Will Courts be a Check and Balance on Donald Trump?
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From KQED. From KQED in San Francisco, I'm Grace Wan in for Mina Kim. Donald Trump came into a second administration organized with a slew of executive orders and actions. He's attempted to end birthright citizenship, dismantle critical agencies like USAID and strip programs of critical federal funding. Will the opposition be able to throw sand in the gears of this well-oiled onslaught on democracy? And how will the courts help?

We'll hear from legal experts. That's all coming up next after this news. Welcome to Forum. I'm Grace Wan in for Mina Kim. Since Donald Trump began issuing a slew of executive orders, lawyers of all stripes, state attorney generals, nonprofit counsel, professors and more have attempted to slow down his onslaught on democratic norms by going to court. During Trump's first administration, the courts stood as a backstop on his constitutional attacks, like with the Muslim ban.

But with a Supreme Court that has shown a willingness to examine and overturn legal precedents and a federal judiciary shaped by Trump appointees, will courts be able to meet this moment? To tell us more, we're joined by two legal experts. Jamal Green is a constitutional law professor at Columbia University, and he served as a deputy attorney general working in the Office of Legal Counsel at the Department of Justice.

And Dahlia Lithwick is a senior editor and legal correspondent for Slate and host of the Amicus podcast. She's also the author of Lady Justice, Women, the Law, and the Battle to Save America. Welcome to you both.

Thank you. Thank you. Good to be here. Yeah. Dahlia, it's a hectic time to be a legal reporter. Trump has issued over 53 executive orders and there are over 45 different lawsuits challenging many of them. We can't highlight them all, but can you give us a big picture overview, maybe the buckets of cases that have been filed and are challenging Trump?

Yeah, I actually haven't quite figured it out in my own head how to think of this as a map. But I think the the to the extent that I can be helpful, I would say there's a whole bunch of cases that involve the immigration stuff, a whole bunch of cases right around birthright citizenship and other claims that Trump can make about his powers at the border.

Sanctuary City cases. So there's all of that. There's a whole bucket of Doge cases. This is Elon Musk's attempt to sort of run in and turn off the faucets on a whole bunch of different

whether it's, you know, taking data treasury or just turning off the taps, as you just heard, at USAID or, you know, moving into now the Department of Education, CFPB. So there's sort of those cases. And there's a whole raft of cases around purges at the FBI and the CIA. And I think there's this, you know, bunch of...

sort of claims about, you know, Schedule F and whether the president can treat career employees the way he treats political employees. I think there's probably other maps for how to think about them, but those would strike me as the big baskets of litigation we're looking at right now. You know, and Jamal, for people who are not familiar with an executive order, I mean, we're hearing a lot about them in the news. Kind of explain to

Explain to us what that is and are they real law or not real law? So executive orders are pronouncements issued by the president that implement, typically implement some statutory authority given to the president. Sometimes they can implement some constitutional authority that's given to the president. And so in that sense, they are a law. They are binding on the people themselves.

who are affected by them, but they're not statutes. So they're not passed by Congress. They don't go through a process where Congress approves the law and then the president signs it. They're presidential implementations of presidential authority. And they normally go through a number of kind of internal checks in the executive branch. But these executive orders, many of which seem to skirt the law or be directly unlawful,

seem like they may not be going through the ordinary kind of internal checks within the executive branch. Well, Jamal, you served as a deputy assistant general in the Office of Legal Counsel, and that's part of the Department of Justice. I mean, in that capacity, have you reviewed executive orders in the past? And how did those compare to what we're seeing today? Yeah.

So one of the chief functions of the Office of Legal Counsel, which is the office in which I served in the last couple of years, is to review executive orders for what's called form and legality, meaning do they take the form that executive orders have taken in the past and are they legally available to the executive branch? And that's a task that the Department of Justice takes very seriously, that

administrations of both political parties have taken very seriously in the past. And these executive orders, you know, I don't know what's going on internally at the Department of Justice or in the White House, but they don't read like what you would expect something that's gone through a rigorous process of legal review to read. They're written in a very kind of

odd, casual style. They make elementary legal mistakes. And of course, they are in many cases clearly unlawful.

