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The Opinions
The Claim Trump Is Making That ‘Could Break the American System’
00:29:13
Understanding the president’s shift from unconstitutional to anti-constitutional actions.
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New York Times Opinion
This is the Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it.
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Aaron Retika
I'm Aaron Retika, an editor at large in the Opinion section of the New York Times. One of the surprising things about the Trump administration, both the first one and the second one, is that it's a constant education in the Constitution. If you're an editor, you're sitting at your desk and you're constantly reaching for the actual Constitution, for the Federalist Papers, for the anti federalists, because you're trying to understand the borders. You're trying to understand what is acceptable, what is not acceptable. The Trump administration is pushing and pushing and pushing at the outer edges of constitutionality. It's a direct debate. It's not happening at the margins. It's no longer just happening in law reviews. It's the substance of our politics. So I could think of no one I wanted to talk to about that more than Jamelle Bouie because he is a columnist who focuses on the way history influences our politics and the way our politics looks through the lens of history. Hello, Jamel.
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Jamelle Bouie
Hey, Aaron.
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Aaron Retika
Thanks for joining me. So much has happened since the last time we talked on this show. A month ago, Mahmoud Khalil, pro Palestinian activist, was arrested or detained even though he has a green card. There been three executive orders targeting specific law firms for being people who represented people that the president didn't like. They've been directly calling for the impeachment of judges by tweet. Right. There's just a slew of these things, all of which in some way are on their face actually unconstitutional. Like they're not even really that arguable. But what has been most concerning to you in that world? Or is it the collection of the things what's worrying you the most there?
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Jamelle Bouie
I mean, the two things that are worrying me the most are simply the president's sort of unilateral efforts to dismantle entire agencies, cabinet agencies. The President last week issued an executive order purporting to dismantle the Department of Education. But the Department of Education is established by statute, by law, according to any theory of the Constitution. You can't just. The executive cannot unilaterally dismantle a cabinet agency without Congress weighing in. And the other thing is just the President's claims that he can essentially rendition either non citizens, what's called non resident aliens, right? He can just rendition them to another country without due process, without so much as explaining why people are in government custody. It's sort of a de facto suspension of habeas corpus without that actually happening. And that's extremely worrisome, right? Like habeas corpus is a foundational part of the Anglo American legal and political tradition. And the President is essentially in many ways asserting an authority that if it's for a disfavored category of person, he doesn't have to recognize it.
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Aaron Retika
It's clear. There used to be a debate, right? In some circles anyway. There used to be a debate about whether we were in a constitutional crisis. Now you'd have to be pretty nuts to think we weren't. But that's language that you have started to push back against, not because you don't think there's a constitutional crisis, but you don't think it's adequate to describe where we are. So could you talk a little bit about that and about something you've been writing about, an idea you got from the legal schol Balkan about constitutional rot, Right?
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Jamelle Bouie
So a constitutional crisis is just when the Constitution fails to do the thing it's supposed to do and the thing it's fundamentally supposed to do is keep political conflict within the bounds of ordinary politics. Right? That you have an election instead of pulling out guns is basically what a Constitution is supposed to do. You go to courts instead of dropping bombs on people. That's what the Constitution is supposed to do. And when constit cease doing this, when instead of having elections and going to courts, people are arming themselves, when there is mass civil unrest, when there's anarchy in the Civil War, that's constitutional failure. First of all, in the kind of the process of getting the constitutional failure, that's the crisis. There's various types of constitutional crisis that can be prompted by different things. A president saying that they no longer need to obey the Constitution, or alternatively lawmakers obeying the Constitution even as the Constitution is in a state of failure, or the public and other members of the society throwing off the bounds of the Constitution, saying we don't have to do it, we don't have to listen to it. We can behave in extra constitutional manners. All those things can prompt a constitutional crisis. And it tends to be kind of an acute event and it's hard to miss. Constitutional rot is a little different, I think I love the term because it's very evocative and it is just a constitutional system that is in a state of deterioration. This is a long term thing. It's not necessarily obvious all the time, although sometimes it can be. But the upshot of constitutional rot is it could render the foundations of a constitutional system basically extremely vulnerable to crisis or extremely vulnerable to just like immediate outright failure. The same way that rot in a home can either produce a situation where you put your foot on the floor and your foot goes through the floorboard and all of a sudden you're like, oh, man, this is a crisis. I have to deal with it.
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Aaron Retika
I will say I've been thinking about it as the doorknob. Like you go to open the house and you can't get in because the doorknob comes off your hand.
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Jamelle Bouie
Right.
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Aaron Retika
These things that you were relying on, they're gone and you didn't realize that they were vanishing as they went.
