear judgement (and e.g. would be open to protecting U.S. marshalls while they enforce supreme court judgement) seems like one of the most crucial questions.
In any realistic scenario, before the Supreme Court would order the Supreme Court Marshal, they would first try to order the confusingly named U.S. Marshals, who are usually responsible for enforcing court orders and things like that. However, those are under the direct command of the executive and the DOJ, and are more likely than not to refuse orders by the courts without executive buy-in, and in this scenario we are assuming non-cooperation of the executive.
These guns come in the form of the U.S. Marshalls who are under the direct control of the judicial branch.
You got the (admittedly extremely confusing) names wrong here. The US Marshalls are under the executive branch and report to the Attorney General, however the Marshal of the United States Supreme Court is a single person under the direct command of the supreme court and heads the Supreme Court of the United States Police Department, who are actually the people with most of the guns here.
This seems like its caused some confusion with some commenters here.
Hmm, yeah, I think I did get confused here! For people who want to learn more about the details of the authority of the different Marshalls, I liked this: https://www.congress.gov/crs-product/LSB11271
Enforcement of Court Orders Against the Executive Branch
Months into the second Trump Administration, a number of executive branch policies have been challenged in court, and several federal district courts have enjoined enforcement of some of the challenged policies. As one example, on January 31, 2025, a judge on the U.S. District Court for the District of Rhode Island issued a temporary restraining order (TRO) barring the Trump Administration from enforcing a federal funding freeze with respect to a number of states that had challenged the freeze. On February 10, 2025, after the states alleged that the government was not complying with the TRO, the court granted a motion for enforcement of the TRO requiring the government, among other things, to “immediately end any federal funding pause during the pendency of the TRO.”
[...]
When a federal court imposes contempt sanctions, the U.S. Marshals Service enforces the order, including by arresting persons ordered imprisoned for contempt. The U.S. Marshals Service is an executive branch agency within the Department of Justice. Some commentators have expressed concerns that, if the executive branch chose to defy a court order, it might also seek to prevent the U.S. Marshals from enforcing contempt sanctions. The U.S. Marshals are required by statute to “execute all lawful writs, process, and orders issued under the authority of the United States.” The 2018 review of contempt against the federal government notes that, historically, Presidents have complied with federal court orders and have not directed the U.S. Marshals not to enforce contempt orders. The President’s pardon power applies to criminal contempt but does not apply to civil contempt sanctions.
In theory, the whole process from injunction to contempt to sanctions might proceed exclusively in a district court. In practice, however, it is likely that one or more appellate courts would also be involved. A court order fining or imprisoning a person held in civil contempt generally may not be appealed until the court enters a final judgment. However, a district court order granting injunctive relief is usually immediately appealable to the appropriate federal appellate court, and rulings of the appeals courts related to injunctive relief may immediately be challenged via a petition for a writ of certiorari to the Supreme Court (though the Court has discretion whether to consider such matters). A conviction for criminal contempt is immediately appealable.
I might edit the post to account for my confusions.
One takeaway for me is that the american Presidency is extremely powerful—especially when you don’t care about passing legislation or popularity.
The unlimited pardons and vetoes is something that has been only sporadically used in the past, limited mostly by convention. Just reading the constitution text-as-written the presidency is wildly powerful, especially with a supreme court following a unitary executive interpretation and a lame-duck congress that does not care to insist on its war declaration prerogative.
I’m amused that the lightcone may have been lost in the 1790′s when the US constitutional framework was designed.
At the end of the day, the rule of a law is a Tinker Bell situation (it only survives if we believe in it). Long-term constitutional stability under a presidential system of government is also quite exceptional. The standard argument is that the US is the only successful case of long-run constitutional stability under a presidential argument (though, depending on how you define long-run, you might throw in Costa Rica today). We’re very lucky that we’ve believed for so long.
I’d add a couple more factors into your analysis, though.
One thing you leave out is mass public opinion, and all the various ways that can be effective—demonstrators in the streets, general strike, cessation of quasi-voluntary compliance in all the areas where the government requires it, and so on, perhaps insurgency or terrorism in extremis. Layer onto that the various additional actions available to economic elites. The real hope for the Supreme Court is that the public takes its side in some extreme crisis, and that a clear ruling on its part serves as the focal point to kick all of that off.
It’s pretty unlikely that the US military would be willing to crack down in that scenario. But even if it were, it doesn’t have the capacity to operate a police state. Most of our military capabilities aren’t geared towards that (something like a B-2 bomber or an aircraft carrier just really isn’t so helpful) -- the infantry forces of the US military aren’t even numerous enough to take over for the existing cadre of state and local police (assuming they walk off in this scenario) much less to do some kind of large-scale repression on top of maintaining ordinary law and order.
Another factor (in less extreme scenarios) is that the courts, in their ordinary and apolitical capacity, are extremely valuable to the government. A collision that ends up destroying the courts takes a lot of the economy with it because large chunks of the economy are underpinned by the existence of a rule of law system governing economic transactions. And the courts are also necessary to keep the trains running on criminal justice and so on. A surgical attack on the courts that disables them only on the political issues while keeping all of that running is very difficult to mount, especially in the face of their concerted resistance. Even autocrats find it useful to have a functional court system (and our own legal tradition emerged as a tool of the British monarchy)
On a lot of lower stakes stuff, this is really what matters, especially when the actions the government wants to take flow directly through the courts. There are a lot of issues in terms of criminal procedure where the executive would have pretty wide public support for violating the constitution (e.g., in surveys, a substantial majority of Americans favor rolling back various rights constitutionally granted to criminal defendants). Similarly, a pretty sizable chunk of Americans on either side seem to actively favor imprisoning political opponents on trumped up charges and no one is going to take to the streets if it happens. But, because the criminal process runs straight through the courts, you can’t really get those things done without blowing up the system. And that’s a big step to take.
Another consideration here is the power the courts have over lawyers. So long as the executive branch is still playing the game with reference to the rules (however fast and loose it’s being with those rules), the lawyers advancing its positions are subject to judicial discipline and, therefore, face personal consequences like disbarment. If the executive has decided to go all-out, that stops mattering. But in a lesser constitutional crisis, those people are still thinking about those interests and that exerts a lot of pressure in the rule of law direction. Likewise for the willingness of the courts to continue extending the government the presumption of regularity.
Circling back on the military, a couple of points:
A military willing and able to rule through force usually wants to do so on its own behalf. What does it need the unpopular civilian dictator for? So, it’s a pretty hard ask to make even if the military is not committed to any underlying values that preclude it unless there’s a really deep loyalty to the leader.
Getting your military to fire on civilians is really hard, especially in a military culture like ours.
The constitutional/rule of law/democratic norms in the US military are all pretty strong culturally. So is a norm against involvement in partisan or domestic issues (that don’t pertain directly to the military itself).
A particularly crucial constituency within the military in such hypothetical is the JAG Corps (the military’s own internal lawyers). JAGs are very integrated into decision-making and have managed over the last few decades to achieve very high status within the military. [a somewhat troubling aside is that the Trump administration purged the JAG leadership shortly after taking office]. In general, American lawyers inclusive of JAGs are especially committed to rule of law and things like following court orders.
As a closing though, the scenarios that worry me the most don’t involve outright defiance and clashes. The smart way of doing things is a little more subtle (and in the current moment also leverages the fact that the Supreme Court is willing to give the administration considerable benefit of the doubt). The Supreme Court’s own precedents have also handicapped it in that it has declared a variety of the legal tools you’d want in a crisis to be beyond its own powers and invented a lot of technicalities for the president to play to his own advantage.
Appreciate the factors! Agree on most of them being quite important. One quick note:
One thing you leave out is mass public opinion, and all the various ways that can be effective—demonstrators in the streets, general strike, cessation of quasi-voluntary compliance in all the areas where the government requires it, and so on, perhaps insurgency or terrorism in extremis. Layer onto that the various additional actions available to economic elites. The real hope for the Supreme Court is that the public takes its side in some extreme crisis, and that a clear ruling on its part serves as the focal point to kick all of that off.
Yeah, my analysis here was focused on what the supreme court and judiciary can do, from a constitutionalist perspective. My sense is the constitution doesn’t really allow insurrection under almost any circumstance, but does also maybe kind of expect it’s an important thing to maintain the threat of (hence the right to bear arms). I would be interested in someone analyzing when the constitution would permit a private citizen to take up arms against a sitting government (if any such circumstance exists).
I would be interested in someone analyzing when the constitution would permit a private citizen to take up arms against a sitting government (if any such circumstance exists).
To my knowledge, the interpretation which comes closest is Insurrectionist theory which interprets the right to bear arms as including the right of citizens to use them to defend against an oppressive government. There are apparently more explicit statements of this right in the preambles to some first-state constitutions, as well as the declaration of independence.
It should not be surprising that nobody has yet won on such a case in court though, and practically speaking you don’t have this right[1].
My understanding has been that even if you are arrested unlawfully by a police officer, you can’t use proportional force (as you would if you were assaulted by a non-police-officer), since the perspective of the government is that it is the judiciary’s right to determine whether an arrest is or isn’t lawful, not the citizen’s.
Except implicitly the founders themselves, who of course supported the right to revolution. Or at least supported that right for themselves. But originalism has never been a popular (or coherent) constitutional philosophy.
At the end of the day, the rule of a law is a Tinker Bell situation (it only survives if we believe in it). Long-term constitutional stability under a presidential system of government is also quite exceptional. The standard argument is that the US is the only successful case of long-run constitutional stability under a presidential argument (though, depending on how you define long-run, you might throw in Costa Rica today). We’re very lucky that we’ve believed for so long.
Can you explain your thinking here more and how it connects to the idea of constitutional risk?
The U.S. president holds a weaker office than the heads of government in most other countries. The Canadian and British PMs and the French presidents definitely seem stronger; the German Chancellor seems weaker, and maybe the Israeli and Italian and Japanese PMs? (These aren’t strong views). I most often hear from proponents of the parliamentary system that it is less gridlocked and more powerful/effective rather than less.