Well, Dahlia, over the weekend, a judge in the Southern District of New York, Paul Engelmeyer, he issued an injunction stopping Elon Musk's Doge team from accessing Treasury information. I mean, that was a relief to many. There's going to be a hearing set on the 14th to hear the case on the merits. But how helpful is a court order in a case like this where maybe the damage has been done? Well, that's a tricky one in some sense because...

That actually might be the one specific case where Doge folks have already got their hands on people's data, social security information, banking information. That really is a case in which...

You may actually be looking at the barn door being closed after the information has already been widely disseminated. But I would say by and large, when I look at the outcomes in most of these, like temporary restraining orders, these quickie orders from judges, and let's be clear, Donald Trump has lost all of them, to my knowledge. It does serve to do two things. It serves to kind of call out

hey, this is happening and everybody should be aware of it. So, for instance, the judge who just stopped that fork in the road, right, take the buyout if you're a federal worker, that's on pause now. It gives workers information about, oh, wait, this is unlawful. Maybe I shouldn't take this buyout tonight. The...

order that said, you know, that simply turning off the taps on all federal spending, that having stopped that, listen, that's a really important piece of signaling that the executive branch doesn't get to just shut off the spigot of government funding. That's

It's an act of Congress. That signaling is really important for a public narrative to tell the story of what is legal and what is not legal. And I think we shouldn't say that's just like symbolic. I think there's a larger question, which is what are we going to do?

if and when one of those orders is flouted. And there are some questions already about whether some of those orders are being flouted. In other words, it's not clear that that spending freeze actually was completely unfrozen. It's not clear that Doge has done what they said they're doing in terms of information that they have pulled at the Treasury. So if, in fact, we get into a moment where there is a court order that says, don't do this,

And the administration or Elon Musk chooses to ignore it. And let's just flag we already heard on Sunday J.D. Vance and Elon Musk making noises like, hey, make them enforce it. You know, let them take their judicial army and enforce it. Well, then you're in an actual constitutional crisis. That's kind of the definition of one. We're not there yet. And so as far as holding the line both sort of narratively and symbolically and actually holding.

purposefully telling the administration to stop, I call these wins. Well, Dahlia, I want to pick up on that comment from J.D. Vance. I mean, he sent out a tweet this weekend. And J.D. Vance is a graduate of law school. He went to Yale. And he wrote that judges aren't allowed to control the executive's legitimate power.

Help us pick that apart. What is it that Vance is trying to say? What is the executive's legitimate power here that the court allegedly can't touch? Well, that word legitimate is doing a lot of work, right? He seems to want to be the arbiter of what is legitimate power. I mean, I think he's trying to make

Two broader points. One is, you know, that judges can't tell the executive what to do. We know that's wrong historically. We know, you know, the Youngstown steel case is, you know, the courts telling the Truman administration to stop doing something. So that's descriptively wrong.

I think the other thing he's doing, and Professor Green is probably going to be better on this than I am, but he's making claims about very, very, very robust theories of almost boundless executive power. And what he's essentially saying, and we're seeing this in some of the litigation that is already starting to come out of Trump's Justice Department, what he's saying is that it's not

legitimate to constrain executive powers because executive power has virtually no boundaries. Yeah. I mean, Professor Green-Jamal, I want to pick up on that. I mean, as Dahlia says, the argument here seems to be the president has just limitless powers. And I mean, where do checks and balances lie in an argument like that?

Well, to the degree that's the argument he's making, it's clearly contrary to our traditions. I think it's important to kind of take a step back and say, you know, the executive branch is subject to the law. That is a bedrock principle of our Constitution.

as I mentioned, has traditionally had internal checks to ensure that it acts consistent with the law. And those internal checks seem as though they aren't necessarily working right now. But the theory that they can literally do whatever they want to do is not one that has been accepted by anyone in a position of authority in our history. I think the fact that they don't have or

or don't seem to be obeying any internal checks is by itself a constitutional crisis. So I would maybe go a step further than Dahlia and say we're already in the crisis. The point at which the executive branch just stops obeying court orders, which again, I think...

