On Sunday, Vice President JD Vance laid out his version of the relationship between the presidency and the courts. “Judges aren’t allowed to control the limits of the executive’s legitimate power,” he wrote, in a post on X.
Mr. Vance’s post was “as wrong as it is reckless,” responded 17 attorneys general from 17 states in a joint statement. “No one is above the law.”
Was Mr. Vance demanding that presidents be allowed to make their own rules, regardless of what the courts say? Everything depends on what he meant by the word “legitimate.” Who gets to decide the limit of the executive’s power?
The Constitution, at least as it’s been interpreted for more than 200 years, offers a clear answer: judges.
“The judicial Power shall extend to all Cases arising under this Constitution,” says the Constitution itself, in Article III, which establishes the federal court system and its powers.
And that is exactly what the federal judiciary is trying to do now.
Federal judges have issued preliminary orders that block some of the administration’s most aggressive assertions of power: a freeze on as much as $3 trillion in federal spending, the termination of the 14th Amendment’s guarantee to birthright citizenship, the firing of civil servants before the end of their statutorily defined terms, the forced transfer of trans women in prison to men’s facilities and the turnover of sensitive data and systems to a newly minted quasi-agency headed by Elon Musk. More than 60 lawsuits have been filed against the second Trump administration — more than two for each day that the president has been in office.
Many of the plaintiffs allege that the Trump administration’s actions are ultra vires, literally “beyond the powers,” meaning that Mr. Trump has wielded power in ways that go beyond his lawful authority. In one case, a dispute over the funding freeze before Judge John J. McConnell Jr. in U.S. District Court for the District of Rhode Island, the court has found the government to be defying its ruling and granted a “motion to enforce,” essentially a nudge. On Tuesday afternoon, as his administration sought out new, more justifiable reasons for keeping the same money frozen, Mr. Trump insisted that “I always abide by the courts, and then I’ll have to appeal it.” That is the closest the administration has come to clarifying Mr. Vance’s provocatively ambiguous post.
None of these cases have been decided. At least some are very likely to be taken up by the Supreme Court. Some legal commentators believe that the Trump administration’s strategy is to flood the zone with extreme executive actions in hopes that the Supreme Court will find some of them to be legal, and in so doing, expand the White House’s legitimate constitutional power. Mr. Vance’s post raises another possibility: that the administration could decide that it, and not the courts, is the constitutionally designated arbiter of the limits on its own authorities, and choose to ignore judicial rulings.
That would represent an extreme rupture to the constitutional order.
Yet the ideological foundation for such a moment has been emerging for decades. Mr. Vance is among an increasing number of elected Republicans who are influenced by new strains of conservative legal thought that entail a radical reinterpretation of the Constitution, particularly the powers it bestows on the president. Many can be traced back to originalism, a set of doctrines that American conservatives have relied on since the 1980s. Originalism comes in many stripes, but its essence is that the plain words of the Constitution — what they see as its “original public meaning” at the time of the country’s founding — can be deployed to roll back what they perceive to be the progressive excesses of the judiciary during the mid-to-late 20th century.
But as originalism has become more dominant — “we are all originalists,” Justice Elena Kagan said at her confirmation hearing — some conservatives have grown dissatisfied. A group of right-wing thinkers is putting forward a new set of doctrines: Call it “post-originalism.”
The Godfather of Post-Originalism
Until recently, Adrian Vermeule’s public profile has been modest. Mr. Vermeule, a 56-year-old professor at Harvard Law School, is the author of scores of academic books and law review articles. He would most likely take issue with the label “post-originalist.” He has called himself a “classical legal theorist,” and his work is buttressed by quotes and footnotes that demonstrate his mastery of the classical legal canon — Justinian’s Digest, Aquinas’s Summa, the Institutes of Gaius. He argues that a robust understanding of the Constitution requires being steeped in ancient sources and theories about natural law, divine law and Roman law, all of which, he claims, influenced the founders and are baked into the Constitution.
But among conservatives who believe that originalism isn’t enough to get them the policy results they want, he is an ideological lodestar.
