The Cases That Could Rein In Trump

Summary

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GD POLITICS — "The Cases That Could Rein In Trump"

Host: Galen Druke
Guest: Jessica Roth, Professor of Law at Cardozo
Date: September 4, 2025

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Episode Overview

This episode dives into the growing number of legal cases challenging President Trump's actions and the boundaries of presidential authority. With references to mounting headlines and over 390 legal challenges tracked by Just Security, Galen Druke and guest legal expert Jessica Roth dissect several headline cases — from National Guard deployments to the firing of independent agency officials — illustrating how the courts are confronting or deferring to executive overreach. The conversation balances legal nuance with concern about institutional checks and balances, examining what these cases mean for American democracy.

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Key Discussion Points & Insights

1. Deploying the National Guard Against State Wishes

• Case Background: Trump ordered National Guard troops deployed to California against Governor Newsom’s wishes.
• Legal Ruling: A federal judge ruled this violated the Posse Comitatus Act, a statute prohibiting federal military engagement in domestic law enforcement ([03:08]).
  • Court's Action: The use of those forces for policing was enjoined but left open the possibility of other roles (e.g., protecting federal buildings) ([03:08]).
  • Next Steps: Anticipated appeals to higher courts, possibly the Supreme Court ([03:38]).
  • Broader Implications: Future legal challenges in other states will hinge on the authorities invoked and the troops' activities ([04:08]).
• Legal Complexity:
  • Standing and Authority: The question of who (governor or private party) has the legal standing to challenge presidential action, and whether the courts will decide cases on narrow or technical grounds ([05:11]).
  • Notable Quote:

    “It could be that we get a very unsatisfying answer about the limits of the president’s authority.”
    — Jessica Roth, [06:26]

2. Firing of Fed Governor Lisa Cook & Independent Agency Heads

• Case Background: Trump attempted to fire Fed Governor Lisa Cook for alleged misrepresentation on a mortgage application ([06:35]).
• Constitutional Issues: Trump claims unfettered Article 2 authority to fire executive appointees at will, even those at independent or quasi-independent agencies ([07:30]).
  • Statutory Protections: Many agency heads are protected by "for cause" requirements. The legal debate centers on whether Congress’s limits are constitutional, and what constitutes "cause" ([08:11]).
  • Fed Distinction:
    • The Supreme Court suggested the Fed is “different” and more protected than other agencies—an unusual carve-out designed to keep the Federal Reserve more independent ([09:56]).
    • Notable Quote:

      “The Fed was in some way sort of differently situated in our governmental structure...its history and functions distinguishable enough that the for-cause requirement might have more bite.”
      — Jessica Roth, [10:31]

• Trend in Supreme Court:
  • Apart from the Fed, the Supreme Court is leaning toward supporting presidential at-will firing powers, referencing the shadow docket and recent cases ([11:16]).
  • The D.C. Circuit Court just ruled Trump’s firing of an FTC commissioner unlawful for lack of cause, affirming that the precedent (Humphrey's Executor) protecting such officials is still binding unless the Supreme Court overturns it ([12:20]).
  • Notable Quote:

    “The court is aligning with the President in his claim that he can fire more of these people essentially at will, notwithstanding a cause requirement.”
    — Jessica Roth, [11:31]

3. Appointments Within the Department of Justice

• Key Case: Trump’s personal attorney, Alina Haba, appointed as U.S. Attorney for New Jersey over Senate objections ([13:05]).
  • Procedural Workarounds: Trump administration used interim authorities, complex statutory maneuvers, and direct DOJ appointments to keep Haba in office after both the Senate and federal judges resisted her installation ([13:05]–[15:45]).
  • Legal Challenge/Impact: District court ruled Haba is not lawfully in the position, causing a practical standstill for DOJ cases in New Jersey as appeals proceed ([15:55]).
  • What's at Stake:

    “She’s shown herself to be willing to go after the President’s enemies, sort of to do his bidding.”
    — Jessica Roth, [16:29]

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Notable Quotes & Memorable Moments

• On Trump’s Vision of Executive Power:

  “Trump is asserting essentially an unfettered right directly under Article 2 of the Constitution to fire people for any reason or no reason at all.”
  — Jessica Roth, [07:35]

• On Legal Uncertainty:

  “For a lot of the cases we’re going to get to today, the answer to ‘How will the Supreme Court rule?’ is ‘We don’t know, but there’s a spectrum.’”
  — Galen Druke, [04:46]

• On Weaponization of DOJ Appointments:

  “It’s a whole bunch of different maneuvers, arguably pursuant to various statutory authorities…so there’s a whole host of reasons why she’s not lawfully serving in the position…judges have essentially just been postponing cases.”
  — Jessica Roth, [15:09]

