← The Daily
The Daily
A Constitutional Crisis
00:26:10
As President Trump issues executive orders that encroach on the powers of Congress — and in some cases fly in the face of established law — a debate has begun about whether he’s merely testing the boundaries of his power or triggering a full-blown constitutional crisis. Adam Liptak, who covers the Supreme Court for The Times, walks us through the debate.
Loading summary
Transcript71 lines
- [00:00]
Daniel Alarcon
After the movie Free Willy became a hit, word got out that the star of the film, a killer, William Keiko, was sick and still living in a tiny pool in a Mexican amusement park. Fans were outraged. Kids demanded his release. I'm Daniel Alarcon from Serial Productions. In the New York Times comes the Good Whale, a story about the wildly ambitious science experiment to return Keiko to the ocean. Listen to new episodes on Thursdays. Want early access to the whole show? Subscribe to the times@nytimes.com podcast and to listen on Apple Podcasts and Spotify.
- [00:32]
Michael Barbaro
From the New York Times, I'm Michael Balbaro. This is the Daily As President Trump issues executive orders that encroach on the powers of Congress and in some cases fly in the face of established law, a debate has begun about whether he's merely testing the boundaries of his power or triggering a full blown constitutional crisis. Today, my colleague Adam Liptak wades through that debate. It's Wednesday, February 12th.
- [01:23]
Claire Tennisgetter
Tonight, there are warnings that the US is dangerously close to a constitutional crisis.
- [01:28]
Adam Liptak
We are hearing the phrase constitutional crisis already less than a month into this presidency. We've got our toes right on the edge.
- [01:36]
Daniel Alarcon
We are basically on the cusp.
- [01:38]
Adam Liptak
We're really heading toward a constitutional constitutional.
- [01:43]
Michael Barbaro
Constitutional crisis, crisis, crisis. Our founding fathers created three co equal branches of government to ensure that no one man can be king. But here we are.
- [01:58]
Adam Liptak
Listen, I think this is the most serious constitutional crisis the country has faced, certainly since Watergate. The president, I can't tell you how many times I heard constitutional crisis during the first term of Donald Trump. And here they go again.
- [02:22]
Michael Barbaro
Adam, welcome back. Always a distinct pleasure.
- [02:25]
Adam Liptak
It's good to be here, Michael.
- [02:27]
Michael Barbaro
The phrase du jour, Adam, right now in Washington is constitutional crisis. And we come to you as our resident scholar of the law and the courts to understand what a constitutional crisis actually is and how you know when you are in the middle of one.
- [02:47]
Adam Liptak
Yeah, it sounds serious, doesn't it?
- [02:49]
Michael Barbaro
It does.
- [02:50]
Adam Liptak
But I've been talking to a lot of law professors and what emerges from those conversations is that there's no fixed, agreed upon definition of a constitutional crisis. It has characteristics, notably when one of the three branches tries to get out of its lane, assert too much power. It often involves a president flouting statutes, flouting the Constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing. It's not a switch. It's a slope that can descend and it takes on a Quality of danger if there's a lot of it.
- [03:43]
Michael Barbaro
So given that loose definition that seems to acknowledge the fluidity of a constitutional crisis, how should we think about whether President Trump's actions over the past few weeks represent a constitutional crisis? Or perhaps something else, something less serious?
- [04:01]
Adam Liptak
So the consensus is that this is a constitutional crisis. And let me try to unpack why so many people think that the president will often use his power to its fullest extent to assert a constitutional authority to do things that other branches may oppose. But what we have with President Trump is a kind of wholesale reconception of the part of the Constitution, Article 2, that sets out presidential power, that asserts that he's basically the decision maker, that he can act alone, he can disregard instructions from Congress. And Congress is In Article 1, Congress makes the law. That sounds significant. The president is charged by the Constitution to take care that the laws be faithfully executed. That would seem ordinarily to put him in a subordinate role. But the music of Trump's actions over the past several weeks has been quite different, has been to insist on his primacy.
- [05:20]
Michael Barbaro
Wydom, walk us through some of the specific examples of how President Trump is muddling with our traditional notions of Article one, Article two, basically the separation of powers between the legislative and executive branch and how he is trying to expand the powers of the executive.
