Adam Liptak
Appearances
The Daily
A Constitutional Crisis
We don't know, of course, exactly what case will reach the court and exactly how the court will think about it. I think the court will be very scared of, alert to the possibility of a constitutional crisis, of a pure impasse. So my guess, Michael, is that the court is going to try to find a case where, in a splashy way,
The Daily
A Constitutional Crisis
It rebukes Trump, rules against him, but ideally in a case where the president can't really disobey the court's judgment. And birthright citizenship is the classic example of this.
The Daily
A Constitutional Crisis
It's just a logistical nightmare. It requires Trump to essentially instruct every hospital administrator in the nation about how to track the citizenship of every newborn. It's hard enough to do if you had the law at your back. In the face of a Supreme Court judgment, it becomes really hard to imagine.
The Daily
A Constitutional Crisis
I guess I can think of lots of examples, but why don't we talk about USAID? The president wants to do away with that. The court says, you can't do that on your own. You can go to Congress. But you are not authorized, Mr. President. to disobey Congress's instructions about the existence of, and the nature of, and the spending of that agency.
The Daily
A Constitutional Crisis
And Trump, let's posit, says, I disagree, and shuts the agency down anyway. The court doesn't want to find itself in that situation. The court has always, through its entire history, been very sensitive to the idea that it's not really clear why we do what it tells us to do. They don't have an army. They don't have the power of the purse.
The Daily
A Constitutional Crisis
They have this kind of fuzzy thing we call legitimacy and authority. And they're very wary of that being undermined. And all it takes is for the president one time to say, as Andrew Jackson did say, apocryphally, The chief justice has made his decision. Now let him enforce it.
The Daily
A Constitutional Crisis
I think you would get some motivated reasoning from justices who probably wouldn't put this at the forefront of their minds and but would talk themselves into thinking, well, maybe we rule for the president here. Maybe it's not such a bad thing.
The Daily
A Constitutional Crisis
And somewhere, you know, in the substrata of their consciousness is the lurking feeling that if we go the other way, things are going to be bad for the institution.
The Daily
A Constitutional Crisis
It can be thought of, and I take your point, as simply a reimagining of what the Constitution calls for, that maybe people approve of, and maybe what we're on the cusp of here is, you know, without an amendment, without a constitutional convention, just a reorientation of the separation of powers in a way that elevates
The Daily
A Constitutional Crisis
the president to a role that we've not seen before at the expense of the other branches. But all of that said, a crisis is a crisis. And if our very understanding of the Constitution is being tested by a president who, legal scholars say, seems to have a contempt for the document, We are in the midst of something profound, whether or not people are taking it seriously today.
The Daily
A Constitutional Crisis
Yeah, it sounds serious, doesn't it? It does. But I've been talking to a lot of law professors, and what emerges from those conversations is that there's no fixed, agreed-upon definition of a constitutional crisis. It has characteristics, notably when one of the three branches tries to get out of its lane, assert too much power.
The Daily
A Constitutional Crisis
It often involves a president flouting statutes, flouting the Constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing. It's not a switch. It's a slope that can descend. And it takes on a quality of danger if there's a lot of it.
The Daily
A Constitutional Crisis
So the consensus is that this is a constitutional crisis. And let me try to unpack why so many people think that. The president will often use his power to its fullest extent to assert a constitutional authority to do things that other branches may oppose.
The Daily
A Constitutional Crisis
But what we have with President Trump is a kind of wholesale reconception of the part of the Constitution, Article 2, that sets out presidential power that asserts that he's basically the decision maker, that he can act alone. He can disregard instructions from Congress. And Congress is in Article I. Congress makes the law. That sounds significant.
The Daily
A Constitutional Crisis
The president is charged by the Constitution to take care that the laws be faithfully executed. That would seem ordinarily to put him in a subordinate role. But the music of Trump's actions over the past several weeks has been quite different, has meant to insist on his primacy.
The Daily
A Constitutional Crisis
So a couple of quick examples. Congress has instructed the president not to fire people unless he satisfies certain criteria. Sometimes he has to have a good reason. Sometimes he has to wait 30 days. Sometimes he has to explain himself to Congress. President Trump has busted through all those limitations and insisted that as head of the executive branch, he can fire whomever he will.
The Daily
A Constitutional Crisis
Congress has also passed laws instructing the president to spend money to do certain things. President Trump takes the view that if those instructions are inconsistent with his policy agenda, he doesn't have to do it, that Congress can't make him spend the money Congress has appropriated. And Congress, of course, has the power of the purse.
The Daily
A Constitutional Crisis
So you would think there's a pretty good argument that the president has to do with Congress says.
The Daily
A Constitutional Crisis
Yes. Congress told the president what to do. The president is doing the opposite. That seems to contain some real seeds of what most people would think of as a constitutional crisis. And this is notable, too, Michael. He's doing this in the face of a Congress that's not opposing him.
The Daily
A Constitutional Crisis
To the contrary, if President Trump were to seek legislation from this Congress limiting or shutting down USAID, I think he'd be very likely to succeed. But he seems not to be interested in working with the other branch, a branch that he essentially controls, but to insist that he has the sole power. to do things.