I think it's somewhat unlikely that at least they'll admit that that's what they're doing. But if we ever get to that point, that's a point of constitutional breakdown. You're outside of the constitutional system at that point. So it's a very extreme claim. J.D. Vance, who's a

who is a Yale educated lawyer, gives himself this out by saying legitimate, only the legitimate orders of a court are the ones that the executive branch has to obey. But of course, the music of what he's saying in this moment

is certainly teeing up the possibility that they can try to say that these orders are somehow illegitimate and therefore don't have to be obeyed. And that's not the remedy. When you disagree with the court, you appeal, is what you do when you disagree with the court, not just decide to ignore the law.

Well, we're talking about the role that courts might play in opposing executive orders issued by Donald Trump. We're with Jamal Green, a constitutional law professor at Columbia University. He served as a deputy attorney general working in the Office of Legal Counsel at DOJ. We also have Dahlia Lithwick, a senior editor and legal correspondent for Slate. She's the host of the Amicus podcast and the author of Lady Justice, Women, the Law and the Battle to Save America.

We definitely want to hear from you, so give us a call, 866-733-6786. More Forum after the break.

Turing with Tia is the quirky YouTube talk show where Tia Creighton is the host and all her guests are talking AI chatbots. Whether it's health and beauty, science and technology, pop culture, or current events, Turing with Tia delivers answers about everything. That's T-U-R-I-N-G, Turing with Tia, a funny and fascinating way to experience artificial intelligence. Only on YouTube at Turing with Tia.

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Welcome back to Forum. I'm Grace Wan in for Mina Kim. We're talking about the role that courts and lawsuits might play in opposing executive orders and actions issued by Donald Trump and his administration. We're joined by Dahlia Lithwick. She's a senior editor and legal correspondent for Slate and Jamal Green, a constitutional law professor at Columbia University. And we want to hear from you on.

What role do you think courts can and should be playing in opposing Donald Trump? And are you a lawyer? How are you thinking about what's happening right now within the court system and the judiciary? You can give us a call now at 866-733-6786.

That's 866-733-6786. You can email your comments and questions to forum at kqed.org, or you can find us on Blue Sky, Facebook, Instagram, and Threads. We're at KQED Forum. It's a lot to take in, but we'd love to hear from you.

Dahlia, we were talking before the break about this failure to comply. And, you know, this morning, the district judge in Rhode Island, I mean, law moves fast. There's a lot of news saying that there hasn't been compliance or full compliance with his order stating that Doge shouldn't be taking these actions. So, I mean, we're talking about like if the government chooses not to comply with the court, what's the next step? Yeah.

Yeah, I mean, that's the right, the operative question. And that's the question that we're all sitting in right now in great fear. I think it's worth saying that and Marcy Wheeler, the indispensable court watcher, made the point this morning that and I think it's a non-trivial observation that actually.

In major, major ways, it's been surprising the extent to which there has been, whether there's been actual compliance or just feints at compliance. It's actually true that, you know, in that OMB case, in joining the OMB from withholding government grants, we actually saw the government file a response saying, oh, actually, we're complying. We're making sure that we're insuring payments properly.

In the New York lawsuit that was brought by the states, the Justice Department actually didn't say we're not going to abide by Judge Engelmeyer's order. We're going to ask for clarification. Right. So what we've seen is not the thing that I think Professor Green and I were kind of worried about, which is just deliberate, you know, make me actions by the administration. What we're seeing is feints at compliance. Right.

And I think probably there's some good answer for that. As I said, Marcy Wheeler makes the smart observation that the Justice Department is not yet in a position where they can lose all their lawyers. They are not in a position where they can have mass resignations. They need lawyers on board in order to effectuate what they want.

Some of the actions that are being taken right as against the FBI, for instance, would be incredibly damaging going forward. And so we are seeing some levels of again, we're going to try to accommodate this judicial order.

I do think you're exactly right that if and when the decision is taken by the administration to simply not go along and to say, you know, in the words of Vice President Vance, you know, the chief justice has made his ruling. Now let him enforce it. Right. The famous Andrew Jackson quote.

