← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Extra: The Federal Funding Freeze
00:42:52
Trump’s chaotic and illegal order to freeze agency funding usurps Congress’s power and sets up a dangerous game of constitutional chicken at SCOTUS.
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- [00:00]
Dahlia Lithwick
I can say to my new Samsung Galaxy S25 Ultra, hey, find a keto friendly restaurant nearby and text it to Beth and Steve. And it does without me lifting a finger so I can get in more squats anywhere I can.
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Ryan Reynolds
1, 2, 3 will that be cash or credit?
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Dahlia Lithwick
Credit.
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Stephen Vladek
4 Galaxy S25 Ultra the AI companion that does the heavy lifting. So you can do you get yours@samsung.com.
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Leon Nayfak
Compatible with select apps.
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Stephen Vladek
Requires Google Gemini account. Results may vary based on input. Check responses for accuracy.
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Dahlia Lithwick
Hi, I'm Dahlia Lithwick and this is Amicus Slate's podcast about the courts and the law and the Supreme Court and we are breaking the glass and coming to you in this extra Tuesday edition of the show because we are in a bona fide constitutional meltdown. On Monday night, Donald Trump shut the lights off. In a cryptic two page memo, Matthew J. Vaith, Acting Director, Director of the White House Office of Management and Budget, instructed all federal agencies to, as of 5pm on Tuesday, pause all agency grants and loans programs. Per the memo, each agency must perform a comprehensive analysis to ensure its grant and loan programs do not run afoul of this brand new directive. Quote the use of federal resources to advance Marxist equity, transgenderism and Green New Deal social engineering policies is a waste of taxpayer doll dollars that does not improve the day to day lives of those we serve. End quote. This order sent shockwaves through a federal government already staggered by the firing of a raft of inspectors general, the dismissal of the prosecutors who worked on the January 6, and classified documents, prosecutions against Trump, massive DOJ reassignments and placements on administrative leave, a new ban on trans service members, the ousting of independent board members of the National Labor Relations Board, and an ongoing immig immigration crackdown. Yet in the midst of what looks like terrifying authoritarian collapse, the Veith memo signals something that should send a chill through even those who used to claim that Trump was just undertaking a kind of necessary reorganization of priorities. This is a DEFCON power grab in plain view by a Trump administration that does not believe that Congress or the courts will stop him. We're bringing you this extra episode because indeed this is not a drill and we are sharing it with all of our listeners thanks to the support of our Slate plus members who make this extra work possible with their subscriptions. More on how to support our work at the end of this show, but let's get right to it with our friend Professor Stephen Vladek of Georgetown University Law Center. Steve is author of the New York Times Bestselling book, the Shadow how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. And his 1 1st substack, which is always indispensable on Tuesday morning, laid out the intricacies of this empowerment crisis. And it is essential reading. We're going to link to it in the show notes. Now, listeners, events are moving quickly and the original very broad two page memo was followed up midday on Tuesday with an attempt to walk some of that back in the form of a new Q and A memo from the omb. Now, the second memo was published after we taped with Steve. It now explicitly that snap payments and student loans and anything directly paid to any American is not effective. It names a few other programs, but then it says, hey, if you are confused, go ahead and write the omb. Also, as you're going to hear from Steve in the next few minutes, the Impoundment Control act is very clear that these impoundments are not lawful and these memos don't change that fact. The bad memo followed by the bad Q and A is chaos by design. And as you all know, the chaos is, as ever, the point. Steve Vladek, welcome back to Amicus.
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Stephen Vladek
Thanks, Dalia. Great to be back. Although I feel like every time you have me on the show, it's because something bad has happened.
- [04:18]
Dahlia Lithwick
Yeah. I mean, you should probably just like get a side hustle in like, I don't know, Oscars or like fun things to buy at Target. And we could have you on about those things. But for right now, I think, yes, something truly bad has happened and I want to, maybe I want to root it in the following. There is so much going on. This is like chaos by design. Boom, boom, boom. Every minute of every day. It's an effort to game a media that doesn't seem capable yet of rising to the moment. So I want you and me to rise to the moment. And I actually don't know what to call this impoundment crisis beyond, I don't know. I want to say it's an authoritarian power grab. I want to say maybe it's a coup or coup adjacent. It's certainly illegal. I just am looking for language before we even start the conversation. What are you naming this particular move for purposes of getting listeners to calibrate their response?
