← Interesting Times with Ross Douthat
Interesting Times with Ross Douthat
From Deportations to Firings: Trump’s ‘Moonshot on Executive Power’
01:05:52
President Trump may forever reshape the boundaries of executive power. This week on “Interesting Times,” Ross and Jack Goldsmith, who was the head of the White House’s Office of Legal Counsel under President George W. Bush, discuss which cases are most likely to win in the courts and permanently expand the executive branch — for better or worse.
Loading summary
Transcript353 lines
- [00:00]
Dr. Horton
Now is your time to get into a new Dr. Horton home by taking advantage of their national red tag sales event going on right now through April 20th. Stop by any of their participating communities and find select red tag homes at Incredible Pricing. So whether you're buying your first home or looking for an upgrade, you don't want to miss the red tag sales event going on right now. Discover the Dr. Horton difference at Dr. Horton.com that's Dr. Horton.com Dr. Horton, America's builder and Equal Housing Opportunity Builder.
- [00:33]
Jack Goldsmith
From.
- [00:33]
Ross Douthat
New York Times opinion. I'm Ross Douthat and this is interesting times. One of the defining features of the second Trump administration has been the aggressive use of executive power over the administrative state, over the global economy, and potentially over and against the other branches of government. Donald Trump is attempting a revolution in.
- [01:15]
Unnamed Guest
Executive power, arguably unseen since the time.
- [01:17]
Ross Douthat
Of Franklin Roosevelt, and one that whatever happens will probably leave the executive branch dramatically changed.
- [01:25]
Unnamed Guest
So we're going to talk today about.
- [01:27]
Ross Douthat
Where this push is meeting the most.
- [01:29]
Unnamed Guest
Resistance, but also where and how it might succeed.
- [01:32]
Ross Douthat
And I'm joined today by a man with a lot of direct experience working on questions of executive power as the head of the Office of Legal Counsel under George W. Bush, a president not known for taking a minimalist view of executive power. Jack is now a professor at Harvard Law School, and he's been writing eloquently about executive power throughout the entire Trump era. Jack Goldsmith, welcome to interesting times.
- [01:59]
Jack Goldsmith
Thank you for having me, Ross.
- [02:05]
Unnamed Guest
So let's dive right in.
- [02:06]
Ross Douthat
In a recent essay, just a few days ago, you wrote that Donald Trump is, quote, taking a moonshot on executive power.
- [02:14]
Unnamed Guest
So let's start generally.
- [02:16]
Ross Douthat
What does that mean and how is.
- [02:18]
Unnamed Guest
This administration different from all other administrations?
- [02:22]
Jack Goldsmith
Sure. The Trump administration is pushing executive power to unprecedented places in new ways on many dimensions. I'll divide it up into a couple. First, vertically down through the executive branch, the administration has taken an unprecedentedly broad view of the unitary executive. Maybe we can talk about that more later. But the basic idea is that the president gets to completely control the executive branch, its decisions, firings, interpretations, interpretation of the law, that the president's views of the law prevail for the entire executive branch and everyone has to get in line for that. And there have been elements of this before, but this is much more extreme than ever. That's the vertical dimension. The horizontal dimension is that they are asserting super broad executive power claims vis a vis other institutions that have checkpoints against them, trying to weaken those institutions. Congress first, it's basically been attacking Congress's appropriation power, its core power, it's been attacking backing Congress's traditional ability to determine which agencies are which and how they're organized. And it's doing something analogous with courts. It's been being extremely aggressive in pushing back against and game playing with courts. I would not say that there's been any sort of systematic defiance yet, but they've come close to the line and they're being extremely disrespectful toward courts. And then they're pushing out executive power against civil society. You see this in the law firms, the universities and the like. So horizontally and vertically, they're pushing executive power, sometimes through interpretation of statutes, sometimes through Article 2.
- [04:04]
Ross Douthat
So we're going to get into each of those areas or try to. But just at the outset, we expected something like this. I think it was clear from the beginning that Trump, back in power, was going to be a more aggressive figure. What in this area has surprised you the most? I guess, given that anticipation.
- [04:23]
Jack Goldsmith
Right. So several things have surprised me. I wasn't prepared for the extent of the onslaught. It's really just remarkable how many things they're doing, especially inside the executive branch, to try to bring complete control of the president. And I wasn't expecting the extent of the loyalty tests and the insistent that the president gets determined what the law is and that there's no independent legal check.
- [04:50]
Unnamed Guest
And this relates to the work that.
- [04:51]
Ross Douthat
You did under George W. Bush doing.
- [04:53]
Jack Goldsmith
In the Bush administration. So my old office, the Office of Legal Counsel, has basically, which was traditionally in the Justice Department, traditionally the office that made legal interpretations for the executive branch, subject indeed to the review of the Attorney General and the president. That office has been basically set aside. And the White House is interpreting law. And the basic rule appears to be if the president wants to do something, it's lawful. That really does seem to be the operating principle. So the extent of that surprises me. The extortionate elements of the administration, the shakedown elements that remind me of a book I wrote about Hoffa and the Mob surprised me. I'm talking mostly about this is the law firms and arguably what they're doing a little bit with the universities, they're going beyond what Biden and Obama did and imposing penalties that are probably not lawful in the sense that they didn't comply with process. So doing something pretty overtly illegal to try to force settlements, knowing that the universities are in a bad position and might not push back. I didn't anticipate that form of aggressiveness. You know, Trump was pretty bad in the administration in the disrespect of courts in the first term. In fact, it was about eight years ago that the Chief justice issued an announcement not unlike the one three weeks ago, saying that the president needs to stand down a little bit in his criticisms, but they've gone much further. And frankly, I don't really understand the strategy. It's been a strategy of utter contempt for courts, basically, and reading directives narrowly, filing massively disrespectful briefs, threatening non compliance. I didn't expect the extent of that and I don't fully understand what goal that serves.
- [06:37]
Ross Douthat
Right. And so connected to that point, there's been a lot of talk just in the first few months from critics and skeptics of the administration looking at these kind of things and saying we're already in a constitutional crisis, that the administration is messing with the courts, it's being disrespectful to the courts, it's not following congressional statute and so on. In your view, what is a constitutional crisis and how will we know we're in one?
- [07:04]
Jack Goldsmith
So I'm going to give you an answer you won't like. I don't like that terminology. I don't like that conceptualization because it gives one a sense that there's an all or nothing line after which we're in a crisis. And I'm not sure quite what happens when that crisis hits. Here's the way I think about it. There's definitely been a diminution, significant diminution in legal checks on the President. He's wiped them out inside the executive branch. Congress has not only been silent, but it's facilitated the wiping out of including congressional prerogatives by confirming people that they knew were going to do things that were going to emaciate Congress. The only check right now, the only real check right now on this presidency, legal check, is the courts. And so, you know, if the courts were issuing directives on a regular basis and he was defying them, or if the game playing continues to such a degree that they're not really paying attention to law, then we would be in a place where the President was approaching lawlessness. I don't think we're close to that yet. I want to emphasize it's extremely early in the judicial process. There's a lot going on. There are 150 cases. I can't keep up with them all. And the administration can do a lot of damage before courts can weigh in and kind of set boundaries.
- [08:18]
Ross Douthat
So let's get into some of the specifics. We're not going to tackle all 1,233 pieces of standing litigation. But I'm going to pick up on some of the categories you talked about and I guess give them my own spin for a minute and say I'm interested in talking about issues of deportation, especially deportation to El Salvador, in particular.
- [08:40]
Unnamed Guest
To a Salvadoran prison especially.
- [08:42]
Ross Douthat
There's power over the federal bureaucracy and you've been talking about that. And then I think we should mention power over economic policy and tariffs, and then we'll circle back, I guess, to crisis scenarios and also non crisis scenarios at the end. So let's start with power over noncitizens. You've had visa and green card holders have been detained and people have had their visas canceled over political activism, participation in campus protests. There's some debate about the specifics. In one case, it appears that a woman had her visa canceled because of an op ed she wrote. So there's that terrain. And then the administration has invoked the Alien Enemies Act, a law dating to 1798, giving the president broad wartime powers to detain and deport non citizens and use that as a justification for the.
