Title: The Federal Aid Freeze and Reversal

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. On this program, in addition to covering the many new policies coming out of the Trump administration, we will keep asking, "Is this what democracy looks like? Is Trump, as many people are concerned he is, trying to transform our very system of government into something more authoritarian?" We are not assuming a yes answer to that. It's sometimes too easy, I think, to yell, "Dictator," when there's a balance of powers action that people don't like, but in fairness, the question is in play.

We remember that three of Trump's top national security officials, of all people, from his first term, have labeled him a fascist. That's a serious context that I think requires us to keep asking, "Is this what democracy looks like?" when that question is relevant. It is with the blizzard of executive orders that Trump has issued so far, new ones in the last day include using the prison at Guantanamo Bay to house up to 30,000 migrants facing deportation proceedings. One that would rescind the student visas for international students who committed crimes during pro-Palestinian protests on college campuses, and one that would seek to stop schools from teaching about what Trump calls gender ideology and discriminatory equity ideology.

Those, of course, come after the headline ones in recent days, freezing off almost all foreign aid and most domestic federal grant programs, plus the offer to pay an eight-month salary buyout to almost any federal employee willing to leave their job. It's questionable whether that is actually something that's in the law. Like those policies or not, most of them raise questions about whether they are even legal or constitutional. We will go over some of them now to ask, "Is this what democracy looks like?" with Kate Shaw, law professor at the University of Pennsylvania, co-host of the legal affairs podcast Strict Scrutiny, and a contributing opinion writer with The New York Times. Kate, always good to have you. Welcome back to WNYC.

Kate Shaw: Thank you so much for having me back, Brian.

Brian Lehrer: As you try to follow all these things from a legal standpoint, I don't know how you would be getting any sleep right now. Where to begin? How about on the memo that froze spending on so many federal loans and grants? The White House rescinded that memo yesterday after widespread fear and confusion at the local level across the country, but it had already been put on pause by a court. From a legal standpoint, since all that spending had been passed into law, passed by Congress, and signed by one president or another, what happened here?

Kate Shaw: First, Brian, I think you're right. Even for a Constitutional law professor, it's my job to keep abreast of all of this. It is almost impossible, I think, to stay up to speed. The dizzying pace with which executive orders and other actions are just issuing from the White House, I think, makes it really hard to get your head around all of it. I'm happy to talk about any of it but just with that caveat that it's coming so fast and furious that I think we're all still processing. Certainly, though, as to the purported pause of this trillions of dollars of government spending that the White House purported to issue on Monday night, I think that both the federal judge who initially took a look and said we have to pause the pause, we have to basically administratively stay this effort.

Then actually the White House's almost immediate rescission of this memo purporting to pause spending suggests that both one federal judge to take at least an initial look at this, and maybe even White House lawyers who took a second look at what they had done came to the conclusion that actually the whole thing was unlawful. Just to say what it seemed that this memo did, it basically said we are going to pause what the White House said might have been something like $3 trillion in government spending, federal grants and loans, until all of these programs could be vetted to be sure they were not advancing, and I'm going to quote from this memo, "Woke ideology, Marxist equity, transgenderism, and Green New Deal social engineering policies."

I'm not sure anybody knows exactly what all of that means, but the on-the-ground impact was that everything from Head Start programs to veterans programs to domestic violence victim services was put on hold, at least for, basically, a two-day period.

Brian Lehrer: I know you're a legal analyst, but were you following the politics enough to have a sense of whether the backlash included from Republican governors or leaders of Republican municipalities or suburban towns because they were afraid of how it would affect their residents?

Kate Shaw: Absolutely. Even though the language of the memo was coded in what are partisan seeming terms, the on-the-ground impact wasn't partisan at all. Red states and blue states alike receive federal money that, on lots of metrics, red states actually receive much more federal money than blue states. These programs that we're talking about affect Americans of every stripe and every political party. One example was what seemed to be maybe the accidental, maybe the intentional impact of this pause on Medicaid because the White House actually initially said this pause doesn't apply to direct payments to private individuals.

