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Future Hindsight
But Is It Constitutional?: Julie Suk
00:57:15
We discuss whether executive orders can change the Constitution, the ongoing transformation of executive power, and the true intersection of the Constitution and democracy. Julie’s civic action toolkit recommendations are: Get a...
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- [00:00]
A
Thanks so much to Lumen for supporting Future Hindsight. Take the next step to improving your health. Go to Lumen Me hopeful to get 20% off your lumen. Thanks also to Shopify for supporting future Hindsight. Shopify is a platform designed for anyone to sell anywhere, giving entrepreneurs like myself the resources once reserved for big business. Sign up for a $1 per month trial period@shopify.com all lowercase and if you want to support Future Hindsight, sign up for the newsletter. This way. We'll show up in your inbox every week with everything you need to be the spark. Sign up@futurehinsight.com all right, let's get to the episode welcome to Future Hindsight, a podcast on a mission to spark civic action. Hi, I'm your host, Mila Atmos. I'm a global citizen based in New York City, and I'm deeply curious about the way our society works. So each week I bring you conversations to cut through the confusion around today's most important civic issues and share clear, actionable ways for us to build a brighter future together. After all, democracy is not a spectator sport. Tomorrow starts right now between the executive orders of the White House and or Doge Actions taking an ax at our government. I know I'm not alone in wondering which one of these actions are constitutional and which ones are not, and I want to stop asking, wait, can you do that? And most importantly, from our Democracy podcast point of view, what are the repercussions to to American democracy? Our guest today is Julie Sook, the Honorable Deborah A. Batts, Distinguished Research Scholar and Professor of Law at Fordham University. She's a legal scholar of constitutional amendment, equality and feminism in the United States and globally, in addition to dozens of scholarly articles in law reviews and edited volumes. She's the author of two books, we the Women, the Unstoppable Mothers of the Equal Rights Amendment and and After Misogyny, how the Law Fails Women and what to Do About It. Welcome Julie. Thank you for joining us.
- [02:22]
B
Thanks so much for having me. It's such a pleasure to be with you today.
- [02:25]
A
Thank you. So many of us are disengaged because we feel defeated after the election, but also because of the pace and the volume of the actions coming out of the White House and the kinds of things that are being changed. For example, the exchange with Ukrainian President Zelensky was a sign that the world order is about to be upended in a serious way. But at the same time, there's a feeling of, well, it's going to happen anyway, and all the rules seem to have been chucked out the window. Nothing matters anymore. But we should care. And even though it feels futile, it does still matter. And what's more, it's important that we have a solid understanding of what's going on. From your perspective, what is the value of arming ourselves with a knowledge of the supposed legal repercussions of the Trump administration's actions?
- [03:20]
B
Well, I think the stakes are enormous, and one of the difficulties is that sometimes, especially the Constitution, we live with one of the oldest constitutions in the world. Most democracies around the world updated their constitutions or actually rewrote them to modernize the institutions in the 20th century and the 21st century. We're still living with institutions that were designed in the 18th century and at a level of detail that is fairly general compared to many other modern constitutions. And I think what that means is that it provides opportunities for some leaders to really stretch what is said to its absolute boundaries. And that's what's happening right now with many of the actions that the Trump administration is taking with regard to the boundaries of executive power and the boundaries of presidential power.
- [04:11]
A
Yeah, well, that's, of course, a big question that I have about the power of the executive, how much it has right now and how much it is exercising it, even if it may not have it. And there's, of course, no question that Trump is attempting to transform executive power under the Constitution, which is to say he wants to grab more power for himself and not abide by the checks and balances between Congress and the courts, between the legislature and the judiciary. So, as I already mentioned, the pace is fast and furious. So I'm wondering, how far along are we in the process of amassing more power for the executive?
- [04:51]
B
Well, I think that that path was already started before Trump came to power. I mean, one thing that's important to point out is that we actually don't have a specific provision in the Constitution that tells you about separation of powers. We have separate articles in the Constitution that describe the powers of each branch. And over time, since the 19th century, the supreme has interpreted the Constitution to implicitly require, because of its structure, a certain understanding of the separation of powers. But that's something that has been reasoned and created and built up over time, largely by the judicial branch, by Supreme Court decisions, telling you what checks and balances are, why they're important, and why they're drawing the lines in the way that they've drawn them. And so, of course, this is what's so difficult now, because Trump is trying to change the balance, but he's not doing it on a totally blank slate. You could argue certainly that the Supreme Court in some ways has paved the way because the vision of separation of powers that it has enforced in many decisions have enlarged the boundaries of executive power through, for example, what's known as the unitary executive theory, that all of the executive power is vested in one president, then that means something for the relationship of the president to, say, Congress with regard to his power to appoint people or to fire people in the administration. And then now we're raising this question of the extent to which the president can change decisions that Congress has made about how to spend money, for example.
- [06:26]
A
Right, right. Well, I feel like this has also changed. Right. Meaning the Supreme Court has defined it or has made rulings with a different kind of point of view of how expansive executive power. Executive power is. Absolutely. From, let's say, 50 years ago.
- [06:44]
B
Yes.
- [06:44]
A
Can you give us, like, two small examples where you could illustrate how the Supreme Court has changed this view and therefore how today it has provided a springboard for the kind of actions that Trump is taking.