The U.S. president holds a weaker office than the heads of government in most other countries. The Canadian and British PMs and the French presidents definitely seem stronger
It matters exactly what you’re comparing here.
An American president is typically less effectual than a British PM, but the office is stronger. That is, the PM receives basically no power qua PM whereas the American presidency directly comes with considerable constitutional power.
If you were randomly dropped in by some process as the US president tomorrow, you’d immediately be a very powerful person and you’d hold those powers for a considerable length of time. If you were randomly dropped in as British PM, you’d be removed in a confidence vote in an instant.
The PM in a parliamentary system can typically get a great deal more done than the US president but that’s a selection effect really—being the PM means you also commanded a Parliamentary majority in order to get there, so of course you face less gridlock. The legislative branch doesn’t typically want to stop you. But, if the legislature suddenly does want to stop you, you’re gone immediately.
Can you explain your thinking here more and how it connects to the idea of constitutional risk?
Suppose the executive wants to seize power. If the legislature supports that, then it’s going to be a relatively easy thing to do in either a presidential or a parliamentary system. Whatever constraint there has to come from somewhere else.
The distinction between the two systems really only matters if the legislature opposes the seizure. Under a parliamentary system, they have an easy remedy—trigger a no-confidence vote and get rid of the problematic leader. Under a presidential system? Removing the leader is hard, and if you get into some kind of fight otherwise the president has all kinds of levers to pull. Which turns nasty (and those kind of moments of conflict also potentially create an opening for the military or someone else to seize power). It’s clearly better to be in a parliamentary system in that situation.
I was also referencing above the classic essay “The Perils of Presidentialism” by Juan Linz, which lays out a much more sophisticated set of arguments.
The distinction between the two systems really only matters if the legislature opposes the seizure.
With this, you focus too narrowly on this specific minority-rule “seizure of power” scenario rather than the relative power of the offices more generally.
There are more differences than you mention. The PM is less hindered by the independent judiciary than the president. The PM in a Westminster system also exerts greater control over the individual legislators via his party than in the American system. The PM can serve for an unlimited time, and call elections at strategic moments, while Trump is limited to two terms. All these things increase the power of the PM and the risk of oppressive rule in Westminster-style parliamentary systems.
The PM is less hindered by the independent judiciary than the president. The PM in a Westminster system also exerts greater control over the individual legislators via his party than in the American system. The PM can serve for an unlimited time, and call elections at strategic moments, while Trump is limited to two terms. All these things increase the power of the PM and the risk of oppressive rule in Westminster-style parliamentary systems.
None of those are inherently features of a parliamentary (or even Westminster-style) government. Those are all separate institutional choices you can make in either setup.
With this, you focus too narrowly on this specific minority-rule “seizure of power” scenario rather than the relative power of the offices more generally.
Sorry, I thought we were discussing the possibility of collapse into authoritarianism, in which case some kind of seizure of power is the relevant question? The claim I was making above is relevant to this, and not to other bad things that might happen.
As to the “power of the offices,” I do want to re-emphasize what I said earlier which is that you have to make a separation between the powers of the office (i.e., those vested in the office itself) and the typical powers of the officeholder (i.e., additional power that is typically held by the person holding the office but not as a consequence of holding the office). Much of the power of the typical prime minister flows from the fact that they are also the leader of a legislative majority. The matched comparison would be some kind of situation where the American president is also the speaker of the house and the Senate has been reduced to a ceremonial role (and if you want to match Britain in particular to the US, you also have to match other unrelated features like federalism and the strength of judicial review).
Maybe one distinction here is that you mention this question: Under which office can a random maniac who somehow ends up in that position cause more chaos or seize power?
But there is another question: Which office in practice results in more powerful officeholders, holding the population itself constant?
The U.S. president holds a weaker office than the heads of government in most other countries. The Canadian and British PMs and the French presidents definitely seem stronger; the German Chancellor seems weaker, and maybe the Israeli and Italian and Japanese PMs? (These aren’t strong views). I most often hear from proponents of the parliamentary system that it is less gridlocked and more powerful/effective rather than less.
It is less gridlocked, but that’s because the PM works for parliament and serves at its pleasure, much as a CEO for a board of directors. The PM normally can be removed by simple majority vote of no confidence at any time. While somewhat infrequent, this occurs often enough — and is a plausible enough threat even when it does not occur — that it cannot really be called exceptional in the way that the successful removal of a president via impeachment would be (which in the US is structurally very burdensome: demanding actual wrongdoing — “high crimes and misdemeanors” — rather than a mere loss of confidence, a majority in the House, an entire trial, and then a two-thirds majority in the Senate, and we have seen how difficult this bar is to meet even for extraordinarily unusual behavior). Furthermore, the PM has no formal say in legislation, which is another reason for less gridlock (though typically, as the head of their party, they do have great influence, but again, only so long as they can maintain a governing coalition within parliament).
It is precisely because of the gridlock created by a presidential system, with its “checks and balances”, that over time more power tends to be arrogated to the president in order to “get things done” that aren’t getting done otherwise, often without the political will to stand in the way of such arrogation when it occurs.
In the US specifically, another way in which the president has recently gained tremendous power stems from these “checks and balances”: the Supreme Court has opined that if presidential acts were subject to regular law, then this would give Congress the power to limit Article II presidential power.[1] This kind of consideration is normally not at issue in a parliamentary system, and thus the PM is normally subject to criminal law.
This basic logic seems very defensible to me, although they seem to have extended the notion of “official [presidential] acts” substantially beyond anything explicit in the Constitution, and then gone even further, to preclude not only prosecution for such acts, but even judicial consideration of such acts as evidence in a prosecution for non-official acts, under the theory that allowing such evidence would have a chilling effect on the president’s freedom to act within constitutional limits. However, this is very different from how we treat speech: we don’t say that a tweet is inadmissible in court as evidence for a non-speech crime, even though the tweet itself may be constitutionally protected speech which must not be chilled.
The PM normally can be removed by simple majority vote of no confidence at any time. While somewhat infrequent, this occurs often enough — and is a plausible enough threat even when it does not occur — that it cannot really be called exceptional in the way that the successful removal of a president via impeachment would be
This isn’t because the president can’t pass legislation on his own, so without the support of Congress he’s a lame duck even without removal. And you ignore other elements:
There are more differences than you mention. The PM is less hindered by the independent judiciary than the president. The PM in a Westminster system also exerts greater control over the individual legislators via his party than in the American system. The PM can serve for an unlimited time, and call elections at strategic moments, while Trump is limited to two terms. All these things increase the power of the PM and the risk of oppressive rule in Westminster-style parliamentary systems.
It is precisely because of the gridlock created by a presidential system, with its “checks and balances”, that over time more power tends to be arrogated to the president in order to “get things done” that aren’t getting done otherwise, often without the political will to stand in the way of such arrogation when it occurs.
This is a recent historical trend and not a defining feature of the system itself.
This isn’t because the president can’t pass legislation on his own, so without the support of Congress he’s a lame duck even without removal.
I think you mean it is because of that, not that it isn’t? But let me know if I’ve misunderstood you. I agree so far as legislation is concerned, though of course the president has a a huge amount of power beyond the ability to legislate.
There are more differences than you mention. The PM is less hindered by the independent judiciary than the president. The PM in a Westminster system also exerts greater control over the individual legislators via his party than in the American system. The PM can serve for an unlimited time, and call elections at strategic moments, while Trump is limited to two terms. All these things increase the power of the PM and the risk of oppressive rule in Westminster-style parliamentary systems.
I agree that some of these are differences giving a PM more power, in particular the ability to serve indefinitely and call elections strategically (which seems quite bad). The rest do not seem to me to be inherent in parliamentarianism, and indeed it is not clear to me that they are even tendencies.
This is a recent historical trend and not a defining feature of the system itself.
It’s not just a historical trend within the US though, but an observed tendency of other presidential systems, and does follow somewhat from the game-theoretic logic of that system.
I think you mean it is because of that, not that it isn’t?
Yes, that’s a typo.
It’s not just a historical trend within the US though, but an observed tendency of other presidential systems
This is too historically contingent. Presidential systems have dominated the less stable American and African countries while European and Asian countries that have been more stable more often have parliaments. I’m not convinced that there is empirical evidence of this kind.
I agree that parliaments have a much more intuitive nature. Corporations are run with a sovereign board who appoints a dictatorial CEO, not with independent branches of power in a balance.
Yeah, I remember in high school civics I could not understand in what sense the tripartite system of government we have constituted a “balance of powers”, when the only branch of government with any meaningful amount of guns was the executive, ruled by a singular president[1].
Until very recently it felt like a miracle anything worked at all, and my impression is that it worked so well in the past because congress had much much more day-to-day decision making power and was much more plugged into the information sources, then the “seniority system” was instantiated, congress became senile, and FDR got unprecedented control over the war-time economy, and took the opportunity to transfer many decision making roles and bodies from congress to the executive.
When congress is made up of the old and senile, and relies on the president to be their eyes, ears, hands, and brain, it just makes more and more sense to delegate broader and broader powers to the executive, who has the better qualified staff, more information, and a quicker reaction time.
The courts have never been all that powerful, except when they had the implicit backing of the president or congress. When they haven’t clearly had that, my impression is they have made sure not to command the executive to take any meaningful actions.
My teacher’s response to these questions & my confusion over their responses was kick me out of the classroom into the hallway. I gained quite a positive reputation among students and teachers after that!
then the “seniority system” was instantiated, congress became senile, and FDR got unprecedented control over the war-time economy, and took the opportunity to transfer many decision making roles and bodies from congress to the executive.
I’ve had an inkling that a lot of things that are broken about the US political system can be traced back to congress being ineffective, which can be traced back to power being held predominantly by the most senior congresspeople. But I don’t really know enough to know if this is right, or even the ways in which the “seniority system” has impacted how congress works.
But I would eagerly read a post describing how this change came about and what downstream factors it impacted.
