Dead Letter Office: The Courts Can't Stop What's Already Broken

To many observers, Vice President, Pronatalist, and fictionalized memoirist Vance's suggestion that judges can't control "legitimate" executive power is a pivotal moment in the administration's relationship with the judiciary. But the real crisis isn't in what Peter Thiel's lapdog posted to an audience of bots and white supremacists on a dying social platform - it's in what the administration has already accomplished while legal challenges wind their way through the courts.

In just weeks, the Trump administration has frozen trillions in congressional appropriations, begun dismantling USAID, launched a mass reorganization of federal agencies, and implemented sweeping new immigration policies. Nearly all these actions face legal challenges. Almost none of those challenges matter.

Conventional wisdom says the administration will keep getting "stopped by the courts." The courts may rule. They may not. But it has little impact on reality. Take USAID - while judges debate the legality of its dismantling, its operations have ground to a halt. Staff have scattered. Institutional knowledge has vanished. Programs have been suspended. The legal process that will eventually rule on whether this was constitutional can't resurrect dead programs - and dead aid recipients - and it can't rebuild shattered institutions.

There is a crucial misunderstanding in how we think about executive power and constitutional crises. We picture dramatic showdowns - Andrew Jackson's apocryphal "John Marshall has made his decision; now let him enforce it!" We wait for the moment an administration openly defies a court order. But what if that moment never comes? What if you can achieve your objectives without ever triggering a technical constitutional crisis?

Consider the Mexico/Canada tariff situation. Many interpreted the administration's quick retreat as evidence that market backlash can still constrain Trump's actions. But this assumes the initial maximalist tariff threat reflected the actual goal rather than a negotiating tactic. The administration emerged with concessions (albeit minor ones) while demonstrating its willingness to act unilaterally. If that was the objective, it wasn't a retreat - it was mission accomplished.

The same dynamic plays out across agency after agency. Critics mock the "incompetent" implementation of executive orders and administrative changes. But, their critiques assume the goal is building durable executive authority through careful legal precedent. What if the goal is maximizing short-term disruption and control? What if institutional chaos serves the administration's aims better than careful process ever could?

Look at the Treasury payment system lockout. Yes, it got "stopped" by the courts. But in the meantime, countless payments were delayed or disrupted. The code was read and altered. The actual court ruling becomes almost irrelevant when the mere act of creating uncertainty achieves the desired effect. You don't need to win the court battle if you've already won the war of institutional attrition.

What if the administration views government dysfunction not as an unfortunate side effect but as a strategic asset? A paralyzed bureaucracy can't effectively constrain executive action. Scattered and demoralized civil servants can't maintain institutional guardrails. The less functional the administrative state becomes the more power flows to the president by default.

The administration's "careless" approach to administrative procedure starts looking more strategic in this light. When you bypass normal rulemaking processes, you guarantee legal challenges. But you also guarantee months or years before those challenges are resolved. In the meantime, the changes you wanted take effect. The system's safeguards become its vulnerabilities - the due process meant to prevent executive overreach creates the delay that makes it effective.

None of this requires believing in some master plan. The administration's actions could emerge from instinct rather than strategy. But the effect remains the same either way. You don't need to coordinate institutional decay - you need to create conditions where it can flourish.

There is poverty in our usual ways of thinking about constitutional crises. We keep waiting for the dramatic moment - the defied court order, the refused election result, the deployed troops. But we're missing the slow-motion institutional collapse.

The courts can't stop this process; the courts themselves depend on functional institutions to give their rulings effect. Their power rests on agencies that follow procedures, civil servants who maintain continuity, and an executive who cares about long-term legitimacy. Strip those away, and what's left? A judge can rule a policy illegal, but they can't rebuild demolished institutional capacity.

The threat isn't just to any particular institutional rule or constraint. It's to the institutional capacity that makes rules and constraints meaningful. Saving that capacity may matter more than winning any individual legal battle.

The courts will keep ruling. The administration will sometimes comply, delay, and render the question entirely pointless through new actions. The battle isn't in the courtroom. It's in the unglamorous work of maintaining institutional knowledge, preserving procedural capacity, and preventing the decay that makes court orders into dead letters.

We're in uncharted territory. Not because we face some unprecedented assertion of executive power but because we face an unparalleled willingness to exploit institutional decay as a governance tool.

That's a much harder challenge than simply enforcing court orders. But it's the challenge we face. The sooner we recognize it, the sooner we can start addressing the threat to constitutional governance.