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Tiffany Hansen: It's The Brian Lehrer Show on WNYC. I'm Tiffany Hansen filling in for Brian today. Coming up later in the show, how ICE raids or the threat of ICE raids are making many people in the hospitality industry nervous. We'll want to hear from you. If you work in the industry around restaurants, how are you and your colleagues dealing with it?

Plus, Micah Loewinger from On the Media shares some tips on how to navigate the fire hose of news coming out of the Trump administration. Plus, we'll wrap up today's show with a Super Bowl preview. Not just the game, of course, but the halftime show, the snacks, the commercials, et cetera, et cetera. We want to hear about your plans as well including, are you going to find counter-programming to the Super Bowl on Sunday? A very public radio question.

All right. We start off first with this. President Trump has issued a raft of executive orders during his first week in office on everything from border policy to foreign policy to the language used by federal agencies when talking about gender and sexual orientation. Almost immediately, many of those orders have been challenged in court. Here's what's happened just in the last couple of days.

Yesterday, New York Attorney General Letitia James signaled that she would sue the Trump administration over access he has given to billionaire Elon Musk that allowed Musk to view private data of American citizens. Also yesterday, a federal judge in Massachusetts suspended the deadline for federal workers to apply for a delayed resignation. Hearing is set in that case for Monday.

Last night, we also learned that a pair of unions representing the workers at USAID are suing the administration over its effort to dismantle the agency. Oh, but that's not all. There are lawsuits currently working through the courts, including one challenging the Trump administration's move to end birthright citizenship. With us to talk about all of these challenges and their future in the courts is Stephen Vladeck, a professor at Georgetown University Law Center. Good morning, Stephen. Welcome back.

Stephen Vladeck: Good morning, Tiffany. Good to be with you.

Tiffany Hansen: Listeners, of course, Stephen and I would love you in this conversation as well. Do you have questions about the legal process involved in some of these ongoing challenges? Are you involved as a plaintiff in any of these cases or perhaps you're an attorney who has some insights you could share with us regarding the legality of these executive orders and their challenges? Excuse me.

Stephen Vladeck: Yes, it's just--

Tiffany Hansen: [laughs] Go ahead, Stephen.

Stephen Vladeck: I don't even know where to start. I think that the top line, Tiffany, to me is we've never seen quite this kind of flurry at the beginning of a new administration. I think the first challenge is sorting everything out. We're still not even three weeks into this administration and there have been, by my count, somewhere north of three dozen lawsuits filed challenging, depending on how you count, 13 or 14 different sets of actions by the administration. So far, those lawsuits have been succeeding.

We've already seen five or six temporary restraining orders. We've now seen two preliminary injunctions. It's a lot of chaos. It's a lot of disruption. It's a lot of ugly, both rhetoric and consequences, but it's also, at least so far, been stirring the courts and the pushing back. I think it's, in that sense, a bit of a ping-pong battle. Also, at least so far, maybe one way to think of it as the last of our guardrails, at least so far, is holding.

Tiffany Hansen: All right, if you have questions, listeners, for Stephen, you can reach us at 212-433-9692, 212-433-WNYC. You can call us. You can text us at that number. Stephen, why don't we just start at the beginning here? We can dig into the news of the day. Letitia James, our attorney general here in New York, is potentially filing as early as today, a lawsuit alleging against Elon Musk and this Department of Government Efficiency known as DOGE. What is that about? Do you know?

Stephen Vladeck: There are a couple of different series of arguments that we've seen about DOGE. Just to put everyone on the same page, President Trump created this office, to call the department is really a misnomer, within the Executive Office of the President. At least that step is not that legally controversial. The President has the ability to restructure the White House as--

Tiffany Hansen: Right. Isn't this the people that serve at the pleasure of the President, kind of thing, right?

Stephen Vladeck: So far. The legal challenges to what DOGE is doing have to do with the efforts that are being widely reported by Elon Musk and some of his subordinates to basically take over access to the Treasury payment systems, access to databases of personal information held by other agencies. Tiffany, the way to slice this out is there are two sets of different legal challenges.

