The debate sparked by JD Vance’s assertion that judges cannot control the executive’s legitimate power highlights a significant shift in the interpretation of executive authority and its relationship with the judiciary. Vance’s statement, criticized by attorneys general, underscores the ambiguity of the term “legitimate” and raises concerns about who determines the limits of executive power—a role traditionally assigned to the judiciary under the Constitution.
The Trump administration’s numerous lawsuits, over 60 since taking office, reveal a pattern of actions alleged to exceed lawful authority, including controversial policies on federal spending, citizenship, and civil servant employment. Despite court injunctions, the administration continues to challenge these rulings, exemplifying a strategy to TEST the judiciary’s limits and potentially expand executive power through favorable Supreme Court decisions.
This scenario is part of a broader movement within conservative legal circles known as post-originalism, which builds on originalism’s focus on the Constitution’s original meaning. Post-originalist thinkers like Adrian Vermeule advocate for “common-good constitutionalism,” emphasizing executive authority to serve the public good, a concept that critics fear could justify authoritarianism.
Vermeule’s influence is evident in the judiciary, particularly among Trump-appointed judges who are incorporating his ideas into their decisions. This integration signals a potential erosion of judicial independence and the separation of powers, raising alarms about the future of constitutional checks and balances.
Historically, instances of presidents defying court rulings were rare and isolated. However, the current context suggests a systemic attempt to expand executive power without judicial oversight, potentially leading to a constitutional crisis. This shift could normalize disregard for the judiciary, undermining democracy and the rule of law.
In essence, JD Vance’s statement reflects a broader strategy within the executive branch, influenced by post-originalist thought, aiming to redefine constitutional limits in favor of expanded presidential authority. This movement poses significant risks to the balance of power and the integrity of the US legal system.
