Paul Gigot and John Yoo on Donald Trump, the Courts and Presidential Power
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President Trump keeps pushing the limits of his executive power and the courts are pushing back. How should we think about this showdown and could it escalate?

into a constitutional crisis between the president and the Supreme Court. That's our subject for today on Potomac Watch. I'm Paul Gigot, editor of the Opinion Pages of The Wall Street Journal. And my guest today is an expert on executive power in the American Constitution, John Yoo, professor of law at University of California at Berkeley. But don't hold that against him. He is actually a conservative constitutionalist. He's the author of Defender-in-Chief,

Trump's Fight for Presidential Power and other books. He is a professor U.S. clerk for Justice Clarence Thomas on the Supreme Court and Judge Lawrence Silberman on the D.C. Circuit. He served at all three branches of government, including in the Justice Department,

under President George W. Bush after 9-11. Welcome, John. Good to see you. Great to be with you, Paul. So you've watched presidents over many years, and I think it's fair to say, reading your work over the years, that you're a

You're a believer in what Hamilton called energy in the executive, an energetic executive who uses the full powers of the presidency to accomplish his political and policy goals. But have you ever seen a president as aggressive

as Donald Trump in doing so. First, that's fair description of me, Paul. Even though I'm bunkered down here in Berkeley, I still believe in a unitary executive. Right, right. Although when people blame me for it, I said, that's Alexander Hamilton's words, not mine. I'm just parroting him or I'm a seance figure for Larry Silberman who's speaking through me everything I learned about the presidency and the judiciary I learned from him.

But, you know, you're quite right. Only in rare times have we seen a president go this far. Trump reminds me of FDR, Lincoln, Jefferson, Washington himself, and how far he's been willing to push a theory of, as you said, energy in the executive.

that the president is necessary for good government because he unifies the executive power of the federal government into one person. And the reason the founders did that was to allow that single person to act, and these are Hamilton's words, with speed and decision dispatch, and sometimes with secrecy to advance the public interest. Right.

Okay. So in that theory of the unitary executive you just ably described, it seems to be behind many of their moves. One of which, which is really interesting, is the firing, unilateral firing.

of officials in so-called independent agencies, Federal Trade Commission, the National Labor Relations Board. Even though their term hadn't expired, the president has fired them. He's been sued for doing so. And presumably those cases, one or both of them, will make their way up to the Supreme Court. And the goal, it's almost explicit, seems to be

to get the court to overturn Humphrey's executor, a decision that the administration thinks is misguided, as do many...

conservatives, including a couple on the Supreme Court. And that would create the opportunity for the president to dismiss, any president, by the way, not just Trump, but succeeding presidents, to really get a clean slate on a lot of these independent agencies. Do you agree with me about that's what they're trying to do? And will they succeed? Yes, I think, Paul, you've got the right read on things. One of the major missions of the Trump administration seems to be

as part of the unitary executive idea to bring all the wings of the federal government underneath President Trump, within the executive branch, underneath the president's direct control. And this is not just Trump's idea. This is Washington and Hamilton's idea. This was Chief Justice Taft's idea. And actually, most importantly, this is the Roberts Court's idea.

The reason why Humphrey's executor, which is an old New Deal case, is under threat is because the Roberts Court has steadily over the last 20 years chipped away at it. The Supreme Court has actually struck down three federal agencies in the last 10 years as being too protected from presidential control and removal. And that's the key. A lot of people might say, why does the Supreme Court care so much about the Human Relations Office?

of the federal government? Why do they care who gets fired and hired? That is the way our founders sought to give the president control. And our Supreme Courts have said the only way for the president to control these agencies is to give him the power to fire cabinet officers or NLRB members who refuse to obey him. So I agree with you. The second part of your point, Paul, is that I agree with you. I think Humphrey's executor and these independent agencies, they're on life support right now.

