Legal Review: Is Judicial Review Obsolete? Examining JD Vance’s Vision of Executive Power
Vice President JD Vance has criticized judges for striking down Trump Executive Orders. Source: Andrew Harnik / Getty Images
Factual Background
President Donald Trump campaigned on an ambitious platform of reshaping the entire federal government. Motivated in part by calls to “drain the swamp” and purge the government of officials he believed had persecuted himself and his allies under the Biden administration, Trump promised to be America’s “retribution.” Upon taking office, President Trump began enacting his promised changes through an unprecedented use of executive power. On his first day in office, the President signed Executive Order 14151, firing all federal employees working in DEI positions. The same day, the President signed Executive Order 14158, establishing the Department of Government Efficiency (DOGE) and granting them “full and prompt access” to all unclassified records belonging to all of the cabinet agencies. Four days later, the President fired the Inspectors General of 17 different agencies, potentially in violation of a 2022 law that requires Presidents to give 30 days notice to Congress before they remove an Inspector General (Securing Inspector General Independence Act of 2022, Pub. L. No. 117-286, 136 Stat. 6081 (2022)).
The Executive Orders and the firings immediately faced legal challenges. On February 8, Judge Paul Engelmayer of the Southern District of New York temporarily restrained DOGE and its head, Elon Musk, from accessing the records EO 14158 ordered it to access (State of New York v. Trump, No. 1:25-cv-01144 (S.D.N.Y. Feb. 7, 2025)). The temporary restraining order was later extended to a preliminary injunction on February 21 (Id). On February 12, the President was temporarily restrained by the District Court for the District of Columbia from firing Hampton Dellinger, head of the Office of Special Counsel (an agency responsible for protecting whistleblowers). The President’s request to vacate the TRO was later held in abeyance (put on hold) by the Supreme Court on February 21 (Bessent v. Dellinger, No. 24A790 (U.S. Feb. 21, 2025)).
Amidst these legal setbacks, Vice President JD Vance expressed his frustration with the judiciary. “Judges aren’t allowed to control the Executive’s legitimate power,” he tweeted on X. “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 [sic] to use her discretion as a prosecutor, that's also illegal,” he continued. The Vice President’s tweet set off a firestorm of condemnation. Liz Cheney, former Vice Chair of the January 6 Select Committee, denounced the Vice President’s remarks as tyrannical, reminding him that the proper recourse was to appeal, not to “rage-quit the Republic.” Commentators like Boston University Law Professor Jessica Silbey described the Vice President’s tweet as setting off a “constitutional crisis.” With the possibility of a standoff between the Executive and the Judiciary becoming increasingly imminent, it is useful to examine what current case law says about the power of the Judiciary to check the Executive. In this article, I will argue that while it is true that the President cannot be called to answer for some of his acts in a court of law, the Office of President is still answerable to the courts for the same acts.
Argument
I. The degree to which a President is insulated from judicial review is limited.
The Vice President’s statement was a broadly worded statement that left more questions than answers. What exactly did he mean by “control”? Was he referring to the commonly-exercised power of judicial review? Or was he referring to brazen acts of judicial activism? What did he mean by the Executive’s “legitimate” power? Was he referring to the acts within the President’s “conclusive and preclusive authority” deemed to be unexaminable by Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)? Was he referring to untested acts that he hoped to incorporate into the aforementioned category? Given the uncertainty generated by the statement, it may be more useful to explore the interpretation of the statement that generates more legal uncertainty than it is to explore the interpretation of the statement that is largely undisputed. Accordingly, we will assume that the Vice President is challenging the routine judicial review of Presidential actions that are deemed “legitimate” by some undefined standard.
A. Marbury guides how we consider the judicial examinability of Presidential acts.
One of the first instances in which the Supreme Court considered the examinability of Presidential actions was in Marbury v. Madison, 5 U.S. 137 (1803). In that case, outgoing President John Adams had made a series of eleventh-hour judicial appointments. One of those appointed was Petitioner William Marbury. While Marbury’s judicial commission was signed, it was unable to be delivered to Marbury before the incoming Jefferson administration took office. Jefferson’s Secretary of State, Respondent James Madison, refused to deliver the commission to Marbury, and Marbury promptly asked the Supreme Court to issue a writ of mandamus ordering Secretary Madison to deliver him his commission. In taking up Marbury’s case, the Court considered three questions: 1) Does Marbury have a right to his commission? 2) If he does have a right to his commission, and that right has been violated, can he seek legal relief? 3) If he can seek legal relief, is a writ of mandamus the proper legal relief (Id. at 154)? The question most relevant to our analysis is the second question.