- [09:38]
Unnamed Guest
Deportations to El Salvador in particular.
- [09:41]
Ross Douthat
So first, just to continue what we were saying before, just how radical do you think this set of actions are?
- [09:46]
Jack Goldsmith
So I haven't studied the visa removals. I do know the Secretary of State has broad authority to do that. I mean, I find them despicable because of, you know, basically punishing someone because of their speech and pretty mild speech in some cases. I know more about the Alien Enemies act, and this is extreme and novel because this statute, which dates to the 1790s, it has only been used a few times and only in war, real war. It has two provisions, one of which allows deportation when there's actually a declared war, and then another provision which allows deportations when there is an invasion or predatory incursion by a foreign nation or government. That is the part they're relying on. It's very questionable whether the Venezuelan terrorist organization that has come to the United States in some respects satisfies that. I think they're probably going to lose on that ultimately. There's nothing wrong with the administration trying to invoke the Alien Enemies Act. It's a statute on the books, and there's nothing wrong with them invoking it. It was wrong for them to deport 240 people basically in anticipatory circumvention of a district court judge, maybe unlawfully. I think probably they were deported unlawfully before a court had time to rul on it. And then the Supreme Court kind of weighed in on that in an emergency orders opinion, basically said these folks all had to have due process and notice before this could happen. So trying to put a stop on it going forward, that was very bad.
- [11:22]
Ross Douthat
And that was the precedent.
- [11:24]
Unnamed Guest
Right.
- [11:24]
Ross Douthat
That even in cases like World War II, that if you detain someone and deported them because they were German or you had suspicions of Nazi sympathy.
- [11:34]
Unnamed Guest
Right.
- [11:35]
Ross Douthat
The precedent suggested that they still got a hearing.
- [11:37]
Unnamed Guest
Right.
- [11:38]
Jack Goldsmith
Or is that the precedent is actually extremely unclear. I'm sorry to tell you.
- [11:44]
Ross Douthat
That's fine.
- [11:44]
Jack Goldsmith
No, it's a precedent involving actual alien enemies in wartime. There they actually got process in the executive branch before they came to court. And I read the case to say that there's judicial review over whether the person is actually an alien enemy.
- [11:59]
Unnamed Guest
Right.
- [11:59]
Jack Goldsmith
That's the important point.
- [12:01]
Ross Douthat
So in this case, you would be able to contest whether you are actually a member of the Venezuelan gang.
- [12:06]
Jack Goldsmith
And I think that's what the court basically affirmed in short order. That's the important thing.
- [12:10]
Unnamed Guest
Right.
- [12:11]
Jack Goldsmith
Well, not only whether you're a member of the gang, but whether the gang satisfies the statutory criterion. They might not constitute an invasion by a foreign nation or government. They probably don't. They're a private entity. The government, in its breeze, is trying to argue that they're closely associated with the state. The government, in my opinion, has an uphill climb to even get the statute to apply. So that gets to be litigated, in my view. And also the question whether if the statute does apply, the individuals actually fall under the statute.
- [12:39]
Unnamed Guest
Right. And that's the claim that's being made.
- [12:41]
Ross Douthat
On behalf of the people who have already been sent to El Salvador that.
- [12:45]
Unnamed Guest
They were not actually in the gang.
- [12:47]
Ross Douthat
That they were misidentified as gang members.
- [12:49]
Unnamed Guest
Based on tattoos and so on. Right.
- [12:51]
Jack Goldsmith
That was the claim for at least some of them and maybe all of them. Yes.
- [12:53]
Unnamed Guest
Right.
- [12:54]
Jack Goldsmith
But even if they were gang members, they still might have been deported illegally because those gang members might not implicate this statute. I don't think it does. I don't think that this is a predatory invasion by a foreign nation.
- [13:07]
Unnamed Guest
Right.
- [13:08]
Ross Douthat
But that would be litigated, I mean, like most of these things, all the way to the Supreme Court.
- [13:12]
Unnamed Guest
Right?
- [13:12]
Jack Goldsmith
Yes.
- [13:12]
Ross Douthat
In the end, the Supreme Court is going to issue, presumably, a ruling on.
- [13:17]
Unnamed Guest
Whether you can apply the Alien Enemies.
- [13:19]
Jack Goldsmith
Act to this gang.
- [13:20]
Unnamed Guest
To this gang.
- [13:20]
Jack Goldsmith
Yes.
- [13:21]
Unnamed Guest
But for a little while, was the.
- [13:23]
Ross Douthat
Administration formally arguing that its power here was unreviewable?
- [13:27]
Jack Goldsmith
They basically early on, were arguing that their power was unreviewable, but then they.
- [13:31]
Ross Douthat
Walked part of that back.
- [13:33]
Unnamed Guest
Right.
- [13:33]
Ross Douthat
By the time it had reached the Supreme Court, they were saying, well, of course, we concede that people get some kind of review.
- [13:41]
Jack Goldsmith
Yes. And this has been a pattern. Yes. The Solicitor General's brief in the Supreme Court, I mean, it wasn't a perfect brief, but it was a much more sober brief on the law. And this has been a pattern. The lower court briefings have been making wildly extravagant claims, and by the time it gets to the SG and goes to the Supreme Court, it gets toned down and refined.
- [14:04]
Ross Douthat
So let's talk about probably what is now the highest profile case involving an illegal alien remanded to El Salvador, and that is the case of Kilmar Abrego Garcia. He was deported to the Salvadoran prison. He is presumably held there at the moment. And there was a. Essentially a stay of removal, Is that right?
- [14:26]
Jack Goldsmith
Yes. He was determined to be removable, but not to El Salvador, because he would be, the court determined, subject to persecution there. So this was the one place he was not supposed to be sent, and they sent him there. They didn't explain it, but they said it was a, quote, unquote, administrative mistake. They've acknowledged that it was a mistake and he should not have been sent there. So he's there now, and the question is what to do about it. What can, if anything, the courts do about it.
- [14:54]
Unnamed Guest
Right.
- [14:55]
Ross Douthat
And something may change with this case between the time we're having this conversation and when the podcast actually appears. But right now, what is the state of play in terms of. Because the Supreme Court has actually spoken on this case to some extent.
- [15:08]
Jack Goldsmith
Yes. So I'll try to be brief and tell me if I get too technical, but basically, the Supreme Court, in an emergency order, issues what was an ambiguous opinion at the time and has grown more ambiguous as we read it more and see what's happened since. It basically said that the order properly requires the government to facilitate Garcia's release from custody in El Salvador. That sounds good for him. But it also said that the district court may have overstepped its mandate by saying that the government had to effectuate the release. And it also said that the district court had to pay the government, the president, deference in foreign affairs.
- [15:51]
Unnamed Guest
Right.
- [15:51]
Jack Goldsmith
They took a maximal, as they have in every other context, a maximal interpretation of the deference foreign courts have to give them. And they've been exerting claims of foreign policy exclusive power anywhere there's a foreign policy issue in the case They've been saying the courts can't deal with it. And it's an extravagantly broad position.
- [16:12]
Unnamed Guest
Right. And the government's claim, just to be.
- [16:14]
Ross Douthat
Clear, is that they made a mistake, but now he's in a foreign country under foreign sovereignty.
- [16:20]
Unnamed Guest
The foreign sovereign, as of this taping.
- [16:22]
Ross Douthat
Has said they're not going to return him. And then presumably you could argue that.
- [16:26]
Unnamed Guest
It'S not in the interests of US Foreign policy to force that foreign country.
- [16:30]
Ross Douthat
To return him, which is, you know.
- [16:32]
Unnamed Guest
A not entirely plausible argument, given that.
- [16:34]
Ross Douthat
El Salvador is a client state of the United States.
- [16:36]
Jack Goldsmith
I would say it's an implausible argument.
- [16:38]
Ross Douthat
Yes.
