Elon Musk Is a Constitutional Genius in the Same Way He's a Diablo IV Master

In which we examine some stunningly stupid tweets from our Vice President and our De Facto President.

I’m not in a great mood. People who should know better, and do know better, keep posting idiotic tweets that utterly misapprehend how our Constitution works.

Our nation’s newest Constitutional scholar (see part II).

I. JD Vance: Who Pretends to be a Moron

Here’s a recent tweet from our Vice President who, I am embarrassed to say, is a graduate of the law school I attended:

Really, JD? As the superb podcasters at Advisory Opinions pointed out, just by way of example, “the entire Supreme Court docket from the Iraq War was the Supreme Court saying, ‘No, you can’t do that’ to the military.”¹

Vance is not only a Yale Law School graduate, but also a former U.S. Marine, and undoubtedly familiar with the Uniform Code of Military Justice, the legislation which gives the U.S. Supreme Court the final word in many court-martial cases.

As for the judiciary’s right to insist that the Attorney General (an agent of the Executive) enforce the law notwithstanding a claim that prosecutorial discretion is an excuse for not doing so, that is a complex issue that is far from settled. Republicans had a far more jaundiced view of prosecutorial discretion when President Obama declined to deport illegal immigrants.

And as for the “executive’s legitimate power,” Vance knows damned well that it is the judicial branch that ultimately determines the vital question of whether the executive’s exercise of power was indeed legitimate.²

So, Vance clearly knew what a load of codswallop his tweet was. But he is determined to be every bit as post-truth as his boss and the rest of the Trump Administration.

II. Elon Musk: Who Actually Is a Moron

Alas, Vance’s pretended ignorance is but slight in comparison with the genuine ignorance of Elon Musk. Which would be far less concerning were Musk not far more powerful than JD Vance is now or is ever likely to be.

This tweet is staggeringly stupid. As Sarah Isgur said on the Advisory Opinions podcast, “I’ve never seen so many logical fallacies in one sentence in my whole life, let alone Constitutional problems.”

First, the idea that the judges who are “most corrupt” are also the “least competent” is farcical. The most frightening judge is a corrupt judge who is also highly competent. I had experience with a few corrupt and competent judges while practicing law in Texas, where they elect their judges. (And yet, strangely, in four decades of law practice, I never encountered a federal judge, at any level, whom I suspected of corruption.)

Second, what “elected bodies” does Musk have in mind? Of course, he doesn’t say.

Does Musk believe that, for example, the U.S. Senate or House of Representatives, where members regularly and scandalously reap munificent profits by trading on inside information, and many of whose members are blithering idiots, are qualified to determine which judges are corrupt or incompetent? Neither the Senate nor House has taken the slightest meaningful action against Donald Trump, whose corruption is right out in the open (recent examples: the pardons of Rod Blagojevich and Eric Adams).

Third, and most fundamentally, as is plain from the text and structure of the Constitution, the independence of the federal judiciary is a crucial feature of the liberty we enjoy. The federal judiciary, by design (lifetime appointments), is insulated from political pressure.

In Elon Musk’s world, the judges who rule against the president would be purged, and then four years later the judges who rule against the next president (likely from the other party) would be purged, and on and on it would go. Gulf of America, Gulf of Mexico, Gulf of America, Gulf of Mexico. Except with consquences far more dire.

Moreover, the United States judiciary, along with its legislative and executive branches, were designed as counter-majoritarian institutions, with built-in checks and balances designed to protect minorities from the dangerous desires of factions.

Like Donald Trump, Elon Musk, of course, has never read The Federalist Papers (might I suggest he start with Federalist 10?) or The Constitution. Trump, who famously never reads any books at all, has been too busy cheating at golf,³ and Musk too busy tweeting and cheating at Diablo IV.

So, we have Elon Musk, the indirect beneficiary of more subsidies, give-aways, tax benefits, and regulations that punish his competitors than any human in history, placed in charge of the secret organization⁴ that, we are told, is rooting out fraud and abuse in our federal government, while at the same time threatening the federal judges who stand in his way, in much the same way he has played the street thug in his bullying of Delaware Chancellor Kathaleen McCormick, who ruled against his gargantuan 2018 compensation package.

Hey, Elon, those judges can stop only the unlawful presidential actions. Maybe your doggie, Donnie, shouldn’t offer them so many tempting targets?