- [07:00]
B
So basically, if you think about what the Constitution says about Congress's powers, for example, it's fairly specific in enumerating them. So, for example, Congress has the power to tax. Congress has the power to regulate interstate commerce. And it's a long standing understanding and explicitly said in the Constitution that those are the only powers that Congress has. Now, if you shift over to Article 2 of the Constitution, which addresses the president's power, it also names specific powers that the executive has. But one question that has come up is how much power can you imply? How much power can you imply for both Congress and how much power can you imply for the president? And there is always this theory that there are certain inherent powers, that it's inherent to being an executive, that you need to exercise certain powers. So we end up having a crisis around the time of the Korean War because there's labor unrest. And when you're at war, there's tremendous need for steel. So if the steel mills are having labor unrest and you have a strike, then you're not going to have enough production perhaps to conduct a war. And on this basis, President Truman seizes the steel mills while they're in a labor conflict. He says, we have a war going on. So he seizes the steel mills. And the Supreme Court says, actually there is no inherent power to do that. The executive does not have the power to do that. And there are many theories as to why the executive doesn't have power to do that. One of them is, of course, that it's Congress's power to determine. And Congress had actually written statutes about labor and management relations. So the president can't come in and take power. He never was given by Congress. And there are also theories about the extent to which the boundaries of the president's power in the context of a national security or wartime situation as commander in chief. But this is a very important line that we get in the early 1950s during the Korean War, where the Supreme Court is very clear about the limit to presidential power. So that's an important one. And we also have a lot of cases in which the Supreme Court is considering the power of the president both to appoint officers of the United States and whether or not the power to appoint officers with the advice and consent of the Senate includes the power to remove. Because the power to remove is not something that's explicitly discussed in the text. But the Supreme Court has reasoned since the 1920s that the power to remove must be included.
- [09:35]
A
Right. It would make sense. If you're appointing someone, then you can also have the power to remove.
- [09:39]
B
Yeah. So that's the logic of it. But of course, if the power to appoint requires the advice and consent of the Senate.
- [09:46]
A
Right. So then the Senate should also approve if they're going to get fired.
- [09:51]
B
Well, yeah. So that's the question. That's the question. Not just should the Senate approve, can Congress write statutes that actually limit the president's power to remove someone? So let's say you write a statute and create an independent agency where somebody has a longer term of office so that somebody who was appointed by Biden holds over and is still in office when Trump comes in.
- [10:15]
A
Right.
- [10:15]
B
And so these are a lot of the questions. And over time, we could say the court has expanded the boundaries of presidential power, but it's not unlimited. But part of the reason I think 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. And so we can make predictions based on the law now that there are limits to the expansion of executive power, but we can't know for sure that those limits are going to be enforced by the courts.
- [10:52]
A
Also, who's going to enforce them? Right. You say the court, let's say. But yes, I mean, the president has very clearly disregarded the court when it pleases him. You know, So I don't think we've.
- [11:03]
B
Quite gotten there yet. But it is very interesting to see how Trump is navigating the courts. So I think since he's taken office, we have, I think, at least 40 court orders that are pulling the brakes on various executive actions.
- [11:18]
A
Well, sure, they're slowing things down, but I don't know if they're really going to stop him in the end.
- [11:24]
B
Right. So most of these, and this is because of the pace of litigation. So most of these would be either temporary restraining orders or preliminary injunctions. And as the names of these legal instruments tell you, they're not permanent.
- [11:38]
A
Right.
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B
And the courts are not in a position to permanently stop something that the president has started or really, in anything in litigation, you can't enter a permanent injunction unless you've actually gone through the.
- [11:50]
A
Case, you've had a court case here to court, et cetera, et cetera.
- [11:54]
B
Right. So that takes a while. But very, very often in kind of urgent situations, a court will order temporary relief, like a temporary restraining order or preliminary injunction. But of course, the temporary relief is extremely important. So, for example, if a Court enters a TRO saying that the President cannot stop, like, $2 billion of funds from being dispersed to those who are owed in the USAID programs, for example, that was a temporary form of relief. They weren't saying, we've thoroughly investigated the president's authority and decided for sure in a permanent way. But the temporariness is kind of permanent in that once the $2 billion are paid out to people, it's not like you're gonna get them back, get that money back later.
- [12:42]
A
So I have a question about that, because it was kind of a surprise that the Supreme Court actually decided in favor of the USAID contractors who sued the Trump administration. And when I read it, you know, you talked about the $2 billion. I'm gonna read you this short excerpt from NBC News because it was that kind of thing where I was like, wait, so what does this mean exactly? And you just got into it a little bit. And so let me inject this here so that the listener can have a fuller picture. So quote. The Supreme Court on Wednesday backed a federal judge's power to order the Trump administration to pay $2 billion to U.S. agency for International Development Contractors, but did not require immediate payment. In doing so, the court, on a 5 to 4 vote, rejected an emergency application filed by the Justice Department after U.S. district Judge Amir Ali issued a series of rulings demanding the government unfreeze funds that President Donald Trump put on hold with an executive order. The court delayed acting on the case for a week. In the meantime, the contractors have not Been paid, end quote. So what does that actually mean? And practically, what's going to happen next?
