A growing movement among conservative legal scholars is advancing controversial theories about presidential power, raising concerns about the future balance of the U.S. government. On Sunday, Vice President JD Vance weighed in on the debate, posting on X that “Judges aren’t allowed to control the executive’s legitimate power.”
His remark sparked swift backlash. Seventeen attorneys general from across the country issued a joint statement condemning Vance’s stance as both “wrong” and “reckless,” emphasizing that “No one is above the law.” But Vance’s statement leaves an open question: Who determines what constitutes the executive’s “legitimate” power—the courts or the president?
For over two centuries, the Constitution has been interpreted as granting the judiciary the authority to adjudicate such disputes. Article III of the Constitution explicitly states that the judicial power “shall extend to all Cases arising under this Constitution.” And today, federal judges are exercising that power to check the administration.
Courts have temporarily blocked several of the Trump administration’s controversial actions, including a freeze on up to $3 trillion in federal spending, the elimination of birthright citizenship under the 14th Amendment, and the firing of civil servants before their terms expire. They have also intervened in cases involving the forced transfer of trans women in prisons to men’s facilities and the turnover of sensitive government data to a newly created agency led by Elon Musk. So far, more than 60 lawsuits have been filed against the administration—an average of more than two per day.
Plaintiffs argue that many of these executive actions exceed the president’s lawful authority. In one case, a federal judge in Rhode Island issued an enforcement order after ruling that the administration had defied a court decision on the funding freeze. President Trump, meanwhile, insisted that he follows judicial rulings but will appeal them if necessary—a statement that offers little clarity on Vance’s provocative assertion.
None of these cases have been fully resolved, but some are expected to reach the Supreme Court. Legal analysts suggest that the administration may be intentionally testing the limits of executive power, hoping that at least some of its actions will be upheld, thereby expanding presidential authority. Others worry about an even more extreme scenario: that the administration could decide it, rather than the courts, has the final say on its powers and ignore unfavorable rulings. Such a move would mark a fundamental rupture in the constitutional order.
The Rise of Post-Originalism
The ideological groundwork for these ideas has been developing for decades. Many conservatives subscribe to originalism, the legal theory that the Constitution should be interpreted based on its original public meaning at the time of its writing. But dissatisfaction with originalism has given rise to a new set of legal doctrines—what some call “post-originalism.”
One of the key figures in this movement is Harvard Law professor Adrian Vermeule, who argues that constitutional interpretation should be informed by classical legal traditions, including natural and divine law. Vermeule’s ideas have gained traction among conservatives who believe originalism has failed to achieve their policy goals. His 2020 essay “Beyond Originalism” proposed a framework called “common-good constitutionalism,” which prioritizes government action in service of a higher moral vision over strict textual interpretation of the law.
Vance’s post on executive power echoed Vermeule’s thinking. A day earlier, Vance had shared a post from Vermeule asserting that “Judicial interference with legitimate acts of state… is a violation of the separation of powers.” In a Wall Street Journal essay defending Vance’s remarks, Vermeule argued that the vice president was merely referencing established legal doctrines, dismissing concerns about judicial defiance as overblown.
Other conservative thinkers have gone even further. Notre Dame professor Patrick Deneen advocates for “the raw assertion of political power” by leaders committed to conservative values, even at the expense of traditional checks and balances. Meanwhile, law professor Jesse Merriam has criticized originalists for embracing Brown v. Board of Education, arguing that its “weaponization” has led to an “antiracist constitutional order.” Some fear that this perspective implicitly endorses the rollback of civil rights.
A Shift in Conservative Legal Thought
For years, conservative legal thinkers have debated the scope of presidential power. Traditional conservatives often supported the “unitary executive theory,” which views the president as the embodiment of executive authority. Vermeule and other post-originalists push even further, likening the modern American presidency to the rule of Roman emperors. In one paper, Vermeule wrote that presidential power is akin to that of Augustus, whose authority was granted by the Roman people to replace a corrupt governing class.
This shift is already influencing the judiciary. Judges appointed by President Trump—who now make up about a quarter of the federal bench—have shown openness to common-good constitutionalism. References to Vermeule’s work are appearing in judicial opinions, and appellate court judges have attended conferences on his theories.
As the Trump administration faces legal challenges, it continues to argue that its actions are lawful rather than asserting outright defiance of the courts. However, some of Trump’s closest allies are taking a more combative stance. Senator Mike Lee has called for impeaching “corrupt” judges, while Elon Musk has suggested firing the “worst 1%” of the judiciary annually. Senator Tom Cotton denounced a judge’s ruling against Musk’s company as “outrageous.”
Historically, presidents have occasionally defied court rulings—Andrew Jackson and Abraham Lincoln both did so in specific instances. But those moments were rare and limited in scope. Vance’s rhetoric suggests the potential for a much broader challenge to judicial authority.
If this philosophy gains widespread acceptance within the conservative movement, the United States could face an unprecedented test of its constitutional system. The question remains: Will the judiciary retain its traditional role as the arbiter of presidential power, or will the executive branch unilaterally redefine its own limits?