III. My Foul Mood

As I said at the outset, I’ve found myself lately in something of a foul mood. A bright person with whom I regularly communicate recently wrote to me about what wondrous things Donald Trump is doing. This was my response:

Sure, it's all so good. Provided you're willing to kiss our Constitution good-bye, pleased to allow a war criminal to continue his slaughter in Ukraine, delighted at the spectacle of us alienating all our allies, prepared to watch our national debt soar even further, content with heightened inflation, unbothered by massive corruption out in the open, and happy to see a cabinet of cranks, clowns, cronies, and crooks drive away all of the truly talented people in the FBI, DOJ, SEC, etc.

I am, as I have written, in broad sympathy with the goals of DOGE and agree with some of the policies of Donald Trump. But, lawyer that I am, and admirer of our Constitution and our rule of law, I cannot abide results born of a lawless process.

IV. Is the Wheel about to Turn?

My foul mood notwithstanding, I sense the grand Trump-Musk honeymoon may be coming to an end.

The real work of legislating cannot be avoided much longer. Congress will need to pass a spending bill by March 14 to avert a government shutdown, and Democratic votes will be needed.

Then comes the messy work of budget resolutions and the complex budget reconciliation process. It will be instructive to watch how many of the legislators now cheering on DOGE will suddenly develop passionate arguments for why certain projects in their own districts must be spared the ax.

After that, perhaps even before the summer begins, the U.S. Treasury will have exhausted all available “extraordinary measures” to avoid hitting the $36.1 trillion debt ceiling. Trump will be called upon to explain why, after DOGE had promised to cut $2 trillion from the budget, we all the same need to run ever larger annual deficits and rack up trillions more in debt.

All these events would be difficult to shepherd with a respected, focused, and capable leader at the helm. Imagine what they will be like with Trump at the helm.

These events will transpire, not incidentally, while inflation is most assuredly not under control, while tariffs are wreaking havoc with consumer prices and business planning, and while the interest expense on the national debt swallows an ever larger portion of the annual budget.

We will see once again that while promising is easy, governing is hard.

V. Final Thoughts: the Loneliness of Not Playing on a Team

Every time I publish a new post here, I receive notice of some new readers, which is gratifying, but also notice of a few others who have disabled the email notifications.

I suspect I’m losing those latter readers because my criticisms of Trump are so harsh. But my criticisms of Biden (albeit on social media, and not here at Substack) have also been harsh.

Indeed, I believe Biden is one of the very worst presidents in American history (and that he’s also a terrible human being), and that many of the actions he took (like those of Obama before him) helped “normalize” some of the enormous abuses Trump is committing.

Indeed, I believe that by his reckless actions as president, and his selfishness in seeking a second term, Biden paved the way for Trump’s second term. I’ll write about that soon, and then the people who play on Team Biden (or Team Harris) can have their turn at leaving my Substack fold.

As for those of you sticking with me, thank you for putting aside partisanship and engaging instead in critical thinking.

1. The very strange Adrian Vermeule, whose judicial philosophy is founded on “Catholic integralism,” and who is Harvard Law School’s idea of a token conservative law professor, defended Vance, very unpersuasively, on the op-ed pages of The Wall Street Journal.

2. David French, on the aforementioned Advisory Opinions podcast, quoted from a 2014 Notre Dame Law Journal article: “This is a critical aspect of Marbury [v. Madison] that is often overlooked. The [U.S. Supreme] Court not only has the power of judicial review of legislation. . .; it also has the power to reject the President’s interpretation of the Constitution.” The author of that article? Then D.C. Court of Appeals Judge Brett M. Kavanaugh who today, of course, sits on the U.S. Supreme Court.

3. A prominent private equity executive of my acquaintance described for me his own breathtaking experience with Trump’s cheating. It’s simply no secret at all, and it’s the unmistakable mark of a narcissistic sociopath.

[Post-publication note: Feb 16, 2025: a reader has kindly sent me a copy of a book about Trump’s cheating, written by a golf journalist for Sports Illustrated, called: Commander in Cheat: How Golf Explains Trump. I was unaware of the book but, as I wrote, it’s no secret.]

4. DOGE, whose staff members Musk has tried assiduously to keep secret.