- [13:52]
B
So, yeah, this is my understanding. So the court issued a temporary restraining order. A temporary restraining order only lasts a temporary amount of time. So I think there was a deadline at which the temporary restraining order would run out. And I think then, in advance of the deadline, the question was, well, if the government was going to appeal it. And there were questions about whether or not the government could appeal it, because I believe the district court had designated it an unappealable temporary restraining order, but they were going to appeal it. But one question that often when you have a temporary restraining order or a preliminary injunction is what is the status quo? Or what is the state of affairs that's on the ground while the appeal is taking place? If we have an active dispute on the legal question of whether or not it was legal for him to pause.
- [14:41]
A
Right. And so how does the Supreme Court come in? Because the final appeal, please.
- [14:46]
B
Well, when you have these temporary forms of relief while they're appealing it, the question will be, should we stay the court's order? So the government wants to stay if there's a temporary restraining order telling the government they have to pay the $2 billion, the government's position will be, well, we don't know what the law is on this. Right. We're taking a position. The people who are owed funds are taking a different position. So since we don't know, in order to protect the money, let's just say that the court order is stayed until we get a final determination.
- [15:20]
A
I see.
- [15:21]
B
And so that's what the fight is about. Very often when things go up to the Supreme Court on these kind of. Not on the merit stocket. The merit stock. It is like the cases that they decided they were gonna hear months ago, and they have three hours of oral argument, and then you wait, like, five or six months to get a decision. So this is something where now they're fighting over whether or not the district court's decision restraining the government, at least on a temporary basis, should be stayed? If it was stayed, that means that Trump can move forward with not paying the $2 billion.
- [15:52]
A
Got it.
- [15:53]
B
And so that's what spelling that out. Yeah. So that's what's going before. I mean, it's very technical. So that's what's going up to the Supreme Court. And The Supreme Court, 5 to 4, decides that they are not going to stay it.
- [16:04]
A
Okay.
- [16:05]
B
And not staying it means whatever the trial court judge decided goes forward.
- [16:10]
A
Yes.
- [16:11]
B
And there was another little bump, which I think is confusing, which is that I think that the temporary restraining order was going to run out. So then I believe that the state of affairs now is that it's still back to the trial court to determine what needs to be paid and by when. I don't think it's just like a blanket order saying everything has to be dispersed, but it's being put in the hands of the trial court judge.
- [16:34]
A
Mm, fascinating.
- [16:35]
B
But, of course, you get four dissenting justices.
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A
Yes.
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B
And the four dissenting justices are, I think Alito says in his opinion, I am stunned. So he thinks this is actually extraordinary.
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A
Right.
- [16:48]
B
Meaning one approach to this is there's $2 billion. Once that money's paid out, it's not like you can get it back. So even if. Even if the court arrives at the decision eventually that Trump had the right to do this or that Trump was legally sound in doing this, then once you have that ruling, it's not meaningful once the funds have been dispersed, or it's far less meaningful, of course. And so the approach that the dissent is taking is that's $2 billion of taxpayer money that we're not going to see. Again, one judge has decided and decided in a preliminary, not definitive and final way, but decided in a preliminary way that the law stops Trump from pausing the funds.
- [17:30]
A
Right, right. Well, let's talk about some other executive orders. Cause this was really, really helpful. Now I feel like I understand everything so much better, which I'm sure the audience feels the same about. So the president signed 20 executive orders on the first day. And in my mind, undoing.
- [17:46]
B
Is that all?
- [17:47]
A
Is that all? Yeah, I know it sounds like not that many, but he keeps signing. It just keeps going. So in my mind, undoing birthright citizenship was the most shocking one. Being tied to the land is so fundamental to the idea of being American. And many of us, of course, were not only shocked, but also wondering, is this legal? Is this constitutional? And can an executive order change the Constitution? Because it's actually in the Constitution. So how do you expect this to play out?
- [18:16]
B
So well, let's talk first about what's in the Constitution.
- [18:20]
A
Yeah, let's do that.
- [18:21]
B
So the 14th Amendment, for the first time in American constitutional history, defined U.S. citizens and explicitly said that if you're born in the territory of the United States, subject to the jurisdiction of the United States, you were a citizen. And there was a clear and explicit purpose when they did that. And it was to basically overrule old Supreme Court decisions before the Civil War that said that Black people, whether they were enslaved or not, could never be citizens, basically because of their race.
- [18:57]
A
Right.
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B
And so it was to erase or undo that as law and establish the principle that if you were born in the United States and subject to the jurisdiction of the United States, you are a citizen. And the text clearly says that. Then there's this question of can the president change the Constitution? No, the president cannot say today. The 14th Amendment says something different from what it says.
- [19:23]
A
Right.
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B
And Trump was not saying that. Trump's lawyers and Trump's folks have been working on a new theory of the fourteenth Amendment, birthright citizenship clause.
- [19:33]
A
Okay.
- [19:33]
B
Which for a long time was considered a pretty off the wall and kind of insane argument.
- [19:38]
A
All right.
- [19:39]
B
But I think now they are trying to make that argument more mainstream. And the argument is that the terms subject to the jurisdiction of the United States, like that is ambiguous. They're trying to say or not that that's ambiguous. They're saying that does not include everyone who's technically and actually born here.
- [20:01]
A
I see.
- [20:02]
B
And of course, we've always had exceptions to birthright citizenship. So if somebody. So if you are a diplomat, you're an ambassador from another country, and you give birth to a child, and of course, diplomats have a lot of immunities. They're not subject to our jurisdiction in the same way that the rest of us are.
- [20:22]
A
And so therefore, they are going to have children that are of their own.