- [05:19]
Stephen Vladek
I think this is the most monarchical thing we have seen, you know, in the eight days of the second Trump administration. But like, if it's right to sort of save monarchical for especially egregious efforts to rewrite the basic structure of the Constitution this is the one.
- [05:36]
Dahlia Lithwick
Yeah. Okay. Monarchical it is. I also feel like we have you on the show frequently when the word monarchic is. That's thrown around. So you are the king for.
- [05:48]
Stephen Vladek
I am an Anglophile. So I guess that, you know, attracts.
- [05:51]
Dahlia Lithwick
There you go. I want to start, if we can, with just one sort of piece of legal formalism, because this memo is signed by the acting Director of the Office of Management and Budget. And the OMB actually oversees the whole federal budget. It oversees the policy and management and staffing of every federal agency. It runs point on every executive order. And yet a normal person could reasonably go a whole lifetime not knowing anything about the omb. But this is interesting because I'm curious about what the powers of an unconfirmed acting director of the omb. What, what are his powers? And, and, and do they include like, stopping all government funding on a dime in what reads as a pretty sketchy and slightly cartoonish two page memo?
- [06:40]
Stephen Vladek
So I think the critical thing to say is, you know, OMB to understand why it has power, Dalia, we have to tell people where it is. Right. It is literally, or at least it is architecturally, legally part of the White House and part of the Executive Office of the President, to be precise. And so OMB doesn't actually have like formal authority to tell agencies what to do. But OMB is effectively speaking for the President, and the President does. And so when OMB says stopped, you know, distributing appropriated funds as of 5pm on Tuesday, an agency that doesn't comply is basically defying the President and the head of said agency is asking to be fired.
- [07:23]
Dahlia Lithwick
Okay, now do the follow on, which is what's the difference between an acting head and the actual confirmed serious head. Because I've been looking around for the pronunciation for this guy's name. I can't even find him on YouTube.
- [07:37]
Stephen Vladek
So I think it's Veith. And he actually, I mean, what's remarkable is he's a career person. I mean, this is actually not a, you know, a Trump crony who signed this memo. But the reality is that during any presidential transition, Dalia, even the normal ones, there's a period where you tend to have a bunch of acting heads of agencies because the political head from the prior administration has either stepped down or been unceremoniously dismissed. And the new head has not yet been confirmed by the Senate. That's Russ Vaught, whose nomination is pending. And so that's why this goes out under Vaith's name again, though, I mean, the real point here is that Whoever's name is on the memo, the real teeth is that it's coming from the White House and it's coming from a White House that has shown already that it is not remotely inclined to worry about any kind of independence when it comes to agencies. So it might have Vaith's name on it, but it's basically Trump saying, hey, agencies, stop doing this or else.
- [08:35]
Dahlia Lithwick
So it's clear, I think, that this turns off the spigots and it turns off the spigots. As you said, Steve close of business Tuesday, it appears to implicate hundreds of billions of dollars in grants to state and local and tribal governments. Tuesday morning the sun rose on the entire country trying to parse whether their own funding was affected. And the short answer appears to be, can you just tell us to the extent that it is clear from this very, very hard to parse order what kinds of aid are halted, what is carved out, what seems to be going forward, and if there is some kind of principle distinction between the two that the order makes on its own terms.
- [09:18]
Stephen Vladek
So, you know, anytime you spend two pages trying to shut down an entire federal government infrastructure, you're going to mess some stuff up. And, and this is not exactly the most well written memo to begin with. The memo Dalia tries to draw a distinction between federal financial programs that are dispersed to entities and organizations on the one hand, and federal grants that are dispensed directly to individuals on the other. Without really trying that hard to give examples, my bet is that the reason why it has the caveat for money that individuals receive is because they didn't want to turn off Social Security and Medicare, which, you know, you want to talk about a real immediate like get out in the streets crisis. You know, the reality is that there's a to of federal money implicated by this memo. But the other piece of this is Dalia, every agency has their own officer who is in charge of spending for the agency. And that officer now has to figure out for themselves which of the agencies money turns off at 5pm on Tuesday and which money keeps going. And my favorite part is the memo has this sort of throwaway term as appropriate by law. You know, if I were the head of an agency that had a pretty long history of complying with the Impoundment control Act of 1998, 1974, I would think almost none of this was appropriate under law. So, you know, a lot of this is still to be fleshed out. But there's no question one, that the memo on its face covers tens, if not hundreds of billions of dollars of federal spending. And two, that the very confusion baked into where the memo doesn't apply is going to cause chaos, headaches, nightmares, right? In those contexts in which there's a debatable argument about whether the federal financial assistance is going directly to individuals or not.
