JD Vance s Tweet Is No Crisis – WSJ

Did Vice President JD Vance set off a constitutional crisis with a recent tweet? Many journalists and law professors seem to think so. If a judge tried to tell a general how to conduct a military operation, that would be illegal, Mr. Vance wrote. 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.

Mr. Vance s more alarmist critics assumed that the executive branch was preparing or threatening to defy court orders. But the more straightforward reading is that he was referring to legal doctrines of justiciability, reviewability, standing and the so-called political-question doctrine, which are themselves legal principles that courts apply in determining when they have jurisdiction to review executive action. All these principles are ultimately rooted in the constitutional separation of powers or in statutes embodying and implementing separation-of-powers considerations.

To be sure, there is a long tradition of departmentalism in American law, under which presidents have sometimes interpreted the law for themselves and even refused to enforce court orders or threatened to do so a possibility to which Alexander Hamilton referred in Federalist No. 78 as itself an aspect of checks and balances. But no such threat was apparent on the face of the vice president s comments.

via www.wsj.com

Adrian Vermeule.