- [20:26]
B
They will not be and would not have dual nationality.
- [20:29]
A
Right, right.
- [20:30]
B
I think traditionally also it meant that, let's say you were part of an invading army. Let's say that an enemy in a time of war were on our land. And there's a long standing understanding that any children born of enemy invas while technically occupying and being on our soil would not have birthright citizenship. But beyond that, everyone, and especially, like, regardless of whether or not the people giving birth are here temporarily or legally, the longstanding understanding is that they and the people who are born are subject to the jurisdiction of the United States. So even if you are undocumented and you were born to an undocumented person, you can definitely be prosecuted. You are expected to follow all the laws, and if you commit a crime, you would be prosecuted. And that has been a long standing understanding. That means you are subject to the jurisdiction. You are subject to jurisdiction, and therefore you are. If you were born here, you are entitled to birthright citizenship. And we've had cases in the late 19th century in which a Chinese person born to parents whose status in the United States was of a temporary or not permanent nature, that they were recognized as birthright citizens.
- [21:54]
A
Right.
- [21:55]
B
So here we have a long standing understanding. We have words subject to the jurisdiction that are perhaps open to interpretation. But Trump's theory is not. I am changing what the 14th Amendment says. He's trying to argue that his approach to birthright citizenship fits in. But the reason this is problematic is that the president can't change even what that means because it's really. So Congress has the power to determine, to determine the rules of naturalization.
- [22:26]
A
Right.
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B
So we have an entire statutory framework around who's a citizen and who's not a citizen.
- [22:32]
A
Yeah.
- [22:32]
B
That's up to Congress.
- [22:34]
A
Right.
- [22:34]
B
And certainly we have, like a whole body of Supreme Court case law that tells you what birthright citizenship is. So for that reason, the executive order, it's not just an argument about what does the 14th amendment say and mean. It's also just a question about who gets to determine that.
- [22:52]
A
Right, Right. So to be clear, if somebody is born in the United States today, as we're speaking, you know, post this executive order, and the parents are foreign nationals, they are still currently recognized as American citizens.
- [23:06]
B
Well, it depends what you mean by recognized.
- [23:08]
A
All right. So if you get a birth certificate.
- [23:11]
B
Yeah. So I think this is going to raise some interesting questions, and I think there is a great confusion, at least now. So if you have, and I'm sure many of us have friends who are temporarily here, there are students here. We have plenty of students who are on a student visa.
- [23:27]
A
Right. Legally here.
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B
Right. And it's not that no one will say that they're not legally here. And they are actually subject to the jurisdiction of the United States while they're. And so then if they give birth, they get pregnant and they give birth during the time that they're studying here.
- [23:41]
A
Right.
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B
So under the executive order, I believe that the situation I've described would make it. If the executive order is law, then that child would not be a birthright citizen. But if you believe, and there's plenty of Supreme Court case laws to support your position, if you believe that the executive order is unlawful, has no legal validity, then you would insist either on the birth certificate or let's say you apply for a passport because you're going to travel with your infant, and if the U.S. passport agency, the Department of State, tells you, I'm sorry, your child is not a birthright citizen, you could at that point bring a legal proceeding.
- [24:23]
A
Right. So is there a legal proceeding right now against this?
- [24:27]
B
So, yeah, there have been many lawsuits brought. I don't think on behalf of a child who was born in the last month and a half. But there have been so in Washington State, for example, the state of Washington actually sued the administration on behalf of their people. And I believe there are some lawsuits that involve pregnant women or like pregnant parents, parents who are expecting a child who are suing to establish clarity on this.
- [24:56]
A
Right.
- [24:57]
B
But generally the question would have to be resolved in a case where someone is claiming a concrete injury like I gave birth to a child and they are a citizen because the executive order is illegal. And then they would have to make the argument Got it.
- [25:17]
A
We'll be right back with Julie Souk, so stay with us. Make sure you hear this episode's Civic Spark One small step we can all take to be more empowered and ignite collective change. But first, did you know that when your metabolism is working properly, you'll feel the benefits in literally every aspect of your life? I have found a valuable tool that gives me insights to create a healthy metabolism for my body. It's called Lumen. Lumen is the world's first handheld metabolic coach. It's a device that measures your metabolism through your breath, and on the app, it lets you know if you're burning fat or carbs and gives you tailored guidance to improve your nutrition, workouts, sleep, and even stress management. All you have to do is breathe into your lumen first thing in the morning and you'll know what's going on with your metabolism. And by that I mean whether you're burning mostly fats or carbs. Then Lumen gives you a personalized nutrition plan for that day based on your measurements. You can also breathe into it before and after workouts and meals so you know exactly what's going on in your body in real time. And Lumen will give you tips to keep you on top of your health care. It's been so enlightening. After all, your metabolism is your body's engine. It's how your body turns the food you eat into fuel that keeps you going. Because your metabolism is at the center of everything your body does, optimal metabolic health translates to a bunch of benefits like easier weight management, improved energy levels, better fitness results, better sleep. The list goes on. Lumen gives you recommendations to improve your metabolic health. And if you're into this, it can also track your cycle as well as the onset of menopause and adjust your recommendations to keep your metabolism healthy through hormonal shifts so you can keep up your energy and stave off cravings. I've been using lumen like clockwork and I thought I would find that I eat too much or I eat too many carbs. But no, what I discovered is that I don't sleep enough. And as a result I've been motivated to go to sleep and much, much