Fresh Air Episode Summary: "Are Trump's Executive Orders Legal?"

Host: Tanya Moseley
Guest: Charlie Savage, Staff Writer for The New York Times
Release Date: February 17, 2025
Podcast: Fresh Air by NPR

Introduction: Understanding the Scope of Presidential Power

In this episode of Fresh Air, host Tanya Moseley engages in an in-depth conversation with Charlie Savage, a seasoned journalist and constitutional scholar, to dissect the legality of President Donald Trump's executive orders. The discussion is framed around the concept of a "constitutional crisis," a term increasingly used by legal experts to describe the rapid expansion of executive authority under Trump's administration.

Defining the Constitutional Crisis

Moseley: "Many legal experts, as I mentioned, agree that we are in a constitutional crisis. Some have even used stronger language from you. What makes this a constitutional crisis and what's happening now that points to?"

Savage (02:25): "So I think the reason people are saying that now is that Trump is brazenly openly breaking laws left and right in his assault on basic structures of the federal government... The prospect of a president openly violating laws and then not obeying court orders, I think would clearly be a constitutional crisis."

Savage elaborates that the crisis stems from Trump's blatant disregard for established legal constraints, including unauthorized firings within federal agencies and the obstruction of court orders. This pattern of behavior undermines the foundational checks and balances designed to prevent the concentration of power in the executive branch.

The Three Branches of Government and Executive Overreach

Moseley: "Can you remind us how the three branches of government are supposed to interact with each other as stated in the Constitution, and how President Trump, of course, in violating these laws, but also just in the way that our three, the legislative branch, the judicial branch, and the executive branch are actually supposed to work in concert with each other?"

Savage (05:21): "The founders of the United States mistrusted concentrated government authority... They divided the powers of government up among three separate but equal branches... There's these overlapping checks and balances that are supposed to prevent any one branch or one person from having too much concentrated, accumulated, and therefore unaccountable power."

Savage underscores the intentional design of the U.S. Constitution to ensure a balance of power, preventing any single branch from dominating. The current administration's actions—such as restructuring agencies against congressional mandates and unilateral policy changes—are seen as direct challenges to this balance.

Supreme Court's Role in Redefining Executive Power

Moseley: "Can you remind us, as it relates to the Supreme Court, how over the last few years, executive power has been redefined by the Supreme Court?"

Savage (07:11): "This Supreme Court now has six Republican appointees out of the nine justices... They've been chipping away over the last 10 or 15 years on some of the ability of Congress, through statutes, to place limits on presidential authority."

Savage highlights the conservative tilt of the Supreme Court, with a majority of justices appointed by Republican presidents, including Trump. This judicial composition has led to rulings that expand presidential powers, often at the expense of congressional authority and independent agency safeguards.

Controversial Executive Actions: Birthright Citizenship and Beyond

Moseley: "One very contentious act that the President has made in the last few weeks is birthright citizenship. If birthright citizenship makes its way to the Supreme Court, what do we know about how the justices might rule?"

Savage (10:16): "They may disagree with Trump on this one... It seems like a real reach to take this sort of odd reinterpretation of that and totally change the meaning of something this important."

While there's speculation about dissent among justices, Savage remains cautious, emphasizing the unprecedented nature of redefining birthright citizenship, which could have profound legal and societal implications.

Executive Orders: History and Trump's Utilization

Moseley: "Executive orders historically have been kind of controversial and sort of like seen as a last resort after a president is unable to get legislative support."

Savage (11:56): "The essence of an executive order per se is not controversial. What becomes controversial is when a president has tried to get something through Congress and failed and then tries to do it unilaterally anyway on his own, especially using contested theories of his power."

Savage explains that while executive orders are a standard tool for presidents, their controversial nature arises when used to bypass legislative processes, particularly when founded on questionable legal justifications.

Streamlining Federal Employees: A Prelude to Consolidation

Moseley: "You told me the last time we spoke in December of 2023 that Trump had made clear during the campaign that he would get rid of federal employees and replace them with Trump loyalists... Is what we're witnessing now, potentially a part of Trump's plan to streamline and replace those federal workers with loyalists?"

Savage (13:35): "So the order you're talking about that Trump put in at the end of his first term and Biden revoked before it took effect... Trump's firing swathes of people purging government employees in ways that go wildly beyond the category of senior policymaking civil servant that that directive addresses."

The discussion delves into Trump's efforts to dismantle and restructure federal agencies, noting a significant increase in retaliatory firings and dismissals that undermine institutional stability and effectiveness.

Congressional Response and Funding Leverage

Moseley: "What is Congress's power in objecting to these removals?"

Savage (16:17): "The current Republican Party is controlled by Trump... there has been barely a peep out of this Congress in defense of the laws that they passed."

