As President Trump issues executive orders that encroach on the powers of Congress — and in some cases fly in the face of established law — a debate has begun about whether he’s merely testing the boundaries of his power or triggering a full-blown constitutional crisis.Adam Liptak, who covers the Supreme Court for The Times, walks us through the debate.Guests: Adam Liptak, who covers the Supreme Court and writes Sidebar, a column on legal developments, for The New York Times.Background reading: President Trump’s actions have created a constitutional crisis, scholars say.Sidebar: Is Trump’s plan to end birthright citizenship “Dred Scott II”?For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. Photo: National Archives, via Associated Press Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.
Chapter 1: What is 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.
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.
So given that loose definition that seems to acknowledge the fluidity of a constitutional crisis, how should we think about whether President Trump's actions over the past few weeks represent a constitutional crisis or perhaps something else, something less serious?
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.
Chapter 2: How is President Trump challenging the separation of powers?
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 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.
Well, Adam, walk us through some of the specific examples of how President Trump is muddling with our traditional notions of Article I, Article II, basically the separation of powers between the legislative and executive branch and how he is trying to expand the powers of the executive.
Chapter 3: What are examples of Trump's executive overreach?
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.
Congress has also passed laws instructing the president to spend money to do certain things. President Trump takes the view that if those instructions are inconsistent with his policy agenda, he doesn't have to do it, that Congress can't make him spend the money Congress has appropriated. And Congress, of course, has the power of the purse.
So you would think there's a pretty good argument that the president has to do with Congress says.
So, for example, what you just said would apply to the congressionally appropriated money for USAID, the foreign aid agency that the president has decided to shut down.
Yes. Congress told the president what to do. The president is doing the opposite. That seems to contain some real seeds of what most people would think of as a constitutional crisis. And this is notable, too, Michael. He's doing this in the face of a Congress that's not opposing him.
To the contrary, if President Trump were to seek legislation from this Congress limiting or shutting down USAID, I think he'd be very likely to succeed. But he seems not to be interested in working with the other branch, a branch that he essentially controls, but to insist that he has the sole power. to do things.
So what might deepen this sense that we are in a constitutional crisis is not just that the president is ignoring Congress's will, its actions, its appropriations, but he's not even engaging them on these questions in a way that he very much could.
Yeah, it's a raw assertion of power, and it's a little surprising. I mean, if you have a Republican-controlled Congress... that's ready to do your bidding, and you could button this down and make lasting change that's unassailable, it's a little bit surprising that in the early weeks of a four-year term, he wants to do everything at once.
And that has the quality of a crisis too, this notion that we're flooding the zone with endless executive orders and scores of lawsuits. It just gives rise to the sense that we're encountering a wholly new and maybe dangerous atmosphere.
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Chapter 4: How might the courts respond to Trump's actions?
Right, he has a legal leg to stand on.
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
gets even harder, where the Constitution, most people think, has insisted that there's a constitutional right to birthright citizenship. And under the conventional understanding, You can't do away with that by executive order. You can't do away with that by statute. Congress can't do away with it. It's in the Constitution.
If something's going to change, it needs to be done by constitutional amendment. So the president's order in the early days of his administration that says, I declare that this constitutional right doesn't exist is quite brazen and bold.
So now that we know that Congress does not seem inclined to act against this president, the Republican-controlled House and Senate, and given that the president doesn't seem all that interested in engaging this Congress, it very much does seem like we're at a point where if we are, as these scholars have told you, in a constitutional crisis of one form or another, that it will be the courts, the federal courts, that will play a major role in keeping the president in check.
Right, and the courts are already dealing with an extraordinary number of suits. They seem to multiply by the day.
And while none of them have reached the Supreme Court yet, in the coming, I would say, weeks, we are going to have major clashes before a Supreme Court that, you know, is dominated by six conservative appointees and will be sympathetic to some of what Trump wants to achieve, but is not going to be on board for the whole project. And then the open question is, assuming the court rules against Trump
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Chapter 5: What has been the judicial response to Trump's executive actions?
President Trump, will he obey that judgment?
We'll be right back. Adam, so far, it is not the Supreme Court, as you said, but the lower federal courts that have weighed in on President Trump's actions. And my sense is that so far, they have taken a very dim view of his efforts to expand his executive power and encroach on the powers of Congress.
He has been on an epic losing streak. Some of that can be explained by plaintiffs suing in friendly courts, but appointees of all different kinds of presidents, including President Trump himself, have ruled against him and have said that Elon Musk can't have access to some materials,
that people can't be fired, that agencies can't be disassembled, that the birthright citizenship order is unconstitutional. 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.
So that gives you a flavor of how Trump is doing in the lower courts.
Right. And of course, this has prompted some around the president to say, well, hold on a minute. The courts are overstepping their bounds in reining in our efforts to expand our bounds.
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.
I just want to read what J.D. Vance wrote about this because he tried to put it into a larger legal context. And he seemed to write this right after the president had lost a series of rulings of the kind you just went through. And he wrote, if a judge tried to tell a general how to conduct a military operation, that would be illegal.
And he goes on to say, if a judge tried to command the attorney general in how to use her discretion as a prosecutor, that would be illegal. And then he goes on to apply this logic to the president. He says, judges aren't allowed to control the executive's legitimate power either. So what do we make of that argument?
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