The Daily
A Constitutional Crisis
Yeah, it's a raw assertion of power, and it's a little surprising. I mean, if you have a Republican-controlled Congress... that's ready to do your bidding, and you could button this down and make lasting change that's unassailable, it's a little bit surprising that in the early weeks of a four-year term, he wants to do everything at once.
The Daily
A Constitutional Crisis
And that has the quality of a crisis too, this notion that we're flooding the zone with endless executive orders and scores of lawsuits. It just gives rise to the sense that we're encountering a wholly new and maybe dangerous atmosphere.
The Daily
A Constitutional Crisis
So where to begin? He has shut down all kinds of federal spending that Congress has instructed him to spend. He's deputized Elon Musk and his Doge warriors to inspect all kinds of government logs and computer activity that gives rise to at least some privacy concerns. And maybe notably, he has, by executive order, purported to do away with
The Daily
A Constitutional Crisis
with what is generally thought to be a fundamental constitutional right of birthright citizenship that is with very rare exceptions. If you're born in the United States, you're a United States citizen.
The Daily
A Constitutional Crisis
So I think I'd put it in three buckets, Michael. One is Trump's role as the head of the executive branch. And there he has pretty good arguments about
The Daily
A Constitutional Crisis
that he's the boss, that he can decide who works for him, and that he can fire people, including heads of independent agencies that Congress has tried to insulate from political pressure, inspectors general who have an important role in keeping fraud and corruption out of agencies.
The Daily
A Constitutional Crisis
That may not sound like the best idea as a policy matter, but the Supreme Court has been increasingly sympathetic to the idea that at least where it's all inside the executive branch, the president has a lot of power. So that first bucket, he may well succeed in many of his arguments.
The Daily
A Constitutional Crisis
Right. The second bucket gets much harder, where Congress has specifically instructed him to do something, to spend money, to maintain agencies, USAID, the Consumer Financial Protection Bureau, the Department of Education. The notion that the president is allowed to disregard congressional instructions on things like that, that's a tough argument. And then the third bucket is
The Daily
A Constitutional Crisis
gets even harder, where the Constitution, most people think, has insisted that there's a constitutional right to birthright citizenship. And under the conventional understanding, You can't do away with that by executive order. You can't do away with that by statute. Congress can't do away with it. It's in the Constitution.
The Daily
A Constitutional Crisis
If something's going to change, it needs to be done by constitutional amendment. So the president's order in the early days of his administration that says, I declare that this constitutional right doesn't exist is quite brazen and bold.
The Daily
A Constitutional Crisis
Right, and the courts are already dealing with an extraordinary number of suits. They seem to multiply by the day.
The Daily
A Constitutional Crisis
And while none of them have reached the Supreme Court yet, in the coming, I would say, weeks, we are going to have major clashes before a Supreme Court that, you know, is dominated by six conservative appointees and will be sympathetic to some of what Trump wants to achieve, but is not going to be on board for the whole project. And then the open question is, assuming the court rules against Trump
The Daily
A Constitutional Crisis
He has been on an epic losing streak. Some of that can be explained by plaintiffs suing in friendly courts, but appointees of all different kinds of presidents, including President Trump himself, have ruled against him and have said that Elon Musk can't have access to some materials,
The Daily
A Constitutional Crisis
that people can't be fired, that agencies can't be disassembled, that the birthright citizenship order is unconstitutional. And some of these judges have been very harsh. One of them, in blocking the birthright citizenship order, said that he had difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It boggles my mind.
The Daily
A Constitutional Crisis
So that gives you a flavor of how Trump is doing in the lower courts.
The Daily
A Constitutional Crisis
Right. And J.D. Vance, the vice president, has taken the most assertive attitude toward this, saying that the president doesn't have to obey rulings from courts that are at odds with his understanding of the Constitution.
The Daily
A Constitutional Crisis
So it sounds quite radical, doesn't it? I mean, we generally agree as Americans that the court has the last word over the constitutionality of congressional action, executive action. And if J.D. Vance is suggesting as a general matter that the president disagrees with that, well, that's a constitutional crisis.
The Daily
A Constitutional Crisis
I guess I would make, though, an observation, Michael, that there are probably some areas where if the Constitution distinctly and exclusively commits some right to the president, like, say, the pardon power, and a court were to say, no, you can't pardon your buddy, The president's interpretation of the Constitution could well govern there.
The Daily
A Constitutional Crisis
And there's a flavor of this in the Supreme Court's decision in July granting Trump broad immunity from prosecution, where the court talks about those powers that are core executive powers are for the president only. The Vance statement seems to resonate with that way of thinking, too.
The Daily
A Constitutional Crisis
Right, but I don't want to minimize it. I mean, it's a hell of a thing to even contemplate the Supreme Court saying to Richard Nixon, you got to turn over the White House tapes. And Richard Nixon, and he thought about this, saying no. That would be a classic constitutional crisis.