Jack Goldsmith
Appearances
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
On Remand, the district court, in my judgment, acted hastily, did not give deference to the government. It required it to immediately start giving information. The government responded obnoxiously and basically saying, we're not going to play ball here. They gave a little information. They said he was alive.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And the government gave an extremely narrow interpretation of what the Supreme Court's order meant. So both the district court read the opinion one-sidedly and then the government read it one-sidedly. And now we're in a worse position.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And this is part of their PR campaign.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Sure. The Trump administration is pushing executive power across to unprecedented places in new ways on many dimensions. So I'll divide it up into a couple. First, vertically down through the executive branch, the administration has taken an unprecedentedly broad view of the unitary executive.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So this is actually something of a novel issue. Let me just say one thing to amplify what you said, and then I'll answer your question. It's a serious problem that the administration has because there are lots of unlawful immigrants in the United States, and the lawful process to deport them takes a lot of time and a lot of resources, and the Alien Enemies Act was a possible shortcut.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And maybe other gangs that they could find to meet that. Right. The statutory criterion, which I don't think is going to happen.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I don't really know the answer to that question. I mean, the problem is... that the executive branch is going to claim, and it will have some authority for this, is that once they're outside of the country and under the control of another sovereign, then formally they're not in their custody, and formally the government can't do anything about it. So the custody matters for that point.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
It's under sovereign control, but that might be the case even if the person weren't in prison. That's where the legal issue comes up. Judge Wilkinson, for whom I clerked, said that this case is a real dilemma. One very important thing for everybody to understand is federal courts have limited remedies. They cannot right every wrong under their proper doctrine.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And this is an especially hard one once the person goes out of the country and is there. And there is going to be a limit in which the court can order the executive to negotiate to do this release. Ultimately, I think it's going to have to depend to some degree on the president's good faith. On the other hand, as Judge Wilkinson pointed out, and I think Justice Sotomayor did too,
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
You're setting up a system where the president can snatch someone, send them abroad and say, I can't do anything about it. And that clearly is not something that courts can tolerate, as Judge Wilkinson put it. How that cashes out into law is to be determined.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Maybe we can talk about that more later, but the basic idea is that the president gets to completely control the executive branch, its decisions, firings, interpretation of the law, that the president's views of the law prevail for the entire executive branch, and everyone has to get in line for that. And there have been elements of this before, but this is much more extreme than ever.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Not from the government's perspective, as far as I can tell. Their claim is once the person is outside of sovereign control and in another country, then it's outside of their hands. That's the best as best I can read their argument.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Well, you know, it seems like a problematic argument. I agree with you. The question is, how are courts going to remedy it? Right. Because there are going to be limits to courts ordering the president to negotiate with a foreign sovereign. In any other presidency, this person would have been returned by now because this should be a political disaster.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But really, the alien, non-alien thing, this person was taken out unlawfully, and a U.S. citizen would have been taken out unlawfully. And that should be enough to trigger the return. But the government, they haven't spoken about citizens. But nothing in their argument distinguishes citizens from non-citizens, as best I can tell.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So I teach a course called Federal Courts, which involves issues like this. This would be an action for damages against a federal officer for violating the Constitution or violating a statute.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That sounds good. And the Supreme Court has put up massive, massive barriers to that in the last 20 years. So this might be a case that squeezes in the very narrow exception, but basically it would be hard.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I would say yes, and I think that that order was a first effort. I think that their really strongest interest is to try to stop it going forward. Right. I think the court is really trying to lay down markers for the future as much as for trying to fix this case.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I will just say, this is not a happy thing to say, but if the Trump administration plays hardball here and says, we are not going to negotiate and you can't make us, I don't think the court can make them negotiate with the foreign sovereign. Now, there may be some sanctions they can impose. I'm not sure, but I don't think that that's going to be effective. I hope it doesn't come to that.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
