Jack Goldsmith
speaker
462 appearances
2 recordings
1 series
first heard Apr 2025
last heard 10 Sep
Jack Goldsmith’s voice in public audio — every appearance, attributed to the second.
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recordings per month · last 12 monthsRecordings per month over the last 12 months — 1 in all, peaking in Sep 2026 with 1.
Appearances
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.
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.
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.
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.
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.
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.
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.
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.
And the administration is making a frontal assault on those, and that's where they're most likely to win.
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.
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.
But mostly, yes, what you call the administrative law strategy is how they've been proceeding. Right.
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.
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.
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.
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.
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.
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.
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.
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.
Showing 381–400 of 462 · page 20 of 24
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