Title: The White House & the Constitution.

[MUSIC]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. First of all, thanks to Brigid Bergin, Amina Srna, Tiffany Hansen, and David Furst, first in the hearts of his countrymen, for filling in the last six shows. A little dental work, a few days vacation, and poof, it adds up to a week away. Listeners, I hope you were nice to the substitute hosts. Thanks again to them, and it's good to be back.

Now, when Donald Trump was re-elected president, we said we would follow his second term on at least two tracks, policy and democracy. I know you can't always separate them out neatly, but it's one thing to have policy debates on which interested parties can disagree. Should there be an education department? Should there be tariffs? Should the Biden climate laws be repealed? Should Black History Month's observances be banned in the US Military? Yes, they're really doing that. Did you hear? What about foreign aid and federal funding cutoffs to hospitals providing gender-affirming care for minors? These are intense, consequential policy changes, I don't have to tell you.

We've been talking about all of them, not to diminish the enormity of what's happening in any of those policy areas and more. It's yet another thing if we're being led into an authoritarian form of government. In this segment, we'll talk about that. At the top of the list of those concerns right now, Vice President JD Vance suggested in a tweet over the weekend, you've probably heard this, that Trump can refuse to obey court orders that he doesn't agree with. The tweet said, "If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general and how to use her discretion as a prosecutor, that's also illegal." He wrote, "Judges aren't allowed to control the executive's legitimate power," from JD Vance.

Speculation has begun over how explicitly Trump and Vance are getting ready to move toward autocracy by not being constrained by court orders. To some degree, it's already happening. As the New York Times reported on Monday, a federal judge said the White House had defied his order to release billions of dollars in federal grants, marking the first time a judge has expressly declared that the Trump administration is disobeying a judicial mandate. If you haven't heard this sound bite yet, brace yourself. Justice Sonia Sotomayor seems to be preparing herself, and maybe the country, for the possibility that Trump will even ignore rulings by the Supreme Court.

Justice Sonia Sotomayor: Court decisions stand whether one particular person chooses to abide by them or not. It doesn't change the foundation that it's still a court order that someone will respect at some point. That's the faith I have in our system.

Brian Lehrer: Abide by them at some point. Justice Sotomayor at an event on Tuesday. We'll talk to UPenn Law Professor Kate Shaw about this in a minute, but I'll just note first that there's a lengthening list of executive actions that raise the question, is this what democracy looks like firing the director of the Office of Government Ethics and the head of the federal agency that protects whistleblowers? Both things this week, both of whom were confirmed by the Senate last year for five-year terms.

Dismantling the Consumer Financial Protection Bureau as it considers regulating Elon Musk's plan to establish banking and payment services on X as the agency would any financial institution. The way they let Mayor Eric Adams off the hook this week, have you been following exactly how that went down? President Trump didn't just pardon him, as many people expected that he might, opining that Adams was not guilty of corruption as charged. Instead, the Justice Department withdrew the charges for now in a way that took no position on the question of guilt or innocence and would allow it to resume the prosecution if it decides to.

This is widely being viewed as holding Adams, and therefore the city, hostage with the threat of renewing the mayor's prosecution if he makes an unapproved move. Is this what democracy looks like? Are we now in a constitutional crisis, as an increasing number of constitutional scholars now contend? Is Trump taking us down the road toward fascism? Even as we remember for context, three of his top national security officials from his first term said last year that he wants to do.

With me now is Kate Shaw, law professor at the University of Pennsylvania Carey Law School, co-host of the Supreme Court podcast Strict Scrutiny, and a contributing opinion writer with the New York Times. Kate, thanks for coming on. Welcome back to WNYC.

Kate Shaw: Good to be with you, Brian.

Brian Lehrer: To establish for our listeners what you were quoted saying in a New York Times article this week, your point of view here, you were quoted in this article saying-- Ah, and I thought I had it in front of me and I don't, so I'll let you do it. You're very concerned about Trump defying the Constitution and more, right?

Kate Shaw: I am. I think it's important to talk about courts. I actually think the question of whether we are in a constitutional crisis doesn't turn just on the possibility of defiance of judicial orders. I actually think that what we have seen, this pattern of contempt for constitutional principles like the separation of powers, like equal justice under law, and flagrant and outright defiance of statutes passed by Congress, that is already the stuff a constitutional crisis is made of, even before we get to the possibility of outright defiance of judicial orders.