The first is to whether anyone specifically is allowed to take control of those systems. There are statutes that govern who has access to those information, what they can do with it, especially when we're talking about personal information. There's the Privacy Act, which protects what the government can do even with information already in its possession. One chunk of claims and I think one chunk of what we'll see from the attorney general of New York is challenges to what DOGE is doing with the data.

There's a second set of claims that I think haven't fully matured yet but that are just as important, which is Elon Musk, by all accounts, has been appointed what's called a special government employee, so an SGE in government initialism land. That brings with it, Tiffany, a whole bunch of limits on what he's allowed to do in his other capacity, i.e., as the owner of these very large businesses. There are very, very sophisticated conflict-of-interest rules.

There are some very, very rigid ethics rules that are basically meant to prevent individuals from double-dipping in government and private service at the same time. I think the way to think about DOGE is there's one set of challenges to how they're interfering in the operations and the data storage of other cabinet departments. Then there's one set of challenges to what Elon specifically is up to, given his outside interests, given his contracts with the federal government, and the pretty obvious conflict of interest in having him also on the inside of so many different things.

Tiffany Hansen: Well, if someone works at the behest of the President and is given access to this information, let's say they're only allowed to assess what's there, isn't there a difference between looking at the data that's there versus having "access" to it? In other words, being able to change it or, I don't know, to manipulate it in somehow to use it to some benefit. Is there any distinction there?

Stephen Vladeck: There's a huge distinction. This is where the litigation is. There was a temporary restraining order issued by a federal judge earlier this week that authorized only two individuals who were working for Elon Musk and DOGE to have what's called read-only access to the Treasury payment systems. That's exactly your point, Tiffany. They had access to read the data but not to write the data.

One of the questions is, to what extent were those folks already involved in writing data and not just reading it? To what extent is that happening in other departments besides Treasury? To what extent is that access inconsistent with a series of statutory and regulatory limits on who's allowed to have more than just read-only access to those troves of information? I'll just say another lawsuit that folks might have heard about.

There are actually now two of them speaking of this kind of information is there's been a demand by the deputy attorney general, the Justice Department, to have the FBI turn over a list of every single FBI employee, agents, staff, whatever, who had anything to do with any of the January 6th investigations. There's now a litigation over that request/demand where the plaintiffs, including a number of FBI officers, are suing to prevent that list from being disclosed to anyone outside of the Justice Department, including the public.

One tranche of all of these cases is really about information, who has access to it, and what they're doing with it. One tranche of these cases is whether the folks who are involved in these activities have the legal authority to be doing them. Then there's a third tranche that we haven't even talked about yet, which is some of the more direct actions the administration is taking that are not just within the bureaucracy but affecting people out in the world and whether those are legal.

Tiffany Hansen: Before we get to that, I want to ask just a procedural question for someone who's not working in the law. I've seen reports that there are at least 10, 11, 12, potentially 13 other attorneys general who are signing on. I'm talking specifically about Letitia James's suit that we expect to come potentially today against the DOGE, 11-ish other attorneys general around the country. What is the thinking there for those of us on the outside? I'm thinking, what's the benefit of having 10 attorneys general all pile onto the same lawsuit?

Stephen Vladeck: I think, legally, there's not much benefit. The question that the courts will ask is, why are you, the plaintiff, injured? We've seen real movement in the last 10 or 15 years with courts being much more willing to let states as such bring lawsuits against the federal government. The courts are more willing to find that these kinds of actions by the federal government, whether they're legal or not, certainly affect states directly, and not just because the states are where a whole bunch of the federal employees at issue live. We really have crossed that Rubicon in some sense. Courts in the Fifth Circuit, the New Orleans-based federal appeals court, have let Texas, for example, sue to challenge a whole raft of Biden administration immigration policies. I think that the pile-on, Tiffany, is less about strengthening the claims.