earlier, which I know will improve my health. So take the next step to improving your health. Go to Lumen. Me hopeful to get 20% off your lumen. That's L U M E N dot me hopeful for 20% off your purchase. Thank you Lumen for sponsoring this episode. I also want to share about Shopify. Stop for a moment. Think about some of the most successful businesses. You know, the ones with sales going through the roof like Momofuku or Magic Spoon. What comes to mind? Probably a great product and a cool brand with brilliant marketing. But have you ever thought about the businesses behind the business? That's a secret ingredient that makes selling and for shoppers buying simple. Because after all, you cannot do it alone. For millions of businesses, that business behind them is Shopify. Nobody does selling better than Shopify, especially because Shopify is home to the number one checkout on the planet. And we can't forget about the not so secret secret shop pay that boosts conversions up to 50%, meaning way fewer carts going abandoned and way more sales going Cha Ching. If you're into growing your business, your commerce platform better be ready to sell wherever your customers are scrolling or strolling on the web, in your store, in their feed and everywhere in between. Businesses that sell more sell on Shopify. Let me break it down a little bit more for you. Shopify gives you everything you need to take control and take your business to the next level no matter how big you want to grow. And that's what I love about Shopify. Upgrade your business and get the same checkout Magic Spoon uses. Sign up for your $1 per month trial period at shopify.com hopeful all lowercase go to shopify.com hopeful to upgrade your selling today. Shopify.com hopeful and now let's return to my conversation with Julie Sue. So there are so many lawsuits and court orders already challenging Trump's executive orders and actions by Doge. And as a non lawyer, I don't know which ones are more important than others because for sure they're not equal. Right? Yeah.
- [29:59]
B
And specifically as it pertains, I think lawyers probably disagree.
- [30:02]
A
Which ones Specifically as it pertains to democracy. Right. What are the lawsuits that you're watching?
- [30:09]
B
So I am trying to keep a handle on all of them because I think that there is, I wouldn't even call it unprecedented. We are living through a moment where the president is trying to push the boundaries of Article 2 in executive power under the Constitution. And if you look at just a few weeks ago, I think J.D. vance made some statements on social media and elsewhere claiming that they were entitled to their own interpretation of Article 2. And it's possible that down the line, the Supreme Court will agree with some, if not all, of the Trump administration's understandings of their own power under Article 2. So I say it's not unprecedented, because the moment that we were in during the New Deal was similar in the sense that the idea that we were going to have a huge expansion of the federal government, government to allow for administrative agencies that could make regulations and actually create, essentially a social welfare state, that was not necessarily something that the Founding Fathers contemplated when they set up our legal and political institutions. And the Supreme Court, when FDR first came to office and when Congress first started passing New Deal legislation, the Supreme Court was striking it down, saying this was not constitutional, this was not part of Congress's power. Like the whole structure that was being shaped at the moment was unprecedented. I think there is a real difference, which is that the Supreme Court starts upholding this vast expansion of executive power and the executive branch after FDR wins a landslide in 1936.
- [31:52]
A
But he @ least won a landslide. Exactly.
- [31:55]
B
And I think from the standpoint of democracy, this is incredibly important, because Trump is claiming a mandate to expand executive power. And if you even look at now at the way that he has been framing, or his government has been framing the USAID case, it's like he has this mandate to protect the taxpayers who voted for him from having $2 billion of their money spent in ways that they don't approve of.
- [32:23]
A
Right.
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B
That's how it's being billed. But I think this is a very different moment, because 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 and, you know, a vision of America that I think is really at odds with the way that many of us see the country.
- [32:48]
A
Right.
- [32:49]
B
So I think that's a real problem. But part of the reason I'm worried is that I don't think that the Constitution that was written in the 18th century clearly and textually offers a blueprint that stops Trump from doing what he's doing. I think, really, we have to start having an account of what's wrong that is both an account of the Constitution as well as an account of democracy.
- [33:15]
A
Right, right. Yeah. I mean, one question I have is kind of philosophical in this moment, which is whether the Constitution is strong enough for American democracy today. And I'm thinking it very generously, like, this is the year 2025. The Constitution was written in 1787. And, you know, modern life is very, very different. And you mentioned earlier that it's one of the oldest constitutions and that most constitutions in the world were created in the 20th century nowadays, or even in the 21st. So how do you think about the American Constitution serving American democracy as a guardrail or as a guide in these times?
- [33:50]
B
So I think that the guardrails that we've relied on up until now have not necessarily come from the Constitution. The guardrails have really come from people respecting norms. So a good example is back when Nixon was about to be impeached, we had a moment where the Supreme Court, over arguments about Nixon's immunity, required him to produce tapes that incriminated him and other members of the administration.
- [34:23]
A
Yep.
- [34:24]
B
And those tapes were most certainly going to lead to him being impeached. And I would say that that was like 50 years ago. And Nixon resigned.
- [34:34]
A
Yeah.
- [34:35]
B
And that's a good example of. I mean, he could have been impeached, and would there have been the votes to remove him from office? Maybe, maybe not. But I think now, if you think about the guardrails, 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. And it's not just we've lost that in the executive branch or the presidency.
- [35:04]
A
Right, right. But Even with the second impeachment for Trump, you know, after January 6th, I don't wanna say it was surprising. I don't wanna say it was shocking. Cause we all expected it to go the way that it did, but it was for sure breaking the norms that here is somebody who was mounting an insurrection against the United States government and he was not found guilty.
