Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: The Threat of National Emergency

Date: January 11, 2019 | Guest Host: Mary Harris on Slate’s "What Next?" featuring Dahlia Lithwick

Overview

This episode delves into President Trump’s threat to declare a national emergency to secure funding for his border wall, a topic that had recently dominated headlines. Host Mary Harris and legal analyst Dahlia Lithwick explore the legal boundaries of presidential emergency powers, the potential political and judicial ramifications of such a declaration, and contemporary checks (or lack thereof) on this executive authority. Later, they touch on Supreme Court Justice Ruth Bader Ginsburg’s health, her absence from oral arguments, and the gendered dynamics of expectations around Supreme Court retirements.

Key Discussion Points & Insights

1. President Trump’s National Emergency Threat: Legal Realities and Precedents

• Presidential Frustration & Emergency Powers (01:09–02:35)

  • President Trump repeatedly hints at bypassing Congress to build the border wall using emergency powers, vacillating between threats and hesitation.
    • Quote:
      “Have you considered using emergency powers to grant yourself authorities to build this wall without congressional approval? … Yes, I have. And I can do it if I want.” — Donald Trump (01:28)
    • Trump emphasizes he is "allowed" to declare an emergency, a stance he repeats amid pressure.

• Legal Ambiguity and Political Pushback (03:49–06:00)

  • Dahlia Lithwick contextualizes the vague legal framework governing national emergencies and notes the unease even among Trump’s allies.
    • Quote:
      “People like his very own White House counsel were a little hinky about whether he has the constitutional authority … a lot of the pushback actually came from conservative commentators...saying either I think this is unconstitutional, flat out, or saying, we squawked when Obama did this.” — Dahlia Lithwick (04:20)
  • Prominent conservative lawyers and commentators caution that such a move could set a dangerous precedent and is not easily defensible, even for a GOP president.

• The Legal Tools: Youngstown & The National Emergencies Act (06:00–08:29)

  • Lithwick references the pivotal Youngstown Sheet & Tube Co. v. Sawyer (1952), where the Supreme Court rebuked President Truman for overreach in seizing steel mills, setting modern limits for executive emergency powers.
  • She explains the National Emergencies Act (1976) was intended to rein in the president post-Watergate but effectively institutionalized broad executive discretion due to congressional inertia.
    • Quote:
      “The effect was completely the opposite. It just institutionalized vast presidential authority. … CNN is reporting there are 31 existing declared emergencies in the country that nobody is exercising oversight on. … This would be the 32nd.” — Dahlia Lithwick (07:54)
  • Congressional oversight on declared emergencies, in practice, is almost non-existent.

2. What Constitutes an Emergency? Legal and Practical Hurdles

• Definitions and Judicial Role (08:29–09:47)

  • The law lacks a formal, precise definition of "emergency"—leaving it to presidential discretion and, ultimately, the courts.
    • Quote:
      “One of the things the court's gonna have to do is say, is this a legit emergency? … If it’s an emergency and a plan is gonna be like 10 years to build the wall, is this that kind of TikTok emergency?” — Dahlia Lithwick (08:44)
  • A declaration would almost certainly be challenged in court, where arguments hinge on whether facts support an “emergency” and the necessity of urgent action.

• The DOJ’s Dilemma and Agency Procedures (09:47–11:11)

  • DOJ is often left scrambling when asked to defend hastily crafted or insufficiently vetted executive policies (e.g., travel ban, trans military ban, family separation).
    • Quote:
      “Donald Trump tends to do things like, I think I’m gonna have a ban on trans soldiers in the military, and then leave the DOJ to fix it. … The DOJ then is kind of rocked back on its heels.” — Dahlia Lithwick (09:53)
  • Agencies have set procedures for rolling out major policy changes; attempts to shortcut these processes frequently lead to legal complications and court losses for the administration.