All you need is one good plaintiff, but more because it helps ramp up the nationwide scope of the relief where if Letitia James and the plaintiffs in the case are able to show that what the federal government's doing is unlawful, they also now have a really good argument that the federal court should block the federal government's actions, not just in New York or as applied to New Yorkers but nationwide, because these really are nationwide problems producing nationwide effects. I think that's part of it. I think there's also the optics of just being able to say, "We are part of the effort to push back against what this administration is doing."

Tiffany Hansen: I want to just circle back to these people serving at the pleasure of the President. There is a constitutional clause on this. I have it written down. Article 2, Section 2, Clause 2. This is known as the Appointments Clause. What I'm curious about, and I know you touched on this a little bit, but what sort of precedent is there for what President Trump has done in appointing Elon Musk to this role in terms of private individuals granted access? Do we have precedent there?

Stephen Vladeck: No.

Tiffany Hansen: Is that part of the issue?

Stephen Vladeck: Just to be clear, to be as charitable to what the administration is doing was possible, right? The President has the power to take individuals from the private sector and give them temporary federal government duties. That's what a special government employee is. Tiffany, in that sense, there is precedent for presidents appointing special government employees who we tend to think of as people in the private industry to come in for a short period of time to work on some kind of project.

What's unprecedented is what Elon is doing with that power and the extent to which he's basically trying to commandeer just enormous swaths of the federal bureaucracy, enormous swaths of the federal information architecture in ways that I think are doubly unlawful. They're unlawful directly because of how he's basically taking control of things that are supposed to be controlled by the relevant departments.

They're unlawful because of his day job, which is that it is absolutely preposterous to think that someone who has tens and hundreds of millions of dollars of government contracts is also now on the other side having access to the Treasury Department's payment systems. It doesn't take an advanced degree to see the conflict of interest and there are a bunch of statutes that make that clear.

Tiffany Hansen: Right, there is a difference between unprecedented and illegal, but there are points here. As you're illuminating for us here, there are points that are being challenged in that respect.

Stephen Vladeck: Exactly so.

Tiffany Hansen: I want to get back just really quickly to something that you said before that I thought was very interesting. You said calling the DOGE an agency is maybe not accurate. We have many folks texting us and saying they think that the DOGE itself is illegal. Is that what you were alluding to there?

Stephen Vladeck: No, there's a tricky, nerdy piece of federal administrative law where there's something called the Executive Office of the President. This is basically the bureaucratic structure of the White House. For better or for worse, the Executive Office of the President is something the President controls almost exclusively. If he wanted to create an office within the Executive Office of the President called the Office of New York Mets Fans or the Office of Trump-Loving Chihuahuas, that's his prerogative, right?

Tiffany Hansen: Sure.

Stephen Vladeck: Creating DOGE by itself is actually something the President has the power to do. In fact, the way he did it was he took an existing office within EOP and just renamed it.

Tiffany Hansen: EOP, tell us what that is.

Stephen Vladeck: Again, we should be careful to separate out what's illegal here from what's just silly.

Tiffany Hansen: What's EOP?

Stephen Vladeck: Right, so creating DOGE goes in the silly but legal bucket. What it's doing is where we get into, not just unprecedented but rampantly, in my view, unlawful.

Tiffany Hansen: All right. You said EOP. What's that?

Stephen Vladeck: Sorry. The Executive Office of the President.

Tiffany Hansen: I see, okay. Listeners, we'd love to have you in this conversation, of course. I'm talking with Stephen Vladeck, who is a professor at Georgetown University Law Center. We're talking about all of the lawsuits that are currently working their way through the courts against the Trump administration. You can text us. You can call us, 212-433-9692, 212-433-WNYC. I'd like to bring in, Stephen, if I can, Julie in Hastings. Good morning, Julie.

Julie: Good morning. Thanks for taking my call. It strikes me that the oldest national organized entity that is filing suit on some of these most important issues is labor movement. It's no accident that the right wing has come after the labor movement for 30, 40 years. Of course, unfortunately, there are corporate Dems who are not advocates of the movement. Yes, I just wanted to mention that and most Americans wish it were stronger.