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Major Timestamps

• 00:39–02:28 — Introduction, overview of Trump’s legal challenges and executive actions
• 02:28–06:35 — National Guard deployment and the Posse Comitatus Act
• 06:35–12:45 — Attempts to fire independent agency staff, with focus on the Fed and Article 2 authority
• 12:45–16:15 — DOJ appointments and the Alina Haba case in New Jersey
• 16:15–16:35 — Motives behind controversial DOJ appointments

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Episode Tone

• Curious and rigorous: The discussion is deeply analytical yet accessible, with Galen pressing for clarity on legal nuances and Roth providing expert breakdowns, often noting the courts’ unpredictability.
• Concerned yet balanced: Both speakers underscore the seriousness of the issues, but leave room for institutional uncertainty and the limits of court intervention.
• Wry & honest: Occasional dry humor and exasperation underline the complexity — and at times absurdity — of the legal and constitutional maneuverings under scrutiny.

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This summary provides an in-depth guide to the episode, capturing the core cases, legal theories, and institutional stakes—essential for anyone tracking how American democracy is being negotiated in the courts during Trump’s second term.

Transcript

[A]

That is where we've seen this Supreme Court push back on the president and say, you have to provide some measure of due process. The idea that no process is required, and simply the bald assertion by the executive branch that these individuals fall into this category of people who can be deported pursuant to this, let's say, emergency authority. I'm not sure the courts are going to go that far.

[B]

Hello, and welcome to the GD Politics podcast.

[C]

I'm Galen Drake.

[B]

It's hard to open the news these days and not get the sense that democracy is on the fritz. And I'm not just talking about if you're mainlining msnbc. Within the past week, a headline of the Financial Times reads, The US sliding towards 1930s style autocracy warns Ray Dalio. The Wall Street Journal reads, in Trump's second term, a Bolder President charges ahead unchecked. Trump is frequently riffing on authoritarianism and ignoring caution from advisors. The New York Times reads, historians see autocratic playbook in Trump's attacks on on science. President Trump has tested and, according to the courts, exceeded the bounds of his.

[C]

Power while in office.

[B]

He's deployed the National Guard against governor's wishes, levied tariffs of all manner, frozen funding to universities, cut off law firms from federal contracts, fast tracked deportations using the Alien Enemies act, fired a Fed governor and heads of independent agencies, installed allies at the Department of Justice. The list goes on. Some of this may be, well, things that Democrats don't like, and the remedy for that is to win elections. Some of it, though, may be illegal. And in those instances, the remedy is the courts. One of the most important tests of our system is whether the courts recognize breaches of the law when they happen and whether involved parties comply with court.

[C]

Rulings once they're made.

[B]

So today I want to get beyond what can sometimes feel like a nebulous freakout and, and talk about the cases asserting that Trump has exceeded his power and check in on where they stand. According to Just Security, there are at least 390 legal challenges to the Trump administration's actions. So we're not going to be able.

[C]

To get into all of them.

[B]

We're going to touch on some key ones. And here with me to do that is professor of law at Cardozo, Jessica Roth. She's also the co director of the center for Ethics in the Practice of Law and a former federal prosecutor. We have spoken plenty of times before. Jessica, although this is your first time on the GD Politics podcast, so welcome.

[C]

Thank you so much for being here.

[A]

Thank you for having Me, I want.

[C]

To start with a big one where there was recently a new ruling, and.

[B]

That'S with regards to the National Guard.

[C]

Being deployed to California against Governor Gavin Newsom's wishes.

[B]

It looks like a federal judge there.

[C]

Ruled that it was illegal.

[B]

So what happens now, and why was it illegal?

[A]

The judge ruled that it was illegal because it was in violation of the Pose Comitatus act, which is a criminal statute that makes it illegal to use the federal military to engage in essentially domestic police conduct. What the court did was ultimately enjoin the use of these forces for such purposes, but leaving open the door for those forces to remain and to do other kinds of activities. And. And then, of course, there's the possibility and the likelihood of an appeal to the Ninth Circuit Court of Appeals of this ruling, and then ultimately to the United States Supreme Court.

[B]

So, for the time being, it sounds.

[C]

Like if they're going to stay in California, they have to do things like protect federal buildings. Trump has also suggested that he might deploy the National Guard elsewhere. It seems like the legal questions surrounding the deployment of the national guard in D.C. are relatively cut and dry because of home rule. But do you have a sense of where legal challenges might go elsewhere in the country?

[A]

So I think the challenges elsewhere will probably be similar to what we saw in California. It will depend in part on what legal authorities the president invokes in order to actually send in the troops, and then also what the troops are doing on the ground. If they're engaged in activity similar to what the court found in California was violative of the Posse Comitatus act, then I think we would see a claim that those had to be enjoined. If they're employed in more sort of classics or protective of federal interests, protecting federal properties, for example, then the challenge might be different and involve asking, you know, whether they were legitimately or lawfully called up.

