JD Vance’s Dangerous Logic: Executive Power Without Oversight?

How the Vice President’s Tweet Undermines the Constitution—and Fails Spectacularly

Vice President JD Vance’s tweet has caused a clamor because many observers see it as setting a predicate for executive defiance of judicial oversight. I agree—that’s exactly what he’s trying to do. He fails.

Let’s start from the bottom to the top, since the last claim is the most direct challenge to constitutional checks and balances.

“Judges aren’t allowed to control the executive’s legitimate power.”

Nonsense.

Vance’s phrasing is circular and misleading. It assumes that all executive power is inherently “legitimate” and therefore beyond judicial review. But legitimacy is not self-declared—it derives from the Constitution, and the judiciary determines whether executive actions comply with it.

1. Legitimacy Comes from Constitutional Authority

If an executive action violates the Constitution, it is not legitimate power—it’s executive overreach.

Marbury v. Madison (1803) established that the judiciary, not the executive, decides what the law is. If an executive order or action contradicts the Constitution, courts have the final say in striking it down.

2. The Supreme Court Routinely Checks Executive Actions

Vance’s logic, if accepted, would mean the following landmark rulings were “illegal” interference with “legitimate” executive power:

Youngstown Sheet & Tube Co. v. Sawyer (1952) – The Supreme Court struck down President Truman’s attempt to seize steel mills during the Korean War, ruling he lacked constitutional authority.

U.S. v. Nixon (1974) – The Court rejected Nixon’s claim of absolute executive privilege, forcing him to release the Watergate tapes.

Texas v. U.S. (2016) – Federal courts blocked Obama’s Deferred Action for Parents of Americans (DAPA) program, ruling it exceeded executive authority.

In all of these cases, presidents claimed legitimacy—but the courts decided otherwise. That is exactly how our constitutional system works.

Judges don’t “control” the executive—they ensure it stays within the law. Vance wants to flip that principle on its head.

“If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.”

Wrong again.

While prosecutors have broad discretion, their power is not absolute—and courts routinely intervene in cases of selective prosecution, abuse of power, and constitutional violations.

1. Prosecutorial Discretion is Subject to Judicial Oversight

Courts can block politically motivated prosecutions or dismiss cases where prosecutors violate constitutional rights (e.g., due process, equal protection).

Example: U.S. v. Armstrong (1996) – The Supreme Court reaffirmed that defendants can challenge selective prosecution if there is evidence of racial or political bias.

2. Prosecutors Are Not Kings

The judiciary can and does enforce constitutional limits on prosecutorial power.

Example: Trump v. Vance (2020) – The Supreme Court ruled that a sitting president was not immune from state criminal subpoenas, rejecting Trump’s claim that prosecutors had no right to investigate him.

Courts intervene in prosecutorial decisions not to “command” the attorney general, but to prevent abuse. Vance’s claim ignores these fundamental legal realities.

If a judge tried to tell a general how to conduct a military operation, that would be illegal.

Misleading.

Vance’s military analogy collapses immediately when you recognize that courts do have jurisdiction over military actions in multiple contexts.

1. Courts Have Jurisdiction Over Military Conduct

Courts cannot dictate battlefield strategy, but they can rule on military orders that violate U.S. law or international treaties.

Example: Hamdan v. Rumsfeld (2006) – The Supreme Court ruled that the Bush administration’s use of military commissions at Guantanamo Bay violated both the Uniform Code of Military Justice and the Geneva Conventions.

2. The Military Is Subject to Judicial Review

Military operations are not a legal free-for-all.

Example: Ex parte Milligan (1866) – The Supreme Court ruled that military tribunals could not try civilians when civilian courts were functioning.

Judges don’t “control” generals, but they do ensure military actions comply with the Constitution and the rule of law.

Conclusion: Vance’s Tweet is a Dangerous Attack on Judicial Authority

JD Vance’s argument isn’t just legally flawed—it’s dangerous.

By framing any judicial check on executive power as “illegal,” he is laying the groundwork for an unchecked presidency that can violate constitutional rights without consequence.

But that’s not how our system works.

The judiciary doesn’t “control” the executive—it holds it accountable. And no matter how much Vance tries to spin it, that’s not just legal—it’s essential to democracy.

What does this mean going forward? I think it bears close watching. Vance is “putting it out there” for a reason. Trump’s legal team has promoted legal theories that are crazier than this — but this one strikes at the heart of the constitutional separation of powers. I will be keeping a close eye on this.