Aaron Reticka (4:55)

That's happening in different ways. Right. There's the theory, the unitary executive theory. And of course, Trump made waves recently by posting, well, it's a quote from Napoleon. Except it's not actually from Napoleon.

Jamel Bouie (5:08)

No, it's from Waterloo.

Aaron Reticka (5:09)

It's from the movie, which is appropriate, which fits. Yes. What he posted, though, was, he who saves his country does not violate any law. Which also picks up from the Nixonian idea that he famously said to David Frost after he resigned that if the president does it, it's not illegal. So there's that assertion of that authority. But in practice, they're also doing a lot of things. They're attacking all these agencies. You called it an attempted hijacking. Brooke Harrington, who's a sociologist at Dartmouth, refers to it as a hostile takeover. And you asked in your. One of your articles, you know, whether the Constitution as we know it would still be in effect. Trump knows that his two opponents and that is how he thinks about it, Right. He's not thinking, getting back to your analogy of divorce, Right. He's not thinking of Joyce's custody. Right. He's thinking like, I will have sole custody of the powers of the American government, which is obviously not the way it was set up. But he is trying to make those branches feel his lash. Right. That's part of why you send absolutely breathtakingly absurd candidates like Robert Kennedy, Pete Hegseth, Tulsi Gabbard, and perhaps choicest of all, Kash Patel. That's part of why you send them, Right. It's to actually humiliate these senators and make them vote for someone they know perfectly, many of them know perfectly well are not the least bit capable of doing the jobs they're being asked to do. Well, that's part of it. And then on the court side of things, right, they're trying a very typical MAGA tactic. Right. As he would put it, you know, the Marxist left is conjuring up this constitutional crisis. But as Carolyn Levitt, the White House.

New York Times Opinion (7:04)

Press secretary, put it, the real constitutional crisis is taking place within our judicial branch, where district court judges in liberal districts across the country are abusing their power to unilaterally block President Trump's basic executive authority.

Aaron Reticka (7:20)

So all of this is coming together. How do you see it going forward?

Jamel Bouie (7:25)

How do I see it going forward? One thing it's useful to do, to go back to that Waterloo quote, that kind of faux Napoleon quote.

Aaron Reticka (7:33)

Waterloo, we should say, is, I think, a 1970 movie.

Jamel Bouie (7:36)

Right, right, right. It's quite good, too. Okay, so to go to that Napoleon quote and to go to Napoleon himself, like part of Napoleon's death deal, he crowns himself Emperor of the French. He doesn't say Emperor of France, he's Emperor of the French. And he himself is presenting himself, and I'll use the word again, as almost an emanation of the French people themselves, like the Volksgeist of the French, I think Trump, whoever posted that. But even in how Trump presents himself, he does present himself as not simply the elected administrator of the federal government, not simply the head of state. He presents himself really as, like, the spirit of the American people. And so when thinking about what's happening, first of all, and I said this in the conversation with some of our colleagues on matter of opinion, Trump isn't just staking out some expansive vision, but of executive power. He's really making a claim about where sovereignty lies in the American system. And he's saying, it lies with me. And you Know, he who saves the country doesn't break the law. That is almost more, I think, than the Nixonian. It's not illegal when the president does it. It's much more of a. Because I'm sovereign, what the law is, is subordinate to my will. I literally cannot break the law because I am kind of like I'm this instantiation of the country itself. And so when Carolyn Levitt says that the constitutional crisis in the judiciary and that they're usurping the president's executive authority, if any of these people had any kind of traditional constitutional understanding, this would be absurd. Right? Like an executive order, which is what this is all about, isn't some royal decree. An executive order is essentially a bit of statutory interpretation. And by definition, then it is subject to statutory review by the actions of judges. But if you think of an executive order as a royal decree, if you think of the executive order as almost like an emanation of the people themselves, then, yes, some district court judge blocking it seems like it should be illegitimate. So where does this go? The thing about these sorts of assertions of sovereignty is that it's only true to the extent that political actors treat it as true. And unfortunately, the people who are treating it as true are the people who currently hold the majorities in the House and the Senate, which is where, looking to the future, where this gets tricky, because when Congress does not act in response to a presidential, or judicial, for that matter, provocation to an assertion of power from either of the other two branches, from power grabs from either of the two branches, when Congress chooses not to act, what Congress effectively does is validate the assertion, validate the power grab. And so Congress refusing to act in the face of what's happening in the administration, refusing to take its custody of.