But I would eagerly read a post describing how this change came about and what downstream factors it impacted.
I cannot recommend more strongly the first three chapters of Robert Caro’s Master of the Senate on this subject. It gives a full political history of the senate, and essentially its fall from grace, starting as the most powerful single component of the US government, hailed the world over for being the most competent and thoughtful political organization on the planet, to its ineptitude becoming the butt of jokes on TV and barely being considered during the signing of routine treaties.
Caro is extremely comprehensive and will write small mini-books on the history of every significant institution or person LBJ ever touched. That means that The Master of the Senate begins in like 1810 and gives a complete history of the Senate up until LBJ is elected into the body.
“When you start firing the military’s top lawyers, that means you are getting ready to order the military to do unlawful things. Trump replaces those JAGs with men who will justify any future unlawful and unethical actions that he wants the military to do,” wrote Democratic political candidate and former US fighter pilot Amy McGrath, also via X.
Presented with concerns about the implications of these firings, Hegseth said in a Fox News interview, “We want lawyers who give sound constitutional advice and don’t exist to attempt to be roadblocks.”
I’ve always read the Gödel citizenship anecdote less as “this topic is dangerous” and more as “formal systems have edge cases, please don’t bring them up at awkward social moments.”
That mostly works, until it doesn’t. Which is true of basically everything humans make up, including citizenship hearings. But wouldn’t life be so boring if we couldn’t gamble?
just like with certain events occurring in November of 2023, it seems like it ultimately comes down to how much pre-existing respect members of the executive branch and military have for the Supreme Court vs the President, and whether the publicly known facts of the dispute seem to obviously favor one side over the other. for example, it seems pretty clear that if trump wanted to serve a third term, and the supreme court says lol no that’s obviously unconstitutional, nobody would listen to Trump even if he could technically fire them.
My understanding is that the US Marshals are not only accountable to the Court either. They take their day-to-day commands from the Director of the US Marshals Service, a presidential appointee, who in turn reports to the US Attorney General, another presidential appointee.
This makes me even more doubtful that the US Marshals would side with SCOTUS and, eg, arrest the President in a worst-case constitutional crisis. Both the Marshals’ boss and their boss’s boss would likely side with the President, having been chosen by him for their loyalty.
The US Marshalls are charged with carrying out court orders but are actually part of the executive branch, which makes it even less plausible they would materially stand up to the president.
Oh, I didn’t see your footnote. I didn’t know about the US Marshalls vs Marshall of the US Supreme Court distinction. That’s interesting and confusing!
In-practice most federal offices have deferred to what the Supreme Court says, but we haven’t really seen what happens when e.g. a sitting president insists on an interpretation of the constitution that disagrees, and the constitution itself provides no clear answer.
This is a somewhat confusing statement. To be clear, it’s extremely common for the president to disagree with courts on the law or Constitution: this happens dozens of times per presidential term. And when they lose in court the president may declare that they still think they are right and the Court ruled incorrectly. But this wouldn’t cause a constitutional crisis or anything by default: the president almost always follows court orders or court opinions. It’s a very ingrained norm in the US that court orders, especially from the Supreme Court, are binding.
(relevant thread from a lawyer early last year on the powers and tools that courts have to force a president or other federal officials to follow their court orders, such as freezing assets).
I think there’s a lot of reasoning here that effectively goes “if the president has absolute power such that the military and federal officers will always listen to his orders, then the US legal system will have trouble reigning him in.” Which is kind of just begging the question. But somewhere in the chain of events you suggest, the president would break a lot of clear red lines and probably lose nearly all of his political support from the general population and the powerful elements of society, unless the he has already broadly persuaded people that his power-grabbing actions are actually a good idea.
the president almost always follows court orders or court opinions. It’s a very ingrained norm in the US that court orders, especially from the Supreme Court, are binding.
Sorry if this wasn’t clear. The whole point of this exploration is to figure out what happens when the president does not follow court orders. I will adjust the intro to clarify that.
I agree this would be approximately unprecedented! But it seems very much a scenario worth exploring. I made these edits to make that clearer:
So, let’s say the supreme court wants to stop a sitting president from destroying democracy in America. First, they release a judgement saying that something the executive branch is doing is unconstitutional. Hopefully the U.S. president agrees and then just stops doing that. But what happens when the executive branch keeps doing it anyways?
[...]
So, with this background knowledge, I see roughly 4 big ways the supreme court can try to reign in an out of control executive branch that isn’t listening to a judgement they made:
But this wouldn’t cause a constitutional crisis or anything by default: the president almost always follows court orders or court opinions.
There’s some complexity because historically the Supreme Court also tends to show restraint by not making rulings that it doesn’t expect people to follow.
I think in general when discussing these “Constitutional crisis” topics it helps to
Not think too much in terms of formalities but only in terms of norms
Look back in history for what it precedented or unprecedented, partly because this will also decouple the discussion from debates about current political questions/actors
(relevant thread from a lawyer early last year on the powers and tools that courts have to force a president or other federal officials to follow their court orders, such as freezing assets).
“Force” seems strong compared to what the thread says. He starts with “no chance of the White House successfully refusing to comply” but for every mechanism except freezing assets, he caveats with “this might work”
Another point here is that elections are an additional check after the courts, Congress, etc. US presidential elections are not administered by the federal government, they are administered by the states. So to interfere with elections, the president can’t just fill election boards with cronies or give orders to anyone in his chain of command to rig the election. He’d have to forcibly manipulate or interfere with state officials and state governments, risking direct conflict with states. And if he doesn’t interfere with the election and the states announce results showing he lost in a landslide, his political power almost certainly evaporates. Of course, if all the president’s crazy actions are in fact popular, then he is much more likely to succeed and stay in power for many reasons.
Again, if you assume the military always slavishly follows the president, then this ends up in a civil war with a plausible military victory for the president. But each escalation into “this is obviously illegitimate” means the president increasingly offends his generals’ sense of duty, decreases the probability of success and increases the legal and political risk for the officers following his orders, increases the size and motivation of the inevitable popular resistance, etc.
Isn’t the obvious thing to do here to just imprison/jail/deport/exile your political opponents? The supreme court will of course object, but that’s the whole scenario we are playing out here. My sense is this a relatively common thing to do if a president wants to stay in power.
But each escalation into “this is obviously illegitimate” means the president increasingly offends his generals’ sense of duty, decreases the probability of success and increases the legal and political risk for the officers following his orders, increases the size and motivation of the inevitable popular resistance, etc.
I agree that there is some broad sense in which this must be true, but I do think this hasn’t so far been particularly true in this administration? Maybe not super worth going into a ton of local political details, but I think history more broadly also shows that in many cases you can make up for doing things that are obviously illegitimate by looking like a bold, strong and decisive leader, and by threatening force to anyone who opposes you. So I don’t really buy there is the nice linear correlation that you say there is here.
and understanding how seriously they would take supreme court making a clear judgement (and e.g. would be open to protecting U.S. marshalls while they enforce supreme court judgement) seems like one of the most crucial questions.
I agree.
Also this is a scary question to investigate, because (on my current model, as described by this book), this is a Keynesian beauty contest—how almost everyone will act depends on how they expect almost everyone to act. Trying to get clarity about the question of how seriously the members of the armed forces take their oath to the constitution, or how they interpret the meaning of that oath, is much less of a neutral act than most exercises in figuring something out (even taking for granted that figuring stuff out often has implications for political conflicts, as the contextualizers cry, this question is particularly politically laden).
For this question more than most, the prediction market is probably a self-fulfilling prophecy. Which doesn’t mean that you shouldn’t have a prediction market, but it does seem like you should contend with the self- fulfilling nature somehow.
I feel on shaky ground here. It seems plausible to me that, if I have opportunity to, I should mostly not try to predict the answer to this question, I should mostly just try to reinforce the equilibrium of “the armed forces first loyalty is to the constitution.”
Or at least, I feel like I don’t have a developed philosophy of how to deal with questions that are mix of epistemic predictions and coordination-game.
To be clear: were I to take the above stance, I would continue to refrain from ever lying. Though I might also refrain from answering some classes of questions. (Also this is probably an academic point because I’m not likely to have much influence on what the US armed forces believe about what others in the US armed forces will do.)
Could you point to your source for the claim about the Marshall’s Service falling under the Judicial Branch of the government? My understanding is that his belongs to the DoJ so would fall under the Executive Branch.
Separately, I do wonder if we’re speculating about cases that might be labeled in the gray area of the incomplete contract (Constitution), I wonder what might happen if States claim their right to call out their National Guard and perhaps even the more general malitia (interesting if that could be State draft or purely voluntary—i.e., giving military arms to able bodied men), President calls out military, and then Congress tell all the military their pay is frozen—meaning not only DoD and it’s branches but the service men and any contractors—what might happen.
If Treasury just says go ef’ yourself Congress and cuts the checks not much hope. But what if the banking system refused to honor them given the S.C and Congress’s rulings?
Seems like at this point we’re talking about some serious brinkmanship, and to be honest I would really prefer not to live in such times (like many actually get a choice here) given the potential for escalation to all out civil war. But I do wonder if perhaps the bigger checks here might not be the informal checks and balances. It seems that perhaps in the scenario envisions (as I understand it—a serious breakdown in government processes and checks-balance among the branches) even applying any presumably defined law or division of power is very problematic—which is a bit different from saying the other branches should not try.
But I would also think (as seems true today) you simply don’t get to the situation suggested without the government processes and functions related to checks and balances already having deteriorated to the point of disfunction—which I would suggest is the case and has been developing for many years -- 50? 100? We’ve seen a lot of political structure innovation that is not quite consistent with the Constitution (Congressional delegation of powers, partnership among the branches for efficiency reasons, party domination that serves to eliminate the assumed checks and balances...).
Could you point to your source for the claim about the Marshall’s Service falling under the Judicial Branch of the government? My understanding is that his belongs to the DoJ so would fall under the Executive Branch.
Source: I made it up!
