One thing that has become abundantly clear in the first five months of the second Trump administration is that the president is more willing to push the bounds of executive power than he was in his first term, not that he was exactly shy about utilizing executive power then either. The president has seen fit to use executive orders to target his perceived enemies, including universities, law firms, and others who may disagree with him or his agenda. He has also declined to use Congressionally appropriated funds for their intended use, often diverting them for his own purposes. And, under his direction, masked ICE agents have detained and deported noncitizens without due process. Obviously, many of these actions have been subject to litigation in the courts. And when a federal judge has temporarily halted Trump's actions, he has called for those judges to be impeached, including judges that he appointed himself.
Back in March, Trump posted on his Truth Social, “These Judges want to assume the powers of the Presidency, without having to attain 80 Million Votes. They want all of the advantages and none of the risks…If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!”
This post best demonstrates the very concerning view that the president has on executive power and the role of the judiciary in checking that power. He and his allies have pushed to make it so that federal judges cannot impose nationwide injunctions against his actions, and when courts, including the Supreme Court, rule against him, he and his administration have outright ignored the judiciary.
Kilmar Abrego Garcia remains in a Salvadoran prison nearly a month and a half after the Trump administration was ordered by the Supreme Court to “facilitate” his return after the administration admitted that it had “mistakenly” deported him. The Trump administration has argued that “facilitate” simply means that they would have to let him back in if he found his way out of the Salvadoran prison and back to the U.S. One simply has to open their Merriam-Webster dictionary to see that “facilitate” means “to help bring about” as in the Trump administration is obligated to bring Garica back to the United States.
Last month we heard competing views on the judiciary from two different conservative sources. The first was Chief Justice Roberts in a “fireside chat” on May 7, where he said, “In our Constitution, the judiciary is a coequal branch of government separate from the other with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the president.”
The second conservative source was Vice President JD Vance in a May 21 interview. In that interview he claimed that the courts were trying to “quite literally overturn the will of the American people.” In the same interview, Vance criticized Roberts for his comment about checking “the excesses of the executive,” saying that he (Vance) thought it was “a profoundly wrong sentiment.” Vance said that Roberts should spend more time policing the lower courts and less time holding the president accountable.
There’s a lot to unpack in the vice president’s comments, but perhaps the most troubling is the idea that the courts should defer to the president because the president was elected and they weren’t. This demonstrates a profound misunderstanding about how the Framers viewed executive power and the role of the judiciary. Our rights as people, which the Framers famously believed we were endowed with by our Creator, should not be up for a vote. Being elected does not give one the right to infringe upon the rights of the people.
What sets American law apart is our roots in English law. While other monarchs were becoming absolute tyrants on the European continent, English monarchs were being held in check and a nascent democracy was being developed, set in motion by the Magna Carta in 1215. That document establishes the idea that no person (including the king) is above the law. The American Framers took it a step further, establishing the courts, as Chief Justice Roberts said, as a separate coequal branch.
If the American experiment is going to exist for another 250 years, it is imperative that Chief Justice Robert’s vision for the judiciary wins out over that of Vice President Vance and the current administration.