- [16:38]
Jack Goldsmith
So this goes back to the district court and basically I see the court as trying to nudge both sides to do the right thing. The right thing is obviously that the district court cannot tell the president that he has to negotiate with a foreign sovereign and to ensure that this person is brought back to US Custody and brought back to the United States. That's, as I see it, one side of what they're thinking. On the other hand, the president made a mistake and should and may have a duty to do everything he can to bring this person back. I read this ambiguous decision as trying to get both sides to cool down and reach some accommodation. And unfortunately, that is not what happened. On remainder, on remand, the district court, in my judgment, acted hastily, did not give deference to the government. He required it to immediately start giving information. The government responded obnoxiously and basically saying, we're not going to play ball here. They gave a little of information. They said he was alive. And the government gave an extremely narrow interpretation of what the Supreme Court's order meant. So both the district court read the opinion one sidedly and then the government read it one sidedly, and now we're in a worse position.
- [17:49]
Unnamed Guest
Right.
- [17:49]
Ross Douthat
I want to pull back from this just for a second and talk about the larger. Well, there's a moral question here, and.
- [17:57]
Unnamed Guest
I'm curious how much of a legal.
- [17:58]
Ross Douthat
And constitutional question it is, which is that a big part of why these deportations have become so understandably controversial is not just about whether they are following the precise procedures involved, whether there have.
- [18:12]
Unnamed Guest
Been mistakes made, all of these things. Right.
- [18:14]
Ross Douthat
It's because we're deporting people to a prison and a bad prison and a.
- [18:19]
Unnamed Guest
Prison that advertises itself as a bad prison.
- [18:23]
Ross Douthat
And the Trump administration has explicitly said.
- [18:26]
Unnamed Guest
We are glad we're sending bad people.
- [18:28]
Ross Douthat
To this tough and this is part.
- [18:30]
Jack Goldsmith
Of their PR campaign.
- [18:32]
Ross Douthat
So one, I mean, to me Politically.
- [18:35]
Unnamed Guest
In the realm that I mostly write.
- [18:36]
Ross Douthat
About and talk about, I think clearly.
- [18:39]
Unnamed Guest
The Trump administration came in with a political mandate to increase deportations.
- [18:43]
Ross Douthat
The Biden administration's immigration policy was I.
- [18:47]
Unnamed Guest
Think, widely acknowledged to be at least somewhat disastrous.
- [18:50]
Ross Douthat
I would say generally disastrous. The Trump administration, I think, is understandably impatient with realities.
- [18:58]
Unnamed Guest
Like in the case of Garcia, where.
- [19:00]
Ross Douthat
You have someone who he's been in the United States illegally for many years and yet you can't deport him to.
- [19:06]
Unnamed Guest
His home country because of a judicial order.
- [19:09]
Ross Douthat
Right. When I've talked to people who are.
- [19:11]
Unnamed Guest
Sympathetic to the administration's position, they've said.
- [19:13]
Ross Douthat
Look, if you're doing this for every illegal alien, we're never going to be able to achieve anything. And my response generally is that's fine to say, but you're sending people to prison, Right.
- [19:27]
Unnamed Guest
How much does that enter into the.
- [19:28]
Ross Douthat
Legal and or constitutional side of this debate?
- [19:34]
Unnamed Guest
Maybe it doesn't, right.
- [19:34]
Ross Douthat
Maybe we're just saying, well, we deported them to El Salvador, that's a sovereign country, and by coincidence the government of El Salvador Salvador put them in prison.
- [19:41]
Unnamed Guest
Right.
- [19:42]
Ross Douthat
I mean, what's the legal debate here?
- [19:45]
Jack Goldsmith
So this is actually something of a novel issue. Let me just say one thing to amplify what you said and then I'll answer your question. It's a serious problem that the administration has because there are lots of unlawful immigrants in the United States and the lawful process to deport them takes a lot of time and a lot of resources. And the Alien Enemies act was a possible shortcut.
- [20:05]
Unnamed Guest
Right.
- [20:06]
Ross Douthat
A shortcut, though, for a pretty. I mean, even if the Supreme Court blesses it, right.
- [20:11]
Jack Goldsmith
It's narrow.
- [20:11]
Unnamed Guest
It's still just talking about a particular.
- [20:14]
Ross Douthat
Gang from Venezuela and maybe other gangs.
- [20:17]
Jack Goldsmith
That they could find to meet that.
- [20:18]
Unnamed Guest
Right.
- [20:19]
Jack Goldsmith
The statutory criterion, which I don't think is going to happen. So are you asking me, does the moral argument.
- [20:25]
Ross Douthat
I'm asking you, are there any particular.
- [20:27]
Unnamed Guest
Legal issues raised by deporting people to.
- [20:30]
Ross Douthat
Foreign prisons that would not obtain if you were just deporting them and, you know, leaving them at the border of El Salvador and waving goodbye?
- [20:39]
Jack Goldsmith
I don't really know the answer to that question. I mean, the problem is that the executive branch is going to claim, and it will have some authority for this, is that once they're outside of the country and under the control of another sovereign, then formally they're not in their custody. And formally the government can't do anything about it. So the custody matters for that point. It's under sovereign control. But that might be the case, even if the person weren't in prison. That's where the legal issue comes up. Judge Wilkinson, for whom I clerked, said that this case is a real dilemma. One very important thing for everybody to understand is federal courts have limited remedies. They cannot right every wrong under their proper doctrine. And this is an especially hard one. Once the person goes out of the country and is there, and there is going to be a limit in which the court can order the executive to negotiate to do this release. Ultimately, I think it's going to have to depend to some degree on the President's good faith. On the other hand, as Judge Wilkinson pointed out, and I think Justice Sotomayor did too, you're setting up a system where the President can snatch someone, send them abroad, and say, I can't do anything about it. And that clearly is not something that courts can tolerate. As Judge Wilkinson put it, how that cashes out into law is to be determined.
- [21:57]
Unnamed Guest
How about the citizen, non citizen distinction here?
- [22:00]
Ross Douthat
Let's say that after this podcast airs, you know, someone comes up and puts us into custody and we get sent to El Salvador together. Hopefully we share a cell. And the government says, oh, we're very sorry. We meant to remove two illegal aliens who were also in the New York Times building at that time. We accidentally took Jack Goldsmith and Ross Douthat. Unfortunately, they are in a foreign country.
- [22:27]
Unnamed Guest
Under the government of El Salvador's sovereignty.
- [22:30]
Ross Douthat
And we can negotiate, but we can't guarantee we'll get them back.
- [22:33]
Unnamed Guest
Is that a different legal issue than.
- [22:36]
Ross Douthat
The one the Garcia case presents?
- [22:37]
Jack Goldsmith
Not from the government's perspective. As far as I can tell, their claim is once the person is outside of sovereign control and in another country, then it's outside of their hands. That's the best. As best I can read their argument. And obviously this is a.
- [22:52]
Ross Douthat
That seems like a problematic argument.
- [22:53]
Jack Goldsmith
Well, you know, it seems like a problematic argument. I agree with you. The question is how are courts going to remedy it? Right, because there are going to be limits to courts ordering the President to negotiate with a foreign sovereign. In any other presidency, this person would have been returned by now because this should be a political disaster. But really, the alien, non alien thing, this person was taken out unlawfully and a US Citizen would have been taken out unlawfully, and that should be enough to trigger the return. But the government, they haven't spoken about citizens. Right, but nothing in their argument distinguishes citizens from non citizens, as best I can tell.
- [23:32]
Ross Douthat
Would there be any distinction in, let's say, the legal exposure of, you Know, the agency that. That did the deportation. I'm just, you know, my lawyer. I'm talking to my lawyer from El Salvador. Right. And I'm saying, who are you?
- [23:47]
Jack Goldsmith
Sue the government?
- [23:47]
Ross Douthat
Yeah. Who are you going to go after?
- [23:49]
Unnamed Guest
Right.
- [23:49]
Jack Goldsmith
So. So I teach a course called Federal Courts, which involves issues like this. And this would be an action for damages against a federal officer for violating the Constitution or violating a statute.