They said that means that Social Security and Medicare and food assistance, SNAP, those programs shouldn't be affected by this pause, but they either didn't mean to or didn't think to exempt Medicaid, which is, of course, the health insurance programs that tens of millions of low-income Americans rely on. It seemed as though this pause actually did extend to Medicaid because all 50 states immediately reported that the portals that they used to access federal Medicaid funds were no longer accessible. Of course, that's something that affects Americans of all stripes.

Brian Lehrer: Yes. That sounds like incompetence in rolling it out to me because then they tried to clarify that, "No, we didn't mean to include med," before they rescinded the whole thing or almost the whole thing. To something you were just saying, there's been reporting that says the backlash to the memo, especially the lawsuit, was the point, that the Trump plan and that of his budget director, Russell Vought, who we know is an architect of Project 2025, are trying to draw lawsuits in the hope that the courts will officially give Trump more power to do things unilaterally. Is that what it looks like to you, as a law professor, is going on here?

Kate Shaw: One thing. Vought hasn't been confirmed yet, right?

Brian Lehrer: Fair enough.

Kate Shaw: He's the designate. No, but I think it's an interesting point.

Brian Lehrer: Wait. Does that position need confirmation? I'm not sure that it actually does.

Kate Shaw: Yes, I think the OMB director is Senate-confirmed, but he's clearly been an important advisor. There's an acting director from whom the memo formally issued.

Brian Lehrer: Right. Officially went.

Kate Shaw: The broader point, I definitely think that there is a long term strategy to both expand executive power, presidential power through moves like this, and, ultimately, to get the courts and the Supreme Court to ratify that expansion. I totally agree that there is a long term plan and many of the moves involving not just executive orders, but some of these personnel moves, including highly legally dubious efforts to fire individuals who enjoy legal against just summary removal by the president, many of those moves, I think, are quite deliberately designed to draw lawsuits that they then can use to press these maximalist arguments about presidential power.

I'm just not sure that was true here because it backfires of what you end up doing is drawing a lawsuit that is a successful lawsuit in which the courts reject claims of expansive or unchecked presidential power. I'm not sure. I think that the speculation about Medicaid that maybe this was just either poor conception or poor execution, as opposed to something really considered, might more accurately characterize this move. Broadly speaking, I think it is all very deliberate.

Brian Lehrer: Interesting. Another way to look at this move from a legal standpoint is, yes, lower court might strike it down. I think, correct me if I'm wrong, that reporting indicated that Trump was saying, "Oh, that was a Biden judge," and that the appeals would continue and that they're rolling the dice that the Supreme Court would ultimately uphold something like this.

Kate Shaw: It's definitely right that the district judge was a Biden appointee. Of course, that's just one single district court judge is not the final word on the lawfulness or constitutionality of any move. Here, I think this effort to essentially usurp Congress's authority to decide how federal monies are spent was so audacious and so brazen and so difficult to square, both with general constitutional allocation of authority between the Congress and the president and also with federal statutes that Congress has passed that give the president some ability to spend less money than the entirety of congressional appropriate sums if particular procedures are followed. None of those were followed here. The unlawfulness, again, as both a constitutional and statutory matter here, seems so clear to me that I don't think even the Supreme Court would likely have vindicated the memo at its original formulation.

Brian Lehrer: Interesting. A question about democracy in my frame of, is this what democracy looks like, if the courts agree, let's say even, that the president has more authority under the Constitution than has been exercised before, is that a breach of democracy or just an outcome of democracy that some people don't like, but democracy nonetheless, unless Trump were to ignore a court order?

Kate Shaw: I think it's total presidential unilateralism is very hard to square with basic conceptions of democracy, at least the kind of democracy that we have and have always had under our Constitution. The one core insight of the drafters of the Constitution and that we've always adhered to in implementing the Constitution, is that unchecked power is the most dangerous thing. The Constitution, as interpreted by all the actors in government, the courts, the president, the Congress, is understood to contain this principle,

that power counteracts power, that the branches limit and check one another.