The people arguing the case for... Depending on how they argue it and whether they were being candid. But I want to emphasize that it's going to be very hard to enforce a remedy here, ultimately, if the Trump administration doesn't want to play ball. And I'm not sure that there are five justices on the court that would even try to go there.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That's the vertical dimension. The horizontal dimension is that they are asserting super broad executive power claims vis-a-vis other institutions that have checkpoints against them, trying to weaken those institutions. Congress first. It's basically been attacking Congress's appropriation power, its core power.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So much of our law depends on a presumption of regularity in the presidency. It depends on the courts thinking that they can trust the president to comply with orders and to be honest and truthful in court and the like.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
If we got to that situation, the court would have to impose more and more extreme remedies, ordering the government in more and more extreme ways not to take steps to send anyone out of the country They would just have to enjoin the various agencies, and you'd have to get the right kind of case and the right kind of plaintiffs and maybe the right kind of class action, and it might be tricky.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But there could be forms of ex ante injunctions. But again, this is back to the earlier conversation. If the president defies the injunction, and just does it anyway, then the court has not many tools.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But then that gets us to our conversation about whether they're going to enforce the law. Right. But, I mean, it's extremely hard to predict how these things are going to work out because we haven't had this before. So I think the only hope is that the court issue is extremely, increasingly stringent. injunctions preventing this ex ante and that the administration complies.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But ultimately, this is only going to work if there's public consensus and pressure behind this. You have seen, I've seen conservatives not like, and especially libertarian conservatives, not liking whisking people away and not give without due process illegally. which is what they've been doing.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But I just can't emphasize enough that the court can be wise and prudent in crafting remedies to try to constrain the president. But if you have a president that is willfully engaging in bad faith and complying with those remedies, the court ultimately only has whatever support the country will give it through the political process.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
It's been attacking Congress's traditional ability to determine which agencies are which and how they're organized. And it's doing something analogous with courts. It's been being extremely aggressive and pushing back against and game playing with courts.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So the unitary executive theory has been kicking around since the founding, but That name got going really popularly during the Reagan administration. It's basically the idea that, as the Supreme Court said in Trump v. United States, the president is the executive branch. All executive power, all of it, is vested in the president.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
The president alone has the power to take care to faithfully execute law. And what flows from that under the pure theory is basically that the president gets to control and direct and fire all subordinate executive officials. That's the pure theory.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So, whether it's an administrative adjudicator or someone on a commission or someone in the Justice Department, the president can direct and control and fire if they don't obey. The Supreme Court has never gone that far. It's actually never gone close to that far. And what the Trump administration is doing is trying to push it as far as it can.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
The cases they're most likely to win, in my judgment, are the ones where they've been firing. This is the NLRB and the Merit Systems Protection Board. These are independent agencies. That means they're agencies where the members have protections for cause for inefficiency and malfeasance and the like, i.e., the president needs to give a reason before they can fire them.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And the administration is making a frontal assault on those, and that's where they're most likely to win.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
More or less, yes. So that's basically right. There are various ways that executive branches have to fire people, put them on administrative leave. Probationary employees can be fired. There are a whole bunch of statutory ways to fire, and that's how they've primarily been doing this.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
They have also, in a couple of the cases, I think in setting up a Supreme Court case, especially for firing the highest level career appointees... They've asserted the Article II argument, and that's where they're going to begin at the next level going down. I really want to emphasize how broad-based and multifaceted this strategy to incapacitate the executive and control the executive branch is.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I would not say that there's been any sort of systematic defiance yet, but they've come close to the line, and they're being extremely disrespectful toward courts. And then they're pushing out executive power against civil society. You see this in the law firms, the universities, and the like.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But mostly, yes, what you call the administrative law strategy is how they've been proceeding. Right.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I'd like to weigh in on it though. So I'm very sympathetic to the claim and it's true. I think there's a general consensus now. The government's not working well. It's too slow. It's too burdensome. It's too much bureaucracy, too many rules. Getting at the employees and controlling them is only part of the problem.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I mean, there's still procedure that has to be gone through before you change some of these burdensome regulations. It's not just a question of controlling employees. But let me say that there are costs to getting control of the government. The president, when he gets control of the Federal Reserve, that might not be a good thing.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