- [05:39]
Adam Liptak
So a couple of quick examples. Congress has instructed the president not to fire people unless he satisfies certain criteria. Sometimes he has to have a good reason. Sometimes he has to wait 30 days. Sometimes he has to explain himself to Congress. President Trump has busted through all those limitations and insisted that as head of the executive branch, he can fire whomever he will. Congress has also passed laws instructing the president to spend money to do certain things. President Trump takes the view that if those instructions are inconsistent with his policy agenda, he doesn't have to do it. That Congress can't make him spend the money Congress has appropriated. And Congress, of course, has the power of the purse. So you would think there's a pretty good argument that the president has to do with Congress says so.
- [06:30]
Michael Barbaro
For example, what you just said would apply to the congressionally appropriated money for usaid, the foreign aid agency that the president has decided to shut down.
- [06:41]
Adam Liptak
Yes. Congress told the president what to do. The president is doing the opposite. That seems to contain some real seeds of what most people would think of as a constitutional crisis. And this is notable, too, Michael. He's doing this in the face of a Congress that's not opposing him. To the contrary, if President Trump were to seek legislation from this Congress limiting or shutting down usaid, I think he'd be very likely to succeed. But he seems not to be interested in working with the other branch, a branch that he essentially controls, but to insist that he has the sole power to do things.
- [07:22]
Michael Barbaro
So what might deepen the sense that we are in a constitutional crisis is not just that the President is ignoring Congress's will, its actions, its appropriations, but he's not even engaging them on these questions in a way that he very much could.
- [07:36]
Adam Liptak
Yeah, it's a raw assertion of power, and it's a little surprising. I mean, if you have a Republican controlled Congress that's ready to do your bidding and you could button this down and make lasting change, that's unassailable. It's a little bit surprising that in the early weeks of a four year term, he wants to do everything at once. And that has the quality of a crisis, too, this notion that we're flooding the zone with endless executive orders and scores of lawsuits. It just gives rise to the sense that we're encountering a wholly new and maybe dangerous atmosphere.
- [08:14]
Michael Barbaro
Well, where else do his actions seem to potentially be creating a constitutional crisis?
- [08:19]
Adam Liptak
So where to begin? He has shut down all kinds of federal spending that Congress has instructed him to spend. He's deputized Elon Musk and his doge warriors to inspect all kinds of government logs and computer activity that gives rise to at least some privacy concerns. And maybe notably, he has, by executive order, purported to do away with what is generally thought to be a fundamental constitutional right of birthright citizenship. That is, with very rare exceptions, if you're born in the United States, you're a United States citizen, and that list.
- [09:02]
Michael Barbaro
Of actions that you just went through, it feels like they aren't all the same. So which ones in your mind and in the mind of the legal scholars that you're speaking to, are just the president seeking to expand his authority, which we've always understood President Trump to want to do, even during the campaign, and which ones seem like just frontal assaults on the Constitution and potentially the stuff of a constitutional crisis.
- [09:29]
Adam Liptak
So I think I'd put it in three buckets, Michael. One is Trump's role as the head of the executive branch. And there he has pretty good arguments that he's the boss, that he can decide who works for him, and that he can fire people, including heads of independent agencies that Congress has tried to insulate from political pressure, inspectors general who have an important role in keeping fraud and corruption out of agencies that may not sound like the best idea as a policy matter.
- [10:07]
Michael Barbaro
Right.
- [10:07]
Adam Liptak
But. But the Supreme Court has been increasingly sympathetic to the idea that at least where it's all inside the executive branch, the President has a lot of power. So that first bucket, he may well succeed in many of his arguments.
- [10:23]
Michael Barbaro
Right. He has a legal leg to stand on.
- [10:25]
Adam Liptak
Right. The second bucket gets much harder where Congress has specifically instructed him to do something, to spend money, to maintain agencies, usaid, the Consumer Financial Protection Bureau, the Department of Education. The notion that the president is allowed to disregard congressional instructions on things like that, that's a tough argument. And then the third bucket gets even harder where the Constitution, most people think, has insisted that there's a constitutional right to birthright citizenship. And under the conventional understanding, you can't do away with that by executive order. You can't do away with that by statute. Congress can't do away with it. It's in the Constitution. If something's going to change, it needs to be done by constitutional amendment. So the president's order in the early days of his administration that says, I declare that this constitutional right doesn't exist is quite brazen and bold.