- [35:26]
B
Right.
- [35:27]
A
Like how, you know, even though we knew it was gonna be this way, it makes you really cynical. It makes you think, what's the point anymore? You know? Anyway, I don't. I don't wanna stop there. I have a question on the Constitution about the Lake and Riley Act.
- [35:42]
B
Yeah.
- [35:42]
A
And this, of course, was voted on by Congress, but it helps the white supremacy argument. And it also has been whipped up for years by Trump himself on the campaign trail. And, you know, getting people to get on board. And I was really surprised by this, actually, that Democrats voted for it as well. So it was passed shortly after Trump took office. And it eliminates due process for many immigrants, including some who have actually been living and working here legally in the United States. But most importantly, you can be arrested and deported for crimes that you did not commit. And it feels a little bit like the Supreme Court example of the USAID. Once the $2 billion is paid out, you're not getting it. And so once this person who could be wrongly accused and deported, this person is not coming back. But how is this constitutional? So, sorry, I have this opportunity to ask you all these questions.
- [36:36]
B
So if we come back to the concept of due process. Yes, the due process clause just says that the federal government, where we have two due process clauses, one that applies to the federal government, the Fifth Amendment, and then the one that applies to the state, but it just says that the state can't deprive you of life, liberty, or property without due process of law. And we have had a lot of Supreme Court decisions about what due process actually means, how much process is actually due. And I think according to that precedent, it would seem under the Lake and Riley act, you could have a situation where someone is just accused of shoplifting and therefore arrested for shoplifting. And there may not be enough evidence to actually charge them. There may not be enough evidence to convict them of shoplifting.
- [37:26]
A
Right.
- [37:27]
B
But once they are accused of it, basically because the threshold is so low, they could be required to be taken into federal custody and detained and perhaps eventually deported. And, of course, our understanding of due process is that before the government does anything that terrible to you, like deport you or deprive you of your liberty, some process is due. And that process might require the ordinary forms of criminal legal process, like a trial. But I think that those who have supported and enacted the law do not think that people who are not lawfully present in the United States have such rights to begin with.
- [38:14]
A
But. So, for example, I had a conversation with the executive director of the ACLU in D.C. yes. And she said even if you are suspected of a crime, you are charged with a crime in the United States and you're not a citizen, and you may not even be legally here, you are still entitled to due process, that you should still have a trial. But it sounds like the Lake and Riley act would actually make that go away. Like, you don't really have to do due process. You can just lock somebody up after they're accused and then potentially deport them or Did I misunderstand that about the Lake and Riley Act?
- [38:49]
B
So, yeah, I think the Lake and Riley act allows you to do many things that would probably fly in the face of our ordinary understanding and our established understanding of how much process is due. It's possible that those who support the act and hope that it endures as law are also hoping for a different understanding of what people's basic entitlements are.
- [39:11]
A
Right.
- [39:12]
B
Which states must respect before they take away your liberty. And possibly a differentiated understanding. This again, flies in the face of our precedents. We have had cases in which it was argued that undocumented aliens did not have the same constitutional rights under the 14th Amendment as citizens for the purposes of the Due Process Clause. It is important to remember that the 14th amendment, the due Process Clause and the Equal Protection Clause does not refer to citizens. It's just no person shall be deprived. Right, right. That's pretty clear.
- [39:42]
A
Right.
- [39:43]
B
That's really clear. But despite that language, historically, at various moments, it has been attempted to be argued that people who are not lawfully precedent in the United States might have different rights or that how much process is due to them might be different from how much process is due to those who are lawfully here. So you could see this as. And this time it's not just Trump, it's the majority of Congress, including, as you mentioned, some Democrats.
- [40:13]
A
Right.
- [40:13]
B
It's the majority of Congress and Trump who seem to think that this is fine. And if they think this is fine, it must be that they want a different understanding of due process than the one that has been established over time by courts interpreting the clause.
- [40:31]
A
Yeah, yeah. Well, there's so much happening. We've covered a few executive orders already. And there are more that I want to ask about that we don't have time for.
- [40:41]
B
Okay.
- [40:42]
A
So I think it's apt that I ask in this moment, you know, just to take a second here, how can the everyday person wrap their heads around all that is happening now?
- [40:53]
B
Well, I think it's very difficult, and probably most people can't. It's hard for us to spend our time writing about constitutional law, teaching constitutional law. And in some ways, this might be a deliberate, 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, because then you have to defend against them and go back and figure out what it is. And I think this is actually really important for people to think, is it the text of the Constitution or the jurisprudence established by the Supreme Court? If it's not the text. And the jurisprudence established by the Supreme Court can be changed. And there are some important precedents that the current sitting Supreme Court has changed, not necessarily in this area. Although people thought that Trump versus United States, which was decided last year to protect a very broad understanding of presidential immunity from criminal prosecution for acts taken within the president's official constitutional powers, they didn't technically overrule a precedent. But that was received by many in the constitutional law world as an unprecedented approach to presidential power. Not really supported by our precedents.
- [42:14]
A
Right.