Prior to answering the second question, the Court had established in the first question that Petitioner Marbury had been deprived of a “vested legal right” when he was denied his commission (Id. at 162). The question was now whether the deprivation of this right fell under the category of damnum absque injuria – or a “loss without injury” (Id. at 164). To answer this question, the Court examined the nature of the act of denying Marbury his commission. Since this act was carried out by Secretary Madison, an agent of President Jefferson, the Court considered this action to be a Presidential action and examined it in light of the unique role of the Presidency in our constitutional system. Recognizing that the President was vested with “important political powers” that were not and could not be spelled out by law (such as using the bully pulpit, negotiating with members of Congress, etc.), the Court ruled that the President could not be held accountable to the law, but only to the American people in his “political character” and to his own conscience, for such acts (Id. at 165-166).
However, the Court outlined a second category of acts for which the President could be held accountable to the law. Commonly known as “ministerial acts,” these acts are prescribed by law and not subject to the President’s discretion. If one’s individual rights are infringed upon by the President’s failure to carry out such an act, then there is a legal basis by which the President can be held accountable. The Marbury court held that Madison’s failure to deliver Marbury’s commission fell under this category of acts, as the delivery of a commission was a purely legal decision mandated by law (Id. at 167).
B. The Vice President’s remarks are not consistent with the Marbury framework
We now examine the Vice President’s remarks in light of Marbury. Marbury makes it clear that the President’s actions are unexaminable when such actions fall under his discretion; political acts, so to speak. These acts unquestionably fall within the bounds of the “legitimate power” that the Vice President makes reference to. However, the Vice President’s attempt to incorporate the restrained and enjoined acts under this umbrella of “legitimate acts” fails under Marbury.
Let’s consider the attempted firing of the Special Counsel, for example. While it is true that the President’s removal power is largely unrestricted (Myers v. United States, 272 U.S. 52 (1926), Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020)), the Supreme Court has also upheld certain restrictions on it. In Morrison v. Olson, 487 U.S. 654 (1988), the Court upheld a post-Watergate law that strengthened removal protections for Independent Counsels and Special Prosecutors. In doing so, the Court distinguished Myers and Humphrey's Executor v. United States, 295 U.S. 602 (1935).
In those cases, the Court had generally barred Congress from limiting the President’s power to remove “executive officers,” (Myers 272 U.S. at 126, Humphrey’s Executor 295 U.S. at 632), or officers who are “mere organ[s] by whom [the President’s] will is communicated.” (Marbury 5 U.S. at 166). However, in Morrison, the Court qualified this interpretation of the President’s removal power. The challenged Act, the Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978), allowed the President to remove an Independent Counsel only “for good cause.” Appellee Theodore Olson, the Assistant Attorney General for the Office of Legal Counsel, who was being investigated by Independent Counsel Alexia Morrison, had challenged the Act, arguing that the Independent Counsel was an “executive official” performing “purely executive functions.” Morrison 487 U.S. at 688.
In rejecting this argument, the Court held that neither Myers nor Humphrey’s Executor purported to draw bright lines between “executive officials” and other officials for purposes of determining their removability, but only sought to provide general guidance to determine whether limiting the President’s removal power interfered with his ability to carry out his “constitutionally appointed duty to ‘take care that the laws be faithfully executed’” (Id. at 689-90). As applied to Olson’s suit, the Court held that the need for the Independent Counsel’s independence from the President outweighed any interference the “good cause” requirement would impose on the President (Id. at 693).
Returning to Marbury, we can see how Morrison is illustrative of the distinction between discretionary and ministerial acts. In holding that the need for the Independent Counsel’s independence outweighed any potential interference the “good cause” requirement might impose on the President, the Morrison court observed that the President, through his Attorney General, was not stripped of his removal power, but in fact retained significant discretion to “assure that the counsel is competently performing his or her statutory responsibilities” (Morrison 487 U.S. at 692). This holding leaves the Marbury framework untouched. The decision of whether the President can remove an “executive official” still remains a discretionary act unexaminable by the Courts. However, the conditions that must be met for the removal to be fully carried out constitute a Congressionally-prescribed “ministerial act”, which the President must follow, at risk of lawsuit if he fails to perform that act. Therefore, while the President does have latitude to perform his “legitimate acts,” he also must perform those acts in accordance with Congressionally-prescribed procedures.