- [11:34]
Michael Barbaro
So now that we know that Congress does not seem inclined to act against this president, the Republican controlled House and Senate, and given that the president doesn't seem all that interested in engaging this Congress, it very much does seem like we're at a point where, if we are, as these scholars have told you, in a constitutional crisis of one form or another, that it will be the courts, the federal courts, that will play a major role in keeping the president in check.
- [12:04]
Adam Liptak
Right. And the courts are already dealing with an extraordinary number of suits. They seem to multiply by the day. And while none of them have reached the Supreme Court yet, in the coming, I would say, weeks, we are going to have major clashes before a Supreme Court that you know is dominated by six conservative appointees and will be sympathetic to some of what Trump wants to achieve, but is not going to be on board for the whole project. And then the open question is, assuming the court rules against President Trump, will he obey that judgment?
- [12:54]
Michael Barbaro
We'll be right back.
- [13:03]
Narrator
In Netflix's new limited series, Zero Day, the country is devastated by a catastrophic cyber attack that downs America's infrastructure. A respected former president, played by Robert De Niro, is called out of retirement to find the perpetrators of the cyber attack, only to discover he may be losing his grip on the truth and possibly reality. Watch Zero Day, February 20th, only on Netflix.
- [13:25]
Claire Tennisgetter
Hi, I'm Claire Tennisgetter. I'm one of the many names you hear in the list of credits on the Daily every week. A big part of my job as a producer is talking to my colleagues, to New York Times reporters to get their expertise on the news. But we also want to explore the human side of the news. And so another big part of my job is talking to people about how they're experiencing what's happening in the world. That can mean walking up to people on the street, making cold calls. It's spending months making sure we represent all sides of the story, whether it's about what shapes our political identities or how we're coping with crises. We always feel like there's something to learn from these conversations. We often hear from listeners that these types of stories are what makes the Daily Special, and we want to keep bringing them to you. We can't do that without subscriber support. If you haven't subscribed to the New York Times, you can do that@nytimes.com subscribe and thanks.
- [14:20]
Michael Barbaro
Adam. So far, it is not the Supreme Court, as you said, but the lower federal courts that have weighed in on President Trump's actions. And my sense is that so far they have taken a very dim view of his efforts to expand his executive power and encroach on the powers of Congress.
- [14:37]
Adam Liptak
He has been on an epic losing streak. Some of that can be explained by plaintiffs suing in friendly courts. But appointees of all different kinds of presidents, including President Trump himself, have ruled against him and have said that Elon Musk can't have access to some materials, that people can't be fired, that agencies can't be disassembled, that the Birthright Citizenship Order is unconstitutional. And some of these judges have been very harsh. One of them, in blocking the Birthright Citizenship Order, said that he had difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It boggles my mind. So that gives you a flavor of how Trump is doing in the lower courts.
- [15:32]
Michael Barbaro
Right. And of course, this has prompted some around the president to say, well, hold on a minute. The courts are overstepping their bounds in reining in our efforts to expand our bounds.
- [15:49]
Adam Liptak
Right. And J.D. vance, the vice president, has taken the most assertive attitude toward this, saying that the president doesn't have to obey the rulings from courts that are at odds with his understanding of the Constitution.
- [16:03]
Michael Barbaro
I just want to read what J.D. vance wrote about this because he tried to put it into a larger legal context. And he seemed to write this right after the president had lost a series of rulings of the kind you just went through. And he wrote, if a judge tried to tell a general how to conduct a military operation, that would be illegal. And he goes on to say, if a judge tried to command the attorney General in how to use her discretion as prosecutor, that would be illegal. And then he goes on to apply this logic to the president. He says judges aren't allowed to control the executive's legitimate power either. So what do we make of that argument?