- [24:04]
Ross Douthat
That sounds good. I'd like to sue for that.
- [24:05]
Jack Goldsmith
Yes, that sounds good. And the Supreme Court has put up massive, massive barriers to that in the last 20 years. So this might be a case that squeezes in the very narrow exception, but basically, it would be hard.
- [24:21]
Ross Douthat
Okay, so it seems like the Supreme.
- [24:23]
Unnamed Guest
Court has a very, very strong interest in figuring out how to get the.
- [24:27]
Ross Douthat
Trump administration to get Garcia back to.
- [24:30]
Jack Goldsmith
The US I would say yes. And I think that that order was a first effort. I think that their really strongest interest is to try to stop it going forward.
- [24:39]
Unnamed Guest
Right.
- [24:40]
Jack Goldsmith
I think the court is really trying to lay down markers for the future as much as for trying to fix this case. I will just say this is not a happy thing to say, but if the Trump administration plays hardball here and says, we are not going to negotiate and you can't make us, I don't think the court can make them negotiate with a foreign sovereign. Now, there may be some sanctions they can impose. I'm not sure, but I don't think that that's going to be effective. I hope it doesn't come to that.
- [25:07]
Ross Douthat
Who would the sanctions be on the people arguing the case for?
- [25:11]
Jack Goldsmith
Depending on how they argue it and whether they were being candid. But I want to emphasize that it's going to be very hard to enforce a remedy here ultimately if the Trump administration doesn't want to play ball. And I'm not sure that there are five justices on the court that would even try to go there.
- [25:25]
Ross Douthat
Are you familiar with Godel's loophole?
- [25:27]
Jack Goldsmith
No.
- [25:28]
Ross Douthat
Okay, so this is the idea that.
- [25:31]
Unnamed Guest
The famous Austrian mathematician Kurt Godel.
- [25:34]
Jack Goldsmith
Oh, yeah, okay.
- [25:35]
Unnamed Guest
Right.
- [25:35]
Ross Douthat
Who supposedly told friends that he had studied the US Constitution and discovered the loophole whereby a president could become a dictator. And the story goes that, you know, he found it, but essentially he knew what it was, but no one else knew what it was, and the secret died with him. And listening to you describe these scenarios, it does sound a little bit like Godel's loophole.
- [25:59]
Unnamed Guest
Right.
- [25:59]
Ross Douthat
Where essentially the president can do whatever.
- [26:02]
Unnamed Guest
He wants as long as he manages.
- [26:04]
Ross Douthat
To remove his enemies to foreign soil.
- [26:09]
Unnamed Guest
Right.
- [26:10]
Jack Goldsmith
Yep.
- [26:10]
Unnamed Guest
To the extent that this is a suddenly discovered loophole, what would be the remedy for it?
- [26:16]
Jack Goldsmith
So let me back up. So much of our law depends on a presumption of regularity in the presidency. It depends on the court's thinking that they can trust the president to comply with orders and to be honest and truthful in court and the like. If we got to that situation, the court would have to impose more and more extreme remedies, ordering the government in more and more extreme ways not to take steps to send anyone out of the country. They would just have to enjoin the various agencies, and you'd have to get the right kind of case and the right kind of plaintiffs and maybe the right kind of class action. And it might be tricky, but there could be forms of ex ante injunctions. But again, this is back to the earlier conversation. If the president defies the injunction and just does it anyway, then the court has not many tools.
- [27:09]
Ross Douthat
So this would be a case where.
- [27:12]
Unnamed Guest
If this practice continued, you would need.
- [27:14]
Ross Douthat
Congressional legislation basically saying we are imposing penalties for removing American citizens from the country without trial.
- [27:22]
Jack Goldsmith
But then that gets us to our conversation about whether they're going to enforce the law.
- [27:27]
Unnamed Guest
Right.
- [27:27]
Jack Goldsmith
But I mean, it's extremely hard to predict how these things are going to work out because we haven't had this before. So I think the only hope is that the court issues extremely, increasingly stringent injunctions preventing this ex ante and that the administration complies. But ultimately, this is only going to work if there's public consensus and pressure behind this. You have seen, I've seen conservatives not like, and especially libertarian conservatives not liking whisking people away and not give without due process illegally, which is what they've been doing. So, but I just can't emphasize enough that the court can be wise and prudent in crafting remedies to try to constrain the president. But if you have a president that is willfully engaging in bad faith and complying with those remedies, the court ultimately only has whatever support the country will give it through the political process.
- [28:26]
Ross Douthat
All right, I'm going to leave our hypothetical selves in Central America then for the moment. And when we come back, we'll talk about Trump's assertions of executive power over other areas of government, in particular over federal spending.
- [29:02]
Somini Sengupta
The last thing you want to hear when you need your auto insurance most is a robot with countless irrelevant menu options, which is why with USAA auto insurance, you'll get great service that is easy and reliable, all at the touch. Of a button, get a quote today, restrictions apply.
- [29:16]
Unnamed Advertiser
USA this is Somini Sengupta. I'm a reporter for the New York Times. I've covered nine conflicts, written about earthquakes, terror attacks, droughts, floods, many humanitarian crises. My job is to bear witness. Right now I'm writing about climate change and I'm trying to answer some really big and urgent questions about life on a hotter planet, like who is most vulnerable to climate change? Should we redesign our cities? Should we be eating differently? What happens to the millions of people who live by the coast as the oceans rise? To make sense of this, I talk to climate scientists, inventors, activists. Mostly I document the impact of global warming. And that impact is highly, highly unequal. My colleagues and I are doing our best to answer complicated questions, questions like these, but we can't do that without our subscribers. If you'd like to subscribe, go to nytimes.com subscribe and thank you.
- [30:26]
Ross Douthat
Now, I want to turn to a different area, which we've already previewed a little bit, which is President Trump's claims of power over the administrative state, but then beyond that over federal spending as a whole. So these categories include all of the attempted firings of federal employees, the restructuring of agencies like USAID and others. At the baseline, this, to me seems like both the place where a conservative leaning Supreme Court is most likely to be sympathetic to the president and also the area where at a baseline, I.
- [31:00]
Unnamed Guest
Think the administration just has the strongest case.
- [31:03]
Ross Douthat
You mentioned already, the unitary executive theory, which is a sort of right leaning theory of constitutional power. Why don't you just talk for a minute about that theory and how it shapes this debate?
- [31:12]
Jack Goldsmith
Sure. So the unitary executive theory has been kicking around since the founding, but that name got going really popularly during the Reagan administration, is basically the idea that as the Supreme Court said in Trump vs United States, the president is the executive branch, all executive power, all of it is vested in the President. The president alone has the power to take care, to faithfully execute law. And what flows from that, under the pure theory, is basically that the president gets to control and direct and fire all subordinate executive officials. That's the pure theory. So whether it's an administrative adjudicator or someone on a commission or someone in the Justice Department, the president can direct and control and fire if they don't obey. The Supreme Court has never gone that far. It's actually never gone close to that far. And what the Trump administration is doing is trying to push it as far as it can. The cases they're most likely to Win, in my judgment, are the ones where they've been firing. This is the NLRB and the Merit Systems Protection Board. These are independent agencies. That means they're agencies where the members have protections for cause for inefficiency and malfeasance. That is, the president needs to give a reason before they can fire them. And the administration is making a frontal assault on those, and that's where they're most likely to win.
- [32:42]
Unnamed Guest
In practice, though, they have been trying.
- [32:44]
Ross Douthat
To fire within administrative law, Right.
- [32:48]
Unnamed Guest
Like this is why they've tried to.
- [32:50]
Ross Douthat
Fire people who are provisional or people who've been newly hired or I think idiotically, but people who are on track for a promotion.
- [32:59]
Unnamed Guest
Right.
- [33:00]
Ross Douthat
And therefore fall into this category that is legally vulnerable to firing.