Aaron Reticka (10:58)

These agencies well, and specifically the power of the purse, which is the source of its constitutional power.

Jamel Bouie (11:03)

Right, right, right, right. Congress refusing to do that is seeding away its power of the purse. And so, and just can I make.

Aaron Reticka (11:12)

This point super clear for people? By giving it away. Right. What you're saying is by not asserting it, right, they are giving it away. Right. Because as I'm always saying, you don't, and I think I stole this from some other political scientists, you don't take power, you make it.

Jamel Bouie (11:28)

Right. And to specify what it would look like for Congress to not give it away in this circumstance, all it would take, I mean, in Republicans, clearly, I mean, what Doge and Trump are doing are making cuts that they long would have wanted to make had they ever been able to get the votes to do so, which is part of why they're probably not pushing back. They realize. Realize that if you were to do this legally and constitutionally, it probably couldn't happen, or they would face too much political blowback. But what would it look like, too, for them to maintain the power of the purse is just to pass a bill giving Doge the kind of authority that it's claiming, giving Doge access to these agencies, giving it like a. Like a gloss of congressional legitimacy. They could even say, you know, you can't unilaterally turn off programs or destroy agencies, but you can make recommendations, and they'll go to the Doge Committee in Congress and they'll be written up into a bill, and then we'll. We'll vote on the bill.

Aaron Reticka (12:33)

Can we pause for a second just to. To recognize the amazingly evil sound of Doge?

Jamel Bouie (12:40)

I. I hate it. I. I'll. I'll be totally honest with you.

Aaron Reticka (12:42)

Let's just have a linguistic moment here.

Jamel Bouie (12:44)

I hate saying it because it's a reference to a stupid meme, and I just don't. And Elon Musk. So the thing about Elon Musk.

Aaron Reticka (12:51)

Not a reference to the Venetian Republic. Huh?

Jamel Bouie (12:53)

Not a reference to the Venetian Republic. People floated that, and it's like, Elon Musk is not. It's not that smart. I'm sorry. He is thinking of the dog meme from 15 years ago, and he thinks it's really funny. Still. That's.

Aaron Reticka (13:07)

I'm gonna come back to Elon Musk, because when we're talking about delegating power and the Constitution, I wanna talk about him in the appointments clause. But before we get to that, there is resistance brewing within the executive branch. Last week, Danielle Sassoon, who was then the Acting U.S. attorney Southern. Well, U.S. attorney in the Southern District of New York, refused to drop the case when she had been ordered to by the Department of Justice in Washington. But the woman who actually did that, right, she was not a liberal. She was appointed by him. She was a Federalist Society. I don't remember is the right word. She's clerked for Scalia. So is it possible that that is one area where not a resistance in the Women's March sense, but a resistance, an important reassertion of judicial power will occur? Or is this a fleeting moment of conscience that actually we shouldn't put too much stock in?

Jamel Bouie (14:12)

I think it's really hard to say at this stage if Trump is trying to run roughshod over the judiciary as well as Congress. I have to imagine that they would be jealous of their authority and jealous of their power and would on that basis want to push back. Especially since they, they don't, they would not suffer any political consequences. It's not like they have to run in a primary or anything. It's not like they can be pressured out of the job. It's their job until they, they don't want to have it anymore.

Aaron Reticka (14:40)

You said that there had to be a lot of impeachments, but that's not the same as offering to bankroll primary opponents.

Jamel Bouie (14:45)

Right? Right. As far as within the executive branch, I mean, this is where it gets interesting because you can assert this hierarchical control of the entire executive branch and it's. I say that and I feel like it's worth saying that I think that many Americans do imagine that the executive branch is structured in the sort of like top down pyramid, like a company. Right. And that's that kind of fire anyone. And honestly, you know, if the least sinister version of where Trump is coming from, it's just that he's been at the head of a company his whole life. And so he imagines that the corporate structure can be, or not even the corporate structure, the closely held firm, you can just transport it over to government. One way you can describe what attorney is doing is trying to make the government look like a closely held firm. But as I was saying earlier, the executive branch really isn't hierarchical in that way. I'm trying to think of a good analogy for it. It's more like the president represents one especially powerful and influential like Magnet. It's like a board with lots of metal filings. And all the metal filings are the various agencies and bureaus and employees and everything. And there are just various. There's the president magnet, there's the Congress magnet, there's a court magnet. And it's sort of like depending on positioning, depending on area, depending on relative strength, all these things, the files will go in one direction or the other. But it's not something top down in a way like a company is.

