The Radical Legal Theories That Could Fuel a Constitutional Crisis

On Sunday, Vice President JD Vance presented his view on the balance of power between the presidency and the judiciary. He argued in a post on X that “Judges aren’t allowed to control the executive’s legitimate power.”https://svtoday.org/

In response, 17 state attorneys general jointly condemned his statement as both “wrong and reckless,” asserting, “No one is above the law.”

Was Vance implying that presidents should be able to act independently of judicial oversight? That largely depends on his interpretation of the term “legitimate.” Who, after all, has the authority to define the limits of executive power?

The answer, as the Constitution has been interpreted for over two centuries, is clear: the judiciary.

Article III of the U.S. Constitution grants the judicial branch the authority to handle all cases arising under it, explicitly empowering the courts to interpret its provisions.

And that’s precisely what federal judges are currently doing.

Courts have issued preliminary injunctions to halt some of the most aggressive assertions of executive authority under the current administration, including a freeze on up to $3 trillion in federal spending, the termination of birthright citizenship guaranteed by the 14th Amendment, the removal of civil servants before their terms end, the transfer of trans women in prisons to male facilities, and the creation of a new quasi-agency headed by Elon Musk with control over sensitive data. Over 60 lawsuits have been filed against the Trump administration — averaging more than two per day.

Many plaintiffs argue that these actions are ultra vires, or beyond the powers granted to the president. In one case concerning the funding freeze, Judge John J. McConnell Jr. of the U.S. District Court for Rhode Island found that the government was disregarding its ruling and issued a motion to enforce compliance. As the administration sought more justifiable reasons to maintain the freeze, President Trump remarked, “I always abide by the courts, and then I’ll have to appeal it.” This was the administration’s closest attempt at clarifying Vance’s vague statement.

These cases remain unresolved, with some likely to reach the Supreme Court. Some legal analysts speculate that the Trump administration’s strategy involves pushing the boundaries of executive power, hoping the Supreme Court will rule in favor of expanding the president’s constitutional authority. Vance’s post suggests another possibility: that the executive branch could decide for itself, bypassing judicial rulings and setting its own limits on presidential power.

Such a move would mark a dramatic departure from constitutional norms.

However, the ideological groundwork for this shift has been brewing for years. Vance is part of a growing faction of conservative Republicans influenced by a new legal philosophy that calls for a radical reinterpretation of the Constitution, especially regarding presidential powers. This movement can trace its roots to originalism, a doctrine that has been a cornerstone of American conservatism since the 1980s. Originalism emphasizes the Constitution’s original public meaning at the time of the nation’s founding, aiming to reverse what some view as judicial overreach in the 20th century.

Yet as originalism has gained dominance — as seen in Justice Elena Kagan’s statement, “we are all originalists” — some conservatives have grown dissatisfied. A new cohort of thinkers is advocating for “post-originalism.”

The Rise of Post-Originalism

Adrian Vermeule, a Harvard Law professor, has quietly become one of the leading voices of post-originalism. Though he identifies as a “classical legal theorist” and draws heavily from ancient legal texts, his ideas resonate with conservatives who feel that originalism alone is insufficient to achieve their policy goals.

The day before Vance posted his views on executive power, he shared a message from 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.”

Vermeule later defended Vance’s statement in an op-ed for The Wall Street Journal, suggesting that Vance was referencing legal doctrines about justiciability and political questions, downplaying fears that the vice president was advocating for defying judicial orders. Some left-leaning legal commentators appeared to share this view.

Vermeule’s recognition of the judiciary as a “coequal” branch places him on the more moderate end of post-originalism. However, figures like Patrick Deneen of Notre Dame advocate for a more radical vision of governance, calling for a shift away from democratic pluralism and checks and balances to an elite-driven “common-good conservatism.”

Other right-wing thinkers, such as Jesse Merriam, criticize originalism for supporting rulings like Brown v. Board of Education, which declared racial segregation unconstitutional. Merriam argues that embracing such decisions has paved the way for an “antiracist constitutional order.”

Vermeule and others who embrace post-originalism argue that originalism has become ineffective in opposing liberal interpretations of the Constitution, particularly regarding issues like civil rights and social policy.

The Birth of a New Constitutional Theory

Vermeule’s ideas gained prominence after he published “Beyond Originalism” in The Atlantic in 2020. He has long been associated with Catholic intellectuals advocating for a vision of governance aligned with the church’s teachings, which he argues influenced the founding of the nation. In his post-originalist vision, Vermeule calls for “common-good constitutionalism,” a system where the state upholds the public good as defined by elected leaders, even when it transcends the written Constitution.

Vermeule’s ideas have stirred controversy. Critics, such as Washington Post columnist George F. Will, have accused him of advocating for “tyranny,” while others see his theories as a dangerous step towards authoritarianism.

In his 2023 paper, Vermeule asserts that presidential power should be seen as comparable to that of a Roman emperor, wielding substantial authority. He also argues that the American presidency’s current powers have evolved to fill gaps left by Congress and the judiciary.

The Judicial Response

Vermeule’s vision of a presidency with expansive powers is gaining traction among some judges, particularly those appointed by Trump, with references to Vermeule’s “common-good constitutionalism” showing up in court decisions.

As the Trump administration faces lawsuits challenging its executive actions, the Justice Department has defended these moves as legal, rather than arguing that the president is above the law. However, some of Trump’s staunch supporters, influenced by post-originalist thinking, are pushing back against judicial rulings they see as obstacles to presidential authority. Figures like Senator Mike Lee and Elon Musk have even suggested firing judges they consider corrupt or incompetent.

This confrontation between the executive branch and the judiciary is unprecedented in its scale. While past presidents, like Andrew Jackson and Abraham Lincoln, ignored certain court rulings, Vance’s suggestion of executive impunity represents a far-reaching challenge to constitutional principles.

Ultimately, the ideological currents driving this shift reflect a broader conservative frustration with the balance of power in American government. As more Republicans embrace post-originalism, the debate over the scope of presidential power may soon come to a head, potentially reshaping the constitutional order in ways not seen before.