[C]

I think for a lot of the cases that we're going to get to today, the answer to how will the Supreme Court rule is we don't know, but there's a spectrum, right?

[B]

On some cases, there are some hints.

[C]

Here and there of maybe how justices.

[B]

Have ruled in the past or what.

[C]

Law is already on the books and the like.

[B]

So we're going to, I guess, play.

[C]

A game somewhat of reading the tea leaves here.

[A]

It's very hard to say how they would rule in the context of the calling up of the National Guard. Again, it's going to depend on what the authority is that the president invokes and whether or not the court thinks that there is sort of an inherent constitutional authority to act for the president, notwithstanding what the Posse Comitatus act says. There's also going to be a question of just sort of whether the state governor or private parties or whoever winds up bringing the suit in other states actually has a cause of action and standing to bring these cases. And because some of these disputes really go to the heart of the limits of the president's authority, and we've seen this court be very deferential to this president's authority and this idea of a very strong, unified executive, it could be that the way that they ultimately resolved some of these cases when they get there would be on relatively sort of narrow and seemingly uninteresting or relatively less interesting grounds, like saying you can't, you, the governor, or you, the people in the state, can't bring this action based on a violation of the Posse Comitatus act because that's a criminal statute. And so it can only be enforced by, guess what, people working for the Department of Justice under this executive branch for criminal violations by members of the armed forces. So it could be that that's ultimately sort of how the court resolves this question. And we get a very un satisfying answer about the limits of the president's authority and to what extent he's bound by the Pussy Comitatus Act.

[C]

Okay, let's move on to a new case, which is the attempted firing of Lisa Cook. She is a Fed governor. And the cause that Trump suggests the firing is based on is writing on a mortgage application that to different homes that she purchased were both going to be her primary residences. Now, I'm going to lump these together, although I understand that according to law there may be some distinctions. He has also either fired or attempted to fire different independent agency heads that fall within the executive branch. Some of this has already been considered by the Supreme Court. And to the best of my knowledge, they've hinted that while they would defer strongly to the president on staffing issues within the executive branch, that the Fed might be different. What is going on there?

[A]

There's this whole set of cases about firing senior level people in the executive branch, including at some of these independent and quasi independent agencies. Trump is asserting essentially an unfettered right directly under Article 2 of the Constitution to fire people for any reason or no reason at all. And a number of these officials who've been fired are pushing back and bringing suits seeking reinstate. What is happening is this very question. How much constraint can Congress place on the president in his ability to fire People essentially like they are at will employees. There are statutes that govern the employment of these people in many of these agencies, some of which have for cause provisions or language that's essentially cause, but spelled out with more specificity having to do with sort of dereliction of duty in office. Trump has been making this constitutional claim that again, goes back to this unitary executive theory, that any such restraint put into the law by Congress is actually violative of the Constitution because it unduly infringes on his authority in controlling the executive branch. And so the question will be, one, is that right? Do the courts ultimately buy that theory? And then second, if they don't buy that theory, what counts as cause? Part of that discussion will be how much deference to give to the President's determination about what constitutes cause. And then there will be sort of application to the facts presented. So in Lisa Cook's case, the allegation by the President is that she misrepresented certain facts in her mortgage application before she ever took office in the Fed. So, you know, first question, can Congress put limits on the President's ability to fire Fed governors? The statute says it has to be for cause. So is that a constitutional limitation? And then if it becomes a question of what counts as cause. Right. Is this the kind of thing that constitutes cause when it has nothing to do with her performance of her duties while in office?

[B]

I mentioned that the Supreme Court, while.

[C]

Accepting Trump's authority to fire other members of the executive branch, has hinted at perhaps a Fed carve out.

[B]

Why this sort of carve out for the Fed.

[A]

Yeah. And to be clear. So you're absolutely right that the Supreme Court has hinted. I shouldn't say hinted. They said expressly in an opinion recently that the Fed is likely different. Right. This was the context of a different case having to do with the firing of somebody at a different agency, not the Fed. But strangely, the court sort of went out of its way to say, but by the way, the Fed would be different. And, you know, that was in the context of Trump saying that he was thinking about firing the chair of the Fed. So what's. Why would the Fed be different? Well, what the Court said in that opinion, in what we would call sort of classic dicta, meaning it wasn't necessary to the holding of the case that the Fed was in some way sort of differently situated in our governmental structure, that it was independent. Right. In a way that was meaningfully different from even other agencies that were categorized as independent agencies. And that sort of the history of the Fed and The functions that it served in our country were distinguishable enough from other agencies that the for cause requirement with respect to the Fed maybe sort of had more bite than a similar for cause requirement might have for other agencies.

[C]

Put the Fed to the side for a second. Does it seem like the court is heading in the direction of Trump can fire whoever he wants within the executive branch, apart from the Fed?