I think that the separation of powers is a key component of our Constitution. The separation of powers, the idea there is that it is dangerous, it is intolerable, in fact, for all power to accrue in one individual or one institution. There are mechanisms in place that prevent that excessive accrual or aggrandizement. We've seen these efforts by the executive branch, by the president, to assume all power, the power that Congress typically exercises, and the power to execute the law. Part of the reason I think we are in a crisis is not just this effort to grab the power, but the failure of Congress to actually push back against those efforts.

Brian Lehrer: Now I have your quote from the Times article. See, a few days away and I lose my ability to organize my notes. You said, "A number of the new administration's executive orders and other executive actions are in clear violation of laws enacted by Congress. The administration's early moves also seem designed to demonstrate maximum contempt for core constitutional values. The separation of powers, the freedom of speech, equal justice under the law." Kate, I think you were just talking about separation of powers. Would you give us an example or two of things you're looking at in a couple of those other categories, maybe freedom of speech, equal justice under the law?

Kate Shaw: Sure. I actually think that a number of these so-called DEI-related efforts that are very explicitly about prohibiting certain positions, positions that advocate diversity, and equity, and inclusion, not only in the federal government, there is a degree of control the executive branch or the president has over the messages disseminated inside federal agencies, but also to try to prevent states, localities, private entities from pursuing diversity, equity, and inclusion. That's clear to me, First Amendment violation to punish speech and viewpoints because of the content of those viewpoints or that speech is free speech violation 101 from my view. That, I think, is separate from the separation of powers, but an important principle. I also think that--

Brian Lehrer: Let me jump in on that one because the pushback from the other side might be, well, the federal government often places conditions on private institutions for federal funding, and sometimes it's been a requirement that they engage in some kind of diversity efforts for federal contractors, for whoever. Sometimes it's around sustainability, whatever it is. It's not new or unprecedented in that respect. What would you say to that?

Kate Shaw: A couple of responses. One, absolutely, Congress places conditions on the receipt of federal funds all the time, but Congress isn't doing this. It's just the executive branch. It's trying to attach conditions to the use or the receipt of funds that Congress has already allowed for and it allowed for without these conditions attaching. The wrong part of government seeking to impose these conditions, I think, is fatal flaw 1.

Brian Lehrer: Is it not often, and forgive me, I don't have chapter and verse here, is it not often or sometimes the executive branch, through the agencies, whether it's EPA or whatever it might be, placing these rules and regulations that funding will flow from or not? Correct me if I'm wrong.

Kate Shaw: No, in general terms, you're totally right. Implementing statutes passed by Congress, absolutely, but this is completely unilateral. I think that this is very different. When Congress passes a law and gives agencies significant authority and actually carrying out the provisions of that law, agencies will sometimes place conditions on how that is carried out. This seems, to me, to be completely unilateral and not something it is doing in the exercise of delegated authority from Congress, but completely on its own. That, I think, is one reason that this is a problem.

I also think that it is how dramatic and midstream, this is a related but somewhat distinct point, these changes are. Again, if we're talking about creating new programs from scratch or even changing programs, and the executive branch wants to change the tenor or some of the details surrounding the carrying out of programs, that might be one thing. Again, these are radically different conditions being imposed on sometimes programs that are already underway.

To imperil the existing terms on which cities and states and private entities are carrying out their functions and activities is just wildly chaotic and also, I think, inconsistent with this existing principle that yes, you can attach conditions to the receipt of federal funds, but you basically need to do it in ways that are clear. That's another fundamental problem, I think, with some of these directives on diversity, equity, and inclusion. They are very, very vague and subject to, I think, a lot of interpretation, but you need to be clear about what is required of the recipients of federal funds.

It's typically supposed to be a condition that you could abide by and take the federal funds or decide you don't want to adhere to that condition, and you can refuse the federal funds, but it's not supposed to be coercive. That's a set of standards that the Supreme Court has articulated, including actually in one case involving the Affordable Care Act. I think that there are a number of distinct legal principles that these efforts to yoke federal funding to the refusal to or the abandonment of any DEI initiatives or efforts is at least in deep tension with settled law.

