Future Hindsight: "But Is It Constitutional?" with Julie Suk

Release Date: March 13, 2025
Host: Mila Atmos
Guest: Julie Suk, Hon. Deborah A. Batts Distinguished Research Scholar and Professor of Law, Fordham University

Episode Overview

In this episode, host Mila Atmos sits down with constitutional law scholar Julie Suk to dissect the constitutional boundaries being tested by the Trump administration’s executive actions. They explore how the swift pace of legal and policy changes is straining America’s oldest institutions, challenge long-held democratic norms, and deepen uncertainty among citizens. The conversation covers the expansion of executive power, the contemporary role of the Supreme Court, the legal battles around birthright citizenship, and the broader questions about whether the Constitution can still serve as a sufficient safeguard for American democracy in 2025.

Key Discussion Points and Insights

1. Why Constitutional Literacy Matters

[03:20]

• Julie Suk emphasizes the critical need for citizens to understand the constitutional repercussions of executive actions, particularly as leaders exploit vague language and historical precedents for personal power grabs.
• Julie Suk: "Sometimes, especially the Constitution, we live with one of the oldest constitutions in the world... It provides opportunities for some leaders to really stretch what is said to its absolute boundaries."

2. The Evolution and Limits of Executive Power

[04:50–11:18]

• The broadening of executive power isn't new; Supreme Court interpretations have gradually shifted, creating openings for expansion.
• Key example: President Truman’s attempted seizure of steel mills during the Korean War, struck down by the Supreme Court, established limits on implied executive power.
• Debates arise over concepts like the "unitary executive theory", which centralizes authority in the presidency.
• Court orders currently slow, but often cannot ultimately halt, executive overreach.

Quote:

• Julie Suk [10:15]: "Part of the reason people are in such a state of disorder is we have had moments where the Supreme Court changes course and overrules its precedents or dramatically changes its precedents."

3. Temporary Legal Relief and the Courts’ Restraints

[11:02–16:33]

• Litigation against executive actions often yields temporary restraining orders (TROs) or injunctions, but the results can appear permanent when funds or actions cannot be reversed.
• Discusses recent Supreme Court decision over $2 billion in USAID funds held by executive order.

Quote:

• Julie Suk [16:04]: "Not staying it means whatever the trial court judge decided goes forward."

• Dissenting justices voiced shock at the majority’s move, fearing irreversible expenditure.

Quote:

• Julie Suk [16:38]: "Alito says in his opinion, 'I am stunned.' So he thinks this is actually extraordinary."

4. The Legality of Trump's Birthright Citizenship Executive Order

[17:46–24:56]

• Trump’s attempt to undermine birthright citizenship via executive order conflicts with explicit constitutional text (14th Amendment).
• Suk debunks the notion that the executive can unilaterally reinterpret or change the Constitution’s meaning.
• The administration argues for a narrow, novel interpretation of “subject to the jurisdiction,” but precedent supports the broader, inclusive understanding.

Quote:

• Julie Suk [19:23]: "No, the president cannot say today. The 14th Amendment says something different from what it says."

• Julie Suk [22:51]: "It’s also just a question about who gets to determine that."

• Litigation is ongoing, and resolution may only come through individual cases challenging executive overreach.

5. Assessing Legal Battles and the Stakes for Democracy

[30:08–33:14]

• Julie Suk tracks the rising number of lawsuits challenging the administration’s executive actions.
• Draws historical parallels to New Deal expansion, but notes a crucial difference: current actions lack a broad democratic mandate and are often cloaked in exclusionary ideologies.

Quote:

• Julie Suk [32:23]: "The expansion of authority that being claimed here is really not one that is supported by a widespread popular mandate and, frankly, is also trading on racism and white supremacy..."

• Highlights the uncertainty since the Constitution may not provide clear, textual barriers to overreach.

6. Are Constitutional Guardrails Enough?

[33:50–35:04]

• Suk argues that many democratic safeguards have relied on social and political norms, not the letter of the Constitution.
• Example: Nixon’s compliance when faced with impeachment, contrasting with recent dismissals of constitutional norms.

Quote:

• Julie Suk [34:23]: "The guardrails are not just coming from what the Constitution clearly says or doesn't say. It's from people acting in ways that are democracy promoting. And I think we've sort of lost that."

7. Challenging Due Process: The Lake and Riley Act

[35:42–40:13]

• Explores the act’s erosion of due process, enabling detention and deportation of immigrants based on minor or unproven accusations.
• Though the 14th Amendment’s Due Process Clauses apply to "persons," not "citizens," some in power push for a narrowed, restrictive interpretation.