- [16:44]
Adam Liptak
So it sounds quite radical, doesn't it? I mean, we generally agree as Americans that. That the court has the last word over the constitutionality of congressional action, executive action. And if J.D. vance is suggesting, as a general matter, that the president disagrees with that, well, that's a constitutional crisis, I guess. I would make, though, an observation, Michael, that there are probably some areas where, if the Constitution distinctly and exclusively commits some right to the president, like, say, the pardon power, and a court were to say, no, you can't pardon your buddy, the president's interpretation of the Constitution could well govern there. And there's a flavor of this in the Supreme Court's decision in July granting Trump broad immunity from prosecution, where the court talks about those powers that are core executive powers who are for the president only. The Vance statement seems to resonate with that way of thinking, too.
- [17:54]
Michael Barbaro
In other words, it may be a narrower interpretation of when the president can ignore the courts than perhaps it seems right.
- [18:03]
Adam Liptak
But I don't want to minimize it. I mean, it's a hell of a thing to even contemplate the Supreme Court saying to Richard Nixon, you got to turn over the White House tapes. And Richard Nixon. And he thought about this, saying, no, that would be a classic constitutional crisis.
- [18:22]
Michael Barbaro
Well, what Vance is writing here seems to presuppose that there's gonna come a moment pretty soon when these lower court rulings get appealed all the way up to the Supreme Court, and the Supreme Court issues a ruling against President Trump that attempts to rein in his power. And I guess I'm curious, based on your legal analysis and your reporting over the past couple of weeks, where we think the Supreme Court may choose to weigh in and attempt to curtail the president's power.
- [18:51]
Adam Liptak
We don't know, of course, exactly what case will reach the court and exactly how the court will think about it. I think the court will be very scared of alert to the possibility of a constitutional crisis, of a pure impasse. So my guess, Michael, is that the court is going to try to find a case where, in a Splashy way it rebukes Trump rules against him. But ideally, in a case where the president can't really disobey the court's judgment. And birthright citizenship is the classic example of this.
- [19:27]
Michael Barbaro
And why would the court think that Trump could not, even if he wanted to disobey that ruling?
- [19:32]
Adam Liptak
It's just a logistical nightmare. It requires Trump to essentially instruct every hospital administrator in the nation about how to track the citizenship of every newborn. It's hard enough to do if you had the law at your back. In the face of a Supreme Court judgment, it becomes really hard to imagine.
- [19:53]
Michael Barbaro
I'm curious, Adam, what would be a case where the Supreme Court might fear that Trump would disobey them? A pretty staggering thing to contemplate. But from what you're saying, the court actively does fear that?
- [20:06]
Adam Liptak
I guess I can think of lots of examples. But why don't we talk about usaid? President wants to do away with that. The court says, you can't do that on your own. You can go to Congress, but you are not authorized, Mr. President, to disobey Congress's instructions about the existence of and the nature of and the spending of that agency. And Trump, let's pause. It says, I disagree, and shuts the agency down anyway.
- [20:34]
Michael Barbaro
Right.
- [20:34]
Adam Liptak
The court doesn't want to find itself in that situation. The court has always, through its entire history, been very sensitive to the idea that it's not really clear why we do what it tells us to do. They don't have an army. They don't have the power of the purse. They have this kind of fuzzy thing we call legitimacy and authority, and they're very wary of that being undermined. And all it takes is for the president one time to say, as Andrew Jackson did say, apocryphally, the Chief justice has made his decision. Now let him enforce it.
- [21:14]
Michael Barbaro
Right. You're saying the court's authority is a norm, and Trump likes to subvert norms. And you think the court would go out of its way to avoid rulings even when they are correct on the legal merits that Trump might seek to subvert? Which is pretty fascinating.
- [21:28]
Adam Liptak
I think you would get some motivated reasoning from justices who probably wouldn't put this at the forefront of their minds, but would talk themselves into thinking, well, maybe we rule for the President here. Maybe it's not such a bad thing. And somewhere, you know, in the substrata of their consciousness is the lurking feeling that if we go the other way, things are going to be bad for the institution.