- [11:11]
Dahlia Lithwick
Now, I know you well enough to know you are jonesing to talk about the Impoundment Control act, and that's awesome. But there's one other piece of this that is just, I think, inscrutable and complicated that I'd love for you to just walk us through, which is this order styles itself as kind of temporary, right? Like it's gonna, you know, here's what you could do to mitigate the madness. But even that is not clear.
- [11:36]
Stephen Vladek
The best defense I could try to offer of the memo is, hey, we want to take a close look at all federal spending programs. And so to facilitate our close look, we're going to put the freeze on any disbursements for two weeks. And we want to give you agencies time to come back to us in two weeks and show us your books, show us all the money you're spending, show us where it's going, you know, show us what statute it comes from. Right? So all of that, I think, sounds at least outwardly defensible, except for turning off the tap while you're doing it, right? Like ordering a government wide audit, you know, is expensive, but it's not insane. The problem is turning off the tap while you're doing it. And the memo makes no promise that the tap will turn back on on February 10th. But even if it does, two things are true. One, turn off the tap for even two weeks will caus irreparable financial harm to tons of organizations and people. And two, and I'm sorry that I'm sort of jumping to the punchline, the Impoundment control Act of 1974 specifically says no temporary deferrals. Also, like, you know, are impoundments. You can't get around an impoundment by saying it's only a short one. So there's a story you could have told about a, a government wide spending audit where you kept the money flowing during the audit, but that's not this.
- [13:10]
Dahlia Lithwick
So tell us about this term of art, impoundment, because I think this is where people start to panic that they don't know what we're talking about. And this legal word is just sort of fancy talk for a president's choice to decline to spend or impound funds that are properly appropriated by Congress for Some purpose. So impoundment is basically, in the most, most simple sense, the simple constitutional principle that Congress, absent some special circumstances, by and large, holds the purse strings. Is that correct?
- [13:47]
Stephen Vladek
Yes. And what I would say is, to help flesh this out, it might be helpful to talk about the different ways Congress appropriates money. So one way Congress appropriates money is Congress says, dear executive Branch, here is n number of dollars that you must spend on X things. And there's no discretion baked in. That's often called mandatory spending. Like, you must spend this amount of money on this thing. A second type of appropriation is dear Executive Branch, you may spend no more than Y amount of dollars on X things. So we're not going to tell you you must spend X amount. We're going to tell you you can spend up to an amount on a particular thing. There maybe there's a little bit of discretion baked into the appropriation to spend less than the cap. Right. If you can accomplish the goal for half the price, do it. The third kind of appropriation is what we might call a conditional appropriation, which is if the President determines that thing A has happened, then you can spend B amount of money. Right. What's critical about all of these is that all of these are bounded appropriations. They're bounded either by setting the exact amount the President's supposed to spend, or they're bounded by cabining the discretion the President has over how to spend. And that is what has sort of prompted the, you know, the fight over empowerment. Historically, there are scattershot examples going all the way back to that great executive power claimant, Thomas Jefferson, of presidents claiming at least some authority to not spend every dollar Congress has appropriated for things. But, Dalia, a lot of those examples are in context where the underlying appropriation statute could be read to have given the President some of that discretion. There were really no examples of Presidents claiming constitutional power. Right. No matter what Congress has said to refuse to spend until we got to Nixon. And indeed, one of the things that got Richard Nixon in all kinds of trouble before and sort of unrelated to Watergate was impoundment, a power that he used more than any President before him and that he lost a whole bunch of lawsuits trying to use. So, you know, this was the background to the Impoundment Control Act. But like the history here was presidents maybe at the margins had some room under some statutes to not spend all the money. But there was never a broad, like categorical, I'm impounding because I just don't want to do it type of power.
- [16:21]
Dahlia Lithwick
And you make the point in your substack and this seems a little wonky, but I think it's really important is that the Office of Legal Counsel, which typically really errs on the of a pretty broad vision of the scope of executive power. Even the OLC disagrees with this crazy pants, you know, all encompassing theory, right?
- [16:41]
Stephen Vladek
And not just the olc. The OLC in the Reagan administration, which wrote a memo that spends like three pages on how there is just no inherent power to impound. You know, for OLC to say that there's no argument that the executive branch has inherent constitutional power to do something is, you know, I mean, I don't even know what it's like. It is the ultimate sort of proof that there is no there there.