- [33:04]
Jack Goldsmith
Maybe more or less. Yes. So that's basically right. There are various ways that executive branches have to fire people, put them on administrative leave. Probationary employees can be fired. There are a whole bunch of statutory ways to fire. And that's how they've primarily been doing this. They have also in a couple of the cases, I think in setting up a Supreme Court case, especially for firing the highest level career appointment, they've asserted the Article 2 argument, and that's where they're going to begin at the next level, going down. I really want to emphasize how broad based and multifaceted this strategy to incapacitate the executive and control the executive branch is. But mostly, yes, what you call the administrative law strategy is how they've been proceeding.
- [33:48]
Unnamed Guest
Right?
- [33:49]
Ross Douthat
And then the end game here, it's not just the place where they seem to have the strongest constitutional argument. It's also the place, to me, as.
- [33:58]
Unnamed Guest
An observer of American politics, where they.
- [34:00]
Ross Douthat
Seem to have the strongest political argument. And I just spent, you know, the weekend reading in our own newspaper accounts.
- [34:08]
Unnamed Guest
From the Biden administration of how impossible.
- [34:11]
Ross Douthat
It is for the executive, the actual executive, the president of the United States, to effectuate policy through the system of.
- [34:19]
Unnamed Guest
Government that we have built up.
- [34:21]
Ross Douthat
And the roadblocks are not obviously all just within the administrative state.
- [34:24]
Unnamed Guest
There's lots of different roadblocks.
- [34:26]
Ross Douthat
But it does seem to me that.
- [34:28]
Unnamed Guest
The system as we have it is.
- [34:30]
Ross Douthat
One where we elect a president. The president has incredibly broad powers in theory, and then in practice, the inability to exert control over the government is a big problem for American governance. And I can certainly see why liberals.
- [34:48]
Unnamed Guest
And Democrats would not want the Trump.
- [34:50]
Ross Douthat
Administration in particular to exert that kind of control. But it also seems to me like an end game where there's a bunch.
- [34:57]
Unnamed Guest
Of Supreme Court decisions, favorable to executive.
- [34:59]
Ross Douthat
Power, and presidents just have a little.
- [35:02]
Unnamed Guest
More direct control over who is hired and fired in their agencies and administrations.
- [35:07]
Ross Douthat
Is something that in the long run.
- [35:09]
Unnamed Guest
Could be good for the workings of American government.
- [35:11]
Ross Douthat
And I know this is a political question and not a legal question, but I'm curious.
- [35:14]
Jack Goldsmith
I'd like to weigh in on it, though. So I'm very sympathetic to the claim. And it's true. I think there's a general consensus now the government's not working well. It's too slow, it's too burdensome, too much bureaucracy, too many rules. Getting at the employees and controlling them is only part of the problem. I mean, there's still procedure that has to be gone through before you change some of these burdensome regulations. It's not just a question of controlling employees. But let me say that there are costs to getting control of the government. The president, when he gets control of the Federal Reserve, that might not be a good thing. When he gets control of the FCC and starts using the FCC to weaponize the FCC because he has control and it's not an independent agency, not going to be a good thing. There are downsides, serious potential downsides, especially for a president unconstrained by norms inclined to weaponization. Serious downsides, right from having the president have complete control. And so I think there's. The point I want to make is there's a bit of a mismatch between thinking too much red tape and the answer is giving the president full control of everything. I mean, it's not quite that simple.
- [36:27]
Ross Douthat
Well, then let's talk about sort of what seems to me like the furthest extent of this argument and the place where my own sympathy for it starts to break down, which is the question of presidential control broadly over how congressionally.
- [36:42]
Unnamed Guest
Appropriated funding is spent and ultimately whether it's spent at all.
- [36:46]
Ross Douthat
And so there's a couple of questions here where I think, again, we're going to have Supreme Court cases on all.
- [36:54]
Unnamed Guest
Of these things, right?
- [36:55]
Ross Douthat
But first you have the question of Congress, you know, appropriates money for usaid. Question is, how much control can the executive exert over how that money is spent? Can it take that money and say, okay, Congress appropriated this money for foreign aid, but we think the interests of the US Government are served.
- [37:15]
Unnamed Guest
If we define foreign aid to mean.
- [37:18]
Ross Douthat
Subsidies for conservative podcasters in East Asia, Singaporean podcasters, instead of humanitarian aid or something, to take an imaginary example. So you're still spending the money, but you're spending it differently. But then there's also the more potentially sweeping claim, which I'm interested in, because it seems like it would push executive power basically as far as it can go, which is the claim that the president has what's called impoundment power over federal spending. Can you just describe what that argument is?
- [37:53]
Jack Goldsmith
Sure. The empowerment power that the Trump administration has been talking about is the idea that the president has power under Article 2 of the Constitution, constitutional power to basically not spend appropriated funds, that this is an element of the executive power and of the president's discretion under the Take Care clause, which is the clause that says the president has a duty to take care that the law be faithfully executed. And that has a discretionary component. So the basic idea is that Congress's core power to tell the president to spend this money on this program can be basically killed by a president in his discretion if he doesn't want to spend the money. And what we're talking about here is how much discretion the president has in the Trump context. In the Obama context, it was spending money maybe that he shouldn't have been spending, but in the Trump context, it's not spending money that Congress wanted him to spend. Almost all of the arguments they've made thus far have been what you called administrative law and what I'm calling statutory arguments. That is, they've been down in the weeds of this, and it's really amazing how much in the weeds it's been. This statute actually gives us discretion to not spend if we don't want to. There's something called programmatic delays, which give any administration discretion to delay spending, because there may be some legal thing you have to consider over here or some new policy over there. A lot of it has been breaching contracts that they claim they have the authority to do under relevant statutes. So most of what they've been doing, as far as I can tell, is taking advantage of their super planning and knowledge of the appropriation process, taking advantage of weaknesses in that and kind of what they're doing on the firing side, they're doing on the spending side. So the argument you were talking about, the empowerment argument, was the one that both President Trump and Russell Vogt, who's the head of the Office of Management and Budget and a hugely influential person in the administration. This is the argument that the President has a constitutional power regardless of what the statute's saying. There's a statute called the Empowerment Control act that purports to tell the president that he has to spend monies, with a few exceptions that are hard to meet.
- [40:07]
Unnamed Guest
And this was passed under Nixon, under.
- [40:08]
Jack Goldsmith
Richard Nixon, after Nixon, because Nixon tried to assert the constitutional empowerment authority that Trump is trying to assert now. Congress said no and wrote a statute vote. And the President have said, we have the Article 2 power to do this. That is, we have power under Article 2 to not spend money if we don't want to. They haven't, as best I can tell, made this argument squarely yet in the litigation. I might be wrong, but I have not been able to find an instance where they've made this argument squarely. I'm not sure why. I think it's a clear loser of an argument at the Supreme Court. So maybe that's why.
- [40:43]
Unnamed Guest
So your perspective is first, that the.
- [40:45]
Ross Douthat
Supreme Court would probably say that the.
- [40:46]
Unnamed Guest
Impoundment Control act is constitutional.
- [40:48]
Jack Goldsmith
The Impoundment Control act is clearly constitutional, and the President has a duty to enforce it and comply with it. And he doesn't have any Article 2 power to not comply with it. There might be an exception. If you look at historical practice and a memo Roberts wrote when he was in the White House in 1985, there might be an exception for military spending. There's going to be an argument about that.
- [41:11]
Unnamed Guest
Because a war could end.
- [41:12]
Ross Douthat
Right?
- [41:12]
Jack Goldsmith
A war could end. Or the President might think this spending demand is just inconsistent with my battlefield needs. There are a whole cluster of arguments, and throughout history, presidents, There has been a history of impoundment throughout American history. Not clear if it was a constitutional argument or a statutory argument, but they were more aggressive in the defense context. So the argument for a constitutional impoundment is, I would say, slightly stronger there, but outside of that context, and frankly, I don't think it'll even work there. There's just not really a good argument that. I mean, the appropriation power is given to Congress quite clearly. It's its core power. President has a duty to take care to faithfully execute the law. The argument is going to be, and they're pushing this, this is the TikTok case, that the discretion to enforce the law is discretion not to enforce the law.