- [42:15]
B
So when you see things like that in this area, as well as the Supreme Court turning back on its precedents in other areas, for example, the Dobbs vs Jackson women's health abortion case from 2022, which basically turned its back on 50 years of precedent, protect abortion as a constitutional right, it should be clear that the Court is not always going to stick to a line of precedent that protects the most vulnerable groups. We're not sure what's going to happen. And so I think one important thing is for people to think about what kind of democracy we'd like to live in and the extent to which the Constitution helps us get there and the extent to which I think young people. And this is a generational project. This is not a tomorrow project, like a right now project, but this is a long term generational project. I think we do need to think about how we should, over time, amend and reform the Constitution to put up some of those guardrails.
- [43:14]
A
Yeah, yeah. Well, I have a question about the courts in this context. You just mentioned the Supreme Court and the immunity case and the Dobbs decision. But also, you know, at the same time, in the recent weeks, we've had several federal prosecutors resigning over not wanting to drop the charges against Eric Adams. But we also have somebody like Pam Bondi as Attorney General. And I wonder, you know, we think about the United States as being a place of being, maybe the beacon of democracy in the world. At least we like to believe that about ourselves. Right? Yeah. And I think when we think about democracy, we think that there is at least some justice. When you have democracy, you have a thriving democracy, you have justice. And so with all that's happening with the court, how do you think about democracy and the courts and justice in this time? I mean, maybe it's difficult to put the things together, but you feel like, wait, what? You know, how did this happen? You know, the DOJ has pressed charges against Eric Adams, and now because of Trump, they want to drop them. But the people who are actually involved in the case, don't want to do that, and would rather give up all their careers, you know, decades of working. And I feel like this is a serious thing, that people are not understanding how much people are giving up. I think this is their life's work. And here they are, and they're walking away. And at the same time, the DOJ is being more corrupted, and the Supreme Court is already so corrupt. So why have courts? What are your thoughts?
- [44:43]
B
So the relationship of courts to democracy is a very complicated one. And I think that for one strand of it, is that that the courts are, by design, not supposed to be totally democratic. That's why we have life tenure for the federal judiciary. We don't elect our judges. So if you think of democratic being the will of the people, majoritarianism and accountability to the people, we've deliberately designed the Supreme Court and in fact, the entire federal judiciary against at least that idea of electoral democracy. And that's why, to preserve the independence of the courts from popular pressures, we have life tenure on the federal judiciary. But now, of course, the Supreme Court has been criticized. We've already mentioned the abortion decision. The Supreme Court has been criticized for being way too out of touch with what most of the people in this country want on abortion and on other questions. So then how do we deal with that? I mentioned that in many other constitutional democracies around the world, they've modernized their institutions. So many democracies actually have a separate court, the Constitutional Court, and it's a separate court that deals with constitutional issues because they understand two things. Number one, many of the constitutional questions that any court decides will always have a political dimension. It's not all law all the time, or it's law with politics and ideology mixed in. So if you're designing a court like that, you probably want to have judges that are at least a little bit accountable to the people, so have people appointed by a wider swath of democratically representative actors. Right now, we just have the president and the Senate. The Senate is arguably less democratic than the House because you get two senators for every state, regardless of the population of those states. So that doesn't sound very democratic.
- [46:49]
A
Right.
- [46:50]
B
So by design, I think we have a court that's a little bit out of touch with the people. But of course, another aspect of democracy is not just majoritarianism, but that every person and every voice counts. And we have to protect the conditions by which every person is included in participation within the democratic polity. That's why we have a bill of rights that's why we have rights of equal protection, and we entrust judges to support that, judges to protect the interests of the minority and the rights of those who are most vulnerable. And so that's a justification for having judges that are sufficiently independent and therefore not chosen by democratic means. But I think up until now, we've had a long conversation since, I'd say, the early days of the Biden administration, when they were studying the Supreme Court. And they were studying the Supreme Court because of all of the conflicts about how the last few appointments were made through serious constitutional hardball on the part of the Republican leaders in the Senate. So I think that we've had this conversation. Is the Supreme Court correctly designed for how we want the court to behave in the context of a democracy? And I think we need to keep having that conversation. But at least in this moment, we consider the courts to be the last best hope against Donald Trump's executive overreaching. But so much of that expectation is based on the understanding that the executive overreaching is itself anti Democratic. What I find really fascinating, of course, is that the Trump administration is presenting itself as being the voice.
- [48:36]
A
Yes. He keeps saying has a mandate.
- [48:38]
B
Right. And not just the mandate. So I'll give you another example. So just yesterday, the Trump administration announced a new policy, and this might be an example of Trump kind of resisting the courts without officially resisting the courts. So I think this is a reaction to some frustration about all these trial courts issuing orders, temporary restraining orders, or otherwise stopping his executive order through litigation because people have litigated to challenge them. The administration is now taking the position that if anyone is suing them to stop any of their policies, the way that they would stop them is through the preliminary injunction, which is a court order stopping them from what they're doing. And we do have a rule of civil procedure addressing preliminary injunctions that says that if you are pursuing a preliminary injunction, you're supposed to post security covering the costs in case you are wrong.
- [49:32]
A
I see.
- [49:33]
B
Right.
- [49:33]
A
Yeah.
- [49:34]
B
But it's up to the judge to decide what the appropriate amount is.
- [49:39]
A
Right. Which I'm sure some judges don't know very often.
- [49:42]
B
They might set it at a very nominal amount or nothing.
- [49:45]
A
Right, Right.
- [49:46]
B
Because of the idea that people who are aggrieved and want an injunction should be able to pursue justice even if they end up being wrong. Right.