When he gets control of the FCC and starts using the FCC to weaponize the FCC because he has control and it's not an independent agency, not going to be a good thing. There are downsides, serious potential downsides, especially for a president unconstrained by norms, inclined to weaponization, serious downsides from having the president have complete control.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So horizontally and vertically, they're pushing executive power, sometimes through interpretation of statutes, sometimes through Article II.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And so I think there's, the point I want to make is there's a bit of a mismatch between thinking too much red tape and the answer is giving the president full control of everything. I mean, it's not quite that simple.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
The empowerment power that the Trump administration has been talking about is the idea that the president has power under Article 2 of the Constitution, constitutional power, to basically not spend appropriated funds.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
that this is an element of the executive power and of the president's discretion under the Take Care Clause, which is the clause that says the president has a duty to take care that the law be faithfully executed, and that has a discretionary component.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So the basic idea is that Congress's core power to tell the president to spend this money on this program can be basically killed by a president in his discretion if he doesn't want to spend the money. And what we're talking about here is how much discretion the president has in the Trump context. In the Obama context, it was spending money maybe that he shouldn't have been spending.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But in the Trump context, it's not spending money that Congress wanted him to spend. Almost all of the arguments they've made thus far have been what you called administrative law and what I'm calling statutory arguments, i.e., they've been down in the weeds of this. And it's really amazing how much in the weeds it's been. This statute actually gives us discretion to not spend if we don't want to.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
There's something called programmatic delays, which give any administration discretion to delay spending because there may be some legal thing you have to consider over here or some new policy over there. A lot of it has been breaching contracts that they claim they have the authority to do under relevant statutes.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So most of what they've been doing, as far as I can tell, is taking advantage of their super planning and knowledge of the appropriation process, taking advantage of weaknesses in that, And kind of what they're doing on the firing side, they're doing on the spending side.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So the argument you were talking about, the empowerment argument, was the one that both President Trump and Russell Vogt, who's the head of the Office of Management and Budget and a hugely influential person in the administration— This is the argument that the president has a constitutional power, regardless of what the statutes say.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And there's a statute called the Impoundment Control Act that purports to tell the president that he has to spend monies with a few exceptions that are hard to meet.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
After Nixon, because Nixon tried to assert the constitutional impoundment authority that Trump is trying to assert now. Congress said no and wrote a statute. Vote, and the president has said, we have the Article II power to do this, i.e., we have power under Article II to not spend money if we don't want to. They haven't, as best I can tell, made this argument squarely yet in the litigation.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Right. So several things have surprised me. I wasn't prepared for the extent of the onslaught. It's really just remarkable how many things they're doing, especially inside the executive branch, to try to bring complete control of the president.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I might be wrong, but I have not been able to find an instance where they've made this argument squarely. I'm not sure why. I think it's a clear loser of an argument at the Supreme Court. So maybe that's why.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
The Impoundment Control Act is clearly constitutional. and the president has a duty to enforce it and comply with it, and he doesn't have any Article II power to not comply with it, there might be an exception. If you look at historical practice and a memo Roberts wrote when he was in the White House in 1985, there might be an exception for military spending.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
There's going to be an argument about that.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
A war could end, or the president might think this spending demand is just inconsistent with my battlefield needs. There are a whole cluster of arguments, and Throughout history, presidents, there has been a history of impoundment throughout American history. Not clear if it was a constitutional argument or a statutory argument, but they were more aggressive in the defense context.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So the argument for a constitutional impoundment is, I would say, slightly stronger there. But outside of that context, and frankly, I don't think it'll even work there, there's just not really a good argument that, I mean, the appropriation power is given to Congress quite clearly. It's its core power. President has a duty to take care to faithfully execute the law.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