I think that the court itself has called on the presidents to bring these cases. And it doesn't make sense for these weird agencies like the NLRB,

sitting outside the control of the president when he has to control the Defense Department and the State Department. And the president is held responsible by the American people for the results. Yeah, it's a way of enforcing accountability. And of course, the agencies themselves won't go away. It's just the ability of the president to appoint the leaders of those agencies and make them more accountable to the president and thus, in democratic theory, to the people who elected

the president don't elect independent agency heads per se. One question that's come up in particular in regard to Humphrey's executor and its potential ramifications

and you hear it from critics of the idea that this should be repealed, is that, uh-oh, suddenly the Federal Reserve will no longer be independent because a president could fire the current head, the chairman of the Fed, in this case, Jerome Powell, which President Trump has threatened to do. So what happens? Do you think that that would, if you get a ruling like you suggest we might to overturn Humphrey's,

Would the Fed suddenly become less independent? That's a tough question, Paul, because I think everyone agrees on the public need to have an independent central bank. The Wall Street Journal is the number one paper covering all the disruptions that would occur. Your editorial page has been hammering this point, the massive downsides that would occur and that we've seen when presidents like LBJ and Nixon

have tried to interfere with the Federal Reserve's operations. So that is the toughest thing. It's generally conservatives who like to have an independent central bank. But the theory of Humphrey's executor, if it's overturned,

would suggest that even the chair of the Federal Reserve can't be independent of the president and that we'd have to rely on what the founders actually wanted, the president and the Congress to fight. And so if you had presidents who really wanted to go wild on controlling the money supply through their appointments to the Federal Reserve, it's really the founders really wanted Congress to fight back.

They wanted the other branches to stand up and the people we elect to stand up to protect the Fed's institutional independence instead of some bizarre reading of the Constitution, which doesn't make sense, which disrupts the clean three branch system of our Constitution.

One of the things we've seen about the Fed, particularly since 2008, is that it has tended to accrete power to itself. And Congress has given it more power to over-regulation and whatnot. And the Fed, using obscure statutes, basically inserting itself into the allocation of credit.

And that could be something that the Congress and the president get a hold of here in the future. We're going to take a break. And when we come back, we'll talk to John Yoo about the administration's efforts to stop the coronavirus.

send cases of the Supreme Court to overturn a prominent Supreme Court precedent when we come back. Cyber resiliency is becoming an enterprise-wide priority for many companies. On this episode of Tech Fluential, Deloitte's Lou DiLorenzo talks with Rohan Amin, Chief Product Officer at Chase, and Jamil Farshi, Executive Vice President, Chief Information Security Officer, and Chief Technology Officer at Equifax.

Together, they reframe the conversation on resiliency and risk management as a catalyst for innovation and long-term growth. Where technology and influence converge, new opportunities can emerge. That's Techfluential, a podcast from Deloitte and custom content from WSJ. Welcome back. I'm Paul Gigo here with John Yoo, professor of law at Berkeley, and we're talking about the executive power of the president. Now, I want to ask you about a much more controversial topic.

debate that's been going on. And this is one over the president's ability to deport illegal aliens. And you saw the Supreme Court decision on Friday, apparently it seems to be seven to two, in which they put a temporary stay on the president's ability to deport aliens under the Alien Enemies Act. What did you make of that decision? Because it was highly unusual to happen at this stage of a legal proceeding because the

the appellate courts had not weighed in yet. That's an excellent point, Paul. People should realize, I think that Justice Alito, who dissented, had the better of the argument. He pointed out that the Supreme Court essentially took its long arm and reached all the way down into what a district judge out in Texas was doing. But I think what it makes clear, that extraordinary exercise of judicial power

shows that this court is going to intervene in this brewing fight between Trump and a score of district judges all around the country. And in fact, it's of a pair with another extraordinary act that the Supreme Court had just made the day before, which is to say, we're going to take this birthright citizenship case, which is also about immigration, where five district judges all around the country have different injunctions on the president.