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Jamelle Bouie
Right, right. I would say good example of constitutional rot is actually the way that the power of Congress has weakened considerably over the last 20, 30 years, and the way the executive has just expanded and expanded and expanded and expanded, with executives making broad claims, taking illegal actions, and there never being any kind of accountability or really response to it. And that's just sort of undermining the basis of the system.
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Aaron Retika
Another linguistic distinction you've been making is between some law, an action I should say being unconstitutional, and the idea of anti constitutional, anti constitutionalism. Can you talk about what takes us from an unconstitutional action to anti constitutionalism?
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Jamelle Bouie
Sure. And it's not necessarily a continuum. Right. Like a President, a Congress, whatever, can do lots of unconstitutional stuff, but it doesn't quite become anti constitutional because they're operating on sort of different levels. And unconstitutional action is simply something that violates the Constitution. And critically, you're likely acting within your constitutional authority. You're acting, acting within a sphere with which you're allowed to act, but then you're overstepping the boundaries of that sphere a bit. You're saying you're doing something that, oh, well, you can exist here, but you can't quite do this. In the case of the President's attempt to ban transgender people from the American military, you can lay out standards for who can serve that is a power the President has. But you cannot, under the terms of our Constitution, discriminate against entire categories of people on the basis of immutable characteristics. Characteristics or on the basis of gender, which may not be immutable but is a characteristic that is protected under the Constitution. You cannot do that. And that's something that's unconstitutional. Something that's anti constitutional is not just breaking the rules, but acting in ways beyond the notion of constitutional boundaries altogether. Constitutions are meant to constrain officials by law, to place them under the rule of law. They're meant to establish limited governments of limited authority and making claims to unlimited authority, making claims to being directly above the law, taking actions that directly reject key separations within the constitutional system. That is anti constitutional. So to relate back to something I said prior, a president saying, I can just dissolve a cabinet agency and Congress cannot tell me no, that's anti constitutional.
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Aaron Retika
Well, it's both right. It's both unconstitutional and anti constitutional.
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Jamelle Bouie
It's not unconstitutional because it's exceeding the President's authority, but it's anti constitutional in that it's rejecting one of the premises of constitutional government, which is the separation between legislative and executive power. The separation of, to borrow the language of the Framers, the power of the sword and the power of the purse. The president's assertion of inherent power to rendition people to other countries without due process, without any kind of hearing. That is anti constitutional because it stands against sort of a basic constitutional premise of a limited authority of being bound by law. Now, many listeners may know of the fact that the administration is removing people from the country that it's accusing of being gang members and then sending them to a maximum security prison in El Salvador on the basis of some arrangement we have with the government of that country. Now, those people have been accused of being gang members, but have not gone under any hearing process, have not been given the opportunity to provide evidence that they are not gang members. And thus far there's evidence that many of them are not. So there are these people who are not gang members at all, but have not had the opportunity to prove that they are not. And the administration is saying, listen, we have the inherent authority to identify foreign nationals as threats to the United States and remove them from the country without due process. That would be anti constitutional because on a variety of levels it's violating sort of like basic tenets of what it means to live under constitutional government. So for one, this claim that the executive, that the president has some sort of unreviewable power to declare People, basically, I mean, this is a slight exaggeration, like unpersons and remove them from the country is far beyond anything that properly exists in the constitutional system. Because the basis of a constitutional system is that the executive is bound by laws. And the laws say that if you want to remove someone, even if they're not documented, you have to give them a hearing, you have to give them a process.
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Aaron Retika
So the judge in this case has ruled several times in different ways against the administration. And either the administration has said, oh well, once the plane was outside of the United States and in the international waters, the judge no longer had any power over everything. The judge asked them to give some explanation of what they were doing and they more or less, I mean they complied. But in a way the judge found completely ridiculous. So if that battle is joined between the kind of anti constitutionalism parts of the administration and the constitutionalism of the judge, like how does that. I know you can't tell the future, but how does that play out? Like how do we deal with that if one side is asserting a level of power that cannot be reined in?
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Jamelle Bouie
I mean, that's sort of the big question, right?
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Aaron Retika
That's the moment. Yes.
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Jamelle Bouie
So on this past Friday, the President threatened people who are, I guess, attacking Tesla, like protesting Tesla showrooms. I guess some people allegedly set Teslas on fire. In any case, the President and his Attorney general first of all have said they were going to treat this stuff as terrorism. And the President on Friday said, quote, I look forward to watching the sick terrorist thugs get 20 year jail sentences for what they are doing to Elon Musk and Tesla. Perhaps they could serve them in the prisons of El Salvador, which have become so recently famous for such lovely conditions. Now, many of the people protesting Tesla, these are just American citizens. And you can very easily read this. I read this as Trump threatening to put American citizens on removal flights to El Salvador, which is a straightforward violation of the law. A straightforward violation of the rights of American citizens. And a claim that he can do this I would describe as an anti constitutional claim. Not simply unconstitutional, but a claim that he determines the citizenship status of any given person. Now that's huge claims of authority, claims that just break the American system.