Apparently I was wrong. There is a Marshal under the direct control of the supreme court, but it’s just a single guy, who does control a police force, but the mandate of that police force is to protect the supreme court, not to enforce orders. I’ll try to update the post with my new understanding tonight.
No worries, we all make some mistakes with our assumptions at times and forget to double check every fact. I think it was a minor, and largely trivial error to the larger point. i just wasn’t sure and did a quick google check (so had Gemini answering, but I’ve seen it hallucinate enough to not take it as certian) but that can easily miss some finer points.
I confused the Supreme Court Marshal and the U.S. Marshals. It’s particularly easy to confuse them because the job of the U.S. Marshals is to enforce court orders, it just happens to be under the control of the executive.
Could you point to your source for the claim about the Marshall’s Service falling under the Judicial Branch of the government? My understanding is that his belongs to the DoJ so would fall under the Executive Branch.
I believe this is a minor mistake, see my other comment.
what if the banking system refused to honor them given the S.C and Congress’s rulings?
This is one reason why the independence of the FED is important. The US has a very centralized banking system which is technically governed by the executive branch.
I think there’s a magic[1] that the military is somehow also fairly firmly aligned with the constitution and non-partisan, though nominally also under the president’s command. I don’t really get it, and I don’t know how much this helps.
For all that they’re now playing coy, they were clearly implying the President had given unlawful orders, and were calling on the military to disobey him.
I wouldn’t be so sure that e.g. Mark Kelly was implying that the President himself had given unlawful orders. (I am open to evidence that this is what was being implied, or that this actually occurred.) The boat double-tap incident in particular suggested that unlawful orders may have been given by someone in the chain of command. Minus any speculative or actual nth-order effects, I think it was a sensible time to remind service members not to follow unlawful orders.
And of course, the POTUS himself frequently declines to defer to laws that would constrain him, so the idea that he might give unlawful orders shouldn’t be surprising to people in any given political camp.
I have heard this claim before, but have never been given a reason to believe it. Why do you believe the military is under the spell of “listen to the constitution” and not “listen to orders”? The latter seems a far more prevalent sentiment given the practical fact that often if you don’t listen to orders, you and your friends will often wind up dead.
Generally I do agree but given the current Secretary and some of the appointees I would question how strong that “magic” might be. Do you think some Generals or Armies/Divisions would rise up to oppose some core units that are aligned with such a President/Administration? At what point might they do that—the first case of S.C ruling something unconstitutional but the President continues? Or is it more likely they stay in their place and we just keep sliding down the slippery slope?
Importantly, as far as I can tell, from a purely constitutional perspective the supreme court has no more authority to direct any members of the executive branch to do anything than I do. Their only constitutional power is to call for federal officers to refuse to do something. Asking them to do anything proactive would go relatively clearly against their mandate.
In case nobody else has mentioned it: this is false, courts order actions all the time, e.g. ordering agencies to do stuff that they’re legally required to do. Ask your favorite chatbot.
I don’t think there is any authority here from a constitutionalist perspective? Like, the supreme court can order “the executive” to do something (and it might direct that order at a smaller part of the executive), but if the president disagrees, the constitution seems pretty clear that the job of the relevant executive agency would be to at most do nothing. Going directly against presidential orders and taking direct orders from the supreme court would be a pretty clear constitutional violation, at least as far as my understanding goes.
I would bet that lawyers, scholars, and chatbots would basically disagree with you. Your literal reading of the Constitution is less important than norms/practice.
My post is framed centrally as constitutionalist analysis, so I was trying to not get too bogged down in precedent and practicalities, which are just much harder to model (though of course the line here is blurry).
That said, after thinking and reading more about it, I still changed my mind at least a bit. The key thing I wasn’t modeling is the Supreme Court’s ability to declare injunctions against specific government officers, exposing them to more personal liability. Even if the executive doesn’t cooperate, the court can ask civilian institutions like banks to freeze their bank accounts or similar things, and my guess is many of them would comply.
I rewrote the relevant section to reflect my updated understanding. Let me know if anything still seems wrong by your lights.
I’ve mentioned before that both sides of this conflict see a clear precedent of unconstitutional action by their opponents that would destroy everything they care about if left unchecked. All of the processes described by OP would be taken as a coup by the side targeted by them.
I’ve recently noticed a recent surge in very partisan posts on LessWrong, generally similar in tone and content to this one, in which one side’s perspective is presented as unassailable fact and the other’s is not mentioned. This is dangerous, both in the sense that we have seen many communities elsewhere[1] lose the things that made them unique after being taken over by partisan political content, and in the very literal sense that American politics is at a breaking point right now, and encouraging unwise action could have very real consequences for very large numbers of people. “The military should renounce the elected president and fight against the government” is not something to say lightly, and, regardless of who won the resulting conflict, life would be perilous and uncomfortable for everyone living in America for several decades thereafter.
I realize this probably isn’t in line with the sentiments of most of the comments section on this post, but I would ask that you consider an extension of Chesterton’s Fence: “Do not, directly or indirectly, declare a large group of people to be your enemy until you can explain, from their perspective, why they are doing what they are doing.”
I was really trying to write this post largely from a “what would be the options for the judicial branch” in a generic way where it would apply to many presidencies, and trying to keep specific partisan judgements out of it.
To be clear, I do think pretty scary things are happening with U.S. democracy right now, and my motivation and attention is driven by what makes sense to do about a Trump presidency, but I still think it’s usually best to keep things focused on more general principles that could apply to many situations.
“The military should renounce the elected president and fight against the government” is not something to say lightly, and, regardless of who won the resulting conflict, life would be perilous and uncomfortable for everyone living in America for several decades thereafter.
Totally! And just for the sake of clarity, I absolutely do not think the current military should renounce the elected president and fight against the executive branch (you used the word “government” but to be clear, the supreme court and the states are also the government!). I do think what the actual military is supposed to do from a constitutionalist perspective when different parts of the government disagree and give conflicting orders is quite important and a pretty tricky question that I didn’t know the answer to before I researched and wrote this (and still have a lot of uncertainty on).
you used the word “government” but to be clear, the supreme court and the states are also the government!
In British English, “the government” means the executive branch, and the entire thing (including the judiciary and the legislature) is called the state.
And while I have your attention allow me to echo the person you are replying to, namely, it would be ideal if a reader could not even tell from your comments which party you prefer (since you run the site) and great grandparent is pretty strong evidence for which one.
Why… would that be ideal? I certainly do not consider my opinions on policy and politics to be forbidden on this site? The topic of politics itself should be approached with care, but certainly it would be if anything a pretty bad violation of what I would consider good conduct if people systematically kept their opinions on politics and policy hidden. Those things matter!
My worry is one or two people loyal to the red team leave the site, which makes people on the blue team feel more free to use the site to criticize the red team, causing more red teamers to leave (and attracting blue-team zealots who filter everything through an ideological lens) in a positive feedback loop ending in a site with the same problem as Bluesky already has and many subreddits already have, namely, the zealots produce large quantities of low-quality writing, which drowns out the high-quality contributions and discourages many who can make high-quality contributions from even starting to contribute.
ADDED. Since LW is currently very far from Bluesky, perhaps it would’ve been more persuasive for me to argue that if LW were to start to have even half as many low-effort political comments as Hacker News, many would probably stop reading LW, or at least that is my worry.
Yeah, definitely agree. I just think the standard of “admins should comment in a way that makes it impossible to tell what their political opinions are” is not the best tool to achieve this. I think it’s better for people to be open about their views, and also try really hard to be principled and fair.
please don’t even imply that it is natural for a LW reader to prefer one of the US political parties over the other.
On what grounds? There’s always been a norm on LW of treating some highly controversial questions as basically settled. Good-faith disagreement will still be heard and engaged with, but it’s normal to, for example, take atheism for granted. The same goes for values-based disagreements; it’s taken for granted that some versions of the future are obviously preferable to others. So if one US political party is, factually, working against the values of most LW readers much harder than the other one, why is it off-limits to make comments discussing the implications of that?
Yes, I’ve read it, and it doesn’t say what you seem to be implying it says.
If you want to make a point about science, or rationality, then my advice is to not choose a domain from contemporary politics if you can possibly avoid it.
[my emphasis, here and below]
I’m not saying that I think we should be apolitical, or even that we should adopt Wikipedia’s ideal of the Neutral Point of View. But try to resist getting in those good, solid digs if you can possibly avoid it.
Eliezer’s main point was that we should avoid unnecessary politics, especially cheap political digs that may please some readers but risk needlessly alienating others. Here, the thing being discussed is inherently political and inseparable from the partisan divide.
I do want to avoid gaslighting people. LessWrong and LessWrong 2.0 under my management has discouraged U.S. politics content for many years. We stopped around 4-5 years ago, as politics started being more relevant to many people’s goals on the site, though we still don’t allow it on the LW frontpage unless it tries pretty hard to keep things timeless and non-partisan.
Politics is the Mind-Killer: still applies; protects this forum from redditification and encourages us to avoid pointlessly alienating people/making enemies of each other.
US politics posting allowed/discouraged/banned: I’m not too fussed about where you set this dial. But if political discussion is going to happen here, I think it would be bad if you/we got pressured into bothsidesism (which could happen if PitMK is misrepresented as a prohibition on openly taking partisan-coded positions).
I greatly appreciate the context you provided in the linked comment, and in general the attempt to explain why an underrepresented side views their choices as reasonable or necessary. I want to do what I can to support you continuing to bring up counterpoints and things people are missing.
This particular post reads to me as president-neutral, in that you could post it on a conservative-leaning forum under a democratic president and it would look equally in tune with local culture. Maybe I’m wrong about that, it’s easy to read things that match one’s own worldview as neutral, in which case I’m asking for specifics on what makes this not neutral.
One guess, based on your other comment, is that Habryka takes the legitimacy of the court for granted, in which case I’d like to dig into more detail on that.
I think it is very easy to read into a post like this and essentially fall into the very behavior you’re ascribing to the author. Regardless of the OP’s view, the post is not naming names but is very topical. It’s worth considering.