The argument is going to be, and they're pushing this, this is the TikTok case, that the discretion to enforce the law is discretion not to enforce the law. And that is an argument that builds on precedents in other administrations, the Obama administration with its marijuana policy and with DAPA and DACA.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And so basically what they did was a exercise enforcement discretion policy. to make the statute be something that it wasn't. Now, typically, the Obama administration had some fancy arguments, and they were closer to the law than what Trump is doing, who doesn't care about that. They said, well, we've got conflicting priorities and their resource constraints.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And those kinds of arguments are kind of legitimate arguments. I did not find what they did there successful.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
It never really got there, but yes, the lower courts did not find it persuasive, and conservative heads were exploding over it, of course.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Yeah, and the TikTok, let me just explain this. The government's refusal for no reason other than they don't like it to enforce the TikTok ban is a more extreme version. It's basically saying we have a policy objection, therefore we're not going to enforce.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And I wasn't expecting the extent of the loyalty tests and the insistence that the president gets to determine what the law is and that there's no independent legal check.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And a cousin of that would be what the impoundment argument is, is that they would rely on a historical practice that doesn't give them what they want. And they would say that they have enforcement discretion that they can exercise as they want. And that argument, I just really feel very strongly that argument's not going to work.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Like, would they try and find some kind of... I haven't seen... The level at which Vogt and his general counsel have made this argument have not drawn those distinctions. They've been at the level of Article II. And let me just say, the Supreme Court has... you know, been tentative here. They've been sensitive to the idea that in some context, the president has to make enforcement decisions.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
There are resource constraints. He can't comply with every directive that Congress gives him. Therefore, there has to be some non-enforcement discretion. And how far that goes, we don't know. But they also said in those cases, if it ever came to just not enforcing the law, period, basically for a policy reason, that would go too far.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Very much what I was doing in the Bush administration. So my old office, the Office of Legal Counsel, has basically, which was traditionally in the Justice Department, traditionally the office that made legal interpretations for the executive branch, subject indeed to the review of the attorney general and the president,
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Yes, but let me emphasize, so would non-enforcement generally. I mean, the TikTok decision, the TikTok precedent is really... just as if not more dangerous, because it applies across the board. They just said the ban was clear, the Supreme Court upheld it, and the president said, don't enforce it, attorney general, and tell the private companies they don't need to comply.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That is a more broad-based threat if that took hold. So it's happening on many dimensions. Right.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I'm a dissenter on this. Interesting. And I'm not a strong dissenter. I think it's much more complicated. So the... This is the one issue of presidential power that has brought out the conservatives. They haven't been complaining about anything else, which is shocking.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
My only point is, is that he's done a lot of other things that are extremely dangerous and should be contrary to conservative principles, legal principles. But fair point. So let me just say a couple of things. First of all. I just want to reframe it a little bit from the way the commentary has been treating this.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
First of all, Congress has been delegating tariff authority to the president since the 1790s on increasingly broad terms. The Supreme Court in several decisions, several famous decisions, has upheld pretty broad interpretations of tariff authority to the president many times. And the president has many statutory bases for issuing these tariffs.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That office has been basically set aside, and the White House is interpreting law, and the basic rule appears to be if the president wants to do something, it's lawful. That really does seem to be the operating principle. So the extent of that surprises me. The extortionate elements of the administration, the shakedown elements that remind me of a book I wrote about Hoffa and the mob,
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Now, the focus has been on IEPA, the International Emergency Economic Powers Act. I'm going to have to just get into the law just a little bit. Do it. So, this is a statute that was enacted in the 70s, and it is an extraordinarily broad delegation of power to the president.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Whenever he finds, and this is the trigger, an unusual and extraordinary threat outside the United States, people have been saying, oh, this isn't one of those. Sorry. The presidents under IEPA dozens of times have made emergency findings of an extraordinary threat outside the United States much lower than the economic threat President Trump has identified.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That part of IEPA will not be hard to satisfy. And then the statute says that the president, once that trigger is made, gets to regulate imports. And then President Nixon did this. It was an analogous thing. He did a 10% basically import duty under the predecessor to this statute. identical language that justified the 10% duty.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So the first point is, on the face of the statute, the president, in my judgment, has at least a plausible argument. So my only point is, I don't know who's going to win or lose this. My only point is that the president is on stronger legal ground. I'm not saying he's going to win. He's had a lot of tricky legal issues, but...