Tiffany Hansen: Julie, thanks so much for the call. Stephen, I was going to get to, as we move the conversation to USAID, a pair of labor groups as Julie was pointing out. Democracy Forward and Public Citizen Litigation Group on behalf of the American Foreign Service Association and the American Federation of Government Employees representing employees at USAID are the ones suing the Trump administration over his efforts to dismantle the agency. Just talk about that. That's not the only case here. I'm shuffling through my notes. Even as we're referring to, as you mentioned, the FBI lawsuit, talk to us about this effort by various labor groups to get involved in some of these lawsuits.

Stephen Vladeck: Sure. I actually think there are three. You mentioned the USAID suit, which I think is a really important one. Speaking of things that are patently unlawful, the President does not have the authority to unilaterally shutter an agency that Congress created. That's USAID. Just like the President couldn't just unilaterally shut down the Department of Education.

Tiffany Hansen: Well, can I ask you a question? He's not technically shuttering it, right? There are still several hundred employees that would remain. Is that a loophole into this?

Stephen Vladeck: I don't think so. Part of the problem, Tiffany, is that there are so many different legal challenges that we're encountering here. Just to take USAID, there are three different sets of problems with what the government has done. The first is it has just stopped spending money that Congress has directed USAID to spend. That's illegal. That is impoundment, which the President does not have the unilateral authority to do.

The second piece of this is terminating or putting on what is effectively constructive termination through leave. Most of USAID's workforce. The President has broad control over the executive branch, but he does not have complete control over, for example, those who are in the civil service with some kind of job protections. That's part of the lawsuit being brought by the unions.

Then the third is the reorganization of USAID, which he's undertaking, which also really requires Congress to do by statute. Tiffany, part of what's tricky about this is that the news stories that we're all reading are sometimes mushing together what are actually distinct, legally dubious steps that the government's taking. USAID is one example. You mentioned the FBI cases where, indeed, there's also a union-backed effort to sue on behalf of FBI employees.

Then the third set of cases that we haven't even talked about is lawsuits that are being led by the National Treasury Employees Union and a couple of other smaller labor organizations that are challenging what's called Schedule F. This is the White House's proposal to basically restructure the entire federal civil service to turn more and more jobs within the federal government into political jobs where they come and go with the new president. Tiffany, just to add on top of that, there's this separate litigation over this sham buyout that the federal government has to offer for employees.

Tiffany Hansen: Yes, I do want to get to that. Can I circle back really quickly? You used the word "impoundment." Basically, that means stopping distribution of funds that had been previously allocated by Congress.

Stephen Vladeck: That's right. Under the Constitution, the appropriations power belongs to Congress. Indeed, it's one of the rare examples of the Constitution specifically disclaiming the power for anyone else to do something. Article 1, Section 9, Clause 7 says the only way you can appropriate money is by law, that is by statute. Impoundment is a power various presidents have claimed in small episodes at prior points in our history, which has never been accepted.

It's been repudiated by Justice Departments even during Republican administrations. In 1974, Congress passed a statute basically to say, "Hey, Mr. President, if you want to even try this, you have to go through us." Of course, that hasn't happened here. Tiffany, I do this for a living. Even I have trouble keeping track of all of the different ways in which the administration over the first three weeks has really, in my view, broken the law but certainly raised novel legal questions about its behavior. Frankly, I think it's worth saying, "I think in some sense, that's part of the plan."

Tiffany Hansen: All right. To that point, Stephen, I'm going to interrupt here and bring William into the conversation. William is in Astoria this morning. Good morning, William.

William: Good morning. My question is, although I really think all these legal approaches are great, we're dealing with billionaires and trillionaires who not only have a lot of money, but they have a movement behind them. They have a MAGA movement without getting too much into details. I'm very worried. I work on immigrant rights issues, focused on grassroots work, and what I'm seeing is a movement opposed by lawyers.

History has usually shown that if you don't have a movement to counter the MAGA movement, eventually, these judges are going to be bought off. You can look at the United States. You can look around the world. Trump has the money and he has a movement. In your opinion, what are the limits of legal strategies and how do we make sure we do movement building in New York? We don't all sit on the sidelines and hope the ACLU will block or whatever legal organizations block this because Trump and the MAGA movement is much broader than just a legal legislative approach. It's got a strong movement behind it with lots of force.