Aaron Reticka (16:15)

I mean, this is Trump's worldview, right? He's got this, you know, and here I'll tap into your film expertise. It's like this Rat Pack film noir idea about the world, right? Everybody screws everybody else and that's it. Like that's all there is. No one is an idealist, no one is right. It's the anti Frank Capra idea, right? And you see it in a million ways with him, and you see it with Greenland. You See it with Mexico, Panama, and now we're saying, oh, Ukraine, you'd like some help? We're going to take all your minerals or, okay, we'll settle for half. That's connected to all of this. Right. And in fact, it. It precedes any kind of constitutional authority or assertion of power. So how do you see all of this coming together in Trump?

Jamel Bouie (17:12)

I mean, I think what fundamentally drives Trump is his belief that might makes Right. Right. That if you are big, you have a right to dominate everything around you. The US can have Greenland and Canada because it's big, can have Panama because it's big and they're smaller. Russia can have Ukraine because it's big. Perhaps China can have Taiwan because China's big. This sense that simply being the biggest entitles you to whatever you want. It's, quite frankly, a child's vision of power and a child's vision of how things should work. And what it misses, this desire to impose rigid hierarchies and dominate them, is that even in autocratic systems, power is reciprocal. Even in authoritarian countries, leaders cannot act with total impunity. They have to be attentive to public opinion to some extent. They have to be attentive to subordinates, to potential rivals, to all sorts of people within the regime.

Aaron Reticka (18:16)

And if you have that cynical view, you see them everywhere.

Jamel Bouie (18:19)

Right? Right, right, right. There's no way to actually have a stable hand, hold stable authority and run roughshod over everyone or suppress your opponents this way. You can't do both. One thing I do think is interesting is there will be mounting legal efforts. You can sense that the public, that maybe the demobilized opposition is beginning to get mobilized again just very recently.

Aaron Reticka (18:48)

His approval rating is also starting to slip a little bit.

Jamel Bouie (18:51)

So maybe his. And here's the thing right now, you could say that all this stuff that is happening is really only capturing the attention of people like us. But there are these large layoffs happening, right, that are affecting just ordinary federal workers. If there are enough of these things in a short enough period of time, that's a real economic hit. That's people, you know, maybe they're not paying rent, they're not paying mortgages, they're not buying as much. It's an actual economic hit. Maybe he gets these tariffs that he wants and doesn't back down. Finally just. He just rips off the band Aid and does it. It's not hard to imagine within the next month or two, all of this coming to a head to produce outcomes that regular people notice and feel Cutting Medicaid, perhaps. Right.

Aaron Reticka (19:35)

Most strongly of all.

Jamel Bouie (19:36)

And then. And then what happens?

Aaron Reticka (19:37)

Truly barbaric.

Jamel Bouie (19:38)

Right? Like, you've done none of the work to prepare the ground. You've done none of the work to build political support. You've acted like an autocrat. But, like, public opinions still exist, other political actors still exist, like, the society still exists. And so, you know, Shock and Awe was successful in March 2003, and it meant nothing six months later.

Aaron Reticka (20:04)

So before we close out, I want to talk a little bit about Musk's role, because it's also connected to these constitutional issues. He is clearly acting as a principal officer of the federal government, so he should be subject to the advice and consent of the Senate. On Monday night, in a court filing, the administration asserted that he actually wasn't the head of Doge, that he's just a special advisor to the President. They're doing that, I assume, because they're trying to slip out of any danger that he would have to appear before the Senate or that just publicly disclose his finances or. I'm not sure exactly what the reasoning is there, but that part of the constitutional crisis, if I could use that phrase, has gone under the radar somewhat, but is actually perhaps the most obvious manifestation of the constitutional crisis right now.