- [49:53]
A
Yeah.
- [49:54]
B
But now the Trump administration's taking the position that anytime they litigate, anytime they're sued, they are going to demand that the court require the other party to post security that's going to be their litigating position every time. Now, if that's their litigating position every time, you're gonna have to really rely on the judges to not require huge amounts. If the judges start requiring huge amounts or the amounts that the Trump administration claims to be appropriate, you're going to be chilling a lot of litigation. People are not going to continue to litigate, but it remains to be seen what the judges will do. But this is very interesting because this move is clearly a way of trying to discourage litigation and trying to get judges to help them discourage litigation. But they're not officially saying, we're not going to abide by the court orders.
- [50:40]
A
Yeah, they're doing the right door solution.
- [50:43]
B
Right. So they're just saying, you want to keep suing us, you better be ready to pay in advance. And if the judges agree or accept, they'll be making those motions.
- [50:53]
A
Yeah, of course. Of course.
- [50:53]
B
And so this is just a strategy if they're not officially defying, but they're using every tool in the toolkit to raise the costs for other people. And also by threatening, by raising the possibility that they will defy, they're also sending a message to judges. So judges care about the legitimacy of courts. They do not want to issue orders that are not obeyed.
- [51:21]
A
I see.
- [51:22]
B
And so now if judges issue orders that he's going to defy, it undermines the court's legitimacy. So one question is, will a judge in that position be shy about issuing orders that he or she knows or suspects the Trump administration might attempt to defy? And so then that's a good question. Then our baseline expectations start to shift. And you could tell that story about what happened with the Muslim ban, how the court were enjoining it initially and the Trump administration kept watering it down. And the Supreme Court eventually upheld the watered down version of the Muslim ban, but the watered down version of the Muslim ban was still a Muslim ban in the end.
- [52:07]
A
Yes. Yes, yes. Every week on Future Hindsight, I ask my guest to share a civic spark. One small step we can all take to be more empowered and ignite collective change. What's a good way to turn the insights that you've shared with us today into action?
- [52:23]
B
Sometimes I assume people are already doing this, but then I find out from talking to them that they're not. I would say 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. And not just Trump. I mean, just thinking, this kind of president, we could do this writ large, not just this kind of president or the general questions you were asking about democracy. What do we have in there that actually helps democracy? What do we have in there that actually hurts democracy? And I think if you actually took it with a red pen rather than. I think all too often Americans read the Constitution when they're in second grade wearing a three corner hat in the mode of venerating the Founding Fathers, who were, at the end of the day, human, and they were solving a very specific constitutional crisis. And I think they did a good job of solving some of the huge economic and national security questions that they were facing at that time as they transitioned from the Articles of Confederation to the Constitution. But I think we need to sort of go back and look at how democratic is it? Does it actually give us our guardrails?
- [53:41]
A
Yeah.
- [53:41]
B
What would we need to do to change it to have the guardrails? And then people could also ask the deeper question, should we actually rely on the Constitution as opposed other forms of action to protect our democracy?
- [53:53]
A
Oh, yeah. Good advice. Good advice. All right, last question. Looking into the future, what makes you hopeful? People can see your face, but you're pausing and smiling, and I'm not sure you are hopeful.
- [54:07]
B
Yes. So I would say what makes me hopeful is talking to young people. And. Well, I think it's really important, though, for young people to realize it doesn't have to be this way. Sometimes I worry that maybe it's hard to see different paths. And I think it's so important for people to try to read history and learn about democracies in other countries in the world. They're not perfect either. But I think having a much broader range of examples and possibilities is absolutely necessary to retain any hope right now.
- [54:46]
A
Yeah, I agree. Thank you very much for joining me on the podcast. It was really a pleasure to have you on the show.
- [54:52]
B
Thank you so much. It was a pleasure talking with you.
- [54:54]
A
Mila Julie Sook is the Honorable Deborah A. Batts, Distinguished Research Scholar and Professor of Law at Fordham University. She's a legal scholar of constitutional amendment, equality and feminism in the United States and globally. Remember, civic action doesn't have to be complicated. It's about small steps that spark progress. Like sharing this episode with a friend. Friend. Let's recap this week's civic spark and fire up our collective power. Grab yourself a pocket copy of the Constitution, look it over, give it a read. If so much of our political discourse comes down to that's not constitutional, end quote, or yes, it is, it might be worth reading the Constitution for yourself, understand it in the context of when it was written and why, and decide for yourself if it's still has the power to hold the line for us. Next week on Future Hindsight, we're joined by Bradley Tusk. He's the author of Vote with your why Mobile Voting Is Our Final Shot at Saving Democracy.
- [56:03]
B
When you reduce friction and make things easier, which is the entire lesson of the cell phone and the Internet, more people do. And so in both red states and blue states, we made it possible for people with disabilities and deployed military to vote in real elections on their phones. And they did. Turnout increased exponentially.
- [56:22]
A
That's next week on Future Hindsight. Now be sure to follow us on your podcast app so you don't miss a single episode. Let us make it easy for you. We're here to help you stay engaged, so follow Future Hindsight and will stay in your rotation every week. And if you need that extra push, let Future Hindsight jump into your inbox every week. Sign up for the newsletter now@future hindsight.com thanks for tuning in. And until next time, see clearly, act boldly and spark the change you want to see. This episode was produced by Zach Travis and me. This podcast is part of the Democracy Group.