But I do agree that whoever is getting told their actions are unconstitutional will typically see that as an attack if they truly believe they are doing something within their powers. But I also suspect any that refuse to accept a Supreme Court ruling never cared about the Constitution or the checks and balances that were implemented in the Constitution. It’s simply a case of someone refusing to accept they are not a good judge of their own case which is pretty much at the heart of any rule of law society.
I’ve been thinking for a while about what happens in the U.S. if the sitting president does a bunch of crazy stuff that is kind of clearly unconstitutional, or interferes with the legitimate democratic process, and this becomes clear to other parts of government.
At a high level, when one of the three branches of government (the executive, the legislative and the judicial branch) in the U.S. starts going off the rails, the other two both have some tools to stop the crazy branch. For now I think it makes sense to focus on what tools the judicial branch has, whose highest authority is the Supreme Court.
Let’s say the supreme court wants to stop a sitting president from destroying democracy in America. First, they release a judgement saying that something the executive branch is doing is unconstitutional. Hopefully the U.S. president agrees and then just stops doing that. But what happens when the executive branch keeps doing it anyways?
All federal officers (which are all part of the executive branch and approximately all under the direct command of the president) swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic”. This generally means that if an officer gets an order to do something unconstitutional, they are supposed to refuse that order (and this seems at least somewhat culturally real and not just a formality).
Now, how does an officer know whether an order they receive is unconstitutional? Historically matters of interpretation of the U.S. constitution have largely been delegated to the supreme court. However, this is not an ironclad rule or something the constitution itself specifies! The constitution does not say who has ultimate authority about its interpretation. In-practice most federal offices have deferred to what the Supreme Court says, but we haven’t really seen what happens when e.g. a sitting president insists on an interpretation of the constitution that disagrees, and the constitution itself provides no clear answer to what is supposed to happen.
So, with this background knowledge, I see roughly 4 big ways the supreme court can try to rein in an out of control executive branch that isn’t listening to a judgement they made:
1. Declare injunctions against specific federal officers
The first thing the Supreme Court is likely to try (likely before declaring an action by the U.S. president illegal/unconstitutional), is to require mandatory injunctions from specific federal officers to stop or provide relief to someone harmed.
This usually puts the officers into a very tricky position. If the president insists on ignoring the injunction, and the officer goes along with the president, the officer faces the risk of the court telling other parties to assist in prosecution of the relevant injunction (like the court asking banks to freeze their bank accounts, who might choose to side with the supreme court over the president, or ordering other parts of the executive to potentially jail or imprison them). Many of those parties are civilian institutions and so might decide to cooperate even under threats from the executive to not do so (and they would have decent legal standing to do so).
Courts can issue injunctions as part of criminal contempt (punishment for harming the functioning of the courts) or civil contempt (restitution to the other party that is being harmed). We are assuming an uncooperative president, and due to the president’s pardon power the criminal contempt is unlikely to be an issue since those can just be pardoned away. The civil contempt however, which would include things like private assets being seized cannot be pardoned away, and so provides a decent incentive for individual officers to at least refuse to execute any illegal orders, if not to go along with the court’s injunction against the president’s orders.
But if the officer refuses, the president is usually just able to fire whoever refuses to obey their orders, and in most circumstances can appoint a replacement (or just give orders directly to lower-level employees). This means in order for this to be effective, there needs to be relatively widespread buy-in for many federal officers to refuse at the same time, such that replacement on realistic timelines becomes infeasible.
2. Send in the Supreme Court Marshal, hope that no one stops them
Turns out, the supreme court has guns! And they are allowed to use them! These guns come in the form of the Marshal of the Supreme Court who is under the direct control of the judicial branch and directs a small (~200 person) police force. He is allowed to make arrests and generally enforce the court’s judgements. This would (as far as I know) include authority to jail the sitting president or other high-level federal officers.[1]
Unfortunately, from the perspective of the supreme court, these are really not very many guns. This basically means that in order for any order to successfully get enforced, approximately all federal law enforcement (and military officers domestically deployed) would need to refuse the orders they would surely receive by the sitting president to prevent the marshals from jailing them or any other high-level officials in the federal government.
This might happen! If enough federal officers do decide to defer to the Supreme Court, and to take their oaths to the constitution seriously, then it is not implausible to imagine that they would let the marshal do their job.
3. Hope that declaring the current president to be violating the constitution causes Congress to impeach
According to the constitution it’s congress’s job to determine whether the sitting president needs to be removed because they are violating the constitution. So one would hope that the supreme court taking a pretty clear stance here would increase the likelihood of congress moving to impeach the sitting president.
Of course, even if they want to do that, a crucial question becomes what tools the president has to prevent congress from impeaching them. I haven’t looked into it enough to have really any idea how this situation plays out.
4. Call for the states to do something about the executive branch
The other big player in the balance of power of the United States are the state governments. My current best understanding is that the states don’t really have any authority to interfere with what the federal government wants to do, but that hasn’t stopped the states in the past. A supreme court judgement might very well catalyze actions by e.g. the state to use state police forces or state-aligned parts of the national guard to prevent federal officers from taking actions judged unconstitutional by the supreme court.
If this kind of thing happens, I think a lot of it ends up coming down to what the U.S. military does. My current model is that due to the Insurrection Act the U.S. president basically can just deploy the military domestically whenever he wants, and this seems unlikely to be disputed, so anything that would approach substantial violent conflict would probably be met with opposition by the full power of the U.S. military, which are quite solidly under the direct command of the president (of course, possibly enough military personnel would refuse orders to make such action not decisive, but at least from a constitutional perspective no one but the president seems authorized to order the military to do anything proactively, e.g. there is no constitutional way for the military to end up supporting the states in conflict against the federal government).
So where does that leave things overall? Overall, when I researched this, I made a bunch of updates that from a constitutionalist perspective, the supreme court does not really have much of any tools to rein in an out of control executive branch, which on the margin seems pretty bad. I was hoping there were more clear guidelines about what to do if there is disagreement between the executive branch and the supreme court on the interpretation of the constitution. I was also hoping there were bigger barriers to the domestic deployment of the U.S. military by the sitting president.
The biggest thing that my curiosity goes towards when understanding the dynamics here is knowing what various high-level military officials would do when faced with the supreme court declaring actions of the executive branch unconstitutional. They are ultimately the people with the guns, and have sworn an oath to the constitution, and understanding how seriously they would take supreme court making a clear judgement (and e.g. would be open to protecting U.S. marshalls while they enforce supreme court judgement) seems like one of the most crucial questions.
In any realistic scenario, before the Supreme Court would order the Supreme Court Marshal, they would first try to order the confusingly named U.S. Marshals, who are usually responsible for enforcing court orders and things like that. However, those are under the direct command of the executive and the DOJ, and are more likely than not to refuse orders by the courts without executive buy-in, and in this scenario we are assuming non-cooperation of the executive.
You got the (admittedly extremely confusing) names wrong here. The US Marshalls are under the executive branch and report to the Attorney General, however the Marshal of the United States Supreme Court is a single person under the direct command of the supreme court and heads the Supreme Court of the United States Police Department, who are actually the people with most of the guns here.
This seems like its caused some confusion with some commenters here.
Hmm, yeah, I think I did get confused here! For people who want to learn more about the details of the authority of the different Marshalls, I liked this: https://www.congress.gov/crs-product/LSB11271
I might edit the post to account for my confusions.
https://www.scuspd.gov/department/
That isn’t a lot of men (or women) with guns.
Yeah I meant “most” where the others we’re comparing are the 9 justices and one Marshal at most.
One takeaway for me is that the american Presidency is extremely powerful—especially when you don’t care about passing legislation or popularity.
The unlimited pardons and vetoes is something that has been only sporadically used in the past, limited mostly by convention. Just reading the constitution text-as-written the presidency is wildly powerful, especially with a supreme court following a unitary executive interpretation and a lame-duck congress that does not care to insist on its war declaration prerogative.
I’m amused that the lightcone may have been lost in the 1790′s when the US constitutional framework was designed.
At the end of the day, the rule of a law is a Tinker Bell situation (it only survives if we believe in it). Long-term constitutional stability under a presidential system of government is also quite exceptional. The standard argument is that the US is the only successful case of long-run constitutional stability under a presidential argument (though, depending on how you define long-run, you might throw in Costa Rica today). We’re very lucky that we’ve believed for so long.
I’d add a couple more factors into your analysis, though.
One thing you leave out is mass public opinion, and all the various ways that can be effective—demonstrators in the streets, general strike, cessation of quasi-voluntary compliance in all the areas where the government requires it, and so on, perhaps insurgency or terrorism in extremis. Layer onto that the various additional actions available to economic elites. The real hope for the Supreme Court is that the public takes its side in some extreme crisis, and that a clear ruling on its part serves as the focal point to kick all of that off.
It’s pretty unlikely that the US military would be willing to crack down in that scenario. But even if it were, it doesn’t have the capacity to operate a police state. Most of our military capabilities aren’t geared towards that (something like a B-2 bomber or an aircraft carrier just really isn’t so helpful) -- the infantry forces of the US military aren’t even numerous enough to take over for the existing cadre of state and local police (assuming they walk off in this scenario) much less to do some kind of large-scale repression on top of maintaining ordinary law and order.
Another factor (in less extreme scenarios) is that the courts, in their ordinary and apolitical capacity, are extremely valuable to the government. A collision that ends up destroying the courts takes a lot of the economy with it because large chunks of the economy are underpinned by the existence of a rule of law system governing economic transactions. And the courts are also necessary to keep the trains running on criminal justice and so on. A surgical attack on the courts that disables them only on the political issues while keeping all of that running is very difficult to mount, especially in the face of their concerted resistance. Even autocrats find it useful to have a functional court system (and our own legal tradition emerged as a tool of the British monarchy)
On a lot of lower stakes stuff, this is really what matters, especially when the actions the government wants to take flow directly through the courts. There are a lot of issues in terms of criminal procedure where the executive would have pretty wide public support for violating the constitution (e.g., in surveys, a substantial majority of Americans favor rolling back various rights constitutionally granted to criminal defendants). Similarly, a pretty sizable chunk of Americans on either side seem to actively favor imprisoning political opponents on trumped up charges and no one is going to take to the streets if it happens. But, because the criminal process runs straight through the courts, you can’t really get those things done without blowing up the system. And that’s a big step to take.