I think that the argument that any check on the presidency, whether it comes from Congress or bureaucrats in the executive branch or the courts imposing limits on presidential power, that any of that is somehow a threat to a proper understanding of presidential power, which I think is what some of the architects of this Trump 2.0 vision of presidential power think, that to me is hard to defend as a faithful interpretation of our constitutional scheme and of democracy as we know it. Certainly, the boundaries of the power that each of the actors in our system exercises are subject to constant negotiation, and none of them are set in stone, but absolute power is essentially impossible to square with our constitutional design. I worry that that is what some of the actors around President Trump and maybe Trump himself really believes presidential power should look like.

Brian Lehrer: Listeners, any questions or comments for Penn Law professor Kate Shaw on executive orders, so far, from legal or constitutional standpoints, or is this what democracy looks like? 212-433-WNYC, call or text. We'll go down the list of some of the other executive orders that seem to raise legal or constitutional, or democracy questions. 212-433-WNYC, call or text. 212-433-9692. Let's take a call from someone who I think supports that temporary pause on most domestic spending. Avi in Brooklyn, you're on WNYC. Avi, thank you for calling in.

Avi: Good morning. How you doing today? I have two questions. First of all, we say we're all saying that the president can't just unilaterally stop something that Congress has done spending. Why was Biden able to leave the border open, let 10 million people in? Why don't we say that's also a breach of power? The law says you got to keep the border closed. Number two, not in a constitutional way, just in a policy matter, we're going to run out of money soon. We're $36 trillion in debt to all the wonderful people who everybody is so nervous about.

Everybody wants to help the people on Medicaid, the battered women, I heard a congressman say, who doesn't have a shelter to go to. They're all going to be gone soon because we're going to go bankrupt. It's smart policy to stop everything for a while, reassess and see what we can afford. That's what responsible people do. That's what kind people do. They don't just run themselves into bankruptcy. That's not a constitutional question, but those are my two points.

Brian Lehrer: I understand. Avi, thank you very much. On his second point, I actually think that if they hadn't paused the spending, that that would be the conversation the country is having right now. Are we spending ourselves into ruinous debt? As the Trump administration took a fresh look at all federal spending and then proposed things that would go through Congress for what to cut, that would be a whole different conversation. It would probably have a lot of support to do a real detailed line-by-line review of the so many trillions of dollars that we're spending every year and how much debt we're getting into every year, increasing the total national debt. That would be something that I would imagine Kate would have a lot of public support. It was the fact that they froze temporarily, which really isn't a lot of money. This isn't going to solve the debt. The freeze isn't going to solve the debt because it was just temporary while they were doing the review. That's why there's such a backlash.

Kate Shaw: I think that's right. I think that not only would there be broad public support for a conversation about potentially pulling back spending in certain domains, but the president's party controls Congress. Actually, this is a conversation that would actually be quite straightforward to actually implement into cuts that are achieved legislatively, which is how spending is spending and cuts to spending typically occurs through Congress through the legislative process. It was the circumvention of that process that I think was so stunning to most people and also the midstream as whether you think that we should spend less money on things like domestic violence shelters, and early childhood education programs, and daycare for low-income working parents so that they can have a place for their kids to go, and they can show up to work and contribute.

Whether you think we should spend less on those kinds of things or not, we can of course debate, but freezing bank accounts, in the middle of a work week, when parents are depending on a place they can drop their kids so they can show up to their own jobs and not be fired and continue to contribute is just not how policy change is responsibly done. I think that is what was so troubling for many people.

Brian Lehrer: Here's an interesting political question from a listener via text. Since you're a legal analyst, I'm not going to make you answer it unless you want to. It says, "With House Speaker Mike Johnson seeming okay with the administrative branch seizing the purse strings from Congress, could that imply that they don't foresee a future Democratic president? Meaning, would the House speaker, if it was a Republican, be so quick to surrender balance of power changes for all time because sometimes there's going to be Democrats in the White House, presumably?" Do you have any quick thought on that, or should I just move on?

Kate Shaw: Yes, no, I'm happy to maybe take just a general cut at it. I think there's a profound insight there, which is that a huge potential victim of a move like this, this unilateral move to completely upend all the spending choices that Congress has made, is not just the beneficiaries of particular programs, but the prerogative of Congress to make choices about spending. You would think that as an institutional matter, the leadership in Congress would be very, very troubled by this. You mentioned, Brian, and I think it's right, there definitely was some backlash and pushback from elected officials on the ground, including Republican elected officials in red states, but real silence or acquiescence from a lot of congressional leadership.