- [17:06]
Dahlia Lithwick
More in a moment with Professor Steve Vlade.
- [17:10]
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- [17:44]
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- [18:06]
Dahlia Lithwick
Of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com let's return now to my conversation with Professor Stephen Vladik of Georgetown University Law center. And I want you to now here we are folks, the moment you know, all been waiting for. The Impoundment Control act takes all of this kind of vague, vaporous doctrine and as you say, packs it into a meaningful this is, as you noted, after Nixon and a bunch of Nixon lawsuits and Nixon overreach. It was, I think meant to put to rest the idea that this is just up to like the President and his shrugie emoji. Right? Has has Trump even collabor complied with the requirements, the formal requirements under the ica?
- [18:57]
Stephen Vladek
No, not even close. So the empowerment Control act is actually a fascinating statute because it is like a lot of the other statutes Congress enacted in the mid-1970s that Dalia and Dalia, you and I have talked about a bunch of these other statutes before. They all follow the same pattern, which is Congress trying to sort of dissipate future constitutional confrontations by occupying a space with a statute where the statute actually sort of accomplishes its goal by giving more power to the President than he previously had. And so the Government Accountability Office, the gao, has long taken the view that actually the only empowerment power the President has is the power conferred by the Empowerment Control act, which, as you say, creates a procedure. So the heart of the ICA is the President has the right with regard to some, but Dalia importantly, not all congressional appropriations, basically to petition Congress to impound the funds. And the statute creates all of these fast track procedures through which Congress is supposed to act within 45 days on the President's request. And, you know, the purpose of the statute is say, hey, listen, we are not, we, Congress, are not unsympathetic to the idea that there might be some context in which the President wants to impound certain funds. Here's a mechanism for us to sort that out on a case by case basis while otherwise disallowing or reinforcing the disallowment of impoundment. Two critical points, though, one, as you note, there's been no effort to comply with that procedure here. And two, it's worth reflecting on why. And the why is almost certainly because a lot of the money that is now blocked or will soon be blocked by this order is not impoundable under the ica. We talked about the different kinds of appropriations. The ICA specifically precludes impoundment of so called mandatory appropriations. And so if this were sort of a nuanced, hey, we just want to go after one discretionary, like, hey, we want to cut off aid to Ukraine, right? Okay, that's a fight. Or hey, we want to cut off pepfar, which is don't even, I mean, just. Right. Okay, fine. But like to do it with this kind of broadsword makes it actually dolly, impossible to satisfy the ICA because the ICA says no impoundment for any mandatory spending, which a lot of this is.
- [21:27]
Dahlia Lithwick
Let's get to the Supreme Court because that old chestnut, I mean, I guess theoretically that's why you're here. And one of the things I should just say really clearly is you've been telling us all term with this sleeper docket, or by and large, sleeper docket oh, don't you worry. It's gonna just a whole bunch of rock em sock emergency orders that are all going to go to the court. Like, this is not going to be a quiet term. And I'm assuming based on what you just said now and based on what you wrote in Tuesday's substack, this is going to rocket its way to the court, too, along with probably the transgender service ban and the mass firings and the birthright citizen case that we talked about last week. All everything is heading there. But yet you make a point in your subsect that I want to just sit in for a moment because you say this is actually foundational. This is. And I'll just quote you to you, more than just getting there first. The impoundment issue also presents an even more fundamental question about the structure of our government, one that goes beyond even the enormous moral and practical implications of the birthright citizenship issue. If presidents can impound appropriated funds at any time and for any reason, then there's not much point to having a legislature. And I want you to just, in the most fulsome way you can explain why people who are losing their minds right now about inspectors general and firings at the Justice Department and, you know, ICE roundups and, you know, deploying the military to do immigration at the borders, like in your view this is different in kind because it really implicates something almost bigger than all of that.