Then I think you're really in trouble because are you really going to send out federal marshals to start arresting people? That's the protocol, right? When court orders are not complied with, you send in the marshal service. Who's in charge of the marshal service?

Attorney General Pam Bondi. I mean, Jamal, you worked at the Department of Justice and most of those attorneys are career officers. There's a level of that which is political and there's a level that's not political. Tell us a little bit about how that department works and what your observations are about the ability to comply or not comply with what Trump's asking to do.

So the Department of Justice does have a strong tradition. It's certainly wavered a little bit over time, but across administrations, that's a strong tradition of independence, particularly within the civil service at the Justice Department. And as you say, that's most of the people who work for DOJ, as with most federal agencies, are career employees. All of the political appointees at this point would be appointees of the administration itself, so they would have to be –

they would be complying with whatever the administration wants to do or they'd be fired. I think Dali is absolutely right that if we got to a point where there was sort of open noncompliance with court orders, that you would see people saying this is not something that we're able to abide by. It'd be contrary to their ethical obligations as attorneys and you would see them resigning and that would be a problem. But there are

forms of resistance to court decisions that don't necessarily amount to kind of technical disobedience. You might call this kind of non-acquiescence in the court's decision where they obey in the case before them, but that they're actually litigating, but they don't

But they refuse to apply the law of that case to other instances. So a judge might say, don't monkey around with Treasury payments, but they go ahead and monkey around with the Department of Education or they're told don't abolish USAID, but they go ahead and abolish.

other agencies or do things that are kind of technically short of abolition and then wait to get hailed into court again. They can do a lot of slow walking, and that's something I think we should be extremely worried about, particularly given the lack of transparency within this administration. We don't really know what the ground truth is. And

It takes a long time for litigants to actually make the right motions, file the papers, courts to investigate. Judges are pretty limited tools in that instance. So when you have an administration that, again, doesn't seem to have a lot of internal checks, it can be a very serious problem for the rule of law. And that's what we're observing here.

In this instance, last term, the Supreme Court issued a kind of blockbuster ruling on presidential immunity that observers have said have expanded upon that idea. And I wondered how you see that ruling playing into what Trump is trying to do and what his administration is saying is like the extent of the robust power of the executive to do what he or she thinks should be done.

Well, that ruling, which said that the president in many instances of official action is immune from criminal prosecution for those actions, official actions taken while president, at least presumptively immune for what are called official actions.

does, I think, embolden President Trump to believe that the things that he is doing are not subject to law. That opinion does not say that people who work for the president are immune from criminal liability, although they may try to argue that. It doesn't actually say that. And a lot of what they're doing here, just simply refusing to

comply with the law is not necessarily going to be a criminal offense that implicates, you know, some criminal statute that subjects them or the president to future prosecution. So I think there's a signaling effect that that kind of ruling gives to the president and the administration. But, you know, in terms of the kind of technical application of that

decision to what we're observing right now, I'm not sure there's necessarily a direct line. Well, let's go to the phones. Gloria from Albany, welcome to Forum.

Good morning. Yes, I have a question. Would we be able to file a lawsuit against Elon Musk, maybe a class action lawsuit for accessing our private information in the Treasury Department? That's a really good question. What do you think, Professor Green? Yeah.

So I think there'd be a number of challenges with trying to, with a lawsuit of that sort.

One would be you don't necessarily, any individual person doesn't necessarily know if their information is being accessed or how the access to their information is harming them. There are federal privacy laws, the Privacy Act, which protects the privacy of individual information. But part of the trouble with the lack of transparency here is we don't really know exactly what's being accessed online.

or by whom, it's not even clear that Elon Musk himself has had access to this information. So there's some kind of challenges in actually filing a lawsuit in this case. It's also not clear, and this is part of what is being litigated by a number of state attorneys general, is it's not clear exactly what

the government authority is here. Elon Musk is associated with this entity that's been called the Department of Government Efficiency, but

the nature of his role in the federal government or the role of the people who work for him in the federal government is unclear. So trying to sort of nail that down is something you'd really have to do before getting very far into litigation. But I think that the impulse to say,

You know, we need to think creatively about exactly how to challenge these kinds of actions is, I think, the right impulse. And finding out some of these questions about exactly what's even going on is a really important kind of first step. Well, Richard writes, if officials refuse to obey court orders, the remedy is to hold the officials in contempt and put them in jail. Dahlia, is that the way to go here? Yeah.