Tiffany Hansen: Right. William, thank you. Thank you so much. Stephen, is this a strategy by the Trump administration to just take it to the courts?

Stephen Vladeck: I actually think what the courts were already seeing are probably the least hospitable place for what the Trump administration is doing. Further to the call, I think that the courts are really just about the only remaining obstacle. We saw Senator Susan Collins last night, who is the chair of the Senate committee that oversees the White House spending operation, saying that she voted for the President's nominee to run OMB, Russell Vought, even though she thinks that what OMB is doing is illegal because she's confident that the courts will stop them. Tiffany, I guess to tie a bunch of threads together, I agree that the courts are not going to be able to stop all of this. Indeed, at least some of what Trump is doing probably is legal, lawful, but awful, which is why the fact that we're seeing such factlessness on the part of Congress is really the more alarming long-term trend here.

Tiffany Hansen: Well, I do want to follow up with you on the favorability of the courts at this point, but we're going to take just a really quick break here, Stephen, and then we'll get back to it. We are talking with Stephen Vladeck, professor at Georgetown University Law Center, about all of the lawsuits that are working their way through the courts right now against the Trump administration's actions. We'll get to more of it. We're going to take a quick break. I'm Tiffany Hansen in for Brian Lehrer. Stay with us.

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Tiffany Hansen: It's The Brian Lehrer Show on WNYC. I'm Tiffany Hansen in for Brian. Today, we have been talking about the raft of executive orders President Trump has issued during his first weeks in office and all of the litigation that is currently happening around those executive orders. We're in the discussion with Stephen Vladeck, who is a professor at Georgetown University Law Center.

Stephen, I mentioned before the break, I wanted to talk to you about the niceness of the courts in terms of-- it's a friendly place for some of these challenges to land. I wonder, isn't that because, right now, we are seeing these challenges happen in federal districts where there potentially is a judge that is appointed by former President Biden or that has a history of being favorable toward Democratic "issues"?

Once we see these cases work their way through the system, perhaps up to the Supreme Court, which I think might be the end-game here, won't we see the Supreme Court, which President Trump had a large hand in putting his stamp on it at this point from his previous administration? If that's the end-game, that's a much more familiar place for him and friendly place for him to end up. Is it friendly now in the plaintiff's point of view but maybe won't be later?

Stephen Vladeck: That's a great question. I think there's no doubt that the Supreme Court is going to be more sympathetic to at least some of what President Trump is doing than federal district judges in Rhode Island and Massachusetts and New Hampshire and Maryland and DC and Seattle, where all these cases are being brought. But, and I think this is a really important but, President Trump actually [unintelligible 00:26:48] really poorly in the Supreme Court during his first administration.

He lost a number of big cases, probably more than we would have expected given the composition of the court. I think that the Supreme Court doesn't live in a vacuum. For as much as the court has enabled executive power, something I wrote about in my newsletter earlier this week, and for as much as the court has directly enabled Trump through its immunity ruling last summer, this is also a court that I think cares deeply about preserving the rule of law in this country.

When it looks across the street and sees Congress basically throwing up its hands, I guess I'll just say, I actually have at least some faith that even this Supreme Court is going to push back on impoundment and trying to take over Congress's spending power. I think it'll push back on birthright citizenship. I think it'll push back on at least some of the more openly nefarious stuff that Elon Musk is doing. Tiffany, they won't push back in all the cases I want them to, but I think they'll push back in more than we might expect.

Tiffany Hansen: I want to get to that because I do have a follow-up question for you, but I do want to bring our listeners back into the conversation. Listeners, we would love to hear from you. 212-433-9692, 212-433-WNYC. You can call us. You can text us with questions for Stephen about the legal processes that are ongoing currently. Let's talk right now to Alan in Brooklyn. Good morning, Alan.