Another consideration here is the power the courts have over lawyers. So long as the executive branch is still playing the game with reference to the rules (however fast and loose it’s being with those rules), the lawyers advancing its positions are subject to judicial discipline and, therefore, face personal consequences like disbarment. If the executive has decided to go all-out, that stops mattering. But in a lesser constitutional crisis, those people are still thinking about those interests and that exerts a lot of pressure in the rule of law direction. Likewise for the willingness of the courts to continue extending the government the presumption of regularity.
Circling back on the military, a couple of points:
A military willing and able to rule through force usually wants to do so on its own behalf. What does it need the unpopular civilian dictator for? So, it’s a pretty hard ask to make even if the military is not committed to any underlying values that preclude it unless there’s a really deep loyalty to the leader.
Getting your military to fire on civilians is really hard, especially in a military culture like ours.
The constitutional/rule of law/democratic norms in the US military are all pretty strong culturally. So is a norm against involvement in partisan or domestic issues (that don’t pertain directly to the military itself).
A particularly crucial constituency within the military in such hypothetical is the JAG Corps (the military’s own internal lawyers). JAGs are very integrated into decision-making and have managed over the last few decades to achieve very high status within the military. [a somewhat troubling aside is that the Trump administration purged the JAG leadership shortly after taking office]. In general, American lawyers inclusive of JAGs are especially committed to rule of law and things like following court orders.
As a closing though, the scenarios that worry me the most don’t involve outright defiance and clashes. The smart way of doing things is a little more subtle (and in the current moment also leverages the fact that the Supreme Court is willing to give the administration considerable benefit of the doubt). The Supreme Court’s own precedents have also handicapped it in that it has declared a variety of the legal tools you’d want in a crisis to be beyond its own powers and invented a lot of technicalities for the president to play to his own advantage.
Appreciate the factors! Agree on most of them being quite important. One quick note:
Yeah, my analysis here was focused on what the supreme court and judiciary can do, from a constitutionalist perspective. My sense is the constitution doesn’t really allow insurrection under almost any circumstance, but does also maybe kind of expect it’s an important thing to maintain the threat of (hence the right to bear arms). I would be interested in someone analyzing when the constitution would permit a private citizen to take up arms against a sitting government (if any such circumstance exists).
To my knowledge, the interpretation which comes closest is Insurrectionist theory which interprets the right to bear arms as including the right of citizens to use them to defend against an oppressive government. There are apparently more explicit statements of this right in the preambles to some first-state constitutions, as well as the declaration of independence.
It should not be surprising that nobody has yet won on such a case in court though, and practically speaking you don’t have this right [1] .
My understanding has been that even if you are arrested unlawfully by a police officer, you can’t use proportional force (as you would if you were assaulted by a non-police-officer), since the perspective of the government is that it is the judiciary’s right to determine whether an arrest is or isn’t lawful, not the citizen’s.
Except implicitly the founders themselves, who of course supported the right to revolution. Or at least supported that right for themselves. But originalism has never been a popular (or coherent) constitutional philosophy.
Can you explain your thinking here more and how it connects to the idea of constitutional risk?
The U.S. president holds a weaker office than the heads of government in most other countries. The Canadian and British PMs and the French presidents definitely seem stronger; the German Chancellor seems weaker, and maybe the Israeli and Italian and Japanese PMs? (These aren’t strong views). I most often hear from proponents of the parliamentary system that it is less gridlocked and more powerful/effective rather than less.
It matters exactly what you’re comparing here.
An American president is typically less effectual than a British PM, but the office is stronger. That is, the PM receives basically no power qua PM whereas the American presidency directly comes with considerable constitutional power.
If you were randomly dropped in by some process as the US president tomorrow, you’d immediately be a very powerful person and you’d hold those powers for a considerable length of time. If you were randomly dropped in as British PM, you’d be removed in a confidence vote in an instant.
The PM in a parliamentary system can typically get a great deal more done than the US president but that’s a selection effect really—being the PM means you also commanded a Parliamentary majority in order to get there, so of course you face less gridlock. The legislative branch doesn’t typically want to stop you. But, if the legislature suddenly does want to stop you, you’re gone immediately.
Suppose the executive wants to seize power. If the legislature supports that, then it’s going to be a relatively easy thing to do in either a presidential or a parliamentary system. Whatever constraint there has to come from somewhere else.
The distinction between the two systems really only matters if the legislature opposes the seizure. Under a parliamentary system, they have an easy remedy—trigger a no-confidence vote and get rid of the problematic leader. Under a presidential system? Removing the leader is hard, and if you get into some kind of fight otherwise the president has all kinds of levers to pull. Which turns nasty (and those kind of moments of conflict also potentially create an opening for the military or someone else to seize power). It’s clearly better to be in a parliamentary system in that situation.
I was also referencing above the classic essay “The Perils of Presidentialism” by Juan Linz, which lays out a much more sophisticated set of arguments.
With this, you focus too narrowly on this specific minority-rule “seizure of power” scenario rather than the relative power of the offices more generally.
There are more differences than you mention. The PM is less hindered by the independent judiciary than the president. The PM in a Westminster system also exerts greater control over the individual legislators via his party than in the American system. The PM can serve for an unlimited time, and call elections at strategic moments, while Trump is limited to two terms. All these things increase the power of the PM and the risk of oppressive rule in Westminster-style parliamentary systems.
None of those are inherently features of a parliamentary (or even Westminster-style) government. Those are all separate institutional choices you can make in either setup.
Sorry, I thought we were discussing the possibility of collapse into authoritarianism, in which case some kind of seizure of power is the relevant question? The claim I was making above is relevant to this, and not to other bad things that might happen.
As to the “power of the offices,” I do want to re-emphasize what I said earlier which is that you have to make a separation between the powers of the office (i.e., those vested in the office itself) and the typical powers of the officeholder (i.e., additional power that is typically held by the person holding the office but not as a consequence of holding the office). Much of the power of the typical prime minister flows from the fact that they are also the leader of a legislative majority. The matched comparison would be some kind of situation where the American president is also the speaker of the house and the Senate has been reduced to a ceremonial role (and if you want to match Britain in particular to the US, you also have to match other unrelated features like federalism and the strength of judicial review).
Maybe one distinction here is that you mention this question: Under which office can a random maniac who somehow ends up in that position cause more chaos or seize power?
But there is another question: Which office in practice results in more powerful officeholders, holding the population itself constant?
It is less gridlocked, but that’s because the PM works for parliament and serves at its pleasure, much as a CEO for a board of directors. The PM normally can be removed by simple majority vote of no confidence at any time. While somewhat infrequent, this occurs often enough — and is a plausible enough threat even when it does not occur — that it cannot really be called exceptional in the way that the successful removal of a president via impeachment would be (which in the US is structurally very burdensome: demanding actual wrongdoing — “high crimes and misdemeanors” — rather than a mere loss of confidence, a majority in the House, an entire trial, and then a two-thirds majority in the Senate, and we have seen how difficult this bar is to meet even for extraordinarily unusual behavior). Furthermore, the PM has no formal say in legislation, which is another reason for less gridlock (though typically, as the head of their party, they do have great influence, but again, only so long as they can maintain a governing coalition within parliament).
It is precisely because of the gridlock created by a presidential system, with its “checks and balances”, that over time more power tends to be arrogated to the president in order to “get things done” that aren’t getting done otherwise, often without the political will to stand in the way of such arrogation when it occurs.
In the US specifically, another way in which the president has recently gained tremendous power stems from these “checks and balances”: the Supreme Court has opined that if presidential acts were subject to regular law, then this would give Congress the power to limit Article II presidential power.[1] This kind of consideration is normally not at issue in a parliamentary system, and thus the PM is normally subject to criminal law.
This basic logic seems very defensible to me, although they seem to have extended the notion of “official [presidential] acts” substantially beyond anything explicit in the Constitution, and then gone even further, to preclude not only prosecution for such acts, but even judicial consideration of such acts as evidence in a prosecution for non-official acts, under the theory that allowing such evidence would have a chilling effect on the president’s freedom to act within constitutional limits. However, this is very different from how we treat speech: we don’t say that a tweet is inadmissible in court as evidence for a non-speech crime, even though the tweet itself may be constitutionally protected speech which must not be chilled.
This isn’t because the president can’t pass legislation on his own, so without the support of Congress he’s a lame duck even without removal. And you ignore other elements:
This is a recent historical trend and not a defining feature of the system itself.
I think you mean it is because of that, not that it isn’t? But let me know if I’ve misunderstood you. I agree so far as legislation is concerned, though of course the president has a a huge amount of power beyond the ability to legislate.
I agree that some of these are differences giving a PM more power, in particular the ability to serve indefinitely and call elections strategically (which seems quite bad). The rest do not seem to me to be inherent in parliamentarianism, and indeed it is not clear to me that they are even tendencies.
It’s not just a historical trend within the US though, but an observed tendency of other presidential systems, and does follow somewhat from the game-theoretic logic of that system.
Yes, that’s a typo.
This is too historically contingent. Presidential systems have dominated the less stable American and African countries while European and Asian countries that have been more stable more often have parliaments. I’m not convinced that there is empirical evidence of this kind.
I agree that parliaments have a much more intuitive nature. Corporations are run with a sovereign board who appoints a dictatorial CEO, not with independent branches of power in a balance.
Why do you think it’s better to have term limits?
Yeah, I remember in high school civics I could not understand in what sense the tripartite system of government we have constituted a “balance of powers”, when the only branch of government with any meaningful amount of guns was the executive, ruled by a singular president [1] .