and we're going to accelerate that case. We're going to order a special court session in May. Usually the justices are getting the RVs and airplanes gassed up for vacation in May, right? But they're actually having a special court session in May to hear this issue, which is, can any district judge anywhere in the country shut the whole government down on a question of policy? So the court has made clear in these two cases, they're not going to let

this fight between the judiciary and the executive branch and the president's powers over how much authority he has over national security to fester. It's going to accelerate these cases, bringing up quickly, and the justices are going to decide. And this is a weird thing, Paul, that to me, that Trump is attacking the courts, that you've got Trump allies calling for impeachment. This court

is the most conservative court we have seen in 90 years since FDR's face-off with the New Deal. This is a court where Trump appointed half

of the conservative majority, has a six-justice conservative majority. Trump appointed three of them, Justices Gorsuch, Kavanaugh, and Amy Coney Barrett. Why is he attacking their legitimacy and questioning them when this court is the most friendly forum for any Republican president to argue before since 1937? So let's take a couple of these illustrations on this particular deportation fight because

Another interpretation of the court stepping in despite Justice Alitos, I agree with you, very sensible objections on procedure, court legal procedure. But another interpretation is that the Supreme Court saw that the administration was going to deport people and was in the process of deporting them and somehow needed to step in. Otherwise, Trump would have simply defied the Texas court.

And that's the message the court was trying to send. You can read it that way. You could say this is a court that's beginning to distrust what the Justice Department is saying to it. The Justice Department itself doesn't seem to know what the left hand and the right hand is saying. You had in this case of Garcia, the Justice Department lawyer showed up and said, we made a mistake. We shouldn't have sent him abroad. Then the attorney general says, this guy's an MS-13 gang member. He's never coming back to the United States.

So I think you've got confusion going on in the Justice Department. And so the courts generally rely a lot on what the government tells it about the facts. And you can sense maybe some distrust, certainly amongst the lower court judges, maybe amongst some of the justices. But I think you look at the biography of these justices. Many of them have served in the executive branch, have served in the Justice Department, have been very favorable judges.

As we said earlier, they're the ones who've been setting up these theories of the unitary executive over 20 years. And so I don't think you're going to see that level of distrust displayed by the justices when these cases get to the Supreme Court in the next few weeks. Interesting. Related to the dispute, you mentioned the El Salvadoran migrant, Kilmar Abrego-Garcia.

The administration removed him without a hearing to El Salvador with a group of other gang members. The government was sued for having done so. A lower court judge, Paula Zinnes, had said that the administration should facilitate and execute his return. Supreme Court then said the administration should facilitate the return while the judge should respect the executive authority of the administration on foreign policy.

Now, the administration has refused to bring him back. As you said, the attorney general says he's not coming back.

And he's saying that they're saying he's an MS-13 gang member and the Salvadoran government doesn't want to bring him back. We had that ostentatious display in the Oval Office between the president of El Salvador and the president of El Salvador saying, I'm not going to bring him back. And Donald Trump smiling like a cat that ate the canary, getting what he wanted to hear. Now we have on Friday, Judge Harvey Wilkinson, J. Harvey Wilkinson, who you know, I think we both know him very well.

up very well. He wrote an opinion for the Fourth Circuit saying the administration is essentially blocking the Supreme Court order with essentially a phony claim. And let me read you that opinion. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.

Further, it claims in essence that because it has rid itself of custody, that there is nothing that can be done. This should be shocking not only to judges, but to do the intuitive sense of liberty that

that Americans far removed from courthouses still hold dear, end quote. That's quite a rebuke from a conservative judge. Well, you can tell that those words were written directly by Judge Wilkinson, one of the leading lights of the conservative legal movement and someone who almost made it onto the Supreme Court several times under the Bush administration. You can tell he wrote that. It's not written in what we like to call clerkese

where it just sounds like an AI generated by Yale Law School drafted the opinion. It's written in a very heartfelt way. And you can see he's not just speaking to the courts. He's also making a plea to the president directly to avoid the bad voices in one side of his ear saying, confront the judiciary. Let's have a fight. It's good for the public opinion poll.