- [42:03]
Unnamed Guest
Right.
- [42:04]
Jack Goldsmith
And that is an argument that builds on precedents in other administrations. The Obama administration, with its marijuana policy and with DAPA and daca.
- [42:14]
Unnamed Guest
Right.
- [42:15]
Ross Douthat
So those were just to be clear, because I think it's a useful thing. The Obama administration, in my view, essentially tried to change US Immigration policy in a pretty sweeping way in its second term by saying, we are going to carve out big enforcement discretion, discretion exemptions. Right.
- [42:32]
Jack Goldsmith
Yeah. And so basically what they did was they exercised enforcement discretion to make the statute be something that it wasn't. Now, typically, the Obama administration had some fancy arguments and they were closer to the law than what Trump is doing. Who doesn't care about that? They said, well, we've got conflicting priorities and their resource constraints. And those kinds of arguments are kind of legitimate arguments. I did not find what they did there successful. And by the way, neither did the Supreme Court, and it never really got there. But yes, the lower courts did not find it persuasive and conservative heads were exploding over it, of course. And now.
- [43:09]
Unnamed Guest
Right.
- [43:09]
Ross Douthat
No, I mean, my own. I wrote a couple of columns that I referred to it as Caesarism.
- [43:14]
Jack Goldsmith
Yeah. And the TikTok. Let me just explain this. The government's refusal for no reason other than they don't like it to enforce. The TikTok man is a more extreme version. It's basically saying we have a policy objection, therefore we're not going to enforce. And a cousin of that would be what the empowerment argument is, is that they would rely on a historical practice that doesn't give them what they want, and they would say that they have enforcement discretion they can exercise as they want. And that argument, I just really feel very strongly that argument's not going to work.
- [43:45]
Ross Douthat
Right. I mean, so this is what I don't understand about that argument.
- [43:49]
Unnamed Guest
And maybe it's connected to the practice.
- [43:51]
Ross Douthat
Of the past prior to the Impoundment Control Act. But if you took that argument to.
- [43:57]
Unnamed Guest
Its logical conclusion, wouldn't it mean that.
- [44:00]
Ross Douthat
You know, Congress could create Medicare by statute and a Republican president could just say, we're not going to run Medicare?
- [44:07]
Jack Goldsmith
Yes.
- [44:07]
Unnamed Guest
Right.
- [44:07]
Ross Douthat
So, but if this kind of argument came before the Supreme Court and you were a lawyer for the administration, and the Supreme Court said, okay, well, what is the limiting principle on this claim? Do you think they would come up with a limiting principle?
- [44:21]
Unnamed Guest
Would they say, well, of course, all.
- [44:22]
Ross Douthat
This means is we can cancel discretionary spending but not entitlements or something like. Would they try and find some kind of.
- [44:30]
Jack Goldsmith
I haven't seen the level at which vote and. And his general counsel have made this argument, have not drawn those distinctions. They've been at the level of Article 2. And let me just say the Supreme Court has been tentative here. They've been sensitive to the idea that in some contexts the president has to make enforcement decisions. There are resource constraints. He can't comply with every directive that Congress gives him, therefore, there has to be some non enforcement discretion. And how far that goes, we don't know. But they also said in those cases, if it ever came to Just not enforcing the law, period. Basically for a policy reason that would go too far.
- [45:13]
Unnamed Guest
Right.
- [45:14]
Ross Douthat
I'm interested in this both because I think, you know, it's a terrain where they have signaled potential for litigation, but it is also the place where, if you were imagining a total constitutional revolution as the outcome of the Trump administration, this would take you to a total subordination of the legislative to the executive. Right?
- [45:34]
Unnamed Guest
Yes.
- [45:34]
Jack Goldsmith
But let me emphasize, so would non enforcement generally. I mean, the tick tock decision, the tick tock precedent is really just as, if not more dangerous because it applies across the board. They just said the ban was clear, the Supreme Court upheld it and the President said, don't enforce it, Attorney General, and tell the private companies they don't need to comply. That is a more broad based threat if that took hold. So it's happening on many dimensions, right?
- [46:01]
Ross Douthat
Yeah. Well, and then obviously, in certain ways.
- [46:04]
Unnamed Guest
The biggest dimension that it's happening on.
- [46:06]
Ross Douthat
Is the economic policy of the United States. And the tariff debate, I think, has not been framed as much as these other debates that we're talking about as.
- [46:15]
Unnamed Guest
A kind of legal constitutional issue.
- [46:17]
Ross Douthat
Right. But the scale of the Trump tariffs has prompted lawsuits, or at least one lawsuit, I think, and threats of further lawsuits. Again, as a layman, I read through some of the claims and arguments that.
- [46:33]
Unnamed Guest
Trump is exceeding his authority, that nothing.
- [46:35]
Ross Douthat
In the tariff delegation power allows for these kind of moves at this scale, with this kind of duration. What do you think?
- [46:45]
Jack Goldsmith
I'm a dissenter. On this.
- [46:46]
Unnamed Guest
Interesting.
- [46:47]
Jack Goldsmith
Good. And I'm not a strong dissenter. I think it's much more complicated. So the, this is the one issue of presidential power that has brought out the conservatives. They haven't been complaining about anything else, which is shocking.
- [47:00]
Ross Douthat
Well, it's had.
- [47:01]
Unnamed Guest
Well, it's had.
- [47:01]
Ross Douthat
I mean, in fairness to the conservatives, it has had.
- [47:05]
Jack Goldsmith
These are my friends, by the way. Right.
- [47:07]
Ross Douthat
It has had immediate and dramatic effects on the global economy. Has, you know, has threatened. I mean, there are principles at work in legal debates, but there's also policy scale matters, and the scale of this policy seems quite substantial.
- [47:21]
Jack Goldsmith
My only point is that he's done a lot of other things that are extremely dangerous and should be contrary to conservative principles. Legal principles. But fair point. So let me just say a couple of things. First of all, and I just want to reframe it a little bit from the way the commentary's been treating this. First of all, Congress has been delegating tariff authority to the president since the 1790s on increasingly broad terms. The Supreme Court in Several decisions, several famous decisions has upheld pretty broad interpretations of tariff authority to the President many times. And the President has many statutory bases for issuing these tariffs. Now the focus has been on ipa, the International Emergency Economic Powers Act. I'm gonna have to just get into the law just a little bit.
- [48:05]
Ross Douthat
Do it.
- [48:06]
Jack Goldsmith
So this is a statute that was enacted in the 70s, and it is an extraordinarily broad deleg of power to the President whenever he finds, and this is the trigger, an unusual and extraordinary threat outside the United States. People have been saying, oh, this isn't one of those. Sorry. The presidents under IIPA dozens of times have made emergency findings of an extraordinary threat outside the United States much lower than the economic threat President Trump has identified. That part of AIPA will not be hard to satisfy. And then the statute says that the President, once that trigger is made, gets to regulate imports. And then President Nixon did this. It was an analogous thing. He did a 10% basically import duty under the predecessor to this statute. Identical language that justified the 10% duty. So the first point is, on the face of the statute, the President, in my judgment, has at least a plausible argument. So my only point is I don't know who's gonna win or lose this. My only point is that the President is on stronger legal ground. I'm not saying he's gonna win. He's on a lot of tricky legal issues. But.
- [49:22]
Ross Douthat
And look, but those tricky legal issues.
- [49:25]
Unnamed Guest
Also matter because the framing for this entire conversation. Right.
- [49:28]
Ross Douthat
Is not just what the Constitution says, but the political context and the political climate.
- [49:33]
Jack Goldsmith
Yes.
- [49:34]
Ross Douthat
And the Supreme Court clearly doesn't want to be in 17 different direct collisions with an aggressive administration. And so if you tell me, I.
- [49:45]
Unnamed Guest
Think the administration has a pretty good case here.
- [49:48]
Ross Douthat
What I hear is a plausible case. Plausible case. What I hear is that John Roberts and Brett Kavanaugh and maybe Amy Coney Barrett are going to want to pick their fight somewhere else unless they've.