Brian Lehrer: Listeners, are we in a constitutional crisis? Is this what democracy looks like? We welcome your questions and comments from any point of view for Kate Shaw, UPenn Law professor. 212-433-WNYC, 212-433-9692, call or text. To your assertion that we're already in a constitutional crisis because of all these things you've just been describing, what if somebody argued, "No, not yet," because what Trump is doing with all of those things is testing the limits of separation of powers.

Now ultimately, there are so many lawsuits, so many temporary restraining orders against many of these things already, and some of them will undoubtedly work their way up to the Supreme Court. He's allowed to test, he can try it, and it's going to be pushed back on in court. Then ultimately, we're only in a constitutional crisis if, in fact, he defies a court order that goes against him. What would you say to that?

Kate Shaw: I don't at all mean to say that we are in a constitutional crisis beyond the point of no return. I absolutely agree that there remain very, very important mechanisms that can be, are being, and will be used to push back. I think that the crisis is nevertheless there. I think we are both nowhere near the point of no return, but also well beyond testing the water.

I think it's right. All presidents have innovated in the way they have occupied the office of the presidency, and many of them have pushed the boundaries of executive power, but I don't think we've ever seen anything like what the first weeks of this administration have shown in terms of the flagrant violation of federal law and norm of governance after normal governance, whether we're talking about personnel, whether we're talking about the defunding and actually dismantling federal agencies, the outsized empowerment of unelected and unappointed, even outside entities, obviously, first and foremost, Elon Musk. I think that all of these are the stuff of constitutional crises. We are definitely still in a position in which there is much that can be done to push back, including, but not only in the courts.

Brian Lehrer: Let's talk about the courts. Let me, in fairness, play this clip of Trump on Tuesday, which I think was after the Times published your quote. Trump was asked this question by a reporter after the JD Vance tweet raised so many people's alarms about not following judicial orders.

Reporter: If a judge does block one of your policies, part of your agenda, will you abide by that ruling? Will you comply?

Donald Trump: Well, I always abide by the courts, and then I'll have to appeal it. Then what he's done is he slowed down the momentum, and it gives crooked people more time to cover up the books. If a person's crooked and they get caught, other people see that, and all of a sudden it becomes harder later on. The answer is I always abide by the courts, always abide by them, and will appeal.

Brian Lehrer: I'm sure, Kate, that you won't say case closed, nothing to be concerned about anymore in terms of Trump and the judiciary. Trump is usually not shy about saying who he'll defy. How reassured were you by that moment from Tuesday's news conference?

Kate Shaw: I thought it was helpful, but I don't want to put too much stock in it. I actually think it's important not to put too much stock in the statements in either direction, either Vance's saber-rattling on social media or Trump's seeming assurances in the Oval Office. I actually think more important is what we hear the administration and its lawyers saying in court. So far, at least, the message seems to be, "We are complying with court orders. We will pursue appeals if we disagree with them." That is the way to challenge what a court has done. If we think it is wrong, it is not outright defiance.

I think that politicians say a lot, including about the courts. What is more important to my mind is the representations they make in court. Now, there is a limit to that principle. If they are outright defying court orders and telling the judges nothing to see here, then I think it becomes more important what they are doing than what they are saying in court. Right now, you alluded at the top to some suggestion that at least one court order, there's concern about compliance. At least so far, my read is that these are sprawling and unwieldy agencies trying to turn the ship in terms of what they are doing and what they are told to stop doing by these preliminary orders that courts are issuing.

Sometimes messages get lost or garbled in translation. There may be some imperfect compliance with court orders, but that is very different from outright defiance happening inside agencies or lawyers actually telling courts that they are in any way not abiding by their order. I do take some comfort, but I think that watching what they do and what they tell courts is going to be hugely important.

Brian Lehrer: Take us a little bit further into that Monday statement by the judge that Trump is already defying a judicial ruling. Can you explain a little bit about it? What, as specifically as you know, was he referring to?

Kate Shaw: The initial orders as to the funding freezes that these-- Initially, this is, I think, last time we talked, Brian, that OMB purported to issue basically a pause on federal spending that was initially enjoined, and then the OMB actually walked it back, announced it was rescinding to the pause. Yet there seem to be indications that some of the funding spigots have not been turned back on. Again, my general read is that it is imperfect and messy compliance with and the difficulty of actually turning back on systems that were turned off either deliberately or in error. I think that what I heard on Monday was imperfect compliance, and it's really important that compliance come into line. It does not appear as though there is intentional outright defiance as much as failure to fully comply.