The Appropriations Committee chair, Tom Cole, basically told reporters that he didn't have a problem with the pause, at least initially. This is the chief Appropriations official in the House. I think that maybe two things, one, I won't speak to your listeners, the potential concern here, what does that suggest about the projecting forward the likelihood that the presidency would be controlled by a different party? I do think that, insofar as what I said about the Constitution and this core feature of constitutional design being that the branches check one another, presupposes this institutional loyalty that the occupants of the different branches of government are going to feel.

I think that with the advent of a hyperpolarized politics, institutional loyalty is far less powerful than partisan loyalty. That maybe reveals a design flaw that if Congress is not going to check the president, when Congress is controlled by the president's party, there is a real question about where the meaningful checks on the presidency are going to come from.

Brian Lehrer: Yes. Another text speaking back to the caller, Avi, who's concerned about the debt, says, "You are forgetting Trump tax cuts. That has raised the debt." Another one, another executive order, one from yesterday on Public education. No, actually, let me hold the public education one for a minute. I want to ask you first about last night's statement by the president that he would use the Guantanamo Bay prison in Cuba to hold up to 30,000 people facing deportation. Now, this is partly because the number of detention beds currently available is not enough to keep up with all the detentions.

The president said, "We have 30,000 beds in Guantanamo to detain the worst criminal illegal aliens threatening the American people. Some of them are so bad, we don't even trust the countries to hold them because we don't want them coming back, so we're going to send them out to Guantanamo." There are several legal and constitutional implications in all of this. First, by referring to the worst criminal illegal aliens, does this mean people already convicted of crimes in the US and only the most serious crimes would be sent to Guantanamo if he goes through with it? Can you tell?

Kate Shaw: I can't, honestly, but I think that's probably right. He has said from the beginning, and look, this is not inconsistent with what previous presidents have said, if there are priority decisions that have to be made with respect to whether all recent presidents have engaged in deportation and Obama did and Biden did, and obviously Trump is suggesting he's going to do it on a scope and scale that is vastly different. In terms of priorities, individuals who are undocumented and have serious convictions of crimes, not immigration crimes, but other actual criminal convictions, should be at the top of any priority list. Presumably he is talking about individuals who are here without legal status and also are convicted of serious crimes. I presume he's talking about a very small subset of a very large undocumented population.

Brian Lehrer: Yes, though he says 30,000 people. I thought the reason they used Guantanamo in the first place, for suspected foreign terrorists after 9/11, that's why most Americans who are even aware of Guantanamo Bay today are aware of it at all. Suspected foreign terrorists, after 9/11, who were not fighting as part of official national armies, so they were considered people who would fall through the cracks of the normal laws of war is, so they would not be subject to the usual due process rules in American courts, because it's technically not in the United States. Agree or disagree with that?

Kate Shaw: I think that was certainly the goal when George W. Bush decided to use Guantanamo Bay in this unprecedented way as this high security jail for these foreign terror suspects, including the masterminds of September 11th. The Supreme Court actually dealt the George W. Bush administration a number of setbacks and actually did find that Guantanamo Bay was not a law and constitution-free zone in the way the Bush administration had hoped it would be. At least that was what it seemed to be the objective. It was the case that, at least in theory, individuals who were detained, even these high-value terrorism suspects, could file habeas corpus petitions.

The Supreme Court required the administration to go back and actually pass two different rounds of federal statutes. They thought that it would be this clever work around the ordinary American justice system, and it was not that simple.

Brian Lehrer: Sure.

Kate Shaw: I would say, many would say, that it was actually a wildly unsuccessful experiment. To see another administration say, "Let's double down and let's find a new use of Guantanamo," I think they would have to build, or I don't think there's any way there's a capacity that would even approach the numbers that Trump has been talking about. I think they'd have to build a new facility there. It seems to me just rife with both logistical, but more in my lane, potential legal and constitutional obstacles.

Brian Lehrer: In your lane, would migrants detained at Guantanamo Bay have any fewer legal rights than migrants detained on US soil?