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Unless they've... But the opposite could be the case. This may be the example in which they show that the major questions doctrine is a principal doctrine or they finally address the extent to which it applies in contexts that are arguably foreign relations. It's very hard to predict. But my only point is that... I've just been reading commentary that says, you know, this is obviously illegal.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And I haven't seen any one contrary piece I read. And I just want to insist that this is much more complicated than people have been letting on.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
It surprised me. I'm talking mostly about- This is the law firms. And arguably what they're doing a little bit with the universities. They're going beyond what Biden and Obama did and imposing penalties that are probably not lawful in the sense that they didn't comply with process.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So I don't know, obviously. And it's important to understand that the court is a they and not an it. It's nine people. The chief justice has a little bit of authority to... It's kind of three people, though.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That's a very fair point. So it's three people. And I'm pretty confident that the chief is thinking in these terms. And it's an extremely complicated calculation. The court has discretion about which cases to take for full review and when they can decide to take a combination of cases that they might think
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I'm not suggesting they think this way, but they might think this way, that gives the president some wins, but has some very important losses that make the, and the wins make the losses easier to swallow. Some people think the court thinks like that and it might well.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I don't know exactly what their calculus is, but the way they're dealing with the emergency docket and pushing things off and delaying and trying to find the right case. suggests that, I mean, this is clearly part of what's going on. Right.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Absolutely. The people that say that they're ducking fights is, I just think that's wrong. And the reason is it is extremely early. The Supreme Court typically takes a case after trial and appeal. Right. It's dealing with these cases before we've even had a trial. And it might take some of these cases early, but that is very, very unusual.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
All it's doing now is setting the baseline for how these cases are going to be litigated.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Again, I'm really reading tea leaves, but I'm really speculating. But I believe that the meaning of that short order was to try to nudge the president to do the right thing without ordering him and with a signal that they might not be able to order him.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So doing something pretty overtly illegal to try to force settlements, knowing that the universities are in a bad position and might not push back. I didn't anticipate that form of aggressiveness. You know, Trump was pretty bad in the administration in the disrespect of courts in the first term.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Correct. And I want to emphasize, executives do wrong things. There are illegalities that occur in the world for which there are not judicial remedies. This is something people don't understand, and it's a bitter pill to swallow often. And I don't think that the Supreme Court is going to go to the mat in ordering the Trump administration to negotiate with El Salvador to get this person back.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I don't think this is where it will pick its fight. And it would not be on its strongest ground in picking a fight there.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Have I said that before? I guess I have.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I do believe that, but I'm not 100% confident of it. So my view is... Again, it really depends on the case and the clarity of the order and whether the Supreme Court is unanimous and the like. I do not think that, and I hope I'm right, that the Trump administration is going to defy a clear order from the Supreme Court. And I think the Supreme Court will be sensitive about where it issues those.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I am confident that it will pick its battles and it will try to find places to have maximum impact on the clearest, most legitimate ground with the largest majority it can find. And that is an art, not a science.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
In my view, very little. It has very few tools. I mean, it can sanction litigants who argue before the Supreme Court, but that's small beer in this context.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
It has marshals, and the marshals are under the control of the attorney general, basically. Right. Some people have talked about the possibility of civil contempt against officials that maybe could be enforced in state courts against officials.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But if the Trump administration takes the step, the momentous step of blowing off the Supreme Court in a clear way, I just don't think those remedies are going to be the important remedies. The only remedies, in my judgment, are what the feckless Congress does and what the American people do. And I mean, ultimately, that's just the way it is.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
In fact, it was about eight years ago that the chief justice issued an announcement, not unlike the one three weeks ago, saying that the president needs to stand down a little bit in his criticisms. But they've gone much further, and frankly, I don't really understand the strategy.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
You're asking me to speculate more than I'm comfortable with. But I'm happy to do it. I'm just telling you I'm not comfortable. It's not clear which way it cuts. I mean, if you push back against Trump too much and there's a Democratic Congress, he may go worse in the other direction. I think it takes more than one house.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I think it takes the American people through their politicians saying this has gone too far. You know, I think that might happen if he clearly defied a clearly legitimate Supreme Court decision.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
What do you think? What happens?
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
It's been a strategy of utter contempt for courts, basically, and reading directives narrowly, filing massively disrespectful briefs, threatening noncompliance. I didn't expect the extent of that, and I don't fully understand what goal that serves.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I'm accused of being naive on this point, but I tend to agree with you. And it's hopeful, but it's also my belief. Let me just say one more thing. Trump, if, I'm not sure what the aim is, but if the ultimate aim is to consolidate forms of executive power...