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Aaron Retika
So you are not, I think it's safe to say, a huge John Roberts fan. And yet this past week he did say something, right? When the President threatened to impeach the judge in the case we've been talking about where the alleged gang members were sent to El Salvador, he wrote that the judge should be impeached and not long after that, Chief Justice Roberts issued a statement saying, you know, that is not how we do things here. Right. It's a sign that the level of alarm is just so high that this guy who mostly does not like to do stuff like this, felt the need to do it. He needed to assert the constitutionalism, to use the terms we've been using, because he felt the anti constitutionalism. And so I wasn't sorry to see him do it, but it did freak me out because I was like, all right, well, John Roberts, who just last year gave the President, along with the other members of the court, a staggering amount of power in the immunity case. If he's freaking out, then I'm gonna freak out, too. But how do you situate Roberts action last week into the overall picture of his idea of presidential power?
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Jamelle Bouie
I've been really actually grappling with this question because I'm not actually sure. One reading of it is basically that Roberts of issuing a warning, sort of saying, you're playing with fire here. We are the ones who are going to decide what the Constitution means for at least the purposes of the law, and cases will come to us, and this kind of behavior might jeopardize your ability to win them. Part of me thinks he's basically saying, listen, you can win these things. You just have to chill out. There's an appeals process. Gets to us, you have pretty good chances, but you gotta chill. I don't know which one it is. I'm not gonna try to psychologize Roberts too much, but he is clearly a jurist who has a very expansive vision of executive power, going back to his time in the Reagan Office of Legal Counsel, which is where he got his start. I would suggest that this particular generation of conservative legal practitioners and thinkers are reacting in part to Congress's response to Watergate. Congress is sort of like adopting or exercising a wide amount of authority over the executive branch and wanting to roll back the clock, somewhat wanting to roll back the clock on war powers. And I think Roberts has seen the Bush administration, after he becomes Chief justice, and then the Trump administration as vehicles for pursuing this project of what he sees as restoring the executive branch to its proper level of authority and its proper position in the American constitutional system. I think there's a question to ask about. How does Roberts actually perceive Donald Trump? What does he think of Donald Trump? And what I do wonder is if Roberts just perceives Trump as an unusual. Basically a typical Republican president, just maybe unusual, usually crass, but someone who is basically aligned with him and so he's continuing this project he has of expanding executive power. Trump United States, in my view, is sort of like maybe the apex of Roberts. We're going to redefine separation of powers to mean that the executive branch is kind of untouchable in important ways by the other branches. Of course, Trump isn't a regular Republican president and takes Roberts's leniency in front of the United States to mean, really that he has kind of unlimited authority. And if that's how Trump takes it, and if Trump is not what Roberts thinks Trump is, then there is this additional question again, to Roberts psychology of, well, how does Roberts respond to that? Did Roberts miscalculate? Or as I said to some friends, did Roberts think that his executive power rulings were just vibes? Like, how did he think that they would actually play out in practice with this particular individual?
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Aaron Retika
So you were talking about Roberts vision of the constitutional system as coming from an earlier, trying to restore an earlier time. You and I have talked a lot, both on this show and also just in life, generally about the historical parallels with Trump. We talked about McKinley, we've talked about Andrew Jackson. I want to talk for a second about the constitutional regime that they're trying to bring back. Right. Because. And this gets to Stephen Miller, learn all these guys, what do they hate? They really hate the 14th amendment. And a lot of them, and a lot of the theorists around them really don't like the Civil Rights Bill of 1964. They consider that unconstitutional. So if you had to pick an era to which they're trying to push the Constitution back, where are they trying to take it? Like, what is the goal here?
