Are Trump’s Executive Orders Creating a Constitutional Crisis?

from The New York Times I'm Michael. Babar this is a. [Music]. 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 fullblown constitution.

crisis today my colleague Adam lipac. wads through that. debate it's Wednesday February. [Music]. 12 tonight there are warnings that the. US is dangerously close to a. constitutional crisis we are hearing the. phrase constitutional crisis already.

less than a month into this presidency. we've got our toes right on the edge we. are basically on the cusp we're really. uh heading toward a constitutional. constitutional 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 listen I think this is the. most serious Constitution crisis the.

country has faced certainly since. Watergate the president is I can't tell. you how many times I heard. constitutional crisis during the first. term of Donald Trump and here they go. [Music]. again Adam welcome back always a. distinct pleasure it's good to be here. Michael the phrase dour 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 yeah it sounds. serious doesn't it it does 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 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 is. 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 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. ser.

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. [Music]. alone he can disregard instructions from. Congress and Congress is in article one. congress makes the law MH 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 meant. to insist on his. [Music]. Primacy wellam walk us through some of. the specific examples of how president. Trump is muddling with our traditional. Notions of Article 1 Article 2 basically.

the separation of powers between the. legislative and executive branch and how. he is trying to expand the powers of the. executive so a couple of quick examples. uh 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. in Ed 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 said so 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 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 to Michael he's doing this in. the face of a Congress that it'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 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 action its Appropriations but.

he's not even engaging them on these. questions in a way that he very much. could 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 4-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 well where. else do his actions seem to potentially. be creating a constitutional crisis uh. 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 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 uh you're born in the. United States you're a United State.

Citizen and that list 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 you know just frontal assaults on. the Constitution and potentially the. stuff of a constitutional crisis so I. think i' put in 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 right 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 right he has a. legal leg to stand on right the second. bucket gets much harder where Congress. has specific 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 you know quite Brazen.

and. bold 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 and. Jack right and the courts are already. dealing with an extraordinary number of. Suits they seem to multiply by the. [Music]. 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. [Music]. judgment we'll be right back. [Music].

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 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 he has been on an epic losing. streak some of that can be explained by. plaintiffs suing in Friendly courts but. 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 uh and some of these. judges have been very harsh one of them. in blocking uh the birth right. 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 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. reigning in our efforts to expand our.

bounds right and JD Vance the vice. president has taken the most assertive. attitude toward this saying that the. president doesn't have to obey rulings. from courts that are at odds with his. understanding of the Constitution I just. want to read what JD 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 so it sounds quite. right radical doesn't it I mean we.

generally agree As. Americans that the court has the last. word over the. constitutionality of congressional. action executive action and if JD Vance. is suggesting as a general matter that. the president disagrees with that well. that's a constitutional crisis huh 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 governed. there and there's a flavor of this in. the Supreme Court's decision in July. granting Trump Brad immunity from. prosecution where the court talks about. those powers that are core executive.

powers are for the president only the. Vance statement seems to resonate with. that way of thinking too in other words. it may be a narrower interpretation of. when the president can ignore the courts. then perhaps it seems right 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 well what. Vance's writing here seems to presuppose. that there's going to 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 reign 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. 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 impass. 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 and why would the court think that. Trump could not even if he wanted to. disobey that ruling 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 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 I guess I can think of. lots of examples but why don't we talk. about USA id M 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 right 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. right you're saying the court 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 illegal. merits that Trump might seek to subvert. which is pretty fascinating 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 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. Supreme Court a top 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 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 you know 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. [Music].

well Adam thank you very much thank you. [Music]. Michael 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 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 we. want to weed out the corrup and he. delivered what appeared to be a thinly. Veiled Threat against the judges who. stand in his way well so maybe we have. to look at the judges CU that's a very. serious I think it's a very serious. violation U I'll ask Elon. [Music].

we'll be right. back here's what else you need it's. another day I'll ask Elon Musk to say a. few words and uh we'll take some. questions Elon go ahead uh sure 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 we. have this. unelected uh fourth unconstitutional. branch of of government which which is. the bureaucracy which has in a lot of. ways currently more power than any. elected. representative and this is uh this is. not something that people want 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 were wrong well first of all uh. some of the things that I say will be. incorrect and 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. [Music]. 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 burn contains. original music by. aliciaa Alysa Moxley and Dan Powell and. was engineered by Alysa Moxley our theme. music is by Jim brunberg and Ben. lansberg of wonderl. [Music].

that's it for the daily I'm Michael. babbaro see you tomorrow. [Music].