I mean, that's the way to go. I think that, you know, our friend Steve Lattic at Georgetown University Law School and folks should be reading his substack. It doesn't happen often.

All that often. And as I said, it's really challenging, right? We have, at least in theory, you can send out federal marshals and put people in prison. In practice, it's an incredibly difficult

I think the fix is, in some sense, that—and this is where Professor Green started the show—that there are a million norms and internal rules and sort of informal constraints that are not in the law.

on aggressively breaking the law. And when a judge tells you to stop, by and large, we stop. It's worth maybe flagging that the difference between the first Trump administration and this one, and we forget this, is that

Their losing streak was catastrophic in the first Trump administration. So when the court said the first time, at least, the travel ban is unlawful, they fixed it. Right. When the court said when the Supreme Court said adding a citizenship question to the census and the way you did it is unlawful, they stopped. No, it's.

certainly the case that then they went on and they sort of, you know, spit-shined it and buffered it and made it better and or better, you know, made it more lawful. And over three iterations, some version of the travel ban was still in place. But

But the fact is the tradition was even in the first Trump administration, when you are told that something is illegal, you cut it out. What is really, I think, daunting this time is that in lieu of just one travel ban, right, which we got within the first week of the first Trump administration, now we've got, you know, as you said, dozens and dozens and dozens of executive orders. This is a flood the zone strategy. It's very hard to focus on.

But I think what I want to say, just again, with a note of optimism, is that all 2000 of these cases can't go to a Supreme Court that only hears 60 cases a year. So a lot of these cases, which are being filed, by the way, in the District of Columbia, are

which has a federal appeals court that I think will not be necessarily completely sympathetic to Donald Trump. That's where the bus is going to stop. It's going to stop at the D.C. Circuit. And so by and large, I think the idea that, you know, court orders are just going to be disregarded or if we can't send in federal troops, he's going to get his way. I think a lot of these will stop at the appeals courts because the Supreme Court simply was not built to

Right. And I mean, Jamal, when we look at the judiciary, I mean, it's partially formed by Donald Trump. I mean, certainly the Supreme Court, but as Dahlia notes, it's not just the Supreme Court.

Most cases don't go to the Supreme Court. Some don't even get to the appeals courts. So when we look at the judiciary, is there hope there for balance in terms of rule of law, in terms of how the judges might be looking at these challenges? Yeah.

Well, I think there's a couple of points to be made here. One is, yes, Donald Trump has shaped the federal courts in important ways. He's appointed three justices to the Supreme Court, has appointed lots of Court of Appeals judges. But a lot of the

some of the constitutional and statutory questions that are being raised by some of the actions, sort of impounding federal money and the birthright citizenship executive order, for example, are issues where the constitutional and statutory authority or lack of authority is quite clear, right? So even if one is not especially confident in the Supreme Court,

These are cases where it would be surprising even to someone who is skeptical of the court, would be surprising for the court to just say that there's no law that binds the executive branch. But that being said, the point that Dahlia makes about

Where these cases are being brought is an important one that's sort of easy to miss, given the last several years where you've had lots of litigation in Texas, for example, in order to get in front of extremely conservative judges who will then be appealed to the Fifth Circuit Court of Appeals, which is an extremely conservative court.

Court of Appeals and litigants who are challenging the Biden administration go to the most conservative forum they can find and then get favorable rulings.

When the administration flips and one is challenging actions of this administration, the courts are not – litigants are not going to go to the Fifth Circuit or go to an extremely conservative appeals court or district court. They're going to file their cases before judges they think are more sympathetic to their position. So you may well see more ballots than we are accustomed to seeing out of the courts over the last several years.

Well, Jamal, in the minute we have before the break, I mean, some of these judges have issued nationwide injunctions, which Supreme Court Justice Neil Gorsuch has kind of raised an eyebrow to, like whether a federal trial court should be able to do that. Is that a problem? And does that the fact that these injunctions can be nationwide, does that suggest it will be fast tracked in some way?

