The Lawfare Podcast
Episode: Lawfare Archive: Jack Goldsmith on Trump v. United States and Executive Power
Date: February 15, 2026
Host: Alan Rosenstein (University of Minnesota Law School, Senior Editor at Lawfare)
Guest: Jack Goldsmith (Harvard Law School, Co-founder of Lawfare)
Overview
This episode revisits a pivotal conversation with Jack Goldsmith about the Supreme Court’s decision in Trump v. United States and its seismic impact on U.S. executive power. The discussion explores how the ruling dramatically expands the theory and practical exercise of presidential power—especially through the “unitary executive” model—affecting everything from the Department of Justice’s independence to presidential control over agency officials and non-enforcement of federal statutes. Goldsmith warns of the legal, institutional, and political consequences of this shift, and the uncertainty it brings to the future of American democracy.
Key Discussion Points
1. Context: The Expanding Reach of Executive Power
- Presidential Authority: Over the past year, President Trump has exercised sweeping executive powers—detention and deportation policies, firing of federal workers, unilateral military actions, and aggressive restructuring of the federal government.
- Central Theme: The theory of the “unitary executive” is at the heart of these expansions, now given new legal validation by the Supreme Court’s decision.
2. The Supreme Court’s Ruling in Trump v. United States
- Case Background & Key Holdings ([03:24]):
- Origin: Case related to Trump’s efforts to overturn the 2020 election; claims of presidential immunity from criminal prosecution.
- Ruling: The Court recognized absolute immunity for presidential conduct involving "exclusive" Article II powers—meaning powers the president holds without congressional interference, such as pardons and removals.
- Landmark Expansion: The Court, for the first time, held that the Take Care Clause grants the president exclusive law enforcement discretion, shielded from congressional regulation.
Quote
“In the course of explaining that the President had these broad exclusive powers vis a vis Congress, the court said something new. It said that the President’s power to take care to faithfully execute the law under the 'take care' clause … had an exclusive element that Congress could not regulate.”
—Jack Goldsmith [04:20]
- Implications:
- Broadened "removal power"—President can threaten or fire officials for not carrying out directives, even if those orders might constitute crimes.
- Signals a major doctrinal shift empowering presidential authority at the expense of congressional oversight and statutory constraint.
Quote
“They move the doctrine in directions that seriously favor the presidency. That part of the opinion is what’s supercharging these executive orders and other actions.”
—Jack Goldsmith [07:45]
3. What’s New and What’s Not: Building on Precedent
([07:58–12:55])
- Not Controversial: Exclusive pardon and recognition (diplomatic) powers.
- Major Changes: Significant expansion and new context for the removal power—now applied as justification for otherwise criminal executive actions.
- Beyond Morrison v. Olson: The Court’s language undercuts precedent allowing Congress to restrict presidential control over law enforcement.
4. The “Unitary Executive” Theory—Supercharged
([14:22–17:05])
- Definition
- All executive power is vested in the President; he or she controls all subordinates absolutely (hire/fire/direct).
Quote
“The pure unitary executive theory is that…things that his subordinates are empowered to do by Congress, he gets to control and that he gets to direct executive branch action through his subordinates and that if his subordinates don’t comply with his direction, he can fire them.”
—Jack Goldsmith [14:52]
- Novelty in Trump v. US: Now the removal power lets the President order subordinates to take actions even if those actions would otherwise be crimes, greatly broadening the traditional scope.
5. The Take Care Clause—Radical Reinterpretation
([17:05–21:07])
- Traditional Role: Duty to faithfully execute the law, with prosecutorial discretion (e.g., enforcing some, but not all, laws due to limited resources).
- New Role: Supreme Court suggests this discretion is “exclusive”—meaning Congress cannot criminalize or regulate how the President exercises law enforcement discretion.
Quote
“The Take Care Clause has been invoked as a basis for presidential discretion … . But it’s never said that this was a, quote, unquote, exclusive power vis a vis Congress. … That was the most radical decision in the opinion.”
—Jack Goldsmith [19:30]
6. Department of Justice Independence—Was It Ever Real?
([22:26–24:47])
- Norms vs. Law: While DOJ independence from White House political interference was always a matter of tradition—not law—the Trump opinion reaffirms the President’s total legal control over prosecutions.
- New Height: The opinion grants additional powers, possibly immunizing the President from prosecution when exercising discretionary prosecutorial authority—even for criminally motivated directives.
7. Limits, Due Process, and Open Questions
([25:06–26:26])
- Uncertainty: The opinion’s scope is unclear, especially about whether due process claims or other back-end checks on presidential law enforcement actions remain viable.