Brian Lehrer: Let's take a phone call. Bob in Riverside, Connecticut. You're on WNYC with UPenn Law Professor Kate Shaw. Hi, Bob.

Bob: Good morning, Brian. Thank you for taking the call. I had two thoughts. I'd like to say this first in nautical terms or naval terms. We're clearly standing into danger, which is like steaming towards a big rock, which can rip the bottom out if you hit it. The second is that my understanding of the way the Constitution law works is that Congress must enact a law that basically covers the things upon which executive orders are implementing. As I recall the-- I think it's the first line of the First Amendment of the Constitution of the Bill of Rights starts off, Congress shall make no law abridging the right of free speech and all the other stuff. Most of the Bill of Rights actually is written in that Congress shall not make a law that enables these things.

Brian Lehrer: What's your question as it pertains to executive power?

Bob: My point is it sounds like an executive authority has to be based on legislation, and where there's no legislation, just making it up as you go along is part of the standing and the danger. It's going to run the ship aground.

Brian Lehrer: Kate?

Bob: The ship will sink.

Kate Shaw: No, I love the nautical metaphor. Thank you for that. The basic description of presidential power is right. It aligns with what the Supreme Court has told us about presidential power. Whether we're talking about executive orders or other forms of executive action, the president is not the key policymaker of the nation. That's Congress. The president is only supposed to exercise authority if the Constitution or a statute passed by Congress gives the president that authority. There are some spaces where the president has authority under the Constitution, regardless of what Congress has done. The pardon power is a good example. The president's pardon power is vast.

Just to give an example of something that Trump has done since taking office. The blanket pardon of January 6th defendants, I thought was a terrible policy and a grave mistake, but he had the constitutional authority to do it. I don't think that those represented a constitutional crisis, even if I think that they were, again, deeply misguided. That, I think, the president exercising, even in ways we might disagree with lawful authority, has political remedies, if there are remedies at all, but does not, I don't think, speak to the stuff of constitutional crises.

Just to say something else about presidential power in the Supreme Court, the biggest Supreme Court opinion about presidential power is the Youngstown steel seizure case from 1952, in which President Truman tries to seize the steel mills and the Supreme Court Court rejects that effort and lays out a scheme, in a concurring opinion by Justice Jackson, that has guided judicial inquiries into presidential power ever since. The relationship between the Congress and the President is everything.

Presidential power has to either come from an act of Congress or the statute, but it is when Congress passes a law and the president acts contrary to congressional enactment or even congressional intent, the president's power is at its lowest ebb. The president has very limited authority if the president crosses Congress or violates a statute. I think we have just seen example after example of that in recent weeks. Those actions in conflict with congressional enactment, I think, are clearly unconstitutional. The question is when a court will say that definitively and what the White House will do in response.

Brian Lehrer: Of course, on the politics side, we've seen the abandonment of even a pretense of trying to stand up for their own constitutional powers by the Republican Congress. That does bring us back to the clip of Justice Sotomayor, and I'm going to play it again for listeners who joined us in the last 20 minutes since we played it the first time. The clip of Justice Sotomayor was pretty alarming in that she seemed to be saying the Supreme Court has no means to enforce its ruling if a president wants to ignore them. Let me play it again for listeners who haven't heard this, and then I'm going to ask you to talk about it.

Justice Sonia Sotomayor: Court decisions stand whether one particular person chooses to abide by them or not. It doesn't change the foundation that it's still a court order that someone will respect at some point. That's the faith I have in our system.

Brian Lehrer: Were you jumping out of your chair when you heard her say that like I was? Do the courts, including the Supreme Court, have enforcement powers of any kind when it comes to constitutional rulings?

Kate Shaw: I do think that's a concerning statement. I think that what Justice Sotomayor is saying is that the Supreme Court is not willing to cede its authority to anyone, any single individual, maybe implicitly encompassing a president there. I think that the Supreme Court is not defined. Its power cannot be limited by one move, one action, even an act of outright defiance does not fundamentally erode the power of the Supreme Court, I think, is what she is trying to say there.

