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JD Vance throws down a high-risk gauntlet for America's judiciary
Barbara McQuade has some great observations
https://bsky.app/search?q=JD+Vance+throws+down+a+high-risk+gauntlet+for+America%27s+judiciary
Link to tweet
https://www.msnbc.com/opinion/msnbc-opinion/jd-vance-judicial-branch-trump-constitutional-crisis-rcna191839
The term “constitutional crisis” gets overused. But Vice President JD Vance seems to be inviting one.
On Sunday, the vice president's comments on social media raised alarm bells across the legal profession. Apparently in response to multiple judges temporarily halting some of President Donald Trump’s executive actions, Vance posted: “If a judge tried to tell a general how to conduct a military operation, that would be illegal. 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.”
Wrong. Wrong. And wrong.
Courts have ruled against illegal military actions, such as striking down military commissions at Guantanamo Bay after 9/11. Courts have also ruled a prosecutor violated the equal protection clause of the 14th Amendment when engaging in selective prosecution. And, in the same way, courts serve as a check on presidents when they exceed their power. The Supreme Court famously struck down President Harry S. Truman’s efforts to seize steel mills during the Korean War on the grounds that his conduct conflicted with the Labor Management Relations Act.
Judges are allowed to check the executive branch when it exceeds its authority. In fact, that’s exactly what they are supposed to do.
Vance’s statement contradicts more than 200 years of Supreme Court precedent. Every first-year law student reads the case of Marbury v. Madison, the 1803 decision that confirmed the power of the courts to conduct judicial review. In our system of three co-equal branches of government, the role of the courts is to interpret the law. Courts strike down statutes passed by legislatures when they violate the Constitution. Courts also declare executive action illegal when it violates the law......
The defiance of a court order by the executive branch would indeed be a constitutional crisis. Eventually, the only realistic remedy in that situation would be impeachment, and in recent history, we have seen that members of a president’s own party have been reluctant to vote against him. And if the legislative branch failed to come to the rescue of the courts, then the executive branch would become something the framers of our Constitution would find unrecognizable.
We would have not just a constitutional crisis but a constitutional tragedy.
On Sunday, the vice president's comments on social media raised alarm bells across the legal profession. Apparently in response to multiple judges temporarily halting some of President Donald Trump’s executive actions, Vance posted: “If a judge tried to tell a general how to conduct a military operation, that would be illegal. 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.”
Wrong. Wrong. And wrong.
Courts have ruled against illegal military actions, such as striking down military commissions at Guantanamo Bay after 9/11. Courts have also ruled a prosecutor violated the equal protection clause of the 14th Amendment when engaging in selective prosecution. And, in the same way, courts serve as a check on presidents when they exceed their power. The Supreme Court famously struck down President Harry S. Truman’s efforts to seize steel mills during the Korean War on the grounds that his conduct conflicted with the Labor Management Relations Act.
Judges are allowed to check the executive branch when it exceeds its authority. In fact, that’s exactly what they are supposed to do.
Vance’s statement contradicts more than 200 years of Supreme Court precedent. Every first-year law student reads the case of Marbury v. Madison, the 1803 decision that confirmed the power of the courts to conduct judicial review. In our system of three co-equal branches of government, the role of the courts is to interpret the law. Courts strike down statutes passed by legislatures when they violate the Constitution. Courts also declare executive action illegal when it violates the law......
The defiance of a court order by the executive branch would indeed be a constitutional crisis. Eventually, the only realistic remedy in that situation would be impeachment, and in recent history, we have seen that members of a president’s own party have been reluctant to vote against him. And if the legislative branch failed to come to the rescue of the courts, then the executive branch would become something the framers of our Constitution would find unrecognizable.
We would have not just a constitutional crisis but a constitutional tragedy.
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