JD Vance's impatience with constitutional niceties won't buy him friends on the court
The idea that the president alone gets to determine what his “legitimate” powers are would make Nixon smile.
Yesterday, Vice President JD Vance said the quiet part out loud. When many commentators think the courts are all that stand between the American people and the collapse of the government of separated powers envisioned by the Framers of the Constitution, the vice president has thrown down the gauntlet.
Vance might have given voice to what the president and his Project 2025 allies believe when he posted on X his view that “Judges aren’t allowed to control the executive’s legitimate power.” If they tried, Vance suggested they would be doing something "illegal."
Vance’s post might cheer the MAGA faithful at a time, as The New York Times puts it, when “court rulings … have, for now, stymied aspects of President Trump’s agenda.” And we know from surveys taken several years ago that many of Trump’s supporters think he should be able to overturn court decisions with which he disagrees.
But as those rulings move their way up the judicial food chain to the Supreme Court, Vance’s comments might find a less positive response, even among some of the court’s conservative justices who, in the past several years, have not been shy about telling the executive branch what it can or cannot do.
To back up his outrageous misreading of American history and tradition, Vance did not rely on their opinions. Instead, he reposted the opinion of Harvard Law School’s Adrian Vermeule.
“Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is,” in Vermeule’s view, “a violation of the separation of powers.”
However, just five years ago, in an article published in the Atlantic, Vermeule sang a somewhat different tune. He didn’t call on the Supreme Court to give up its jurisdiction over the executive branch back then. Instead, he urged it to interpret the Constitution to “favor a powerful presidency ruling over a powerful bureaucracy” and to give its approval to what he called “the strong hand of legitimate rule” and give the executive branch “the authority to protect the populace….”
But even Harvard law professors get to change or refine their views. Vance, in contrast, has been saying what he said on Sunday for a long time.
Four years ago, during his campaign for an Ohio Senate seat and looking ahead to a second Trump presidency, he invoked the spirit of Andrew Jackson, one of Donald Trump’s favorite presidents: “When the courts … stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’”
Vance doubled down on those comments last year before becoming the Republican vice presidential nominee. His preference for unchecked presidential power emerges from what Politico’s Ian Ward labels Vance’s “genuine belief in the catastrophic trajectory of American decline….” and his belief that the country is already in a “constitutional crisis.”
Remember Trump’s description of “American carnage” and his claim that “I alone can fix it.” Decline, carnage, crisis—all of that is why Vance is impatient with constitutional niceties such as judicial review of executive action.
The idea that the president alone gets to determine what his “legitimate” powers are would make the ghost of former President Richard Nixon smile. Recall Nixon’s claim that “When the president does it, that means that it is not illegal.”
But that idea clearly violates a maxim fundamental to Anglo-American jurisprudence: “No person can be a judge in their own cause.” It also runs afoul of the central tenet of perhaps the most famous Supreme Court case ever decided: Marbury v Madison.
In that 1803 case, Chief Justice John Marshall showed no hesitation about declaring “It is emphatically the duty of the Judicial Department to say what the law is.” Marshall did not make an exception for things done by the president.
Fast forward to 1974 when Nixon’s counsel in the Watergate tapes case tried to convince the Supreme Court, in Vance-like language, that “the federal courts should not intrude into areas committed to the other branches of Government.” Chief Justice Warren Burger made short shrift of that argument.
“In the performance of assigned constitutional duties,” Burger wrote, “each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others,” before reminding Nixon and his counsel that “Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison…."
The courts get the last word!
Fifty years later, a more conservative Supreme Court has, on many occasions, strengthened the hand of the executive branch and the president, not the least of which was its granting of almost total immunity from criminal prosecution to a sitting president.
But don’t be mistaken. Even in that case, the court flexed its muscle.
Moreover, arch-conservatives, including Justice Neil M. Gorsuch, have railed against rule by “executive fiat” and warned against uncritical deference to the executive branch in COVID-19 cases. Gorsuch has spoken out forcefully in defense of the separation of powers, calling it “essential to the preservation of the people's liberty” because it “thwarts the ability of an individual or group to exercise arbitrary or absolute powers.”
As a judge on the 10th Circuit Court of Appeals, he questioned the practice of what is called the Chevron deference, an administrative law doctrine requiring judges to defer to administrative agencies’ “reasonable interpretations” of statutes.
Last year, Gorsuch joined the other five conservative justices in ending the practice he had criticized earlier in his judicial career. None seemed the least bit hesitant about telling the executive branch that the courts have the final word.
And recall that that same group of justices asserted the right to define the boundaries of the president’s legitimate power when it struck down the Biden administration’s to cancel $400 billion in student loans.
If the judicial decisions Vance now finds so objectionable reach the Supreme Court, he might come to understand that the court, as Stanford law professor Mark A. Lemley argues, “has begun to implement the policy preferences of its conservative majority…by simultaneously stripping power from every political entity except the Supreme Court itself. The Court of late gets its way, not by giving power to an entity whose political predilections are aligned with the Justices’ own, but by undercutting the ability of any entity to do something the Justices don’t like.”
Though the court might side with the Trump administration in its bold attempts to redraw the lines of executive power, it will not end up agreeing with Vance on the limits of judicial power.
As Lemley warns, the “imperial Supreme Court is (more likely to) damage our constitutional system by usurping power that doesn’t belong to it” than by giving it away. Vance might learn the hard way that his friends on the court will insist that they, not an autocratic president, have the last say.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
 | A guest post by
|
Shillbilly Vance is yet another tumor in our body.
Good and helpful discussion. After all, that was the dynamic behind the three branches of government: their jealous preservation of their own power would serve as an effective counterbalance to any of the others usurping too much.