Until very recently it felt like a miracle anything worked at all, and my impression is that it worked so well in the past because congress had much much more day-to-day decision making power and was much more plugged into the information sources, then the “seniority system” was instantiated, congress became senile, and FDR got unprecedented control over the war-time economy, and took the opportunity to transfer many decision making roles and bodies from congress to the executive.
When congress is made up of the old and senile, and relies on the president to be their eyes, ears, hands, and brain, it just makes more and more sense to delegate broader and broader powers to the executive, who has the better qualified staff, more information, and a quicker reaction time.
The courts have never been all that powerful, except when they had the implicit backing of the president or congress. When they haven’t clearly had that, my impression is they have made sure not to command the executive to take any meaningful actions.
My teacher’s response to these questions & my confusion over their responses was kick me out of the classroom into the hallway. I gained quite a positive reputation among students and teachers after that!
I’ve had an inkling that a lot of things that are broken about the US political system can be traced back to congress being ineffective, which can be traced back to power being held predominantly by the most senior congresspeople. But I don’t really know enough to know if this is right, or even the ways in which the “seniority system” has impacted how congress works.
But I would eagerly read a post describing how this change came about and what downstream factors it impacted.
I cannot recommend more strongly the first three chapters of Robert Caro’s Master of the Senate on this subject. It gives a full political history of the senate, and essentially its fall from grace, starting as the most powerful single component of the US government, hailed the world over for being the most competent and thoughtful political organization on the planet, to its ineptitude becoming the butt of jokes on TV and barely being considered during the signing of routine treaties.
The Master of the Senate covers the 50s and early 60s? I thought the seniority system in congress was younger than that.
Caro is extremely comprehensive and will write small mini-books on the history of every significant institution or person LBJ ever touched. That means that The Master of the Senate begins in like 1810 and gives a complete history of the Senate up until LBJ is elected into the body.
I’m reading Caro’s Path to Power now, and he says seniority system was well established in the house by Johnson’s arrival in the depression.
One of the mechanisms that the judiciary has to constrain the military are the Judge Advocate Generals, embedded in the military. These were fired at the beginning of Trump’s term: https://www.jurist.org/features/2025/02/26/explainer-jag-firings-spark-concerns-about-us-military-legal-oversight/
— Einstein to Gödel in 1947, probably
I’ve always read the Gödel citizenship anecdote less as “this topic is dangerous” and more as “formal systems have edge cases, please don’t bring them up at awkward social moments.”
That mostly works, until it doesn’t. Which is true of basically everything humans make up, including citizenship hearings. But wouldn’t life be so boring if we couldn’t gamble?
just like with certain events occurring in November of 2023, it seems like it ultimately comes down to how much pre-existing respect members of the executive branch and military have for the Supreme Court vs the President, and whether the publicly known facts of the dispute seem to obviously favor one side over the other. for example, it seems pretty clear that if trump wanted to serve a third term, and the supreme court says lol no that’s obviously unconstitutional, nobody would listen to Trump even if he could technically fire them.
My understanding is that the US Marshals are not only accountable to the Court either. They take their day-to-day commands from the Director of the US Marshals Service, a presidential appointee, who in turn reports to the US Attorney General, another presidential appointee.
This makes me even more doubtful that the US Marshals would side with SCOTUS and, eg, arrest the President in a worst-case constitutional crisis. Both the Marshals’ boss and their boss’s boss would likely side with the President, having been chosen by him for their loyalty.
The US Marshalls are charged with carrying out court orders but are actually part of the executive branch, which makes it even less plausible they would materially stand up to the president.
Oh, I didn’t see your footnote. I didn’t know about the US Marshalls vs Marshall of the US Supreme Court distinction. That’s interesting and confusing!
I edited it after your comment! The original quick take was indeed wrong!
This is a somewhat confusing statement. To be clear, it’s extremely common for the president to disagree with courts on the law or Constitution: this happens dozens of times per presidential term. And when they lose in court the president may declare that they still think they are right and the Court ruled incorrectly. But this wouldn’t cause a constitutional crisis or anything by default: the president almost always follows court orders or court opinions. It’s a very ingrained norm in the US that court orders, especially from the Supreme Court, are binding.
(relevant thread from a lawyer early last year on the powers and tools that courts have to force a president or other federal officials to follow their court orders, such as freezing assets).
I think there’s a lot of reasoning here that effectively goes “if the president has absolute power such that the military and federal officers will always listen to his orders, then the US legal system will have trouble reigning him in.” Which is kind of just begging the question. But somewhere in the chain of events you suggest, the president would break a lot of clear red lines and probably lose nearly all of his political support from the general population and the powerful elements of society, unless the he has already broadly persuaded people that his power-grabbing actions are actually a good idea.
Sorry if this wasn’t clear. The whole point of this exploration is to figure out what happens when the president does not follow court orders. I will adjust the intro to clarify that.
I agree this would be approximately unprecedented! But it seems very much a scenario worth exploring. I made these edits to make that clearer:
Hope that makes it clearer to future readers!
There’s some complexity because historically the Supreme Court also tends to show restraint by not making rulings that it doesn’t expect people to follow.
I think in general when discussing these “Constitutional crisis” topics it helps to
Not think too much in terms of formalities but only in terms of norms
Look back in history for what it precedented or unprecedented, partly because this will also decouple the discussion from debates about current political questions/actors
“Force” seems strong compared to what the thread says. He starts with “no chance of the White House successfully refusing to comply” but for every mechanism except freezing assets, he caveats with “this might work”
Another point here is that elections are an additional check after the courts, Congress, etc. US presidential elections are not administered by the federal government, they are administered by the states. So to interfere with elections, the president can’t just fill election boards with cronies or give orders to anyone in his chain of command to rig the election. He’d have to forcibly manipulate or interfere with state officials and state governments, risking direct conflict with states. And if he doesn’t interfere with the election and the states announce results showing he lost in a landslide, his political power almost certainly evaporates. Of course, if all the president’s crazy actions are in fact popular, then he is much more likely to succeed and stay in power for many reasons.
Again, if you assume the military always slavishly follows the president, then this ends up in a civil war with a plausible military victory for the president. But each escalation into “this is obviously illegitimate” means the president increasingly offends his generals’ sense of duty, decreases the probability of success and increases the legal and political risk for the officers following his orders, increases the size and motivation of the inevitable popular resistance, etc.
Isn’t the obvious thing to do here to just imprison/jail/deport/exile your political opponents? The supreme court will of course object, but that’s the whole scenario we are playing out here. My sense is this a relatively common thing to do if a president wants to stay in power.
I agree that there is some broad sense in which this must be true, but I do think this hasn’t so far been particularly true in this administration? Maybe not super worth going into a ton of local political details, but I think history more broadly also shows that in many cases you can make up for doing things that are obviously illegitimate by looking like a bold, strong and decisive leader, and by threatening force to anyone who opposes you. So I don’t really buy there is the nice linear correlation that you say there is here.
I agree.
Also this is a scary question to investigate, because (on my current model, as described by this book), this is a Keynesian beauty contest—how almost everyone will act depends on how they expect almost everyone to act. Trying to get clarity about the question of how seriously the members of the armed forces take their oath to the constitution, or how they interpret the meaning of that oath, is much less of a neutral act than most exercises in figuring something out (even taking for granted that figuring stuff out often has implications for political conflicts, as the contextualizers cry, this question is particularly politically laden).
For this question more than most, the prediction market is probably a self-fulfilling prophecy. Which doesn’t mean that you shouldn’t have a prediction market, but it does seem like you should contend with the self- fulfilling nature somehow.
I feel on shaky ground here. It seems plausible to me that, if I have opportunity to, I should mostly not try to predict the answer to this question, I should mostly just try to reinforce the equilibrium of “the armed forces first loyalty is to the constitution.”
Or at least, I feel like I don’t have a developed philosophy of how to deal with questions that are mix of epistemic predictions and coordination-game.
To be clear: were I to take the above stance, I would continue to refrain from ever lying. Though I might also refrain from answering some classes of questions. (Also this is probably an academic point because I’m not likely to have much influence on what the US armed forces believe about what others in the US armed forces will do.)
I bet @Andrew Critch and @Richard_Ngo have thought about this question.
When militaries consider the president to be illegitime and bad for the country, historically they frequently create military coups.
Could you point to your source for the claim about the Marshall’s Service falling under the Judicial Branch of the government? My understanding is that his belongs to the DoJ so would fall under the Executive Branch.
Separately, I do wonder if we’re speculating about cases that might be labeled in the gray area of the incomplete contract (Constitution), I wonder what might happen if States claim their right to call out their National Guard and perhaps even the more general malitia (interesting if that could be State draft or purely voluntary—i.e., giving military arms to able bodied men), President calls out military, and then Congress tell all the military their pay is frozen—meaning not only DoD and it’s branches but the service men and any contractors—what might happen.
If Treasury just says go ef’ yourself Congress and cuts the checks not much hope. But what if the banking system refused to honor them given the S.C and Congress’s rulings?
Seems like at this point we’re talking about some serious brinkmanship, and to be honest I would really prefer not to live in such times (like many actually get a choice here) given the potential for escalation to all out civil war. But I do wonder if perhaps the bigger checks here might not be the informal checks and balances. It seems that perhaps in the scenario envisions (as I understand it—a serious breakdown in government processes and checks-balance among the branches) even applying any presumably defined law or division of power is very problematic—which is a bit different from saying the other branches should not try.
But I would also think (as seems true today) you simply don’t get to the situation suggested without the government processes and functions related to checks and balances already having deteriorated to the point of disfunction—which I would suggest is the case and has been developing for many years -- 50? 100? We’ve seen a lot of political structure innovation that is not quite consistent with the Constitution (Congressional delegation of powers, partnership among the branches for efficiency reasons, party domination that serves to eliminate the assumed checks and balances...).
Source: I made it up!
Apparently I was wrong. There is a Marshal under the direct control of the supreme court, but it’s just a single guy, who does control a police force, but the mandate of that police force is to protect the supreme court, not to enforce orders. I’ll try to update the post with my new understanding tonight.