- [23:10]
Stephen Vladek
Yes. I mean, I always feel sort of nervous saying bigger because, you know, obviously people being allowed to stay in a country that is the only one they've ever known is a pretty big fracking deal. But I think from the perspective of like the structure of our government. Right. A president abusing his immigration powers is something we've seen before, including this president. Right. A president violating civil service rules when it comes to firing subordinates. It's something we've seen before. And those are, Dalia, crises in their own way. And they can have massive implications, but they are not referendum on the structure of our government. Right. They are sort of referendum whether we're going to hold the president accountable for violations within the structure of the government. This is rewriting the structure. And there was a quote that a member of Congress gave to a reporter Tuesday morning that appropriations are different because they're not laws. And I'm like, yes, they are. Not only are they laws, but they're kind of the most important thing Congress does. So it's very possible, Dalia, that the sort of constitutional nuclear war doesn't actually materialize that maybe the memo gets massaged or this turns into something else, or the cases get resolved on statutory grounds. But a world in which what we're fighting over is the substantive question of whether the president can impound money for any reason at any time is a world in which we're fighting over whether we have the separation of powers or not. And, you know, that is maybe more technical than birthright citizenship and firing inspectors general, but I actually think it is not hard to sell that it's a bigger deal for the rule of law in this country and the future of our constitutional system.
- [25:01]
Dahlia Lithwick
I want to think about this through this prism of a really smart piece that went up in Just Security on Tuesday by Adam Cox and Trevor Morrison, where essentially they find that the through line, I think this is before this memo comes down, but they say the through line for so many of the executive orders, from border policy to the TikTok ban, that the through line is that the claim being made by the Trump administration is that even when the Constitution kind of divvies up powers between the executive branch and Congress, Trump's view is that Congress is always subordinate. And not only that, as you say, it can just be tossed away for any reason. And we all know, I mean, I think the reason you're saying this is so existential is that the Constitution emphatically does not say that the president somehow gets a thumb on the scale for when he gets to decide that the other branches just suck. And I would love if you would just play it out for me for one second. And I know this is kind of a abstract question, but the connection between the immunity ruling last term, which kind of gave the notion that the court was receptive to arguments that the president is kind of sort of extra special. Does that in any way embolden this kind of thinking?
- [26:22]
Stephen Vladek
I think there's no question that it emboldens the thinking. I think it is a category error and will be a category error to think that the kind of immunity that John Roberts bestowed upon presidents covers the executive branch writ large. Right. That I'm quite comfortable and confident in the view that John Roberts did not believe that he was writing an opinion that immunized all government agencies from civil liability for violating the Constitution. And that may come as small solace to folks who say, well, you're one of the people who didn't think he'd even do the immunity thing thing, okay, fine, that's fair. But it's one thing for the court to go further than it ever had before. It's another Thing for the court to say, all this time we've been in base 10, actually we're in base 7. And I think this is more that than the immunity case. The cultural point here I think is pretty critical, which is we have seen already from not just rank and file Republicans in Congress, but from senior members of the leadership, a view that was expressed by one of them as we're basically like a board of directors to Trump's CEO. And one, then you might as well not be in Congress. Right. That is not why we have a legislature. Two, the founders would actually climb out of their graves, climb back in and fall on their heads if they heard that. But three, and I think this is the really critical point here. Whatever you think of John Roberts and Brett Kavanaugh and Amy Coney Barrett, they're not gonna buy that. And the more that they see that coming out of Congress, I actually think the more entrenched they will be when these kinds of cases come to them. The more that they see that no one else is gonna stand up to this kind of attempt to rewrite the constitutional system, the less inclined I think they're gonna be to be sympathetic to any of the arguments coming out of the Trump White House.
- [28:17]
Dahlia Lithwick
Yeah. And I think it's really important to emphasize Amy Coney Barrett concurrence in the immunity case expressly said, the thing you just said, like, don't come to me with this cuz this ain't happening. And you know, the Chief justice going back to Youngstown again and again again was saying, like, this is not without limit. So please don't come to me saying that it's without limit.
- [28:42]
Stephen Vladek
And the very, very same Supreme Court just last term had a case in which some radical right wing folk tried to rewrite Congress's appropriations power. And in a majority opinion by, I kid you not, Clarence Thomas, right. The court voted 7 to 2 that it was nuts. You know, they got two dissents, they got Alito and Gorsuch, and maybe they'll get Alito and Gorsuch this time around too. But Dalia, I can't even count to three for, you know. Now does that mean that none of these sort of efforts will succeed? No. I mean, there might be procedural issues in the cases. They might try to find a more nuanced way to justify what they're doing. But even this Supreme Court, if it gives up on Congress's appropriations power, I mean, just to put the point as directly as I can, Dalia, the Court's budget depends upon a functioning appropriations power, right? The Constitution protects the Justice's salaries, but that's just 2% of the Supreme Court's budget for fiscal year 2024. 98% of the court's budget depends upon a functioning appropriations process. Process. The justices have both a, you know, structural and a very, very, I think, personal interest in not upsetting that particular apple cart.