- [50:00]
Jack Goldsmith
The opposite could be the be the case. This may be the example in which they show that the major questions doctrine is a principal doctrine or right, or they finally address the extent to which it applies in contexts that are arguably foreign relations. It's very hard to predict. But my only point is that I've just been reading commentary that says, you know, this is obviously illegal. And I haven't seen any one contrary piece I read. But. But. And I just want to insist that this is much more complicated than people have been letting on.
- [50:33]
Ross Douthat
All right, let's take a quick break. And when we come back, we'll talk a little more about potential conflicts at the place where all of these debates are heading, the Supreme Court.
- [50:52]
Jack Goldsmith
Foreign.
- [51:05]
Unnamed Guest
This podcast is supported by NetSuite.
- [51:08]
Somini Sengupta
Okay, business leaders, are you here to play or are you playing to win? If you're in it to win, meet your next MVP. NetSuite by Oracle NetSuite is your full business management system in one convenient suite. With NetSuite, you're running your accounting, your finance, your HR, your E commerce, and more, all from your online dashboard. Upgrade your playbook and make the switch to NetSuite, the number one cloud ERP. Get the CFO's guide to AI and.
- [51:33]
Jack Goldsmith
Machine learning at netsuite.com NYT netsuite.com NYT.
- [51:39]
Ross Douthat
We are living in interesting times, a turning point in history. Are we entering a dark authoritarian era or are we on the brink of a technological golden age or the apocalypse? No one really knows, but I'm trying to find out from New York Times opinion. I'm Ross Douthat, and on my show Interesting Times, I'm exploring this strange new world order with the thinkers and leaders giving it shape. Follow it wherever you get your podcasts. All right, Jack, we were just talking about how the Court might rule or how the Court might think about a ruling on tariffs and presidential power over tariffs. And I offered a kind of political framing for that decision where the Court might be calibrating how it rules and also which cases it takes and which battles it picks to a difficult political moment. So making decisions based on politics as.
- [52:43]
Unnamed Guest
Well as just a straightforward interpretation of.
- [52:45]
Ross Douthat
The law, do you think that's a good way of thinking about these issues? Like how much in this highly politicized moment is the Court thinking to itself? We are dealing with a difficult administration with threats of at least threats of something that someone could call constitutional crisis, maybe not you. Right. And therefore we are really self consciously picking our battles.
- [53:11]
Jack Goldsmith
So I don't know, obviously. And it's important to understand that the court is a they and not an it. It's nine people. The Chief justice has a little bit of authority to.
- [53:21]
Ross Douthat
It's kind of three people, though.
- [53:23]
Jack Goldsmith
Yeah, I agree.
- [53:25]
Ross Douthat
It's Roberts, Kavanaugh, and Barrett.
- [53:26]
Jack Goldsmith
That's a very fair point. So it's three people, and I'm pretty confident that the Chief is thinking in these terms. And it's an extremely complicated calculation. The court has discretion about which cases to take for full review and when they can decide to take a combination of cases that they might think. I'm not suggesting they think this way, but they might think this way that gives the President some wins, but has some very important losses that make the, and the wins make the losses easier to swallow. Some people think the court thinks like that and it might. Well, I don't know exactly what their calculus is, but the way they're dealing with the emergency docket and pushing things off and delaying and trying to find the right case suggests that. But I mean, this is clearly part of what's going on. Right.
- [54:14]
Unnamed Guest
And you've written about this. You don't think that they're ducking fights.
- [54:17]
Jack Goldsmith
Absolutely. I just the people that say that they're ducking fights is. I just think that's wrong. And the reason is it is extremely early. The Supreme Court typically takes a case after trial and appeal.
- [54:29]
Unnamed Guest
Right.
- [54:30]
Jack Goldsmith
It's dealing with these cases before we've even had a trial. And it might take some of these cases early, but that is very, very unusual. All it's doing now is setting the baseline for how these cases are going to be litigated.
- [54:42]
Ross Douthat
Okay, then let's just push a little further from that into actual worst case scenarios. And I'm going to try and force you. We were talking earlier, right, about the case of Garcia sent to El Salvador.
- [54:55]
Unnamed Guest
Right.
- [54:55]
Ross Douthat
That's sort of, in a way, the clearest point of tension right now. Your argument there is that that's a case where you could effectively have a kind of collision between the executive and the courts. But in the end, you know, the executive doesn't do what the courts want, but there isn't sort of a formal constitutional argument that they have to. Right.
- [55:20]
Jack Goldsmith
Again, I'm really reading tea leaves, but I'm really speculating. But I believe that the meaning of that short order was to try to nudge the president to do the right thing.
- [55:32]
Unnamed Guest
Right.
- [55:33]
Jack Goldsmith
Without ordering him and with a signal that they might not be able to order.
- [55:38]
Unnamed Guest
Right.
- [55:38]
Ross Douthat
So that would be one set of cases where the court just decides that.
- [55:43]
Unnamed Guest
It has some constitutional limits on what it can force the executive to do, even if it thinks the executive is doing the wrong thing.
- [55:50]
Jack Goldsmith
Correct. And I want to emphasize executives do wrong things. There are illegalities that occur in the world for which there are not judicial remedies. This is something people don't understand and it's a bitter pill to swallow often. And I don't think think that the Supreme Court is going to go to the mat in ordering the Trump administration to negotiate with El Salvador to get this person back. I don't think this is where it will pick its fight. And it would not be on its strongest ground in picking a fight there.
- [56:16]
Ross Douthat
But you could imagine then a situation.
- [56:19]
Unnamed Guest
Where the court would pick a fight.
- [56:20]
Jack Goldsmith
Yes.
- [56:21]
Unnamed Guest
Your view right now that you've expressed.
- [56:23]
Ross Douthat
Elsewhere is you don't think the administration, in a case where the Supreme Court was on pretty strong constitutional ground, would want to defy or be seen as.
- [56:33]
Unnamed Guest
Publicly defying the court.
- [56:34]
Jack Goldsmith
Have I said that before? I guess I have.
- [56:36]
Ross Douthat
You've said that. You can say something different now.
- [56:39]
Jack Goldsmith
I do believe that, but I'm not 100% confident of it. Yeah. So my view is, again, it really depends on the case and the clarity of the order and whether the Supreme Court is unanimous and the like. I do not think that, and I hope I'm right, that the Trump administration is going to defy a clear order from the Supreme Court. And I think the Supreme Court will be sensitive about where it issues those.
- [57:04]
Unnamed Guest
Right.
- [57:05]
Jack Goldsmith
I am confident that it will pick its battles and it will try to find places to have maximum impact on the clearest, most legitimate ground with the largest majority it can find. And that is an art, not a science.
- [57:18]
Ross Douthat
Okay.
- [57:18]
Unnamed Guest
But now I'm going to force you.
- [57:19]
Ross Douthat
To give me in a scenario where.
- [57:22]
Unnamed Guest
You get such a Supreme Court ruling.
- [57:24]
Ross Douthat
That is still clear what compliance means and what non compliance means. And the Trump administration straightforwardly is not in compliance. And this is my curiosity, if you're John Roberts in that situation, what tools does the court have in a situation of clear non compliance to use besides its moral authority and so on?
- [57:46]
Jack Goldsmith
In my view, very little. It has very few tools. I mean, it can sanction litigants who argue before the Supreme Court. But that's small beer in this context, ultimately. And I mean, you know, it does.
- [57:59]
Ross Douthat
Have, you know, it has marshals, right?
- [58:01]
Jack Goldsmith
It has marshals, and the marshals are under the control of the Attorney General, basically. Some people have talked about the possibility of civil contempt against officials that maybe could be enforced in state courts against officials. But if the Trump administration takes the step, the momentous step of blowing off the Supreme Court in a clear way, I just don't think those remedies are going to be the important remedies. The only remedies in my judgment are what the feckless Congress does and what the American people do. And I mean, ultimately, that's just the way it is.