LOL—HSI hallucinations?
No worries, we all make some mistakes with our assumptions at times and forget to double check every fact. I think it was a minor, and largely trivial error to the larger point. i just wasn’t sure and did a quick google check (so had Gemini answering, but I’ve seen it hallucinate enough to not take it as certian) but that can easily miss some finer points.
I confused the Supreme Court Marshal and the U.S. Marshals. It’s particularly easy to confuse them because the job of the U.S. Marshals is to enforce court orders, it just happens to be under the control of the executive.
I believe this is a minor mistake, see my other comment.
This is one reason why the independence of the FED is important. The US has a very centralized banking system which is technically governed by the executive branch.
I think there’s a magic [1] that the military is somehow also fairly firmly aligned with the constitution and non-partisan, though nominally also under the president’s command. I don’t really get it, and I don’t know how much this helps.
and it is magic, as in it’s an inexplicable (to me) and presumed-contingent (social) technology
As a piece of info about the current real-life situation, there was an episode recently where some members of Congress made a PSA saying that military people should not follow unlawful orders, and then the president called for them to be locked up (or executed). https://www.deseret.com/politics/2025/11/20/trump-responds-as-democratic-lawmakers-direct-video-message-at-troops/?utm_source=chatgpt.com
For all that they’re now playing coy, they were clearly implying the President had given unlawful orders, and were calling on the military to disobey him.
The video is 83 seconds long, anyone who wants to express an opinion on this topic might want to see it first.
I wouldn’t be so sure that e.g. Mark Kelly was implying that the President himself had given unlawful orders. (I am open to evidence that this is what was being implied, or that this actually occurred.) The boat double-tap incident in particular suggested that unlawful orders may have been given by someone in the chain of command. Minus any speculative or actual nth-order effects, I think it was a sensible time to remind service members not to follow unlawful orders.
And of course, the POTUS himself frequently declines to defer to laws that would constrain him, so the idea that he might give unlawful orders shouldn’t be surprising to people in any given political camp.
I have heard this claim before, but have never been given a reason to believe it. Why do you believe the military is under the spell of “listen to the constitution” and not “listen to orders”? The latter seems a far more prevalent sentiment given the practical fact that often if you don’t listen to orders, you and your friends will often wind up dead.
Generally I do agree but given the current Secretary and some of the appointees I would question how strong that “magic” might be. Do you think some Generals or Armies/Divisions would rise up to oppose some core units that are aligned with such a President/Administration? At what point might they do that—the first case of S.C ruling something unconstitutional but the President continues? Or is it more likely they stay in their place and we just keep sliding down the slippery slope?
In case nobody else has mentioned it: this is false, courts order actions all the time, e.g. ordering agencies to do stuff that they’re legally required to do. Ask your favorite chatbot.
I don’t think there is any authority here from a constitutionalist perspective? Like, the supreme court can order “the executive” to do something (and it might direct that order at a smaller part of the executive), but if the president disagrees, the constitution seems pretty clear that the job of the relevant executive agency would be to at most do nothing. Going directly against presidential orders and taking direct orders from the supreme court would be a pretty clear constitutional violation, at least as far as my understanding goes.
I would bet that lawyers, scholars, and chatbots would basically disagree with you. Your literal reading of the Constitution is less important than norms/practice.
My post is framed centrally as constitutionalist analysis, so I was trying to not get too bogged down in precedent and practicalities, which are just much harder to model (though of course the line here is blurry).
That said, after thinking and reading more about it, I still changed my mind at least a bit. The key thing I wasn’t modeling is the Supreme Court’s ability to declare injunctions against specific government officers, exposing them to more personal liability. Even if the executive doesn’t cooperate, the court can ask civilian institutions like banks to freeze their bank accounts or similar things, and my guess is many of them would comply.
I rewrote the relevant section to reflect my updated understanding. Let me know if anything still seems wrong by your lights.
I’ve mentioned before that both sides of this conflict see a clear precedent of unconstitutional action by their opponents that would destroy everything they care about if left unchecked. All of the processes described by OP would be taken as a coup by the side targeted by them.
I’ve recently noticed a recent surge in very partisan posts on LessWrong, generally similar in tone and content to this one, in which one side’s perspective is presented as unassailable fact and the other’s is not mentioned. This is dangerous, both in the sense that we have seen many communities elsewhere[1] lose the things that made them unique after being taken over by partisan political content, and in the very literal sense that American politics is at a breaking point right now, and encouraging unwise action could have very real consequences for very large numbers of people. “The military should renounce the elected president and fight against the government” is not something to say lightly, and, regardless of who won the resulting conflict, life would be perilous and uncomfortable for everyone living in America for several decades thereafter.
I realize this probably isn’t in line with the sentiments of most of the comments section on this post, but I would ask that you consider an extension of Chesterton’s Fence: “Do not, directly or indirectly, declare a large group of people to be your enemy until you can explain, from their perspective, why they are doing what they are doing.”
(see the comments, in which many very Reddit users, most of them left-leaning, lament what has become of much of their website)
I was really trying to write this post largely from a “what would be the options for the judicial branch” in a generic way where it would apply to many presidencies, and trying to keep specific partisan judgements out of it.
To be clear, I do think pretty scary things are happening with U.S. democracy right now, and my motivation and attention is driven by what makes sense to do about a Trump presidency, but I still think it’s usually best to keep things focused on more general principles that could apply to many situations.
Totally! And just for the sake of clarity, I absolutely do not think the current military should renounce the elected president and fight against the executive branch (you used the word “government” but to be clear, the supreme court and the states are also the government!). I do think what the actual military is supposed to do from a constitutionalist perspective when different parts of the government disagree and give conflicting orders is quite important and a pretty tricky question that I didn’t know the answer to before I researched and wrote this (and still have a lot of uncertainty on).
In British English, “the government” means the executive branch, and the entire thing (including the judiciary and the legislature) is called the state.
And while I have your attention allow me to echo the person you are replying to, namely, it would be ideal if a reader could not even tell from your comments which party you prefer (since you run the site) and great grandparent is pretty strong evidence for which one.
Why… would that be ideal? I certainly do not consider my opinions on policy and politics to be forbidden on this site? The topic of politics itself should be approached with care, but certainly it would be if anything a pretty bad violation of what I would consider good conduct if people systematically kept their opinions on politics and policy hidden. Those things matter!
My worry is one or two people loyal to the red team leave the site, which makes people on the blue team feel more free to use the site to criticize the red team, causing more red teamers to leave (and attracting blue-team zealots who filter everything through an ideological lens) in a positive feedback loop ending in a site with the same problem as Bluesky already has and many subreddits already have, namely, the zealots produce large quantities of low-quality writing, which drowns out the high-quality contributions and discourages many who can make high-quality contributions from even starting to contribute.
ADDED. Since LW is currently very far from Bluesky, perhaps it would’ve been more persuasive for me to argue that if LW were to start to have even half as many low-effort political comments as Hacker News, many would probably stop reading LW, or at least that is my worry.
Yeah, definitely agree. I just think the standard of “admins should comment in a way that makes it impossible to tell what their political opinions are” is not the best tool to achieve this. I think it’s better for people to be open about their views, and also try really hard to be principled and fair.
On what grounds? There’s always been a norm on LW of treating some highly controversial questions as basically settled. Good-faith disagreement will still be heard and engaged with, but it’s normal to, for example, take atheism for granted. The same goes for values-based disagreements; it’s taken for granted that some versions of the future are obviously preferable to others. So if one US political party is, factually, working against the values of most LW readers much harder than the other one, why is it off-limits to make comments discussing the implications of that?
https://www.lesswrong.com/posts/9weLK2AJ9JEt2Tt8f/politics-is-the-mind-killer
Yes, I’ve read it, and it doesn’t say what you seem to be implying it says.
[my emphasis, here and below]
Eliezer’s main point was that we should avoid unnecessary politics, especially cheap political digs that may please some readers but risk needlessly alienating others. Here, the thing being discussed is inherently political and inseparable from the partisan divide.
I do want to avoid gaslighting people. LessWrong and LessWrong 2.0 under my management has discouraged U.S. politics content for many years. We stopped around 4-5 years ago, as politics started being more relevant to many people’s goals on the site, though we still don’t allow it on the LW frontpage unless it tries pretty hard to keep things timeless and non-partisan.
Fair, but I see this as two distinct things:
Politics is the Mind-Killer: still applies; protects this forum from redditification and encourages us to avoid pointlessly alienating people/making enemies of each other.
US politics posting allowed/discouraged/banned: I’m not too fussed about where you set this dial. But if political discussion is going to happen here, I think it would be bad if you/we got pressured into bothsidesism (which could happen if PitMK is misrepresented as a prohibition on openly taking partisan-coded positions).
Spending the better part of two decades harping on about how precisely that is the mind-killer makes it a little tricky to reverse that position.
I greatly appreciate the context you provided in the linked comment, and in general the attempt to explain why an underrepresented side views their choices as reasonable or necessary. I want to do what I can to support you continuing to bring up counterpoints and things people are missing.
This particular post reads to me as president-neutral, in that you could post it on a conservative-leaning forum under a democratic president and it would look equally in tune with local culture. Maybe I’m wrong about that, it’s easy to read things that match one’s own worldview as neutral, in which case I’m asking for specifics on what makes this not neutral.
One guess, based on your other comment, is that Habryka takes the legitimacy of the court for granted, in which case I’d like to dig into more detail on that.
I think it is very easy to read into a post like this and essentially fall into the very behavior you’re ascribing to the author. Regardless of the OP’s view, the post is not naming names but is very topical. It’s worth considering.
But I do agree that whoever is getting told their actions are unconstitutional will typically see that as an attack if they truly believe they are doing something within their powers. But I also suspect any that refuse to accept a Supreme Court ruling never cared about the Constitution or the checks and balances that were implemented in the Constitution. It’s simply a case of someone refusing to accept they are not a good judge of their own case which is pretty much at the heart of any rule of law society.