- [21:54]
Michael Barbaro
So what we would seem to be looking At, Adam, based on everything you're saying is a legislative branch that's not at all enthusiastic about curtailing the president's authority. We're looking at a judicial branch with the Supreme Court atop it that is disinclined to try to curtail the president's power out of fear that he may ultimately just ignore them. And so it seems very possible that, as these legal scholars have told you, we may be in what they see as a constitutional crisis. I guess my question is, what happens if we are in a constitutional crisis and most Americans don't care? And I asked that because Trump was elected by tens of millions of people who wanted him to shake up the system. And early polling does very much suggest that many people are pleased at the pace at which he's fulfilling his promises. And part of that promise was a stronger executive who's just busting through any barrier in his way. And so is it a constitutional crisis if a lot of Americans don't see it as a crisis?
- [23:02]
Adam Liptak
It can be thought of, and I take your point, as simply a reimagining of what the Constitution calls for that maybe people approve of. And maybe what we're on the cusp of here is, without an amendment, without a constitutional Convention, just a reorientation of the separation of powers in a way that elevates the president to a role that we've not seen before at the expense of the other branches. But all of that said, a crisis is a crisis. And if our very understanding of the Constitution is being tested by a president who legal scholars say seems to have a contempt for the document, we are in the midst of something profound, whether or not people are taking it seriously today.
- [24:16]
Michael Barbaro
Well, Adam, thank you very much.
- [24:19]
Adam Liptak
Thank you, Michael.
- [24:28]
Michael Barbaro
On Tuesday night, President Trump personally denounced the federal judges who have blocked his actions over the past few weeks, especially his attempts to shut down agencies like USAID and freeze their funds.
- [24:43]
Donald Trump
And it seems hard to believe that judges want to try and stop us from looking for corruption, especially when we found hundreds of millions of dollars worth much more than that in just a short period of time.
- [24:56]
Michael Barbaro
And he delivered what appeared to be a thinly veiled threat against the judges who stand in his way.
- [25:04]
Donald Trump
Well, so maybe we have to look at the judges, because that's a very serious. I think it's a very serious violation. I'll ask Elon Musk.
- [25:22]
Michael Barbaro
We'll be right back.
- [25:26]
Narrator
In Netflix's new limited series Zero Day, the country is devastated by a catastrophic cyber attack that downs America's infrastructure. A respected former president played by Robert De Niro is called out of retirement to find the perpetrators of the cyber attack, only to discover he may be losing his grip on the truth and possibly reality. Watch Zero Day, February 20, only on Netflix.
- [25:51]
Michael Barbaro
Here's what else you need to know today.
- [25:54]
Donald Trump
I'll ask Elon Musk to say a few words and we'll take some questions. Elon, go ahead.
- [26:01]
Elon Musk
Sure.
- [26:03]
Michael Barbaro
During an extraordinary 30 minute appearance in the Oval Office on Tuesday night, Elon Musk, joined by his four year old son, defended his plans to drastically shrink the size of the federal government.
- [26:16]
Elon Musk
We have this unelected fourth unconstitutional branch of government, which is the bureaucracy, which has in a lot of ways currently more power than any elected representative. And this is not something that people want.
- [26:31]
Michael Barbaro
But Musk made multiple unsubstantiated claims about government fraud, including the claim that officials at USAID have taken kickbacks. And he acknowledged that some of his most inflammatory public claims, for instance, that aid workers plan to send $50 million worth of condoms to Hamas.
- [26:54]
Elon Musk
Well, first of all, some of the things that I say will be incorrect and should be corrected. So nobody's going to bat a thousand. I mean, any, you know, we will make mistakes, but we'll act quickly to correct any mistakes.
- [27:07]
Michael Barbaro
And during a visit to the White House, King Abdullah of Jordan rejected President Trump's proposal that his country take in Palestinians living in Gaza. Nevertheless, Trump reiterated his plan for the United States to take over Gaza through unspecified means and for Jordan and Egypt to accept Palestinians who would be permanently displaced as the US Redevelops the territory. Today's episode was produced by Will Reed, Carlos Prieto and Mary Wilson. It was edited by Maria Byrne, contains original music by Alicia Etoupe, Alyssa Moxley and Dan Powell, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Lansburg of Wonderlay. That's it for the Daily. I'm Michael Barbaro. See you tomorrow.