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
that are going to persist, much better to have the Supreme Court on board saying, this is something you can do, and therefore maybe accepting his wins with his losses. It's not clear. I just don't know. It's hard to predict what the legacy looks like for what he's trying to accomplish. I assume he's trying to accomplish something beyond
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
his term if he's blowing up the Supreme Court and basically blowing up legal checks on the presidency altogether.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I think you've written this and reminded of the Bush administration. There's a non-trivial chance, I would say a decent chance, that they're going to end up in a worse place.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Yes, they're going to win on some issues that the court was going to move there anyway, but the Frankenstein version of the unitary executive is not going to be viewed well and that a lot of these moves they're making are ultimately could happen. He's constrained by the court in ways that weren't clarified before.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Or, yeah. So all of the spending and firing things, the lower level things, if it was clarified that you can't do that... The presidency would be weakened there. It could be that there are going to be new due process and related constraints on immigration because of what we've seen can be abused. I mean, on any of these issues, you know, they're going to be – a lot of these issues are undecided.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
They're being contested for the first time. And if they result in losses, that's going to be – could be a constraint on the president. But if it goes well for them –
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
You have – I think the plausible scenario is that you have a much more robust unitary executive, which means that the president controls agencies to an unprecedented degree and maybe controls a good chunk of the civil service as well, either by statute if he's able to do that or better for him under Article 2 because it means it couldn't be reversed.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I think that is the most likely significant change to come about. And then most of the other things, we haven't talked about the kind of abuses, and maybe we don't have time to, and what the legacy of the abuses is. On most of the other things, on Doge and things like that, it's not clear how much this is going to stick.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I mean, it's not clear what the Democrats are going to do in response to a lot of this stuff. It's not clear if we'll have tit for tat and weaponization. It's not clear if we'll have tit for tat directing and more extreme versions of directing officials to do what the president wants.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But I guess the only thing I'm really clear on is that the unitary executive will be, you know, presidential vertical control over the executive branch will be broader and firmer in constitutional law.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Jimmy Carter ran on it, basically, after Nixon. So, this is a little outside of my expertise. My senior Democratic political friends tells me that it's almost certainly going to be retaliatory tit for tat.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And that it's going to be impossible, that the idea of constraints after what's happened now is going to be impossible, and it's going to be impossible to resist doing everything Trump is doing in reverse, whatever that looks like. And that takes us to yet a worse position. I mean, it would be great if we could have the opposite.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I mean, the reaction to the degradation of the executive in Vietnam and Watergate was Jimmy Carter, for better or worse, he was a rule of law presidency and a lot of things happened in the 70s to put the executive branch in a better place.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I would hope that would happen, but unless we just go to things get completely out of control such that there's a massive bipartisan consensus that there's been failure that needs fixing. And is there ever bipartisan consensus that there's failure that needs fixing? Not these days. So I fear that it's just going to go to a worse place.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So I'm going to give you an answer you won't like. I don't like that terminology. I don't like that conceptualization because it gives one a sense that there's an all or nothing line after which we're in a crisis. And I'm not sure quite what happens when that crisis hits. Here's the way I think about it. There's definitely been a diminution, significant diminution in legal checks on the president.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
He's wiped them out inside the executive branch. Congress has not only been silent, but it's facilitated The wiping out of including congressional prerogatives by confirming people that they knew were going to do things that were going to emaciate Congress. The only check right now, the only real check right now on this presidency legal check is the courts.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And so, you know, if the courts were issuing directives on a regular basis and he was defying them or if the game playing continues to such a degree that they're not really paying attention to law. Then we would be in a place where the president was approaching lawlessness. I don't think we're close to that yet. I want to emphasize it's extremely early in the judicial process.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