3. Supreme Court Watch: Ruth Bader Ginsburg’s Absence, Health, and Gender Politics

• Ginsburg’s Health and Absence from Arguments (11:20–13:37)

  • For the first time in over 25 years, Justice Ginsburg missed Supreme Court oral arguments after lung surgery—an extraordinary event given her history of resilience.
    • Quote:
      “She does not kid around. And she didn’t miss when she was treated for other cancers. … So the world flipped out because she missed Monday and Tuesday and Wednesday arguments this week.” — Dahlia Lithwick (11:49)

• What “Working from Home” Means for a Supreme Court Justice (12:38–13:37)

  • Justices can still fully participate from home—drafting opinions, reading drafts, and engaging in the bulk of Supreme Court work which is solitary, research-oriented, and not public-facing.
    • Quote:
      “95% of the job, it’s like an iceberg, is the stuff that they would never put in the TV show. … She’s perfectly capable of doing that from home.” — Dahlia Lithwick (12:42)

• Gender, Retirement Expectations, and the Example of Sandra Day O’Connor (13:59–16:41)

  • Discussion about whether Ginsburg should have retired touches on sexism—the disparity in expectations for male vs. female justices.
    • Quote:
      “Nobody was demanding that John Paul Stevens retire. Nobody was demanding that Stephen Breyer retire. So I think she does see this valence of sexism around it that … there was this laser focus on why she wasn’t stepping down. And I think that offends her.” — Dahlia Lithwick (14:26)
  • Lithwick recounts how Sandra Day O’Connor was pressured to retire due to her husband’s illness, only for Chief Justice Rehnquist to reverse plans and die soon after, inadvertently forcing O’Connor out prematurely.
    • Quote:
      “She says to the Chief Justice, I’m going to step down so that I can care for my husband. … Chief Justice William Rehnquist says to her, actually, no, I’m gonna retire next year, so you should go now. … She steps down, and he promptly dies shortly after.” — Dahlia Lithwick (15:06)
  • Gendered pressures and personal sacrifice are highlighted, framing Ginsburg’s determination to remain as partly a reaction to O’Connor’s experience.

Notable Quotes & Memorable Moments

• On executive legal limits:
  “It’s not an emergency, it’s a crisis. But I think he’s inching his way to it through a thicket of very serious legal guidance, telling him this is a mistake.”
  — Dahlia Lithwick (05:37)

• On Congressional oversight:
  “Congress doesn’t even look at this. Congress … in the 42 years since this has passed, only once have we seen Congress exercise any kind of authority over this.”
  — Dahlia Lithwick (07:54)

• On public reaction to Ginsburg’s absence:
  “We get this notion that this is the totality of [the job]. But 95% of the job is the stuff that they would never put in the TV show. … She’s perfectly capable of doing that from home.”
  — Dahlia Lithwick (12:42)

• On the feminist legacy of Ginsburg and O’Connor:
  “I think that story is playing in the back of Ginsburg’s head when she’s like, no man is gonna tell me it’s my time. Because I saw that happen to a person who really, I think, in many ways was her sister at the Supreme Court.”
  — Dahlia Lithwick (16:23)

Key Timestamps for Important Segments

• 01:09–02:35 — Trump floats emergency powers at a press conference; the press and public reaction
• 03:49–06:00 — Lithwick on shaky legal ground and political divides within GOP/conservative circles
• 06:00–08:29 — History of emergency powers: Youngstown decision, National Emergencies Act, lack of oversight
• 08:29–09:47 — What exactly constitutes an emergency? Likelihood and nature of court challenge
• 09:47–11:11 — DOJ’s recurring role in defending improvisational executive actions
• 11:20–13:37 — Update on Ginsburg’s health, her historic work ethic, and what remote work looks like for a justice
• 13:59–16:41 — Gendered expectations for Supreme Court retirements, Sandra Day O’Connor’s experience, and its influence

Tone and Style

The conversation seamlessly blends accessible legal explanation, historical context, and a touch of irreverence. Mary Harris brings a layperson’s curiosity, while Dahlia Lithwick’s responses are insightful, candid, and occasionally laced with wry humor. The tone is simultaneously authoritative and engaging, making complex legal issues digestible without sacrificing nuance.

Summary

This episode offers a comprehensive, critical look at the legal and constitutional issues swirling around President Trump’s threatened use of national emergency powers to build a border wall. With vivid historical analogies and sharp legal commentary, Lithwick underscores the lack of statutory guardrails and the risks of unchecked executive action, while reflecting on broader themes of law, politics, and gender in the highest echelons of American jurisprudence.

Listeners come away with a deeper understanding of the stakes—and the limits—of presidential power, as well as the enduring significance of trailblazing figures such as Ruth Bader Ginsburg in times of national legal uncertainty.