It's certainly conceivable that a nationwide injunction gets fast-tracked to the court because it's nationwide and there are a number of justices who have

skittishness about this. But in the nature of things, not to be too cynical, but this tends to sort of align along partisan lines. And so if you sort of like what they're doing, then nationwide injunctions are just fine. And if you don't like what they're doing, they're not. The court has mechanisms for hearing cases more quickly than what's called their merits docket. This has been sometimes referred to

again, in the title of the book by Steve Vladeck, who Dalia referred to earlier, the shadow docket. And so there are ways of cases getting to the court quickly. And sure, yes, some justices might be interested. But again, these are so extreme that I think they might well stop at the lower courts because the Supreme Court doesn't want to get involved in just the politics of this administration's actions. LESLIE KENDRICK

Well, we're talking about the role the courts might play in opposing executive orders and actions issued by the Trump administration. We're joined by Dahlia Lithwick, a senior editor and legal correspondent for Slate, host of the Amicus podcast, and also the author of Lady Justice, Women, the Law, and the Battle to Save America.

We also have Jamal Green, a constitutional law professor at Columbia University. He served as a deputy attorney general working at the Office of Legal Counsel at the Department of Justice. And we're taking your calls and your comments. What role do you think courts can and should be playing in opposing Donald Trump? What are your concerns about how the legal system can respond to this moment? And are you a lawyer? And how are you thinking about this?

You can email your comments and questions to forum at kqed.org. You can find us on Blue Sky, Facebook, Instagram, and Threads. We're at KQED Forum. Or give us a call now. We're at 866-733-6786. That's 866-733-6786. I'm Grace Wan, in for Mina Kim. More Forum after this break. ♪

Turing with Tia is the quirky YouTube talk show where Tia Creighton is the host and all her guests are talking AI chatbots. Whether it's health and beauty, science and technology, pop culture, or current events, Turing with Tia delivers answers about everything. That's T-U-R-I-N-G, Turing with Tia, a funny and fascinating way to experience artificial intelligence. Only on YouTube at Turing with Tia.

Welcome back to Forum. I'm Grace Wan. In for Mina Kim, we're talking about Donald Trump executive orders and what role the courts might play in opposing them. We have Jamal Green, a constitutional law professor at Columbia University, and Dahlia Lithwick, a senior editor and legal correspondent for Slate. We're taking your calls and your comments. You can call us now at 866-733-6786, or you can send us an email at forum at kqed.org or find us on socials. We're there.

Let's go back to the phones. Susan from San Francisco, welcome to Forum. Susan. Hello. Hi, Susan. When I hear about all this, there's a part of me that's

noticing some humor of one side very carefully playing by the rules and going through the courts and doing everything according to law, and the other side just laughing it up and doing whatever they want. And

What do you do when you have one side playing by the rules and the other is not? What recourse do you have? The only thing I could think of was people in the streets. That is such a good question, Susan. I mean, there's some asymmetry right in the response. And Jamal, I mean, you're a former DOJ lawyer and a law professor. What do you say to that? What's your response to Susan?

Well, I don't know if Susan is going to be especially heartened by my response, which is that there is a point, unfortunately, where the law runs out. If

This is if the executive branch is simply not understanding itself to be bound by law. And again, I don't think we're quite there yet. We haven't had open defiance of court orders at this point. But if one does get to that point, the executive is acting outside of the constitutional system. And so either you impeach that person or the system has simply broken down. And at that point, the people you want to talk to are not necessarily involved.

There are other people in civil society, activists, advocates, revolutionaries. And then you try to win the next election if that election is happening. Talia, you've been looking at this issue a lot as well. I mean, what are you reporting on hearing and thinking about the asymmetry in response?