Alan: Good morning. Thanks again. I think we have to avoid losing the forest for the trees here. During the campaign, Trump was very explicit in saying that if elected, he plans to terminate the Constitution on day one. He said he'd rule as a dictator for one day, but he didn't say he'd terminate the Constitution for one day. He just said that flat out. How anyone could have allowed him then to take an oath of office is beyond me.

I'm amazed that the same sort of thing happened during the impeachment hearings when the senators had to be sworn in as impartial jurists in impeachment. In the first one at least, Roberts was presiding. He knew that many of the senators there had declared in advance, they were going to vote to acquit before a word of evidence was presented. How Roberts thought that was an appropriate response to continue to swear these people in as jurors after they declared their intent to violate their oaths as jurors is incomprehensible. It shows that he is a judge for the party and not the country.

Tiffany Hansen: Thanks for the comments, Alan. I'm wondering. Arguably, we could say that a lot of what the President is doing now, Stephen, is challenging specific portions of the Constitution, right?

Stephen Vladeck: I think there's no question. No one should try to understate the importance of what we're seeing. I was rather stunned that there's a law professor who wrote a column in Bloomberg Law last week saying everything's fine. [chuckles] Things are not fine. Tiffany, I think it's worth stressing that, for better or for worse, our Constitution has multilevel guardrails. We've had plenty of presidents throughout our history who have acted unconstitutionally, acted unlawfully, shown disrespect for the rule of law.

Part of why we've been able to make it 250 years as a democracy is because when those things have happened, the other institutions have pushed back, whether it was the pushback against Richard Nixon in the 1970s or the eventual dismantling of the internment camps in the 1940s. We have lots of stains on our history. The question is, to what extent are those stains going to be rejected by the courts and by the American people and to what extent are we going to rationalize them?

That's why this is obviously, a very lawyerly position to have. I confess. I'm a lawyer. This is how I'm trained to think. So long as the courts are blocking what Trump is doing and so long as those rulings are followed, I don't know that this is a constitutional crisis even if it is a massive political and real-world crisis. I think we should at least have some faith thus far that that particular center is holding.

Tiffany Hansen: Well, let's talk a little bit about how we might see the Supreme Court weigh in on constitutional precedent, I guess. I'm not really using that word right maybe, but I'm talking about birthright citizenship. The fact that when that potentially comes to the Supreme Court, won't there be some question around what the original intent was of the 14th Amendment? Is that an opportunity for some of these folks in the Supreme Court that are more focused on what the original intent is? There's a word for that. Originalists, right? Is that what I'm talking about?

Stephen Vladeck: Yes.

Tiffany Hansen: Yes, okay, that they will be focused on that and that will be an indirect challenge to that part of the Constitution.

Stephen Vladeck: To go down a bit of a rabbit hole, I think you're absolutely right, Tiffany, that there are going to be justices who want to answer the birthright citizenship question in that particular methodological frame. Even that frame cashes out the same way. If you really look carefully at why the drafters of the 14th Amendment in 1868 wrote the citizenship clause, they were specifically responding to the Supreme Court's 1857 decision in the Dred Scott case, which had held that enslaved people and children of enslaved people not only were not citizens but could never become citizens.

It was against that backdrop that the citizenship clause was meant to just remove any doubt that any kind of inferior social status or even inferior legal status could somehow be used to deprive you of citizenship. Yes, I think there will be different methodological approaches depending upon the justices. Part of why I'm at least relatively confident that there are at least six or seven votes even on this Supreme Court to reject Trump's birthright citizenship border is because here's an example. Here's a case where the history and tradition that conservative justices claim to like and the precedent that more moderate judges tend to like to follow all cash out in the same direction, which is against what President Trump is trying to do.

Tiffany Hansen: We have a text here, Stephen, "Wondering about enforcement, assuming plaintiffs win some cases. Trump has broken through so many guardrails. I worry what will happen if he simply disregards court rulings." Stephen, there's a quote that sticks in my head. It was a president, I believe, that said, "They ruled on this. Now, let them enforce it," and that basically saying, "The Supreme Court said what they said, but I don't have to enforce that law." First of all, is that even possible? Second of all, did I imagine that? [laughs]

Stephen Vladeck: This is a quote that is widely attributed to President Andrew Jackson-

Tiffany Hansen: There we go.