- [58:39]
Ross Douthat
And do you think, again, going back to the hypothetical calculations of the Supreme Court, do you think then that their calculations change after 2000 and where are we now? 2026.
- [58:53]
Unnamed Guest
Right.
- [58:53]
Ross Douthat
So suppose you have a Democratic House after 2026. Does that make the court feel more confident in how it pushes against the White House.
- [59:03]
Jack Goldsmith
You're asking me to speculate more than I'm comfortable with, but I'll know. I'm happy to do it. I'm just telling you I'm not comfortable. It's not clear which way it cuts. I mean, if you push back against Trump too much and there's a Democratic Congress, he may go worse in the other direction. I think it takes more than one House. I think it takes the American people through their politicians saying this has gone too far. I think that might happen if he clearly defied a clearly legitimate Supreme Court decision.
- [59:29]
Unnamed Guest
Certainly you'd have mass protests and so on.
- [59:31]
Ross Douthat
I think, to me, the question in that case is, what does John Thune do? What do the embodiments of Senate Republican legitimacy do in that situation?
- [59:42]
Jack Goldsmith
You're the political expert. What do you think? What happens?
- [59:48]
Ross Douthat
You noticed I took a delaying sip of coffee? I mean, I think it depends to use the hedge that you've availed yourself of on what the case is and what the circumstances are. I guess my sort of running question is what kind of conversations are people like Thune having around those kind of issues and what kind of conversations are they having with the White House and so on? And I have a certain amount of.
- [60:12]
Unnamed Guest
Confidence that is not universally shared in.
- [60:15]
Ross Douthat
American democracy as an actual check on a rogue president. And I had this confidence when the positions was reversed. And I had a lot of conservative friends who looked at sort of the convergence of unified democratic control of Congress.
- [60:32]
Unnamed Guest
With unified progressive control of Silicon Valley institutions and these kinds of things and.
- [60:37]
Ross Douthat
Said, oh, we're headed for a world where no Republican can win the presidency again. And I think it's clear that that assessment was wrong and that American democracy was resilient to a certain kind of.
- [60:51]
Unnamed Guest
Left wing consolidation of power.
- [60:53]
Ross Douthat
Trump is a very different kind of figure. But, yeah, I'm hopeful that American democracy.
- [60:58]
Unnamed Guest
Is the interest and the interest it.
- [61:01]
Ross Douthat
Creates for Republican senators in swing states. Right.
- [61:05]
Jack Goldsmith
I'm accused of being naive on this point, but I tend to agree with you. And it's hopeful, but it's also my belief. Let me just say one more thing, Trump. If I'm not sure what the aim is, but if the ultimate aim is to consolidate forms of executive power that are going to persist, much better to have the Supreme Court on board saying this is something you can do, and therefore maybe accepting his wins with his losses. It's not clear. I just don't know. It's hard to predict what the legacy looks like for what he's trying to accomplish, I assume he's trying to accomplish something beyond his term if he's blowing off the Supreme Court and basically blowing up legal checks on the presidency altogether.
- [61:52]
Ross Douthat
So let's say there is no worst case scenario. There's no explicit conflict between Trump and the Supreme Court. There's wins and losses. But overall the court blesses a lot of what the administration wants. The administration accepts whatever curbs it offers. So this is sort of the best case scenario for a Trump executive power revolution. What does that look like going forward? How would you describe the post2028 constitutional landscape that that would usher in?
- [62:24]
Jack Goldsmith
Okay, I think you've written this and I reminded of the Bush administration. There's a non trivial chance, I would say a decent chance that they're going to end up in a worse place, that yes, they're going to win on some issues, that the court was going to move there anyway, but the Frankenstein version of the unitary executive is not going to be viewed well and that a lot of these moves they're making are ultimately could be constrained by the, by the court in ways that weren't clarified before. So it's.
- [62:57]
Ross Douthat
So this is places where they could lose and it could weaken the presidency's powers relative to Bush and Obama or.
- [63:05]
Jack Goldsmith
Yeah. So all of the spending and firing things, the lower level things, if it was clarified that you can't do that, the presidency would be weakened there. It could be that there are gonna be new due process and related constraints on immigration because of what we've seen can be abuse. I mean, on any of these issues, you know, they're going to be decided. A lot of these issues are undecided, they're being contested for the first time. And if they result in losses, that's going to be, could be a constraint on the President. But if it goes well for them, you have, I think the plausible scenario is that you have a much more robust unitary executive, which means that the President controls agencies to an unprecedented degree and maybe controls a good chunk of the civil service as well, either by statute, if he's able to do that, or better for him under Article 2, because it means it couldn't be reversed. I think that is the most likely significant change to come about. You know, and then most of the other things we haven't talked about the kind of abuses and maybe we don't have time to, but. And what the legacy of the abuses is on most of the other things on Doge and things like that, it's not clear how much this is going to stick. I mean, it's not clear what the Democrats are going to do in response to a lot of this stuff. It's not clear if we'll have tit for tat and weaponization. It's not clear if we'll have tit for tat directing and more extreme versions of directing officials to do what the president wants. But I guess the only thing I'm really clear on is that the unitary executive will be, you know, presidential vertical controller of the executive branch will be broader and firmer in constitutional law.
- [64:54]
Ross Douthat
On the abuses, without getting into all the details, maybe let's end by imagining a future Democratic president or a future Democratic control of government.
- [65:04]
Unnamed Guest
Right.
- [65:04]
Ross Douthat
So two related questions, right? One, Democrats win and have a trifecta in 2028 after a period where there's been a consolidation of executive power, but there have also been a lot of abuses. Do you imagine the Democratic Party taking up some of the ideas that you advocated for after the first Trump administration and saying, we are going to limit our own? You know, we're looking at what Trump did, and we think he went too far in all these ways, and we are going to, through statute, put in new limits on presidential power. Obviously, if things are decided constitutionally, they can't, you know, they can't limit it. But can you imagine executive power limits as an issue reemerging the way it was in the 1970s, right after Jimmy.
- [65:49]
Jack Goldsmith
Carter ran on it, basically after Nixon? So this is a little outside of my expertise. My senior Democratic political friends tells me that it's almost certainly going to be retaliatory, tit for tat.
- [66:02]
Unnamed Guest
Right.
- [66:03]
Jack Goldsmith
And that it's going to be impossible, that the idea of constraints after what's happened now is going to be impossible, and it's going to be impossible to resist doing everything Trump is doing in reverse, whatever that looks like. And that takes us to yet a worse position. I mean, it would be great if we could have the opposite. I mean, the reaction to the degradation of the executive in Vietnam and Watergate was Jimmy Carter, for better or worse, he was a rule of law presidency. And a lot of things happened in the 70s to put the executive branch in a better place. I would hope that would happen. But unless we just go to things get completely out of control, such that there's a massive bipartisan consensus that there's been failure that needs fixing. And is there ever bipartisan partisan consensus that there's failure that needs fixing?
- [66:54]
Ross Douthat
Not these days.
- [66:55]
Jack Goldsmith
So I fear that it's just going to go to a worse place.
- [67:00]
Ross Douthat
All right. It gets worse in the next round. On that note, Jack Goldsmith, thanks so much for joining me.
- [67:06]
Jack Goldsmith
Right, thank you very much, Ross.
- [67:31]
Ross Douthat
And then thanks to all of you for listening again. We'll be back next week with another episode. Please follow us wherever you get your podcasts and you can also watch the show on video on YouTube and get a look at our extremely handsome faces. And if you enjoyed the conversation, please recommend us to your friends and leave a review. Interesting Times is produced by Sofia Alvarez Boyd, Andrea Batanzos, Elisa Gutierrez and Catherine Sullivan. It's edited by Jordana Hochman and Alison Bruzek. Our fact check team is Kate Sinclair, Mary Marge Locker and Michelle Harris. Original music by Isaac Jones, Amen Sahota and Pat McCusker with mixing by Pat McCusker, audience strategy by Shannon Busta and Christina Samulewski. And our director of opinion audio is Annie Rose.