Quote
“I can guarantee you that Trump will be invoked in selective prosecution cases. … That’s one of the open issues that remains to be seen.”
—Jack Goldsmith [26:09]
8. Non-Enforcement Examples—From DACA to TikTok
([30:22–38:17])
- Comparisons: Obama’s DACA program used resource constraints and discretion to justify selective enforcement. Trump’s TikTok Executive Order goes further—openly refusing to enforce a statute for policy and political reasons, presenting an unprecedented step.
- Legal Justification: Such moves likely rely on the reasoning in Trump v. US, though even Goldsmith doubts the Supreme Court would ultimately uphold this extension.
Quote
“Another way of putting that is I don’t like the policy in this law and therefore I’m not going to enforce it. That’s the bottom line for 75 days. … That goes beyond anything that I’ve seen any president do.”
—Jack Goldsmith [33:37]
9. Impoundment and Spending Authority
([38:17–42:01])
- Historical Precedent: While Nixon asserted a right to impound funds (not spend money appropriated by Congress), Congress responded with the Impoundment Control Act.
- Trump’s Team’s View: Asserting a "supercharged" Article II power on the basis of Trump v. US, interpreted through a maximalist unitary executive mindset.
Quote
“All of those things together give the president this kind of superpower to do all the things that they’re doing...This unitary executive principle extends to shutting out Congress as well. … Much, much more so than prior opinions.”
—Jack Goldsmith [42:26]
10. Supreme Court’s Potential Future Involvement
([43:56–50:23])
- Hot Issues: Removals from independent agencies, massive purges of federal officials, and blanket non-enforcement of laws likely to come before the courts.
- Prediction: Despite the expansion of removal power, the Supreme Court (at least in its current orientation) may not go along with extreme non-enforcement or impoundment moves.
Quote
“If the clean constitutional impoundment question comes up about whether the President can decline to comply with the Impoundment Control Act … I think that will lose. … I just don’t see any great constitutional argument around that.”
—Jack Goldsmith [49:51]
11. Political and Institutional “Vibes”—Pressure on the Court and Compliance
([50:23–56:47])
- Will the Court Push Back? The scale and chaos of Trump’s aggressive executive actions might prompt the Supreme Court’s “middle” (Roberts/Barrett) to step in and limit them—regardless of the letter of their own earlier opinions.
- Noncompliance Risks: Observers worry the administration may not comply with adverse Supreme Court rulings; historical analogies to 2017 (travel ban) are noted, but today’s context differs.
- Uncertainty Remains: Goldsmith emphasizes the unpredictability of both institutional and human reactions in this period of constitutional stress.
Quote
“I understand why people are concerned … but there were also lots of signals in 2017 and it’s a very fateful step … I don’t really see, even if they had a, you know, extreme authoritarian [program] … why doing this now at this stage is in their interest. … But they’re operating on a set of principles that I don’t fully grasp, and they’re clearly in the mode and mood to blow things up right now.”
—Jack Goldsmith [55:07]
Notable Quotes & Memorable Moments
- “This is, I think, the way you described this just now was one of the most amazing or surprising … opinions you’ve ever read.” —Alan Rosenstein [08:56]
- “Now this other use of the removal power to allow the President to skirt otherwise criminal laws is entirely novel. It's just completely new as far as I can tell.” —Jack Goldsmith [15:14]
- “The dominant answer has to be yes.” (on whether the chaos might push the Court to limit Trump’s authority) —Jack Goldsmith [52:31]
Key Timestamps
- [03:24] — Goldsmith explains the core holdings of Trump v. United States
- [08:56] — Novelty and significance of the opinion discussed
- [14:52] — Definition and expansion of the “unitary executive”
- [19:30] — Take Care Clause as an “exclusive” presidential power
- [22:26] — DOJ independence: norm or law?
- [33:37] — TikTok non-enforcement as unprecedented step
- [42:26] — Explaining the “supercharged unitary executive”
- [49:51] — Impoundment and statutory limits on executive authority
- [52:31] — Speculation on how the Supreme Court may react to these expansions
- [55:07] — Risks of constitutional crisis and noncompliance
Conclusion
This episode provides a comprehensive, rigorously informed, and honestly cautionary assessment of the Supreme Court’s redefinition of presidential power in Trump v. United States. Goldsmith and Rosenstein highlight the shifting legal landscape—the advent of an extraordinarily powerful, less constrained presidency—and the consequent uncertainty for governance, congressional oversight, agency independence, and the constitutional order itself. The future, both legal and political, hangs in the balance, with the Supreme Court and the conduct of the executive poised to define new boundaries (or their absence) for the American presidency.