Stephen Vladeck: -in the context of the Cherokee removal crisis in the early 1830s. Jackson's reputed to have said, "John Marshall, the chief justice, has made his ruling. Let's see him try to enforce it." Tiffany, there's a growing consensus among scholars that that quote is actually apocryphal. That aside, the larger point remains. Yes, the Supreme Court does not have the power to enforce its own decisions. It depends upon the executive branch. Indeed, literally, the Supreme Court's mandates issue in the name of the President.

It wasn't Earl Warren who sent the army into Little Rock in 1957 to desegregate Central High School. It was President Eisenhower. The key is that we have been lucky throughout almost all of American history that the political costs of defying the Supreme Court have been too high for any president to bear. Obviously, this president is insulated from political costs to a degree we haven't seen.

I think there is a very real question about what would happen if the Supreme Court were to rule against Trump on birthright citizenship or impoundment or something about USAID. He just tells the court to pound sand. My fervent hope and my expectation is that that would be the red line not for every or even many Republicans in Congress, but for enough of them that it would cause dramatic negative consequences for Trump.

Keep in mind, the Republicans have a razor-thin margin in the House. Even with a three-vote margin in the Senate, it would not take much. It wouldn't take that many Republicans to say, "The Supreme Court is our line in the sand. If you're not going to follow their decisions, we're going to thwart your agenda. We're going to block your nominees. We're not going to fund what you want to do. If it really escalates past that, we're going to caucus with the Democrats. We're going to impeach you."

There comes a point where this ratchets up. I think we're not there yet. There are scattershot reports about how the government has been slow to comply with some of these court orders. That's just not the same thing in my view. Yes, Tiffany, that is the one thing I worry about at this moment, which is if we get to a point where there's a head-on confrontation between Trump and the court, is it clear to me that the court's going to win?

Tiffany Hansen: Well, not to fearmonger, but we are in a reality where red lines are crossed every day. All right, let's bring another caller into our conversation here, Stephen. Jeff in Queens. Good morning, Jeff.

Jeff: Hi, good morning. I apologize. I'm recovering from the flu, so I'm a little scratchy voice. I appreciate your optimism, Stephen. With true due respect, I think it's a little misplaced, particularly as you made the comments about the court adhering to the rule of law just as a broad statement. I think this court, if you look at more of their recent decisions, every opportunity, they had a chance to follow the rule of law or show partisanship. It's certainly my opinion that they chose partisanship. I think that the level of optimism that you express, while I certainly appreciate it because I tend to be an optimist, I do think it's misplaced. I think it's the sort of thing that will ultimately get us in a lot of trouble.

The other thing I would add real quickly is I believe you or someone made a comment about Susan Collins. She said that she would let the courts handle it. Well, Mitch McConnell said the same thing at the second impeachment. We know how that turned out. The courts were not able to handle it. Above and beyond that, last time I checked, Susan Collins is a United States senator from the great state of Maine, meaning she has a job. She has a responsibility. That's not to abdicate her vote or her decision-making to the courts.

She should stand up and she should stand tall and she should do her job as all senators should do, or they should resign and just move on. I think this is a test of character. Susan Collins and many of her colleagues are failing them. I think what we're ultimately going to need is someone who's willing to make a noble sacrifice as much as Ms. Cheney did or even Adam Kinzinger. Frankly, on a greater scale, I think it's going to take a noble sacrifice of somebody to break this scenario where we're in and where we're headed. Thank you for your time.

Tiffany Hansen: Yes, Jeff, thanks so much for the comments. Feel better. All right. Stephen, are you just too darn optimistic?

Stephen Vladeck: Probably, but I'm a Mets fan.

Tiffany Hansen: [laughs]

Stephen Vladeck: This is the life we live. Let me just say, I agree entirely with the second part. I think a huge part of why we're in the mess we're in is because way too many members of Congress, especially on the Republican side of the aisle, have completely abdicated Congress's independent institutional responsibility to be, one, its own branch of government and, two, a meaningful mechanism for overseeing the executive branch.