He's saying, look, we can both, the judiciary and the executive branch, step away from any kind of confrontation. Step away, as you suggest, Paul, early on from any kind of constitutional crisis. The Constitution is designed in a way for the branches to fight each other. Bumping and grinding between the branches is not unconstitutional. It's not a crisis. That's normal. What we don't want is for it to get to the level of

The judiciary is saying, give this guy Garcia a hearing. They're not going to order his release, but they might say, give him a hearing first to prove who he is and then step back.

No questions about the president refusing to carry out a judicial order or defying the Supreme Court. Judge Wilkinson, I think, also pointed out a lot of this noise is coming from people other than the president. President Trump said on Fox News, I will not defy a judicial order, even though there are other people in his administration coming very close to saying that.

And so I think Judge Wilkins is very wise. He's been a judge since the Reagan administration. He was a Reagan administration Justice Department official, and he's been with it watching this for many decades. And I think he's wisely saying it's a matter of statesmanship. Everybody cool down, take a step back. We don't need to have an institutional confrontation over this one guy. But he is also saying that the administration should follow the Supreme Court order to facilitate his return.

And this could then be because if the administration does not follow that Fourth Circuit opinion, I assume this will be appealed to the Supreme Court and the Supreme Court will get a say on this. Is that how you see it going? Oh, yes. I think that's right, Paul. We're going to see a Supreme Court case in the next few weeks coming out of this. And Judge Williams' point, I think, is that the Supreme Court

isn't saying the president has to go send the SWAT team or go send the Deltas down to El Salvador and grab this guy and bring him back. And this is, I mean, that language you quoted from the Supreme Court, they just said facilitate.

And they said, respect the president's unitary authority over foreign affairs. Again, the Supreme Court is very sympathetic to the president's constitutional arguments. All they want to see is a good faith effort by the president to use diplomacy to try to bring Garcia back for a hearing, not to say free Garcia, but bring him back for a hearing. That's not too hard for Trump to do if he wants. You could see the art of the deal here. Trump could just say, eh,

you guy down in El Salvador, keep the money. Just send the guy back. You can keep the million dollars we already paid for you to house him. And he'd probably be back in a day. So that's what Wilkins is really saying is why not just take the Supreme Court at its word and quote unquote, facilitate his return. But the judiciary can't force you to do it either.

Right. Well, and that's the key. All the Supreme Court said the administration should do is facilitate his return. Okay. Tell Bukele, the president of El Salvador with whom we have this deal to accept migrants, look, send this guy back. We'll have a hearing.

a due process hearing. We're going to provide evidence then that he has gang membership or whatever we allege that he has done. And then we're going to find other means to expel him. Nobody is saying in the court that you cannot expel him. They're just saying you need due process to do so. And that's, you would think, why would the administration not do that? And I think it probably has something to do with political reasons. The president's still polling very well on immigration. They want to have this immigration deportation fight.

But my point to the administration and the president would be, do you really want to force this to become a showdown over your willingness to abide by a Supreme Court order? You really don't want to do that because that's not going to be helpful politically. Two things on that point, Paul. One is it doesn't make sense as a policy matter. I could see the Trump people saying we need to deter more migration by showing we're tough. You know, we've deployed the military to the southern border. We're deporting people quickly. The

I looked up the last figures. At the height of the Biden failure to patrol the southern border, there were over 350,000 illegal alien contacts on the border. You know what it was last month? 7,000.

This is an unbelievable, it's fallen 98%. This is unbelievable achievement. I don't think that's going to change much whether Garcia gets a hearing or not. But your broader point, Paul, and this is the second point, the broader point you're making, I agree with, which is there's more important things that the Trump administration is going to have before the Supreme Court.

by the time the Trump second term is over? As you said, calling on Humphrey's executor to be overruled. Is there a power to free spending? Is there a power to downsize the size of government?

the president's authority in national security. What's going to happen if we've got more flare-ups in foreign affairs with China and Russia and Iran, and the president really has to invoke the war power? These are all going to get to the Supreme Court. Does Trump want to poison the well with the Supreme Court over a single person sent to El Salvador when he's going to be calling on the Supreme Court to do a lot of

colorblind constitutionalism. You could go on ending DEI programs. You go on and on. Those all require the cooperation of the Supreme Court. And one way to be sure, I would say, to lose all those cases is for Trump to question the legitimacy of the Supreme Court. We are going to take another break. And when we come back, we'll talk about how some of these cases are likely to go at the Supreme Court if the administration loses its credibility with the justices when we come back.

