In a law school class, one way to assess a student’s performance (and professionalism) is with Three Cs – consistency, clarity, and correctness. Considering the Vice President’s recent attack on federal judges for reviewing the constitutionality of various Trump policies, by the standards that would be used to assess a law student’s competence (and fitness for the profession) he fails.
What did he say? In a message on X, he wrote
If a judge tried to tell a general how to conduct a military operation, that would be illegal.
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.
https://x.com/jdvance/status/1888607143030391287?s=43&t=yvJsmV0mu2913uNCsjBAcQ&mx=2 (last visited February 15, 2025). Lest there be any doubt about his disregard of the judiciary, Vance’s earlier statements give context. As he said 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.’” And as he added in 2023/2024, “If the elected president says, ‘I get to control the staff of my own government,’ and the Supreme Court steps in and says, ‘You’re not allowed to do that’ — like, that is the constitutional crisis.”
The assessment of Vance as constitutional law student starts with consistency. Mr. Vance never protested when federal courts enjoined then-President Biden, such as when he sought to impose a COVID vaccination requirement for federal employees. The Constitution operates without regard to the political affiliation of the incumbent; Mr. Vance can’t have a Trump-constitution. Inconsistency in stances is the first ground for a failing grade.
Clarity is at least as great a problem for Vance as student. In his X communique, Vance puts the cart before the horse, excluding the judiciary from “control[ling] the executive’s legitimate power.” By failing to define “legitimate” Vance fails to state a defensible proposition. And there is a second failure in terms of clarity – by limiting his admonition to the courts to “legitimate” presidential actions Vance defaults to Trumpian linguistics. His words become whatever his followers wish them to be while giving the Vice President plausible deniability if challenged on the law. In other words, Vance can one day retreat and say “of course courts have power to address illegitimate acts.” But in the law school classroom he has failed to explain what he means.
Finally, there is correctness. There is no “legitimate” power to set aside the clear words of the Constitution, as Mr. Trump tried when seeking to redefine birthright citizenship. There would be no “legitimate” power if a President sought to bar African Americans or woman from federal civil service positions. A President may not declare war on their own or appoint Supreme Court justices without Senate approval. The Constitution sets limits, and as Chief Justice John Marshall declared in Marbury v. Madison (required reading in law school), courts determine what they are.
Although not one of the Three Cs, there is a fourth component to educating lawyers-to-be and assessing their performance. Professional responsibility. Challenging the judiciary with the “now let him enforce it” in your face response is the antithesis of the lawyer’s oath administered in this Commonwealth to “support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and…I will discharge the duties of my office with fidelity, as well to the court as to the client…” At least here in Pennsylvania, Mr. Vance would not get a passing grade.