You had the chairman of the House Appropriations Committee, the most important appropriator in Congress, Tom Cole, say last week that the OMB fund freeze was okay because appropriations aren't laws. That's embarrassing and it's a huge part of where we are. Yes, I agree with that. On the court's point, I think two things can be true. I think the court has done a heck of a lot of damage and is responsible in some ways, big and small, for how we got here, including through the immunity ruling last July, including through a slew of rulings over the last 15 years that have ramped up the President's control over the bureaucracy.

This is what I wrote about in my newsletter yesterday. I also think this is still a court that's committed to at least [unintelligible 00:40:45] if not our conception of the rule of law. There are some pretty visible examples of moments where the court could have thrown in the towel for Trump and didn't. During the aftermath of the 2020 election, the court had five or six different chances to greenlight litigation that would have called the result of the election into doubt. Each time, it didn't emphatically.

There are other cases where the court rebuffed Trump when it came to trying to resist subpoenas in 2020, when it came to trying to delay his sentencing in the New York hush money case just last month. I think it is absolutely true that this court is more inclined to support Trump than I think it ought to be. I think any of its predecessors would have been and that it is still not going to rule for him just because he's Trump and that there are going to be cases where he's going to lose.

I think some of the cases that are already on their way to the Supreme Court are within that category. I'll just say, I think we should be critical of the court. I wrote a book, the subtitle of which is How the Court is Undermining the Republic. We can be critical of the court and still be cautiously-- maybe optimistic is too strong, but cautiously confident that even if the justices don't do what we want them to do, in many cases, they still actually believe in the rule of law as they understand it. A lot of what Trump is doing right now is a grave threat to that.

Tiffany Hansen: Last question before we let you go, Stephen, is about state law versus federal law. I want to get back to our own attorney general, Letitia James. She issued a statement. This is something we haven't touched on yet, and that is that she issued a statement saying that hospitals here in New York that are denying gender-affirming care are in violation of the state's human rights law. I'm curious if you can just quickly lay out for us how, in this situation, state law trumps federal law. Then also, does that mean if she were to take this issue to court, would she have grounds to stand on then?

Stephen Vladeck: The short version is state law never trumps valid federal law that under the supremacy clause of the Constitution where there's a conflict between a valid federal law and state law, the valid federal law will always win. Tiffany, what Attorney General James is doing, which is both correct and clever, is she's basically setting up a challenge to the efforts on the part of the Trump administration to withhold federal funding from hospitals that provide treatment consistent with the New York Human Rights Act, from highway departments, from all kinds of areas where the Trump administration is trying to use federal spending as a way of forcing states to change their policies and to make a lot of con law into three sentences.

Congress and the federal government are allowed to condition federal spending, but only if the conditions are both, one, related to what the money is being spent on. You can't, for example, use highway money to change school policies. Two, the conditions have to be permissive, not coercive, meaning the state has to be in a realistic position to say no to the money.

Three, the conditions have to not otherwise violate the Constitution, whether because they're discriminatory on account of sex or gender status and gender identity, whether because they infringe upon the recipient's free speech rights. What I think the attorney general is setting up is a series of challenges to efforts on the part of the Trump administration basically to coerce states through spending conditions. At least during the first Trump administration, most of those challenges succeeded. I suspect at least some of them will this time around as well.

Tiffany Hansen: All right. Folks, if you'd like to hear more from Stephen. Stephen, you have a newsletter. Tell us how we can get that.

Stephen Vladeck: Yes, so I write a twice-a-week newsletter about the Supreme Court specifically, but also Trump in the Supreme Court these days. It's called One First. It's on Substack. You can find it at stevevladeck, V-L-A-D-E-C-K.com.

Tiffany Hansen: We have been talking with Stephen Vladeck, a professor at Georgetown University Law Center. Stephen, thanks so much.

Stephen Vladeck: Thanks so much for having me.

 

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