It is true that the courts, the Supreme Court and the lower federal courts, have limited enforcement authority. They don't have none, but the power is limited. They can hold officials, including government officials, in contempt. There are questions about whether they can impose actual fines against executive branch officials. It's not really settled, but they can certainly try. Either way, holding an attorney in contempt or another government official who's not complying with a court order in contempt is serious, if symbolic more than material because the court, in theory, could actually jail individuals in contempt of court.

The problem is that in the federal courts, the entities that actually would carry out such an order are the US marshals, who are part of the executive branch and not part of the judicial branch. If an order was given from the executive branch to fail to carry out or to abide by such an order of a court, a court can't actually jail someone. A judge cannot personally do that. Other kinds of contempt, civil contempt does not require the participation of the US marshals.

I think one other important tool that we should not discount is that the administration absolutely needs the federal courts in all kinds of ways. The administration is the plaintiff in certain cases in which it is seeking to use the federal courts to advance its policy desires, the administration that prosecutors in the Justice Department need federal courts to cooperate when they are pursuing criminal charges against defendants.

Antagonizing the federal courts in ways that might induce responses in other spaces and other cases, I think is something the executive branch should be very wary of doing. Even if, as we know, the judges themselves have no purse strings. They don't control the purse strings. They don't have any armies. They have typically relied on other entities in government to actually carry out their judgments, but they are not without some inherent authority of their own.

Brian Lehrer: We'll continue in a minute with University of Pennsylvania Law Professor Kate Shaw, who's also co-host of the Supreme Court-oriented podcast Strict Scrutiny as we assess the first few weeks of the Trump administration through the lens of the question, is this what democracy looks like? Are we being moved toward an authoritarian form of government? Andy in New Paltz, when we come back from the break, we're going to take you next. Andy's going to relate this to some local New York stuff and where it touches Washington. I think he has an interesting question, so stay with us.

[MUSIC - Marden Hill: Hijack]

Brian Lehrer: Brian Lehrer on WNYC as we continue to talk about what kind of constitutional crisis the country may be in at this point. Andy in New Paltz, you're on WNYC. Hello, Andy.

Andy: Hi, Brian. Thanks for taking my call.

Brian Lehrer: What you got?

Andy: I want to talk about Eric Adams, and I want to talk about democracy. He's a compromised elected official, compromised by the president of the United States. We have a democratically elected official in New York State who has the power to remove Eric Adams from office, and that's Kathy Hochul. This is a time when Democrats have to use every lever at their disposal to protect our democracy. I think we should be demanding that he be removed in the legal mechanism that's available to us as citizens of this state.

Brian Lehrer: Is the way that the Trump Justice Department let Adams off the hook this week a factor in what you're saying?

Andy: Absolutely. Well, first of all, the nature of the underlying charges already raises significant concerns that should be adjudicated in the courts, but we no longer have access to those courts thanks to a bizarre, manipulative act of our current president. He's holding the potential of future prosecution over Eric Adams' head because the charges were set aside without prejudice. That means that Donald Trump controls the mayor of New York, in my mind, and that's intolerable.

Brian Lehrer: Andy, thank you for your call. Kate Shaw, what do you think about that? I was going to ask you a version of that question anyway. I'm glad Andy brought it up. The way the Trump Justice Department let Mayor Eric Adams off the hook this week, Trump didn't just pardon him, as many people expected that he would. Instead, the Justice Department withdrew the charges for now in a way that took no position on the question of guilt or innocence, leaving that open.

As Andy states, they could resume it if they decide to. This is widely being viewed as holding Adams, and therefore the city, hostage, with the threat of renewing the mayor's prosecution if he makes an unapproved move. This, too, could be seen as a form of abuse of power by the president and a move toward a kind of authoritarian governance over a local entity.

Kate Shaw: I think the sequence of events was deeply disturbing. Just to walk through what happened, so the acting deputy attorney general in DC sent a letter to the US attorney here in the Southern District of New York directing the dismissal of the pending charges. As you said, the letter doesn't claim it actually disclaims any concern with the substance of the charges or the evidence amassed by the line prosecutors at the Southern District of New York. Rather, the explanation is twofold. There's a suggestion that maybe these were politically motivated charges in the first instance because the previous presidential administration didn't like Adams' criticism of their immigration policy, and maybe also the charges were improper because they interfered with Adam's campaign for re-election. Unclear why that's a federal priority since the charges came well before the campaign was in full swing.

