JD Vance Attacks the First Principle of America's Rule of Law

- by Kevin Necessary

The Trump Administration has now been sued dozens of times for its opening weeks of over-the-top actions and executive orders.

Trump, Vance and DOGE find themselves amid an epic losing streak, with judges (seated by both Republican and Democratic presidents) temporarily freezing most of their opening salvos. For the time being, the “deferred resignation” offer, the raiding of Treasury and Labor data, the attack on birthright citizenship, the US AID take down, and others…all stopped in their tracks.

Amid all these early losses, Yale Law grad and Vice President Vance tweeted the following:

Now, my paid subscribers are automatically enrolled in my Virtual Democracy Academy, which is basically a continuous course on key cases and history involving American democracy, elections and voting rights. (Everyone should sign up, btw, by becoming a paid subscriber:

But today, in response to Vance’s tweet, I’m providing a rapid-fire refresher on what is usually the FIRST Constitutional Law case taught in the opening week of law school. Everything else flows from this one case.

And I do this to make clear that Vance’s tweet is an attack on that foundational case, which has anchored the rule of law guiding American government ever since.

(Apologies to those who think this is rudimentary law; yes, for lawyers, it is—but that also underscores just how outrageous Vance’s tweet is).

In Question: The Power of a New President

The parallels are striking.

Just like here, the case is a battle about a transition from one president to the next after a nasty election.

Just like here, it’s a dispute over whether or not an incoming president had the power to undertake a challenged act.

Specifically, Thomas Jefferson had beaten John Adams in the fiercely fought 1800 Presidential election. Weeks before Adams’ departure, a like-minded Congress passed a law (the Judiciary Act of 1801) adding 16 new circuit judges to the federal judiciary. Adams then rushed to fill those judgeships with partisan allies days before leaving.

One of those judges was named William Marbury. Once Jefferson became president, he (through his Secretary of State James Madison) refused to allow Marbury to take the judgeship.

Marbury sued, demanding that the courts seat him.

And with that, the famed case Marbury v. Madison was born.

Add it all up, and—to use Vance’s words—this was a dispute directly about the incoming “executive’s legitimate power.”

And what did the Court do back then?

It heard the case in order to resolve the dispute.

The Ruling: Courts Decide

And what did Chief Justice John Marshall rule in the case?

Well, it’s complicated.

First, Marshall and the unanimous court concluded that Marbury had a right to the judicial seat to which he’d been appointed, and that Jefferson and Madison had violated that right in refusing to seat him.

So despite Jefferson’s argument (again, using Vance’s words) that he had “legitimate executive power” to refuse to seat Marbury, the Court considered that argument and ruled otherwise. Jefferson and Madison’s action was "violative of a vested legal right.”

At the same time, the Court also found that it did not have the power to order Marbury into the judicial seat—because the Judiciary Act of 1801 (which gave the Court the power to order Marbury into the judicial seat) itself violated the constitution: “[A] law repugnant to the Constitution is void, and [] courts, as well as other departments, are bound by that instrument.”

And who makes the determination if a law violates the Constitution?

Resolving something that was not explicitly spelled out in the Constitution, Marshall wrote that among the three branches of government, federal courts are the bodies that scrutinize laws to determine if they violate the Constitution: “It is emphatically the province and duty of the judicial department to say what the law is.”

So in one fell swoop, Marbury makes two things clear:

1. federal courts can review and strike down laws passed by Congress that violate the Constitution; and

2. federal courts can review actions by the executive to see if they are unlawful, as Marbury contended.

JD’s Tweet

JD’s tweet is essentially asserting the precise opposite of Marbury.

Following the losing streak of rulings, his language states that courts “aren’t allowed” to “control” the “legitimate power” of the executive. There are some weasel words here, but the context is important: he is doing this not after final rulings, but only after courts have stayed administrative actions pending legal review of Trump’s and DOGE’s actions.

The timing of the tweet make it clear he’s attacking the notion that courts are reviewing Trump’s actions at all.

It’s a unilateral assertion that the Trump/DOGE actions thus far are legitimate and that the courts are doing something wrong even by reviewing those actions, and suspending (staying) those actions pending review.

In doing so, Vance is rejecting both steps of Marbury—that the Court had the power to review and cast judgment on Jefferson’s action against Marbury, as well its declaration that it is “the province and duty of the judicial department to say what the law is.”

Taken to its logical extremes, Vance’s statement—that Trump/he determine what is a legitimate use of executive power, and courts reviewing that use (and staying actions pending review) is “not allowed”—not only defies Marbury, but ends two centuries of American rule of law as we know it.

By the way, this reflects the lawlessness Vance expressed when he stated, in 2021: “"When the courts stop you, stand before the country, like Andrew Jackson did, and say, 'The chief justice has made his ruling. Now let him enforce it.'"

Some are saying, already, Vance didn’t really mean this. That he worded things cleverly to make the meaning ambiguous.

Sometimes, it seems, we make ourselves feel better by assuming the best of these people. Tell me how that’s worked out so far.

I don’t buy it.

Either way, we will know soon enough.

If Trump loses these cases, he has a right to appeal. That’s our system.

But he does not have a right to defy.

Already, we’re seeing signs of the latter beyond Vance’s tweet.

One court found yesterday that the administration was already violating its “clear and unambiguous” order against the federal spending freeze, ordering full cooperation and suggesting contempt sanctions may be coming. This morning, Judd Legum reported that Trump is actively violating yesterday’s order to stop nationwide cuts to NIH funding.

Mark my words, they will test all of this as much as they can. Defying orders is part of this. Vance’s outrageous tweet is part of this.

This will ultimately amount to a true test of the American rule of law.

And it will likely be resolved by whether or not the current U.S. Supreme Court is willing to issue a second incarnation—and reaffirmation—of Marbury v. Madison. That that is even being raised, and that the outcome may be an open question, show us what dangerous territory we are in.

Day 71 — February 10, 2025

Corruption Monday: the Trump Administration continues to normalize corruption, dropping charges against NYC Mayor Eric Adams, and giving a full and unconditional pardon to former Illinois Governor Rod Blagojevich.

Both internationally and within states, pay-to-play, corruption and self-enrichment by government officials are key components (and goals) of the attack on democracy. In states like Ohio, a corrupt culture has already taken hold as business as usual.

Trump’s actions show he is working hard to establish that culture at the federal level as well.

And now, onto Kevin’s Commentary:

Welcome back, friends, to another look behind the scenes of my cartooning process. Buckle into your CyberTruck, fire up your Twit — er, X feed, and let’s root through your data as we check out last week’s rough sketches.

Donald Trump and the goons behind Project 2025 are working hard to drastically reshape the United States…