[A]

Well, on a number of cases that have been on what's called the shadow docket. Right. So where the court is not reaching the full merits of the case, the court certainly seems to be going in that direction. Right. By basically saying that the lower courts that enjoined the firing of these employees, the stay should be dissolved. Right. So it seems like. And they do that because they say we. We don't think there's a likelihood of success on the merits. Right. That this person is going to prevail. So that suggests that the court is aligning with the President in his claim that he can fire more of these people essentially at will, notwithstanding a cause requirement. But we should sort of point out that there is a precedent on the books here. The Humphreys executor case, which involved an FTC commissioner, where the court said that sort of a for cause requirement in the context of firing an ftc, a Federal Trade Commission commissioner, actually meant for cause. Now, the court seems to be narrowing that. But just today or just yesterday, there was a decision by the D.C. circuit involving an FTC commissioner who was fired by Trump, where the D.C. circuit found that her firing was unlawful because it wasn't for cause, and basically said, look, this old case, Humphrey's executor, is still good law until the Supreme Court explicitly tells us it's not. And so the for cause requirement means what it says, and the President has to provide cause.

[B]

Okay, let's move on to a group.

[C]

Of cases that I know you have been following very closely, and that is appointments within the Department of Justice. I think the case that has gotten the most attention is Trump's personal lawyer, Alina Haba, being appointed to U.S. attorney in New Jersey.

[B]

And there are questions about whether or.

[C]

Not that appointment is legal.

[A]

Yeah. Here Trump has put into place his personal attorney, Alina haba, as the U.S. attorney for the District of New Jersey. The Senate was not going to confirm her right through the normal advice and consent process. So he put her in on an interim basis pursuant to statutory authority that allows a President to fill a vacancy when there is no Senate confirmed nominee. But when it became clear not only that the Senate would not confirm her, but that the judges in the District of New Jersey would not appoint her to keep that position beyond the time period that is authorized for such an interim appointment. So once the writing was on the wall that that wasn't going to happen, in fact, because the judges appointed her first assistant to take over and to be the U.S. attorney when that expiration date came up. Right. Trump engaged in. And Pam Bondi, a doj, the Attorney General, engaged in a sort of a series of maneuvers to try to get. And in fact, now they have Alina Habba sort of back in that position by firing the woman who had been the first assistant, who. So that she wasn't there and available to serve in that position, and then appointing Alina Haba to be a sort of a special lawyer for the Department of Justice and appointed by Pam Bondi to serve all the functions of a U.S. attorney. That was one way. And then there was another way where they appointed her basically to the position that had been vacated by the first assistant. That's all very complicated, which is. But the short version is to say, my head's spinning. They engaged in a whole bunch of different maneuvers, arguably pursuant to various statutory authorities. Right. To get Alina Habba back in that position where Trump clearly really wants her to be. And that was challenged by defendants in New Jersey who were being Prosecuted by the U.S. attorney's office there, who basically said, the case is being litigated by the Department of Justice under Alina Habba's authority as U.S. attorney, and she's not lawfully in that position. And a district court judge recently issued an opinion saying, I agree with the defendant. She's not lawfully in that position. It's a lengthy opinion going through all the different statutes that Trump invoked to try to get Alina Habit back into this position and basically saying, this one doesn't work and that one doesn't work. Right. So there's a whole host of reasons why she's not lawfully serving in the position that she's nominally now in. And. And then, of course, that raises a whole bunch of interesting questions about practically sort of what happens in the District of New Jersey if she's not lawfully in her position. Can criminal cases move forward? And that has put essentially the District of New Jersey in a holding pattern while the case is appealed up to the Court of Appeals. Because although the government could, in theory, go forward with these cases and sort of risk that it's going to win at the Court of Appeals, that's a tremendous risk. And judges there have essentially just been postponing cases while this all gets worked out.

[B]

Can we talk for a second about.

[C]

What'S at stake here? So Trump really wants Alina Haba to be the U.S. attorney in New Jersey? Like, why? What has she done with the authority when she did have it?

[A]

Well, she's shown herself to be willing to go after the president's enemies sort of to do his bidding.

[B]

All right, and that is the end of today's preview. Head over to GDPolitics to become a paid subscriber and hear the full episode. We get into more of the cases that I mentioned at the top of the show, like deportations without due process, freezing funding to elite schools, and barring various law firms from working for the federal government. We also talk about the effects of some of these actions, even if the.

[C]

Courts ultimately block them.

[B]

Like I said, head over to GDPolitics.com to become a paid subscriber. Paid subscribers get about twice the number of episodes, can join in the paid subscriber chat, and most importantly, keep this podcast going. When you become a subscriber, you can connect your account to wherever you listen to podcasts so you'll never miss an episode. There's a link in the show notes explaining how. Again, head over to GDPolitics.com, see you there.