Jamel Bouie (21:03)

It's been actually quite strange to me to see how little discussion this has gotten. Okay, so if he's a specialist, maybe.

Aaron Reticka (21:08)

Explain the Appointments Clause, because, like let's live on planet Earth, not everybody knows what the Appointments Clause is.

Jamel Bouie (21:15)

So the Appointments Clause of the Constitution simply empowers the President to nominate and with the advice and consent of the Senate, appoint public officials. It comes from Article 2, Section 2, Clause 2, and states and the President shall nominate and buy, and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. Let me back up. For early American public through the 19th century, basically the way things worked is that there were cabinet heads and bureau heads for smaller agencies. There wasn't a big White House staff, as we would recognize it. That really only emerges in the 20th century. Sort of the rise of the administrative state and the rise of sort of like the. A large right.

Aaron Reticka (22:18)

And can we pause for a second to say that the rise in the Administrative state. The rise in the state came in the response to seeing what happened when unfettered capitalism was allowed to reign free.

Jamel Bouie (22:32)

One way to think of the administrative state, and I'm sure people who hate it are gonna be like, this is a biased way of thinking about it. But hey, you're listening to us and not them. One way to think of the administrative state is, is that the advocates for a larger, more rational and more expansive federal bureaucracy were looking out at economic society and civil society and seeing large concentrations of wealth, seeing large corporations that had in effect, the power of states. And there's just no way to control them. No way. There's no counterbalancing force in society. So the federal administrative state is a counterbalancing force. It is a force of comparable size and complexity and strength that can work its will on concentrations of wealth, on concentrations of economic power, and so on and so forth. And so, yeah, it makes sense that these people would hate this thing because it was designed to be in the way of their predecessors. But in mid century ish, Congress essentially passes a law that allows the President to hire all kinds of advisors, all kinds of aids, and so expand out the White House staff and make it bigger and more able to actually manage things. These weren't Senate confirmable positions because they weren't really exercising power. They were advisors to the President. They are helping run the White House. But Musk is not a chief of staff. He's an advisor. But he's an advisor whose agents can destroy entire federal agencies.

Aaron Reticka (24:08)

Yes, the world's weirdest sleepovers.

Jamel Bouie (24:11)

Who has been granted extra legal and extra constitutional authority over critical parts of the federal government. And so I would say that if the appointments clause is about presidential officers who are exercising direct presidential power, then Musk, who is exercising presidential power. I mean, and that's a nice way of putting it, I feel like in a real sense you can make a real case that like, Musk is serving as a kind of co president. If that's the case, then he has to be Senate confirmed. I mean, if that's the case, then the Congress needs to pass a bill creating the Office of Doge or something and then investing it with authority and then confirming him. But like, as it stands, it really is, I think, an extra constitutional assertion of power. It certainly seems to me like Musk is like just being the President right now and like kind of looking back over shoulder every so often to be like, okay, Trump. And Trump is like, I don't care. Sure, they're kind of co presidents and that muddies the lines of responsibility tremendously. And if Elon Musk is going to be issuing orders to the members of the federal bureaucracy, he does need, there needs to be some formal, he needs some formal Senate confirmed role. And if there isn't one, if he's going to be acting as co president without any accountability, that is, I mean, that is, it's not great. It's bad.

Aaron Reticka (25:39)

We're going to have to come back to this because we didn't even discuss the just massive inherent conflicts of interest, which is like just, I mean, it's actually billions of dollars of contracts that Musk's businesses have with the federal government.

Jamel Bouie (25:53)

He, they, they've successfully been able to demagogue public health measures that cost pennies on the dollar to the American taxpayer. Meanwhile, Elon Musk could and probably has at this point awarded himself hundreds of millions, billions of dollars in valuable contracts, to say nothing of what he's doing with all the data these people have access to. It's like, pay attention. Hey, hey, look, we're spending on literacy in Iraq, a country we invaded, by the way. Don't pay attention to the fact that it looks like, you know, the official car of the State Department might be Tesla.

Aaron Reticka (26:31)

Ah, that's the next step. Jamel, thanks very much.

Jamel Bouie (26:36)

My pleasure.

New York Times Opinion (27:04)

If you like this show, follow it on Spotify, Apple or wherever you get your podcasts. This show is produced by Derek Arthur, Sophia 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.