Kate Shaw: It is a US military facility. At least for purposes of the writ of habeas corpus, this constitutional protection right, you can file in federal court a writ saying, "I'm being unlawfully detained." The Bush administration argued that, no, they had no ability to do that, the individuals detained at Guantanamo. The Supreme Court disagreed and said they actually do have the right to file habeas corpus petitions, and there can be regulations about where they file these petitions, but that there was a fundamental constitutional right to this petition, this habeas corpus petition.

It's a narrow opinion, but at least in one respect, the Constitution is not suspended. The Constitution still does apply at Guantanamo. In immigration detention in particular, which is of course distinct from the military detention that was at issue with the terrorism suspects, individuals in immigration detention are not outside of the protections of the Constitution, but they also don't enjoy the full scope of constitutional protections that an individual who's going through a criminal or a civil legal process does. I would say the Constitution applies, and it would apply in some way to Guantanamo as well, but not all of its protections with full force.

Brian Lehrer: One more Guantanamo question before we move on to some other executive orders and the democracy or constitutional implications of those. The president's quote said, "Some of them are so bad, we don't even trust the countries to hold them because we don't want them coming back, so we're going to send them out to Guantanamo." That implies, and I don't know how literally he intends it, that rather than deport certain people, the US would detain them at Guantanamo permanently, or how do you understand that?

Kate Shaw: That, obviously, they're two and a half decades into the military detention facility at Guantanamo Bay. It became an indefinite detention facility for a very small number of individuals.

Brian Lehrer: That became an issue, right?

Kate Shaw: Huge.

Brian Lehrer: People held without charge, even-

Kate Shaw: For years and years and years, yes.

Brian Lehrer: -without release, but without even being charged and going through a court process. These, probably based on this language, would be people who are already convicted of something, but it sounds like they'd be sentencing them to a kind of indefinite imprisonment in Guantanamo rather than deportation, so they don't ever have the chance to come back. I don't know that would be legal.

Kate Shaw: I don't know. My initial instinct is no, and I also am not even sure. It just feels like a projection of an inability to negotiate. There were complex negotiations about repatriation of individuals who were, again, terrorism suspects. Some of them just caught up, wrong place at the wrong time. Others obviously, actually involved in serious terrorism, but finding third countries or home countries to actually take individuals was a complex process of both diplomacy and negotiation that took many years over the Obama administration, and that was a small group of individuals with very complex circumstances.

I'm just not sure. It just feels inconsistent with the projected strength that I think the Trump administration is seeking to broadcast elsewhere to suggest that we would lack the ability to actually secure an agreement from countries to take their nationals back, or we would lack the ability to secure our border to head off the possibility of return. The predicate of the claim that individuals would need to be indefinitely detained at Guantanamo is inconsistent with other sorts of claims made elsewhere by this administration. I'm just not sure that this feels fully thought out to me. Certainly, my initial instinct as a legal matter is that, no, if individuals are convicted of crimes and sentenced for those crimes, and they of course will be required to serve their sentences, but the indefinite detention authority that it seems that Trump is contemplating, I don't think that the president unilaterally has the ability to do.

Brian Lehrer: Yes, that would certainly not be what democracy looks like. Just to close the loop on the other point that the caller, Avi, made, we focused on his point about the debt. Listener writes, "To Avi's point, it would be Biden's executive authority to administer the money Congress approved to protect the border." He said Biden didn't follow the laws by failing to protect the border. Listener writes, "I am unaware of any funds the border agencies were due that were not administered. Is there any info on this, or did Congress need to pass more funds?" I think the simple answer is no, the Biden administration did not refuse to spend border funds that Congress had passed in the budget. Correct?

Kate Shaw: I think that's exactly right. Presidents have carried out their priorities, identified priorities, and then implemented them in different ways with respect to border security. Certainly, yes, to that first question that the caller posed, there was nothing remotely analogous to what we saw in this spending announcement. President Biden obviously did not make an announcement that he would not be spending appropriated funds for border security, and nor, I think, did he, in practice, refuse to spend funds. Obviously, his enforcement priorities were not the ones that the caller held. Plenty of Americans agree, but it definitely feels like apples and oranges to suggest that border enforcement priorities that were less than maximalist were analogous to this across-the-board spending halt that was ordered earlier this week.