II. The contention that some Presidential acts are judicially unexaminable applies largely to acts taken in the President’s personal capacity
The Vice President’s statement likely stems from the Supreme Court’s decision in Trump v. United States, 603 U.S. 593 (2024). In that case, the Court had ruled that the President was entitled to “absolute immunity” for acts taken within his “conclusive and preclusive authority,” and “presumptive immunity” for acts “within the outer perimeter of his official responsibility” (Id. at 609, 614). This ruling must not be construed, however, as doing away with the power of the courts to conduct routine judicial review of the President’s actions. The Trump court considered the question of immunity, a privilege extended to the President, the citizen, not the Office of the President. This distinction is key: the immunized powers belong to the Office of the President, not the person occupying that office. To draw from Marbury, that person is merely the organ through which the powers of the Presidency are exercised and must be given immunity under the principle of respondeat superior (a subordinate, subject to exceptions, should generally not be held accountable for the actions of his superiors). However, the grant of personal immunity to the person occupying the Presidency must not also be construed as foreclosing the ability of the Courts to restrain the Office of the President. When the powers of the Presidency are unduly expanded by the person occupying the Presidency, the Courts must be able to exercise judicial review so that the constitutional limits on Presidential authority are preserved.
We now examine an instance in which the Office of the President was held accountable by the law where the person occupying the Presidency would have otherwise been entitled to absolute or presumptive immunity. In Biden v. Nebraska, 600 U.S. 477, the Court considered the legality of a program instituted by then-President Biden that sought to forgive the student loans of nearly 20 million Americans who had suffered economic hardship as a result of the COVID-19 pandemic. Then-President Biden, in instituting the program, relied on a clause from the HEROES Act of 2003, Pub. L. No. 108-76, 117 Stat. 904 (2003). The clause in question permitted the Secretary of Education to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act for “affected individuals,” or those who “suffered direct economic hardship as a result of a war, military operation, or national emergency.” In holding then-President Biden’s loan cancellation program to be inconsistent with the HEROES Act, the Court stated that the Act never purported to allow the Secretary of Education to “rewrite the statute from the ground up” to the extent of cancelling $430 billion of student loan principal (Biden 600 U.S. at 493).
We now discuss Biden in terms of judicial reviewability of executive action. The Trump court granted the President a “presumptive immunity” for acts taken “within the outer perimeter of his official responsibility.” Included within this category of acts were acts in which the President and Congress had “concurrent authority” (Trump 603 U.S. at 609). Then-President Biden’s loan forgiveness program likely fell within this category as it purported to act on the authority of the HEROES Act’s “waive or modify” clause. Under the Trump framework, then-President Biden would likely be afforded at least a presumptive immunity for implementing the program. However, the fact that the program was before the Supreme Court in the first place suggests that the personal immunity that would have been given to then-President Biden does not foreclose the possibility of judicial review. Although it is true that Trump framework did not exist at the time Biden was decided, and it could be suggested that a program like that of then-President Biden’s would be rendered unreviewable had it been implemented after Trump, it would be implausible to suggest that Trump purported to overturn Biden and all other cases where the legality or constitutionality of Executive actions were reviewed.
Conclusion
The President occupies a unique position within our Constitutional scheme. As the only person to comprise one branch of government, he is granted wide latitude by the Courts so he can exercise his powers with the vigor and energy needed of the Presidency. However, this does not exempt him from the routine judicial review of his official acts. Marbury subjected his “ministerial actions” to review by the Courts, meaning purely legal acts prescribed to him by Congress can be enforced in a court of law. While some may suggest that the immunity granted to the President by Trump forecloses judicial review of his actions, this argument is not convincing as the immunity is afforded to the person occupying the Presidency, not the Presidency itself. As a result, we must reject the most extreme interpretation of Vice President Vance’s statement on judicial power. Doing otherwise could cause a sea change in the long-standing balance of power between the judiciary and executive and lead to the constitutional crisis that Professor Jessica Silbey warns us of.