JD Vance’s “Constitutional Crisis”

By Four888 @Adobe Stock

Playing Tough Guy

Writing in the WSJ, Adrian Vermeule ponders whether JD Vance is actually setting off, as the VP’s critics accuse, a constitutional crisis. As Vermeule puts forth, judges have an obligation to respect the separations of power.

Usually, they do, Vermeule reminds readers. Judges aren’t allowed to “control the executive’s legitimate powers.”

Mr. Vermeule is a professor of constitutional law at Harvard. This article is adapted from a post at the New Digest substack, reports the WSJ.

JD Vance may have set off a constitutional crisis, Vermeule warns readers. Among alarmist critics of Vance’s are those who assume that the executive branch was preparing or threatening to defy court orders, which Mr. Vermeule strongly challenges.

… the more straightforward reading is that (Vance was referring to legal doctrines of justiciability, reviewability, standing and the so-called political-question doctrine, which are themselves legal principles that courts apply in determining when they have jurisdiction to review executive action. All these principles are ultimately rooted in the constitutional separation of powers or in statutes embodying and implementing separation-of-powers considerations.

Ignoring “Time-Honored” Legal Doctrines and Principles 

A long tradition in American Law, departmentalism sometimes allows Presidents to sometimes interpret the law for themselves. They even have refused to enforce court orders or threatened to do so—”a possibility to which Alexander Hamilton referred in Federalist No. 78 as itself an aspect of checks and balances.”

But no such threat, points out Mr. V, was apparent on the face of the VP’s comments. Mr. V, however, does bring up an important point here:

(T)he separation of powers operates as an internal doctrinal principle that courts apply in our legal system. Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or to shape and constrain the remedies they provide. That has been true for as long as we have had courts and judicial review.

Citing U.S. v. Texas (2023), the Supreme Court ruled against states challenging executive enforcement priorities in immigration, saying that “our constitutional system of separation of powers contemplates a more restricted role for Article III courts.”  Using this as an example of prosecutorial exemption, Mr. Vermeule writes:

The principle that courts may not directly control battlefield command and the conduct of operations by the president abroad, or even by governors in cases of domestic riots or public emergency, is a venerable one in U.S. law, which the courts themselves apply out of respect for the separation of powers and the judicial role. 

Who Gets to Decide 

Because the separation of powers operates as a central legal principle in the courts, the question “who decides?” comes in two different forms. As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue.

Appeals to Principles 

In response to a recent temporary restraining order that seemingly barred all political appointees at the Treasury Department from access to certain internal information, the administration argued in a filing that the work of executive agencies is overseen by the president, and “a federal court, consistent with the separation of powers, cannot insulate any portion of this work from the specter of political accountability.”

What is a “straightforward legal appeal to the limits of judicial authority, made within a judicial proceeding as an argument under applicable law”? Even where courts have jurisdiction to decide, it is always legally valid to argue that their decisions ought to respect the separation of powers.

No constitutional crisis is created when the executive branch appeals to such principles, whether in court or on social media. If there is a crisis of any kind, it is that some judges have overlooked or willfully ignored the time-honored legal doctrines and principles that limit their own role, have exercised discretion without prudence or restraint, and have themselves consequently violated the separation of powers.