‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
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And a contributing writer for New York Times Opinion. Enjoy.
From New York Times Opinion, this is The Ezra Klein Show.
In recent years, the Supreme Court has handed down a string of decisions that have fundamentally changed the federal government. Court decisions have hamstrung the capacity of administrative agencies, and they have shored up the power of both the president and the court itself. These decisions mean that Donald Trump will be entering office at a time when presidential power has arguably never been stronger or more unchecked. At the same time, Trump has promised to radically transform the federal government. Now, I don't want to make the mistake of ascribing too much coherence to Donald Trump's vision of the federal government or of governance more broadly. But it is worth taking a hard look at the way the court has reshaped the tools at his disposal and what that could mean for how the federal government might work and what it might be able to do going forward.
To talk about all of that, I wanted to bring in Jillian Metzger, a professor of law at Columbia Law School, who's been thinking very deeply for a long time about the presidency, the administrative state, and the Supreme Court's relationship to both. Jillian, welcome to the show. Thanks for having me. Okay, so to begin, I thought we could start with a proposition. President-elect Donald Trump will enter office in January 2025 with more power and with fewer constraints than any other president in modern U.S. history. Agree or disagree?
I agree. I agree. I think there are some factors that complicate the assessment a little bit in terms of some decisions that have pulled back on administrative power compared to presidential power. But when you're focusing on presidential power specifically, the president's control of the executive branch or the most recent immunity decision, the president's immunity from prosecution, those are decisions in areas where the president's powers have really been expanded.
So I agree that there are certain complexities and I do want to get into some of those. But it seems at the outset as though we do agree that the president's power has been expanded in recent years and recent decisions and that the immunity decision is really a critical piece of that story. Absolutely. And so I think that actually one way to think about a number of recent Supreme Court opinions, maybe first and foremost the immunity opinion, is that they give the president both a sword, new powers, and a shield, new protections from any sort of meaningful accountability. So one of the most important decisions that I think operates as both sword and shield is the court's immunity ruling from earlier this year, Trump versus United States, in which the Supreme Court handed Donald Trump sweeping new immunity from criminal prosecution for virtually any official acts taken as precedent.
So what did you think was the most significant consequence or implication of that ruling?
I think a couple are really significant. I mean, I think it's really an unprecedented expansion of immunity for the president. The court divided up the instances when the president would be immune into a couple of different camps. So one of them has to do with what we might call core or exclusive presidential powers, where the president has authority and it can't be intruded on, for example, by Congress. In that area, what was really striking was how broadly the court viewed what counted as core power, including things like prosecution and investigation, suggesting that maybe Congress can't impose restrictions on how those are undertaken, which would be really quite novel. The other aspect was one that you mentioned about how broadly it viewed official acts and the tests that it established as to when immunity would apply.
And it said the immunity would be presumptive, but it's kind of hard to see how that presumption is going to be overturned because Immunity is going to be there unless the government can show there's no intrusion on the president's power. That's a really high bar.
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