- [29:52]
Dahlia Lithwick
Right. Especially the Justices who rely on the generous travel budget. Oh, wait, sorry. That's. Different show, different show. We're going to take a short break.
- [30:04]
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- [30:35]
Dahlia Lithwick
And we are back with Professor Steve Vladek of Georgetown University Law Center. I want to talk for one second about the sort of perfect alignment between. You mentioned Russell Vote, Trump's nominee to lead omb. He's not yet been confirmed. He was the principal author of Project 2025. I think he's vowed every which way from Sunday that one of his big objectives was to move all the power over spending from Congress to the executive branch. None of this is a surprise. Like this is all in Project 20. This is what they ran on. As you said, there is this argument like we have a mandate. The public overwhelmingly by huge margins voted for us to do whatever we want to do.
- [31:23]
Stephen Vladek
Lol. Math is hard.
- [31:24]
Dahlia Lithwick
Math is hard, as you can tell from the two page memo. But I think that the thing that is really arresting right now is that clearly Donald Trump himself believes that Congress and the courts are completely subordinate to him. His Cabinet appointees and his advisors appear to agree that this may be the case has been proven amply with the events of the last few weeks and the absolutely emboldened execution of this whole shock and awe rollout of the Trump presidency. Now, one school of thought holds that this is just Trump and his band of Project 2025 loyalists simply swinging for the fence to test the waters. The other school of thought kind of holds that they see no impediments here because there are no impediments left. Is Congress going to to block this? I don't know, I'm wondering if members of Congress who couldn't draw the line for an unqualified security risk nomination can suddenly find a backbone if you take away their infrastructure project.
- [32:29]
Stephen Vladek
So I would be careful to distinguish between Congressional Republicans and Congressional Democrats. Right. I think we've already seen noise, at least on social media from some Congressional Democrats who are trying to express just how insane this is. Dalia, also, I mean, as you and I are sitting here, it's been really only about, about 18 hours since the news of this really got out. The freeze didn't go into effect until 5pm on Tuesday. So it's possible that folks are just reacting slowly to this. It's possible, Dolly, that folks don't understand how big a deal this is. I will say I think the real question is whether there are going to be any Republican members of Congress who break from Trump over this. And I'm not optimistic because he keeps providing them opportunities to show institutional independence. And when Mitch McConnell is the only one besides Murkowski and Collins to vote against Pete Hegseth, that's where we are. So this is why I think it puts the federal courts in general and the Supreme Court in particular in such an awkward but also interesting position. Because I think Democrats in Congress really don't have the ability to do much besides maybe gum up some of the works and otherwise rant and rave and use their bully pulpit. But the courts do. And I think the question I have is just how much are Republicans going to get behind the courts when not if they start ruling against some of this nonsense. The real crisis I worry about is not this. The real crisis I worry about is John Roberts majority opinion for a 6, 3 or 7, 2 court that Trump, Trump just sort of throws in the trash can.
- [34:15]
Dahlia Lithwick
Right? That's the definitional constitutional crisis. We're not at that because everybody agrees. Right now I wanna flag for listeners that Slate's daily news podcast, what Next with Mary Harris, has an episode digging into the political ramifications of the memo that Steve just mentioned that'll be in your feeds on Wednesday morning is definitely gonna be worth your time to listen to flesh out the sort of political implications. But Steve, I wanna before we leave, I wanna ask you one last question because in some sense I honor and revere your confidence that this is a place where the courts must and will step in. But I also just want to note that this is Donald Trump and his administration and the very, very fancy lawyers that he surrounds himself with treating the law the way he always treats the law you do the smash grab. You file the frivolous pleadings. You chill everybody into compliance. You delay, delay, delay. Everybody reels, chaos reigns. And then you wait for the law to catch up with you. And the spoiler, I hate to tell you, seems to be, at least in Trump's case, the law never catches up. And the reason I'm a little less sanguine than you are, as we tape this, is that a. That's the pattern. But more urgently, we always said, and you and I said it to each other in the last Trump administration, you know, they do crappy legal work, and then they get, you know, smacked on the nose for not following the Administrative Procedures act or for not being truthful or for being, you know, sleight of hand or doing shoddy work. They've had four years to write this memo, and it's garbage, Steve. I mean, they literally. It reads like a Trump pleading. It reads like the Trump pleading in the TikTok case, like, or in the citizenship case.