The day before Mr. Vance posted that “judges aren’t allowed to control the limits of the executive’s legitimate power,” he shared a post from Mr. Vermeule: “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”
On Tuesday, The Wall Street Journal published an opinion essay in which Mr. Vermeule defended Mr. Vance’s post, explaining that the vice president was simply “referring to legal doctrines of justiciability, reviewability, standing and the so-called political-question doctrine.” Worries that Mr. Vance was calling for the defiance of judicial orders were “unbalanced reactions,” Mr. Vermeule wrote in a longer version of the essay. At least one prominent left-leaning legal commentator appeared to agree.
Mr. Vermeule’s acknowledgment of the judiciary as a “coequal” branch of government puts him at the milder end of post-originalist thinking. In his book “Regime Change,” Patrick Deneen, a professor at the University of Notre Dame and a prominent thinker on the new right, calls for “the raw assertion of political power by a new generation of political actors inspired by an ethos of common-good conservatism.” To achieve “the creation of a new elite that is aligned with the values and needs of ordinary working people,” Mr. Deneen proposes setting aside the goal of “a form of ‘democratic pluralism’ that imagines a successful regime comprised of checks and balances.”
Jesse Merriam, a professor at Patrick Henry College, has criticized originalists for embracing Brown v. Board of Education, the Supreme Court decision that found racial segregation in public schools to be unconstitutional. The “canonization” and “weaponization” of Brown, Mr. Merriam argues, paved the way for “the antiracist constitutional order.” Just as Mr. Vance’s post appeared to tiptoe to the line of constitutional crisis, Mr. Merriam’s demand that “we must be free to debate Brown and the broader civil rights revolution,” by “opening up space to dissent on racial matters” risks sounding like an affirmative case for segregation.
As a website of legal writing to which Mr. Vermeule has contributed puts it: Originalism and textualism had to be discarded as they “have proven impotent in opposing the liberal concept of the good.”
It’s hard to get a handle on post-originalism without first understanding its beginnings in the conservative movement’s growing impatience with originalism. That doctrine holds that judges who want to interpret the Constitution should look backward, taking into account various blends of text, meaning and the founders’ intent, sometimes supplemented by “history and tradition” as well.
Originalism’s offshoots can be grouped into two camps: One group, the scholars, sees originalist interpretation as an end in itself, and will follow it anywhere. A second camp, the soldiers, see originalism as a useful tool for pushing jurisprudence rightward on issues like environmental regulation, reproductive rights and gun control.
While the scholars want to understand the founding period from the inside out, the soldiers want results. They can often be heard calling for conservative judges to be “bold” and “fearless,” while decrying their purist cousins as spineless “libertarians.”
The soldiers felt betrayed by Justice Neil Gorsuch’s 2020 opinion for the majority in the Supreme Court case Bostock v. Clayton County, which prohibited employers from discriminating on the basis of sexual orientation or gender identity. “If we’ve been fighting for originalism and textualism, and this is the result of that,” Senator Josh Hawley, a Republican from Missouri, said in a speech on Bostock, “then I have to say it turns out that we haven’t been fighting for very much.” Bostock “represents the end of the conservative legal movement,” Mr. Hawley said. He called for “a new beginning.”
The Bostock ruling arrived against a backdrop of anguished soul-searching on the right. For many, the combination of the Black Lives Matter protests and the Covid lockdowns appeared to validate what voices on the fringe of the conservative movement had been saying for years — the fights happening at the polls and in the courts against progressive values were, in fact, the front lines of an existential struggle for the future of Western civilization.
This was familiar terrain for many of Mr. Trump’s most ardent supporters. They had been equating Democrats with America’s foreign enemies for years while half-jokingly referring to Mr. Trump as their “God-Emperor,” or, perhaps with more seriousness, extolling the virtues of monarchism. But it took the post-2020 reaction against “wokeness” to bring those ideas into the conservative mainstream. All that was missing was a grand unifying theory — a vocabulary to give voice to these intense cultural frustrations and draw a legitimizing connection between them and the Constitution.
Enter Mr. Vermeule’s “Beyond Originalism,” an essay published in The Atlantic at the height of the pandemic, between the time Bostock was argued and when it was decided. Mr. Vermeule was already well-known among some Catholic scholars for being, as one political science professor put it, “the foremost defender in the United States” of integralism, which seeks to bring state power in line with church teachings. (Mr. Vermeule would most likely contest that label, too.)