Actually, the letter is also pretty explicit about saying that the federal government is concerned that the charges-- Let me just read a quote from the letter. "We are particularly concerned about the impact of the prosecution on Mayor Adams' ability to support critical ongoing federal efforts to protect the American people from the disastrous effects of unlawful mass migration and resettlement." The letter explicitly seems to say, "We need your cooperation on immigration enforcement, and we're dismissing the charges or ordering the dismissal of the charges in order to get that cooperation." There's a footnote in the letter saying there's no quid pro quo, your lawyer acknowledged that, but the body of the letter seems very clearly to suggest a quid pro quo. As your caller suggested, this dismissal is without prejudice.

The sword of Damocles hangs over the head of the mayor potentially, if the federal government isn't happy with cooperation. That is an enormous deal for New Yorkers. Your caller is absolutely right. The city charter permits the governor to remove the mayor. Even when these charges were first announced, people started calling for Hochul to consider exercising that authority. It's certainly a conversation that New Yorkers would be justified in reviving now.

It's not a tested process. I am sure there would be a legal challenge and a suggestion that there is a First Amendment protection, that this dismissal would be based on positions or views the mayor holds, and there would be some support the mayor could draw on in resisting that removal. It is out there, and I am not surprised to hear that there are people who would like to call on the governor to consider actively exercising that authority.

Brian Lehrer: What about any kind of legal challenge to the dropping of the charges in this way we've been discussing as an act of abuse of power as opposed to compassion for somebody who they think has been accused unfairly?

Kate Shaw: Just to really charitably read that tweet of JD Vance that you mentioned a little bit ago. When Vance said the courts can't control the legitimate exercise of executive authority, there are domains of executive authority, executive power, that courts really can't second guess, and prosecutorial discretion is one of them. It's almost impossible to imagine anyone getting a court to even consider ordering the federal government to continue a prosecution it has decided to abandon.

I should say, this directive came from DC to the US Attorney's Office. I think there's will be a hearing in front of Judge Ho, who is the judge before whom these charges were pending. I can't imagine he won't accept the dismissal of the charges. That hearing hasn't happened yet. In theory, at least, there could be some discussion of the underlying motivation. That's at least a moment in which there could be some public scrutiny and judicial scrutiny of the process by which this unfolded. It seems to me that some kind of judicial intervention to block this move by the Trump administration, it's almost impossible to imagine that actually happening. A political remedy is a little bit easier to envision.

Brian Lehrer: I want to cite a couple of articles that I've read that push back on this idea that Trump is abusing his power and even that JD Vance tweet that suggests he might defy court orders. There was a Wall Street Journal editorial headlined JD Vance's Tweet Is No Crisis. It says, "Mr. Vance's more alarmist critics assumed that the executive branch was preparing or threatening to defy court orders."

The more straightforward reading is that he was referring to legal doctrines of justice ability, reviewability, standing in the so-called political question doctrine. That's all very legalistic, but it adds, "There is a long tradition of departmentalism in American law under which presidents have sometimes interpreted the law for themselves and even refused to enforce court orders or threatened to do so, a possibility to which Alexander Hamilton referred in Federalist Number 78 as itself an aspect of checks and balances." What do you say to that Wall Street Journal editorial?

Kate Shaw: That's a very charitable read of Vance's tweet. There is definitely some truth there. I alluded to this a bit ago. Prosecutorial discretion is one of these domains of executive authority that courts typically don't second-guess. In fact, that's the examples that Vance gave. One, a judge trying to tell a general how to conduct a military operation. The political question doctrine that the Wall Street Journal op-ed references would preclude a court from actually second-guessing a military judgment by a general. Similarly, a judge trying to command the attorney general how exactly to use discretion to prosecute, that too would be understood to be outside of the scope of judicial authority.

The problem with that very charitable read of what Vance is saying is that no court has come close to directing a general or a prosecutor how to exercise their discretionary authority. All these court orders, these rulings against the administration, have done is require the executive branch to abide by statutes passed by Congress. That is squarely within the authority of the federal courts since Marbury v. Madison. Vance is not wrong in some very narrow sense. The implication that courts are wildly overstepping their authority is not remotely supported by what we have seen in recent weeks.

