Fair-Play is the More Difficult Part

 

Dear Ms Elsea,

In my recent co-authored post, my co-author and I (we) asked the question:

“Relatedly, are Article III judges subject to the Posse Comitatus Act?”

We did not answer that question. Instead, we did write: “Any effort to criminally prosecute an Article III judge for his error (assuming this course of action to be an error) would be blocked by the doctrine of absolute judicial immunity.” On BLUESKY, you responded by writing: “Apparently the PCA doesn’t apply to judges, either,” and, again on BLUESKY, you also responded with: “Apparently judges can also call out the troops to enforce their orders if the marshal can’t help, and the Posse Comitatus Act would not apply. Do judges know about this?” (emphasis added) I would urge you to reconsider. I do not believe what you wrote reflects my co-author’s and my views.

There is a difference between, on the one hand, a generally worded federal statute’s being inapplicable to federal judges, and, on the other hand, federal judges’ being immunized against criminal prosecutions for overstepping their lawful authority when the judges issue orders in a case within their courts’ subject matter jurisdiction. The distinction we put forward here, between a statute’s inapplicability and a defendant’s (that is a judge’s) being immunized against criminal prosecution even where the statute is otherwise applicable, is similar to what Judge Perry stated in Illinois v. Trump, Civil A. No. 25-cv-12174, 2025 WL 2886645, at *19 (N.D. Ill. Oct. 10, 2025) (April M. Perry, J.):

 

The Posse Comitatus Act makes it a criminal offence to use the Army, Navy, Marine Corps, and Air Force to ‘execute the laws’ unless expressly authorized by Congress. 18 U.S.C. § 1385. And as Justice Jackson in his well-known Youngstown concurrence has recognized, while this prohibition likely does not apply to hold the President criminally liable, the Act nonetheless operates to ‘forbid[]’ the President ‘to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress.’ Youngstown Sheet & Tube Co., 343 U.S. at 644–45 (Jackson, J., concurring in the judgment). [second set of italics (also in bold) added]

And Judge Perry, of course, ruled against the administration, that is, against the Department of Justice, against Trump. Perhaps, you really did believe what you wrote on BLUESKY fairly represented my (co-authored) writings. Do you still believe that? One wonders.

On BLUESKY, you wrote: “I have much to learn, apparently.” I think we all have something, and perhaps, much, to learn. As a general matter, the law is the easy part. Fair-play given and granted to those whom with we disagree is frequently the more difficult part.

Enjoy the New Year,

Seth

Seth Barrett Tillman, ‘Fair-Play is the More Difficult Part,’ New Reform Club (Jan. 1, 2026, 5:15 AM), <https://reformclub.blogspot.com/2026/01/fair-play-is-more-difficult-part.html>;