After converting to Catholicism in 2016, he praised the church as a defense against “the universal deluge of economic-technical dominance.” His Atlantic essay proposed what he called “common-good constitutionalism,” a vision of the public good that both incorporates and somehow transcends the written law, a vision that elected governments are obliged to realize. “Strong rule in the interest of attaining the common good is entirely legitimate,” he wrote.
The essay provoked angry responses from both originalists and Reagan-era conservatives. Mr. Vermeule’s theories were “un-American,” wrote the Washington Post columnist George F. Will, who accused him of succumbing to the “allure of tyranny.” Mr. Vermeule “seems to enjoy provoking members of the liberal intelligentsia by coyly advancing almost-forbidden ideas,” wrote another Catholic scholar.
“Beyond Originalism” also drew strong reactions from more liberal commentators. Garrett Epps, a retired law professor, called it “an argument for authoritarian extremism,” an “anti-constitutional philosophy” and an augur of “post-legal times.”
Traditional conservatives have long pushed for a more expansive view of presidential power, often with something called the unitary executive theory, the idea that the president personally embodies an entire branch of government. Mr. Vermeule goes further. “The American president is more like a Roman emperor than many would like to admit and that fact is legitimized by the state of American law,” he wrote in a 2023 paper titled “The Many and the Few.”
Even critics of this approach have to acknowledge how much power Congress and the courts have handed over to the presidency. Congress has effectively relinquished its constitutional power to declare war through the combination of the 1973 War Powers Act and the 2001 law that authorized the use of military force against terrorists and the countries that harbor them after the Sept. 11 attacks. With the 2024 Trump v. U.S. decision, the Supreme Court held that the courts could not find any president criminally liable for performing his constitutional duties. While the project of essentially legitimizing the imperial presidency can appear threatening to America’s system of divided government, it also raises a difficult question: If America really wanted a separation of powers, why have two of the three branches chosen to give so much of their power away?
The law, Mr. Vermeule wrote in 2022, “is to a large degree what the President and the agencies say it is,” and presidential power is “roughly comparable to the aggregate of powers held by Augustus and his successors.” Those powers were given to them by the Roman people to supplant “the corrupt government of the senatorial class,” which served only “the self-interest of a predatory elite.”
Into the Courts?
Mr. Vermeule’s “common-good constitutionalism” is gaining traction in some corners of the U.S. judiciary, particularly among judges — roughly one quarter of the bench — who were appointed during Mr. Trump’s first term. A 2022 conference at Harvard on common-good constitutionalism was attended by two Trump-nominated appellate court judges: James Ho of the U.S. Court of Appeals for the Fifth Circuit, who is sometimes mentioned as a possible Supreme Court pick, and Paul Matey of the Court of Appeals for the Third Circuit. Mr. Vermeule has posted some of Judge Matey’s essays on his Substack. References to “Common Good Constitutionalism,” the book that developed from Mr. Vermeule’s Atlantic essay, have begun turning up in the footnotes of appellate court decisions.
As the Trump administration fights the onslaught of lawsuits against its executive orders and other actions, the Justice Department’s lawyers are arguing that the administration’s actions are legal, rather than that the president is above the law. But at the same time, many of Mr. Trump’s most ardent supporters — especially those who are most plugged into new conservative intellectual currents — are following Mr. Vance’s lead and trying to undermine the authority of any judge who rules against the president. Senator Mike Lee of Utah has called on Congress to “impeach corrupt judges” and “investigate lawfare.” Elon Musk suggested that “the worst 1%” of the judiciary “be fired every year.” “Outrageous,” posted Senator Tom Cotton of Arkansas when a judge barred Mr. Musk’s team from having access to sensitive Treasury Department data.
It is hard to find much precedent for this moment. President Nixon’s behavior caused grave tensions between the three branches of government, but the buildup was protracted and gradual. Presidents Jackson and Lincoln both ignored important court rulings, according to the Federal Judicial Center.
But those prior instances of presidential recalcitrance — just two, spread out over 248 years — were narrow. Mr. Vance hints at something very different: wholesale ultra vires executive-branch impunity. That idea is increasingly part of the Republican mainstream.
The post The Radical Legal Theories That Could Fuel a Constitutional Crisis appeared first on New York Times.