Savage points out the diminished capacity of Congress to counteract the executive's actions, exacerbated by internal party dynamics and fear of political repercussions.

Moseley: "Funding for the government expires on March 14. Right. What power does that wield, I guess, for Democrats in particular?"

Savage (17:25): "They would need the votes of Democrats to get a majority to keep the government from shutting down and keep the debt ceiling crisis from happening. So that could give Democrats leverage to do something... but it's not clear that there's Republicans are capable of offering something to Democrats that Democrats can count on."

The imminent funding deadline presents a potential power play, where Democrats might leverage budget negotiations to push back against executive overreach, though practical challenges remain.

Justice Department Overhauls and FBI Purges

Moseley: "What are some of the bigger concerns around disclosing [list of DOJ employees], even if these names are being blacked out in documents?"

Savage (21:36): "The question has been, what are they going to do with those names?... This sort of revenge scourging is nevertheless sending the message, even if you touch this through no will of your own, your career is over."

Savage discusses the administration's aggressive restructuring of the Justice Department and FBI, including the mass firing of prosecutors and agents involved in sensitive cases like January 6th. The potential public exposure of these employees' identities raises significant safety and ethical concerns.

Immigration Enforcement and Expedited Removal

Moseley: "There is a new office within the DOJ focusing on immigration enforcement. Based on your reporting, what are their priorities?"

Savage (29:13): "There's certainly a major reprioritization of the new administration... more aggressive immigration enforcement... sending migrants to Guantanamo, which is going to raise new and novel legal issues."

Savage highlights the administration's intensified focus on immigration enforcement, including controversial practices like expedited removal without court hearings, which challenge existing legal frameworks and due process rights.

Revoking Federal Funding to Sanctuary States

Moseley: "President Trump has also threatened to revoke all federal funding to states and localities that are deemed to be sanctuary jurisdictions. What is the president's scope of power to do that?"

Savage (32:02): "President Trump has been trying to establish that he or any president going forward can withhold money that Congress has authorized at will if he doesn't like it... It would seem to be an unconstitutional federal government commandeering the state governments."

The potential revocation of federal funds as leverage against sanctuary policies is examined, with Savage asserting that such actions likely violate principles of federalism and established constitutional interpretations.

Implications of a Rigid Election Schedule

Moseley: "Trump is in office because he was elected... Where does this leave people as things evolve?"

Savage (35:50): "Our system of government... we have congressional elections every two years, presidential elections every four years, and in between, there's not a lot of things the public can do directly..."

Savage reflects on the structural challenges within the U.S. political system that limit immediate public recourse against executive overreach, emphasizing the rigidity of election cycles compared to other democracies.

Conclusion: The Path Forward Amidst Executive Overreach

The conversation concludes with a somber note on the uncertainties facing American democracy, as institutional checks are strained under unprecedented executive actions. Savage remains cautiously observant, indicating that while legal challenges and public resistance are underway, the systemic rigidity of the U.S. government poses significant hurdles to swift corrective measures.

Notable Quotes:

• Charlie Savage (02:25): "The prospect of a president openly violating laws and then not obeying court orders, I think would clearly be a constitutional crisis."

• Charlie Savage (05:21): "They divided the powers of government up among three separate but equal branches... checks and balances that are supposed to prevent any one branch or one person from having too much concentrated, accumulated, and therefore unaccountable power."

• Charlie Savage (07:11): "The Supreme Court has been saying, no, the president can fire this kind of person or that kind of person, regardless of job protections that Congress has created for them."

• Charlie Savage (11:56): "They're using contested theories of his power... it's what particular orders say and what the legal theory is behind it."

• Charlie Savage (13:35): "Trump is firing swathes of people purging government employees in ways that go wildly beyond the category of senior policymaking civil servant that that directive addresses."

• Charlie Savage (16:17): "There's barely a peep out of this Congress in defense of the laws that they passed."

• Charlie Savage (21:36): "This sort of revenge scourging is nevertheless sending the message... your career is over."

• Charlie Savage (29:13): "They're [the administration] pushing on various buttons to try to speed up the expelling of people from the United States... sending migrants to Guantanamo, which is going to raise new and novel legal issues."

• Charlie Savage (32:02): "The notion that the federal government would say, here's this pot of money that you're otherwise entitled to, but because you have a local ordinance that says your police will not work with ICE agents, you will not get this money... that would seem to be an example of the federal government commandeering the state governments in contravention of how the Constitution has been understood to work."

This episode of Fresh Air provides a comprehensive analysis of the legal challenges posed by President Trump's extensive use of executive orders, the potential constitutional implications, and the strained interactions between the executive branch and other government institutions. Charlie Savage's expertise offers listeners a nuanced understanding of the fragile balance of power within the U.S. government and the potential long-term consequences of its disruption.