Judges 'aren't allowed' to control president: JD Vance

Josh Marcus, The Independent

Experts and officials expressed alarm on Sunday after Vice President JD Vance suggested federal courts “aren’t allowed” to limit the White House’s “legitimate power.” The controversy began on Sunday morning, when Vance tweeted his views on executive power. “If a judge tried to tell a general how to conduct a military operation, that would be illegal,” he wrote on X. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.” The post was seemingly in reference to a Saturday decision from a federal judge temporarily barring political appointees and “special government employees” like White House adviser Elon Musk from accessing sensitive data and payment systems at the Treasury Department.

Earlier in the day, Vance reshared a post from a Harvard Law School professor arguing “judicial interference” with the executive branch is a violation of the Constitution’s separation of powers, itself a response to a post from Senator Tom Cotton calling the DOGE ruling a decision from an “outlaw” judge. Vance has long argued the White House can defy orders it views as unconstitutional.

“And when the courts — because you will get taken to court — and 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,’” he told a podcast in 2021. Observers on the left said Vance’s view went against the Constitution and Supreme Court precedent from the earliest days of the US government. “JD, we both went to law school,” Senator Adam Schiff wrote on X. “But we don’t have to be lawyers to know that ignoring court decisions we don’t like puts us on a dangerous path to lawlessness. We just have to swear an oath the constitution. And mean it.”

Meanwhile, Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, wrote on X that Vance’s comments suggested the Trump administration was “gearing up to defy a court order,” a moment that represented “the battle lines for our democracy have been drawn.” She pointed to the famous 1803 Supreme Court ruling in Marbury v. Madison, itself a dispute over executive power and staffing. The case established the principal of judicial review in the US and contains an oft-quoted line, “It is emphatically the province and duty of the judicial department to say what the law is.”

“The answer to that question is 100% settled and has been for 222 years,” she Goitein wrote of the case, adding, “This has nothing to do with partisan politics or whether you like Trump’s policies.” The Independent has contacted the White House for comment. In the face of such criticisms, Trump administration officials defended their stance. In response to a critical post from Biden administration Transportation Secretary Pete Buttigieg, White House deputy chief of staff Stephen Miller wrote, “Hey Pete, care to show us the line in the Constitution where it says a lone unelected district judge can assume decision-making control over the entire executive branch affecting 300M citizens? Any mention of nationwide district court (temporary restraining orders) TROs? Or permanent all-powerful bureaucracy?”

“And also,” he added, referencing the Constitution’s description of presidential power, “can you tell us in whom the Constitution vests the duty to “’take care that the laws by faithfully executed’?” As The Independent has reported, with Republican control of both houses of Congress, and a muted protest response to Trump in comparison to his past term, the federal courts are seen as the most likely venue where Trump’s policies may face challenges.

“I think the real question is not whether the courts are going to do their job, but whether or not, once they do their job, it’ll have much effect on Trump, unless and until the Supreme Court intervenes, because that’s the only court he seems to listen to,” Ty Cobb, a former White House counsel during Trump’s first administration, told The Independent this week.