There's a lot going on. There are 150 cases. I can't keep up with them all. And the administration can do a lot of damage before courts can weigh in and kind of set boundaries.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So I haven't studied the visa removals. I do know the Secretary of State has broad authority to do that. I mean, I find them despicable because of, you know, basically punishing someone because of their speech and pretty mild speech in some cases. I know more about the Alien Enemies Act.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And this is extreme and novel because this statute, which dates to the 1790s, it has only been used a few times and only in war, real war. It has two provisions, one of which allows deportation when there's actually a declared war, and then another provision which allows deportations when there is an invasion or predatory incursion by a foreign nation or government.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That is the part they're relying on. It's very questionable whether the Venezuelan terrorist organization that has come to the United States in some respects satisfies that. I think they're probably going to lose on that ultimately. There's nothing wrong with the administration trying to invoke the Alien Enemies Act. It's a statute on the books, and there's nothing wrong with them invoking it.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
It was wrong for them to deport 240 people, basically an anticipatory circumvention of a district court judge, maybe unlawfully. I think probably they were deported unlawfully before a court had time to rule on it. And then the Supreme Court kind of weighed in on that in an emergency orders opinion, basically said these folks all had to have due process and notice before this could happen.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So trying to put a stop on it going forward. But that was very bad.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Or is that... The precedent is actually extremely unclear. I'm sorry to tell you. That's fine, no. It's a precedent involving actual alien enemies in wartime. There they actually got process in the executive branch before they came to court. And I read the case to say that there's judicial review over whether the person is actually an alien enemy. Right. That's the important point.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And I think that's what the court basically affirmed in short order. That's the important thing. But not only whether you're a member of the gang, but whether the gang satisfies the statutory criterion. They might not constitute an invasion by a foreign nation or government. They probably don't. They're a private entity.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
The government in its briefs is trying to argue that they're closely associated with the state. The government, in my opinion, has an uphill climb to even get the statute to apply. So that gets to be litigated, in my view, and also the question whether, if the statute does apply, the individuals actually fall under the statute.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
That was the claim for at least some of them and maybe all of them. Yes. But even if... they were gang members, they still might have been deported illegally because those gang members might not implicate this statute. I don't think it does. I don't think that this is a predatory invasion by a foreign nation.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
They basically early on were arguing that their power was unreviewable.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Yes, and this has been a pattern, yes. The Solicitor General's brief in the Supreme Court I mean, it wasn't a perfect brief, but it was a much more sober brief on the law. And this has been a pattern. The lower court briefings have been making wildly extravagant claims. And by the time it gets to the SG and goes to the Supreme Court, it gets toned down and refined.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
He was determined to be removable, but not to El Salvador because he would be, the court determined, subject to persecution there. So this was the one place... He was not supposed to be sent. And they sent him there. They didn't explain it, but they said it was a quote unquote administrative mistake. They've acknowledged that it was a mistake and he should not have been sent there.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So he's there now. And the question is what to do about it. What can, if anything, the courts do about it? Right.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
Thank you for having me, Ross.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
So I'll try to be brief and tell me if I get too technical. But basically, the Supreme Court in an emergency order – Issues what was an ambiguous opinion at the time and has grown more ambiguous as we read it more and see what's happened since. It basically said that the order properly requires the government to facilitate Garcia's release from custody in El Salvador. That sounds good for him.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
But it also said that the district court may have overstepped its mandate by saying that the government had to effectuate the release. And it also said that the district court had to pay the government, the president, deference in foreign affairs. They took a maximal, as they have in every other context, a maximal interpretation of the deference foreign courts have to give them.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
And they've been exerting claims of foreign policy exclusive power. Anywhere there's a foreign policy issue in the case, they've been saying the courts can't deal with it. And it's an extravagantly broad position.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
I would say it's an implausible argument. Yes. So this goes back to the district court. And basically, I see the court as trying to nudge both sides to do the right thing. The right thing is obviously that the district court cannot tell the president that he has to negotiate with a foreign sovereign and to ensure that this person is brought back to U.S.
Interesting Times with Ross Douthat
What if There’s No Way to Stop Trump’s Approach to Power?
custody and brought back to the United States. That's, as I see it, one side of what they're thinking. On the other hand, the president made a mistake and should and may have a duty to do everything he can to bring this person back. I read this ambiguous decision as trying to get both sides to cool down and reach some accommodation. And unfortunately, that is not what happened on Remand.