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Welcome back on Polls You Go here with Professor John Yoo. So I get this question all the time from people. All right, so let's say you have a Supreme Court order that says do acts and the president says, "Sorry, no, not going to do it." And you have essentially an Andrew Jackson kind of case where he said that the Supreme Court has made its order, now let it enforce it. I'm not sure historically he actually said that, but that's at least attributed to him.

It sure sounds like Jackson. Yeah, it does. Yes. So what happens if you get that kind of a standoff? The Supreme Court does not have the ability to enforce anything. Paul, you're almost quoting Hamilton again. I love this. Federalist number 78, Hamilton said, the judiciary is the least dangerous branch.

because they have no power, really. He said the president has a sword, the enforcement power. Congress has the power of the purse. He said all the Supreme Court has is judgment. The Supreme Court and the judiciary really depend on the other branches to enforce its decisions. And what Hamilton said is the only thing the Supreme Court can do is persuade us through its opinions to voluntarily cooperate. And that has succeeded for the history of our republic.

Putting Jackson aside, I love Jackson. I love to talk about him more, but the only president I believe in our history who has ever defied a judicial order is Abraham Lincoln. At the start of the Civil War, he detained a bunch of Confederates in Maryland. None of them named Garcia, by the way, but it was still Maryland. And Chief Justice Roger Taney, the author of Dred Scott, ordered Lincoln to release them all. And Lincoln said, I can't do that. We're in a war. It's the start of a war. And he did not obey that judicial order.

The country's existence was at stake. Those circumstances are far, far worse than, again, fighting over a single immigrant from El Salvador, over struggle over immigration policy.

I cannot see a president, even Trump, defying a judicial order when we're not under existential threat in wartime. Think of the disruption that it would cause in the United States if people could not rely on our courts to be able to enforce the millions and millions of contracts on which our economy depends or the many forced federal law, albeit the whim of the president, would really undermine the rule of law. I think our economy and our society would really be disrupted and that would harm Trump far more than any benefit he would get.

Yeah, I agree entirely with that. I think you make a very important point that I've tried to make in some of our editorials advising the administration on this, that don't toy with your credibility before the Supreme Court because there are so many big cases you're going to need them for.

And if they begin not to trust what the Justice Department tells them about the facts of a case, or if they begin to think that the administration is making essentially insincere arguments, as I think you can argue that Judge Wilkinson has basically called the administration out for doing in the Kilmar-Abrego-Garcia case,

You may start to lose these cases simply because they don't trust the president and his lawyers, to be honest. That's very dangerous. Yes, and he can look back at his first term. If you look back at his first term, he had some important victories in the beginning. Travel ban, Hawaii versus Trump, you might remember he won early on. This is a Supreme Court that issued the presidential immunity case, which really pulled Trump out of the fire during the elections.

But if you look at Trump's first term, by the end of the first term, he started to lose a lot of important cases like a census case, his effort to overturn DACA. And I don't think he wants a repeat of that first term. I mean, especially in a lame duck term, especially at the end of a lame duck term. He doesn't understand. Maybe he does understand, but he realized that the Supreme Court could really stop his agenda in his tracks if he keeps up these repeated attacks on its legitimacy and toys with the idea of defying it.

All right, Professor John Yoo, thanks so much for coming in today and doing this very illuminating and this quite historical time in American constitutional and political history. Sure, appreciate it. Good to see you again. And thanks to everybody for listening here on Potomac Watch. We're here every day on the Opinion Page podcast. Thanks for listening. ADP imagines a world of work where smart machines become too smart. Copier, I need 15 copies of this. Printing.

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