Brian Lehrer: We'll continue in a minute with University of Pennsylvania law professor Kate Shaw, also the co-host of the Strict Scrutiny legal affairs podcast. More of your calls and texts as we go through some of the executive orders and ask, "Is this legal? Is this constitutional? Is this what democracy looks like?" Stay with us. Brian Lehrer on WNYC. As we continue with law professor Kate Shaw on the question surrounding a number of Trump's executive orders so far, is this legal? Is this constitutional? Is this what democracy looks like? Cappy in Hell's Kitchen, I think, has a take on the broad sweep. Cappy, you're on WNYC. Thank you for calling in.

Cappy: Hi. Thanks. Good morning. I think that the pause that they issued wasn't a mistake or anything. I think it was part of the strategy, is how I feel about it. Just throw it out there and see how many people get irate and go crazy. You pull it back because you've learned something, and then you sneak it out there again. When Russell Vought comes in to the OMB next week, I'm sure they'll put it out there again, a little more tailored and detailed. It really freaks me out because it reminds me of what I've read about Germany in the '30s, which was that they would put out something that was drastic.

There'd be some outcry, and they'd pull it back. Then they'd sneak it out again, maybe changed a little bit, and eventually, they kept going. People would say, "Oh, they don't really mean it the first time. It doesn't really affect me. It's just the Jews or now the brown people," or whoever it is. We all know where that ended up. That's what it reminds me of. It's really frightening. I think they're putting in the framework into place so that we'll have this authoritarian government no matter who's there. Even if Trump, he's not going to last very long physically, somebody else, the vice president, will step in. They're setting up the framework, and I think it's really terrifying. Thank you.

Brian Lehrer: Thank you. Kate, echoes of Nazi Germany?

Kate Shaw: I was going to say an echo of something much more recent and closer to home actually, is that in the first week of the first Trump administration, the January 27th, I think it was, 2017--

Brian Lehrer: I know exactly what you're going to say. The Muslim ban, right?

Kate Shaw: You were thinking the same thing, yes. Trump issued the first iteration of the Muslim ban, this travel ban executive order that singled out a bunch of Muslim majority countries and banned entry into the United States for any individual from those countries. It was within a week of the inauguration. It was very sloppy. It didn't clearly exclude even green card holders. Lawful permanent residents, many of whom had been in this country for decades but were citizens of a covered country and may have been abroad when the order went into effect.

Chaos ensued at airports and embassies, and very quickly, the administration lost in a bunch of lower courts and realized there was just no way to defend the first iteration of the ban. They took stock and did a second ban that was a little bit cleaner, but also had some legal infirmities. That one also failed in the courts. Then they tried a third time and wrote a more lawyered and narrower ban with a different list of covered countries, some of which were not Muslim majority countries. They included North Korea and Venezuela. Lo and behold, the Supreme Court ultimately, 5-4, upheld the third iteration of the ban.

It certainly seems to me possible that there is this throw everything at the wall and go very, very big with an understanding that you're not going to win, but that you've moved the Overton window, and you've desensitized the public a little bit. Also, you've created a framework in which, then, the more modest version that you come back with is more likely to be palatable to the public and also to the courts. I do think that there is something to that.

Brian Lehrer: You know what else this reminds me of, the one that he issued just this week that bans all trans people from serving in the US Military. Of course, there are trans people currently serving legally in the US Military. It strikes me that that could be unconstitutional because it is just based on somebody's status, not at all based on their qualifications or their behavior. Have you looked at that?

Kate Shaw: Absolutely. That's one of a bunch of executive orders that this administration has already done. Not just the participation in the military, but ending really, federal legal recognition of transgender individuals, restricting gender marker changes on all federal documents. Just an order, I think, yesterday, making it prohibitively difficult if implemented, for recipients of federal funds to provide any medical care that involves gender transition of any sort. I think that the military ban is part of a much larger attack on trans individuals and, really, their lives and existence.