Brian Lehrer: On this Trump defiance of acts of Congress, which is the first thing you brought up early in the segment as creating a constitutional crisis, there was an article in National Review, the conservative journal by the conservative law professor, John Yoo, from Berkeley and the University of Texas. He says, in response to Richard Nixon's resignation over the Watergate scandals, Congress enacted a series of framework statutes that unbalanced the separation of powers in its favor, in Congress's favor. He writes, "We can understand Trump's executive orders and the outrage that has greeted them as a broader effort to finally undo these unconstitutional shackles of the post-Watergate era. Your reaction?

Kate Shaw: That's not how most people read the history. It is true that Congress was very active in the mid to late 1970s. The Federal Election Campaigns Act and the Ethics in Government Act and a number of the provisions that say created the inspectors general who Trump has fired en masse in recent weeks and have just tried to create mechanisms inside government for responding to and checking potential abuse and overreach at the highest levels of government.

I think that as a descriptive matter, that's right about the post-Watergate moves by Congress. The latter part of the argument is one that I very much don't subscribe to, which is that somehow those are an overreach. I think those were a necessary corrective to the overreach that we saw reflected by Richard Nixon and that the system responded to imperfectly, but ultimately did respond to.

I think Congress's judgment was the system held but barely. It did ultimately result in the Supreme Court directing Nixon to turn over the audio recordings from the Oval Office that made clear he had been involved in at least the coverup of the Watergate break-in. That release of the tapes ultimately led to his resignation, facing near-certain impeachment and removal, but only because things broke the right way. Did we ever get to the point of the special prosecutor getting access to the tapes and the Supreme Court deciding the case and the president departing after this massive set of abuses of authority?

It was important to put in place checks to ensure that we would not come to such a place again. I think that those checks are really important, and many of the mechanisms created by those statutes are exactly what Trump has taken aim at. I think that Yoo is right about what is motivating some of these actions. It's not an accident the inspectors general and the Office of Special Counsel head were on the list of the first to be fired in the early weeks of the administration. This is, to my mind, what is throwing out of whack the separation of powers, not those congressional responses to Watergate and Nixon.

Brian Lehrer: We have one minute left in the segment, and I want to respect the fact that a number of listeners are texting questions about Elon Musk in particular. I'm going to read one of these to represent the group and give me a quick response, and then we're out of time. A listener writes, "I do not like the fact that Elon Musk has the ability to investigate and search US citizens and their personal financial information. I am appalled at the failure of our government to stop this horror." Writ large or writ specific, Elon Musk and abuse of power and constitutional crisis in his role as it's been defined?

Kate Shaw: I think that the ostensible premise of DOGE is that unelected bureaucrats have too much power and we have to restrict that power and reign in government. The irony is just so rich that this person not elected to any office, not even appointed in the normal way to a position of government authority, is exercising virtually unlimited authority over the shape of our government, the funds expended in our name, our taxpayer dollars, is truly stunning to me. In some ways, that empowerment of Elon Musk, this outsider elected to nothing, is the most disturbing feature of the last few weeks and in just unresolvable tension with core constitutional values.

Brian Lehrer: What if somebody pushed back and said, "Musk is a lightning rod. People react to him because he's the richest person in the world with all this power and because of his personality and his politics. If it wasn't Musk, it would be somebody else, because the president does have a right to have people carrying out his orders in positions that don't have to be approved by the Senate, and this would be happening one way or the other"?

Kate Shaw: The most powerful people in government are supposed to be appointed by the president and subject to the scrutiny and inquiry of Senate confirmation. That, I think, is the normal way to give someone this much power. It's true, of course, the president gets to appoint officials in the White House who don't go before the Senate. In general, they are subject to, they file financial disclosures, they are government employees subject to all of the paperwork and record-keeping requirements that government services entails. To give him all the power but none of the responsibilities of ordinary public service is, I think, what is so dangerous.

Brian Lehrer: Kate Shaw is a law professor at the University of Pennsylvania Carey Law School and co-host of the Supreme Court-oriented podcast Strict Scrutiny, as well as a New York Times contributing opinion writer. Kate, thank you very, very much.

Kate Shaw: Always good to be with you, Brian. Thank you.

 

Copyright © 2025 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.