- [36:02]
Stephen Vladek
Right? Like, hey, three pages on why you should, you know, do something, you know, that no one thinks you should do.
- [36:07]
Dahlia Lithwick
Yeah, because I said so. And I think that, you know, they make up a budget number that doesn't exist. They target the Green New Deal that was never law.
- [36:15]
Stephen Vladek
Like, this is the Marxists.
- [36:17]
Dahlia Lithwick
The Marxists, always with the Marxists and the wokeness. But, like, I just am shocked at how little getting the law right matters. And I guess I want to say my takeaway after Trump 1.0 was like that shoddiness and sloppiness and carelessness and the sort of winking. This doesn't even matter. That that got them in so much trouble that they would be careful and meticulous about the law. There's a way in which this reckless approach to impoundment to the seriousness of what they're doing almost signals to me that they think that the courts don't.
- [36:56]
Stephen Vladek
Matter at all, or at the very least, that they don't mind losing in the courts. We talked about this during the first Trump administration. I mean, the real sort of sin of how the Supreme Court used the shadow docket during the first Trump administration was that Trump got to carry out, for the better part of four years, all of these policies that no court ever said were legal. And so I think Dali, what it comes down to is it comes down to the difference between policy and law, which is Trump exists in a world where the law is just means to an end, and sometimes it gets in the way of his policies, and sometimes it provides cover for his policies, but that all that matters is the policies. And the policies aren't themselves especially clever. They're just whatever he feels like when he wakes up in the morning. Name and I don't have faith that there's going to be some kind of systemic rejection of that approach by the courts. This is not what the John Roberts Supreme Court is going to do. Nor do I have faith that even when the Supreme Court cleans up this mess, it's going to be able to undo all of the harm that these policies will inflict for as long as they're in place. But I think we have to be at least a little bit realistic about what it means to live in a society with the rule of law, which is that governments will often do things that are inconsistent with the rule of law, and they will often do things that harm us, either consistently or inconsistently with the rule of law. But that the way we persist long enough to elect a different government is to preserve the rule of law, even if it's not going to protect us in every moment. And I think that's why these cases matter, even if they're not gonna chasten Trump, and even if they're not gonna be able to undo the formidable damage he's already done and will be able to do until and unless he's finally stopped.
- [38:42]
Dahlia Lithwick
Steve, you said up top that I only bring you on to discuss bad news. But let me just say for the record that your brand is discussing bad news in the best possible way since at least the mid 2000s. It is such a treat to have you, even on a day that I'm like a eyebrows on fire. Steve Ladic teaches at Georgetown University Law Center. Run out and buy if you've not already the New York Times bestseller the Shadow Docket, how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic and do, do, do get his and pay for one first substack, which again on Tuesday morning was indispensable for this conversation, but also just generally, I think think sets the terms of what is at stake and why it matters better than almost anyone. Steve, thank you. I know it's been a crazy busy day for you. Thank you for giving us your time.
- [39:38]
Stephen Vladek
Thanks for having me, Dalia. It's always a pleasure.
- [39:44]
Dahlia Lithwick
And that is all for this episode. Thank you so much for listening and thank you especially to our Slate plus members for making it all possible. If you are not a Slate plus member but you'd like to get access to extra episodes like this one one and to listen to all of our podcasts ad free. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicus+ to get access wherever you listen. And we absolutely love your letters and your questions. We read them all and they really do inform our work. And they also remind us that we are not just here screaming into the void. You can keep in touch@amicuslate.com or you can always find us@facebook.com Amicus podcast. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort, Hilary Frey is Slate's editor in chief, Susan Matthews is Executive editor, and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus on Saturday and with a bonus episode for our plus members. Until then, then, take good care.
- [40:57]
Leon Nayfak
I'm Leon Nayfak and I'm the host of Slow Burn Watergate Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting with their typewriters clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes. About audio tapes coming out that prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in a movie. In real life, it took about two years.
- [41:31]
Stephen Vladek
Five men were arrested early Saturday while trying to install eavesdropping equipment. It's known as the Watergate Incident.
- [41:38]
Leon Nayfak
What was it like to experience those two years in real time? Time? What were people thinking and feeling as the break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course of eight episodes, this show is going to capture what it was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now. Wherever you get your podcasts.