As to the military ban, the Supreme Court has actually suggested, in a couple of opinions, that singling out a disfavored group of individuals and imposing some legal impediment on them for no reason than animus, as the Supreme Court describes it, bias, dislike, prejudice, that that's not a basis on which to make policy. The opinion that I'm talking about targeted individuals on the basis of sexual orientation as opposed to gender identity. The logic would seem to me to throw into real question the constitutionality of this ban. Actually, the Supreme Court, even this Supreme Court, in an opinion written by one of Trump's own appointees, Neil Gorsuch, found that a prohibition on sex discrimination in employment encompassed a prohibition on discrimination on the basis of gender identity, meaning against transgender people.

Brian Lehrer: Oh.

Kate Shaw: That was for the federal non-discrimination in employment laws, but that too, I think, throws into real question the lawfulness of this ban. I will just say one other thing though. On the other side, courts have been more deferential to the federal government when it is making personnel policy in the military, than the federal government when it is doing other things. Courts don't want to second guess what the elected branches of government tell the courts about what is necessary for military readiness and morale and effectiveness. If the federal government comes to court and says, "We think that having transgender individuals in the military will make us weaker," it's hard for me to see how they support that argument. If they try, it's possible that courts will say, "Even though we have been skeptical of similar moves in other domains, we will defer to you because it's the military."

Brian Lehrer: Certainly.

Kate Shaw: Certainly, the administration must be banking on that possibility.

Brian Lehrer: This brings us to one more before we run out of time, another one from just yesterday on public education. As The Washington Post describes it, the White House cast its executive order on teaching as an effort to end indoctrination in American education. It threatened to pull federal funding from schools that teach about "gender ideology, the idea that one's gender identity can differ from their biological sex at birth, or discriminatory equity ideology." They actually use that phrase. It seems like an oxymoron to me if something is discriminatory and for equity at the same time, but that's the phrase that they used. It would pull federal funding from schools that teach discriminatory equity ideology. That Washington Post article says it's a label that the order attaches to a range of ideas around systemic racism. Can you tell what that actually requires?

Kate Shaw: No. That might be a legal problem. First of all, it's typically supposed to be Congress and not the executive branch that imposes conditions on the receipt of federal funds. Here, as in the spending pause order, you see the executive branch really pushing the boundaries of what it is permitted to do without usurping Congressional authority. Even if the executive branch could do this, could condition the receipt of federal funds on compliance with this kind of order, you can't really tell grant recipients they can only get their funds if they do something or stop doing something without really explaining what that is.

I'm not sure how any school district can know what it's supposed to do or not do in compliance with this order. What is discriminatory equity ideology? What is gender ideology? At the very least, the White House, I think, bears the burden of explaining itself. I think it wants to use buzzwords and catchphrases and to keep things very vague and then retain for itself enormous authority to decide what specific curriculum or message does or does not align with its views. I think it's got to be a lot more specific than this. I think that the overhang over this executive order and a number of them is, the First Amendment does impose limits on the ability of government to force messages down the throats of the population.

Things get a little bit more complicated if the government is speaking or funding speech, as opposed to punishing private individuals for their speech. Either way, the First Amendment here does place some limit on the federal government's ability to say, "We choose what the message that Americans receive will look like as to equity and discrimination and gender," rather than allowing us to debate and hash it out for ourselves. I do think that there are huge First Amendment problems with many of these initiatives.

Brian Lehrer: Folks, we will keep asking, not just, "Is this good policy?" about all kinds of orders and other policies coming out of the Trump administration and Congress, but we will keep asking, "Is this what democracy looks like?" For today, we thank Kate Shaw, law professor at Penn, contributing opinion writer with The New York Times, and co-host of the legal affairs podcast Strict Scrutiny, which, by the way, is usually a Supreme Court-oriented podcast. Besides you being really busy with all this coming out, the Supreme Court is going to be really busy, aren't they?

Kate Shaw: Yes. It's been a quiet term so far, but I think that a number of these initiatives are going to end up before the court in very short order. I think this sleepy term is going to get a lot less sleepy very soon.

Brian Lehrer: Kate, thanks a lot.

Kate Shaw: Thank you so much, Brian.

 

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