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Jamelle Bouie
You know, what's interesting is that there are voices in the national right, the nationalist right, whatever you want to call them, the national conservatism movement, who have been quite explicit about their constitutional vision. You have a writer, commentator, Richard Hanania, who was previously famous, infamous for doing lots of white nationalists and white supremacist writings on the Internet, now is sort of presenting himself as like a sober. A conservative thinker of sorts, has argued that the 1964 Civil Rights act, it's in a book called the Origins of Wokeness, is sort of the patient zero for American government gone awry. And you see those ideas as well, the White House, the president, rolling back integration orders from 1964 gives you a good sense of how much these ideas are influencing the administration. But even with both those things, that's sort of saying, here's where we think things went wrong, but not quite saying what they think is right, how they think the constitutional order should be organized, what constitutional order they want. And for that, I kind of think you just have to. You have to look at what they've said, what they've done, and make some educated guesses. And for my part, what I think they see as the things to unravel are basically sort of the. The key victories of Reconstruction. You know, the Reconstruction amendments, the 13th, the 14th and 15th amendments are passed not just to solve specific problems that emerge in the aftermath of the Civil War, but to codify the settlement. Right. The Civil War was not simply, you know, a battle between two sides. It was a national ideological battle. It was a constitutional crisis. It really was two rival conceptions of what the United States ought to be literally fighting it out. And the victors, they wanted to codify their victory not just into law, but into the Constitution. So each of these amendments represents a part of the settlement. We've ended chattel slavery. That's the 13th Amendment. And the 14th Amendment is, you know, the reason why the citizenship clause is the very first one, is because this question of citizenship and belonging were part of the ideological battle. There's amendments. They stand for an American egalitarianism. And I think that that's ultimately what the nationalists write, what they view as the opposition, but they view as the problem, right, that liberty doesn't mean the freedom of everyone to follow their own conception of the good. Liberty means the freedom to dominate, the freedom to utilize the power and the privileges and the wealth you possess to shape society or even shape the people around you in whatever ways you see fit. Now, if I'm being uncharitable, Aaron, I would call this the freedom of the master, the freedom of the slaveholder, and that the Reconstruction Amendment's attempt to instantiate into the Constitution something more like the freedom of the enslaved person, the freedom of the laborer.
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Aaron Retika
I want to end on something else. Obviously, we've talked about a lot of dark things. The direction of the country is not one either you or I or many of our listeners want. Right. But you don't despair in your pieces, you make it very clear that you don't. Where are you finding that hope?
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Jamelle Bouie
So I believe, okay, two things. The first is that one of my most fundamental ideological commitments, maybe the most fundamental one that I have, it's just I believe in democracy. I do. I believe that it is a birthright of, like, human beings, we have the right to choose our own leaders. We have the right to say for ourselves what kind of society we want to live in. And there's no person, no individual who has some inherent power over us. Even if our social systems may not realize this, we ultimately do all exist in a condition of equality. So that's like my fundamental ideological commitment. And part of what that means is that we all have agency, that we're not, to use Elon Musk's language, we're not NPCs who just mindlessly follow whatever programming that we're given. We all have agency and we all can act. And I think that the people who have autocratic or despotic inclinations, aspirations, they recognize this. They recognize this because they do everything they can to shut down and wound civil society. And so the fact that we have agency, the fact that the people who have maligned plans recognize that we have agency, I think ought to be a source of light, ought to remind us that for as much as at the moment, these people may have the power of the state in their hands, even in authoritarian regimes, stability depends on public buy in public still matters. They may act as if they do not need the consent of the governed, but in a practical sense, they do. We have agency. And our ability to act and resist through civil society is genuinely important and can and will make the difference between a successful attempt to take the United States down the path of competitive authoritarianism or what have you, or keep the United States on a path as damaged as it is at this point of something like representative democracy. The other thing is a little less abstract. My parents were born in the 1960s. I'm a black American, right? Like I'm not, you know, my parents were born in the Jim Crow South. So the Civil Rights act had not yet been passed. My grandparents lived there, you know, were adults by the time they could vote. And not like they were in 18, like they had families, right? They were in their 20s and 30s before they could safely cast a ballot in their places of birth. I am part of this community of Americans who experienced like one party autocracy for the better part of a century. The denial of political rights, the denial of civil rights, arbitrary violence, disappearances either by the state or by people with the sanction of the state. All these things that people associate with authoritarian regimes happened in where I live, Virginia, happened in the places my family lives, Louisiana, Mississippi, South Carolina, Florida, Georgia. And through all this, black Americans, even at the absolute nadir of it, continue to act and organize politically and continue to do everything that was within their power to try to either ameliorate conditions or overturn the regimes themselves. I just feel like if sharecroppers and domestics in mid century Mississippi can stand up against genuine autocracy, then we who are in a much better position than they were can stand up to all of this.
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Aaron Retika
Well, that's obviously an excellent place to stop in a very moving place to stop. Thank you very much for joining me.
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Jamelle Bouie
It's my pleasure as always.
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New York Times Opinion
If you like this show, follow it on Spotify, Apple or wherever you get your podcasts. This show is produced by Derek Arthur, Sofia Alvarez Boyd, Vishaka Durba, Phoebe Lett, Christina Samulewski and Gillian Weinberger. It's edited by Kari Pitkin, Allison Bruzek and Annie Rose Strasser. Engineering, mixing and original music by Isaac Jones, sonia Herrero, Pat McCusker, Carol Saburo and Afim Shapiro. Additional music by Amin Sohota. The Fact Check team is Kate Sinclair, Mary Marge Locker and Michelle Harris. Audience strategy by Shannon Busta, Christina Samulewski and Adrian Rivera. The executive producer of Times Opinion Audio is Annie Rose, Dresser.