Quote:

• Julie Suk [39:43]: "Despite that language [of 'no person'], historically... it has been attempted to be argued that people who are not lawfully present... might have different rights or that how much process is due to them might be different."

8. Can Ordinary People Keep Up?

[40:52–42:13]

• The overwhelming volume of legal change may be a strategic effort to undermine resistance.
• Constitutional meaning is actively being contested and changed—not always in favor of democracy or vulnerable groups.

Quote:

• Julie Suk [41:00]: "This might be a deliberate strategy on the part of the administration to just kind of like flood the zone with off the wall, unprecedentedly stretching the boundaries type arguments..."

9. The Role and Design of the Supreme Court

[44:43–49:33]

• The Supreme Court isn’t designed to be fully democratic; its independence (life tenure, indirect appointment) is a double-edged sword.
• Many democracies now have more modern systems for appointing constitutional judges to ensure some degree of democratic accountability and legitimacy.
• The expectation that courts are the “last best hope” is complicated by structural limitations and the possibility of judges being influenced or undermined by executive tactic.

Quote:

• Julie Suk [46:50]: "By design, we have a court that's a little bit out of touch with the people. But... another aspect of democracy is not just majoritarianism, but that every person and every voice counts."

• Discusses Trump administration’s new tactic: demanding high security for injunctions, potentially chilling litigation against government actions.

• Defines the risk that repeated defiance or circumvention of court orders shifts accepted norms.

10. Civic Action and Hope

[52:22–54:45]

• Suk’s “Civic Spark” advice: Don’t passively revere the Constitution. Read it actively, with a critical eye. Mark parts that are unclear, outdated, or vulnerable to abuse; imagine needed reforms.
• Calls for a generational project to consider amending or reforming the Constitution where it fails to provide democratic guardrails.
• Finds hope in the engagement and awareness of young people, encouraging broad learning and global perspective.

Quote:

• Julie Suk [52:22]: “Get a copy of the Pocket Constitution and read it. And don’t just read it passively. Read it with a red pen. Circle the things that don’t make sense. Circle the things that you think are outdated. Circle the things that you think could empower Trump. If you were trying to help empower Trump, Circle the things that you think could stop him.”
• Julie Suk [54:06]: "What makes me hopeful is talking to young people... It's so important for people to try to read history and learn about democracies in other countries in the world..."

Notable Quotes & Memorable Moments

• Julie Suk [03:20]: "Most democracies around the world updated their constitutions ... We're still living with institutions that were designed in the 18th century."
• Julie Suk [16:38]: "Alito says in his opinion, ‘I am stunned.’ So he thinks this is actually extraordinary."
• Julie Suk [19:23]: "No, the president cannot say today. The 14th Amendment says something different from what it says."
• Julie Suk [32:23]: "...expansion of authority ... is really not one that is supported by a widespread popular mandate and, frankly, is also trading on racism and white supremacy."
• Julie Suk [34:23]: "The guardrails are not just coming from what the Constitution clearly says or doesn't say. It's from people acting in ways that are democracy promoting."
• Julie Suk [52:22]: "Get a copy of the Pocket Constitution and read it. And don’t just read it passively. Read it with a red pen..."

Timestamps for Important Segments

• [03:20] Constitutional knowledge and its value
• [04:50] Historical context and expansion of executive power
• [11:02] Temporary restraining orders and their limits
• [16:38] Supreme Court dissent on emergency orders
• [17:46] Birthright citizenship and constitutional interpretation
• [22:51] Who determines the meaning of the Constitution?
• [30:08] Lawsuits and democratic stakes
• [33:50] Norms vs. constitutional text as democracy’s guardrail
• [35:42] Lake and Riley Act and due process
• [40:52] Information overload as a political strategy
• [44:43] Democracy, courts, and legitimacy
• [49:33] Executive strategies to chill litigation
• [52:22] Civic Spark: Engage with the Constitution actively
• [54:06] Hope for democracy: younger generations and global outlook

Civic Spark: Julie Suk’s Action Step

[52:22]: "Get a copy of the Pocket Constitution and read it. And don’t just read it passively. Read it with a red pen. Circle the things that don’t make sense. Circle the things that you think are outdated. Circle the things that you think could empower Trump. If you were trying to help empower Trump, Circle the things that you think could stop him. ... What do we have in there that actually helps democracy? What do we have in there that actually hurts democracy?"

Tone and Takeaways

The tone throughout is urgent yet thoughtful, blending constitutional technicality with accessible explanations. Listeners are encouraged to move from cynicism and confusion to critical inquiry and engagement. The episode concludes with an explicit call to action and a sense of cautious hope rooted in youth engagement and comparative perspective.

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