I mean, Susan, you know, killing me softly with your song like this is absolutely, you know, the thing that I think has been an issue, not just in the past weeks. Right. But I think, you know, people who are frustrated, for instance, with Merrick Garland's very, very lawyerly conduct, you know, in the four years where he might have had time to bring real meaningful, enduring consequences, you know, a sense that, you

One side was always bringing, as you suggest, like a shrimp fork to a knife fight. But I really, really want to make—and I think Jamal has sort of said this, but I want to say it in the most emphatic way I can—

It would be a category error to say the courts are just going to solve this. And I understand that's the conversation we're having here today. You know, how much can the courts do? But I think if we've learned anything and we learned this long before, you know, this administration, the courts are not.

self-enforcing entities, right? They don't have an army. They don't have a treasury. The courts, when they make demands or claims or they enjoin something, their power resides entirely in public confidence in the courts, right, in the rule of law. That is by design, right? That's the Federalist Papers. And so it is not enough to say, I'll just sort of hang back and let the courts solve this. We must, we have no choice, right?

but to fight for the rule of law. And, you know, you can ask about whether that means, you know, nationwide strikes or protests on the streets. But I think that Susan's question really undergirds this larger question, which is if we just cede the fight for democracy to the judicial branch,

You've been hearing it for, you know, 45 minutes. Like, it's not enough. And so we have to really think about how every single person who believes in the rule of law gets in the fight. And I just want to, you know, really emphasize there are incredible groups doing this work and we need to support them. It is not something we can just watch. And I think that just the only other layer I want to sort of add to that is

is that if we can call this and we can call it whatever you want, people are using the word, you know, totalitarianism. People are using the word coup or, you know, at Slate we're using auto coup or self coup. Right. Which means you are an elected executive. The men act to entrench executive power, whatever word you want to use for it.

It is true that it is not happening with tanks in the street, right? It's happening by way of lawyers with briefcases. We have to fight it on those terms, on those same terms, which means lawyers with briefcases fighting for law. This is not a thing that is happening the way we think self-coups play out.

You know, and you bring up a good point, which is that the courts, I mean, justice, they say, moves slowly, and that's purposeful. And there was a piece today by Ian Milhouser and Fox saying, you know, the courts are maybe not the right avenue to handle all the things that we're thinking about because courts are necessarily reactive and that the administration always gets that first move. Do you agree with that, Jamal? Yeah.

I think it's both and rather than either or. I think when the administration acts unlawfully, it's important to go to court and try to get a statement on the record that they are acting unlawfully. And it has been our tradition, our basically unbroken tradition of the executive branch complying with court orders. And so I think that that's

clearly one of the tools in the toolkit. It is not the only tool. It can't be the only tool. Courts have a number of limits that they're not going to save us from an unlawful executive. So I guess I'd say I don't think that we should background or not take seriously what courts can and should do, especially in an instance in which

what we're talking about in many instances when we're talking about impounding money or ignoring appropriations law or putting in place clearly unlawful executive orders, the law is clear. And very often in these cases, it's the law established by Congress, which is a lawmaker in a system such as ours.

And in that instance, it is, I think, especially important to use courts not as saviors, but as upholding the laws that Congress has passed. And so it's not just a matter of, you know, are they going to obey courts? It's are they going to obey courts?

laws that were passed by Congress. And that's a, you know, whatever you think of courts, right, that's a far more serious question. And it's important to put that to the administration, to make them recognize that we're not just talking about, you know, what are courts doing? It goes well beyond that. Let's hear from Allie in San Francisco. Allie, welcome to Forum. All right.

Thank you. My question was basically what Susan asked. So I just want to add, I see them as contemptuous of law across the board. J.D. Vance's comments yesterday is a perfect example of that.

And to me, we're pretty much already in a constitutional crisis because we have these types of personalities, if you want to call that, running or disrupting things. And I feel like there's not a consensus of where we are in terms of the next action to collectively look at, because I'm just curious if your guests agree that we're already in a constitutional crisis, I guess, is the next point. Yeah.

Well, Ali, I think that we are hearing that a little bit. Jamal, are we in a constitutional crisis or just edging towards it? I think I agree that we already are in a constitutional crisis. I think any time, given the power that the executive branch has, any time the executive branch is acting in ways that are not subject to their own internal checks, they don't seem to be observing the

They're doing the things that they want to do. That is a constitutional crisis, full stop. I think the concern is that the constitutional system breaks down entirely. And I think we're not at that stage yet, but we are, you know, it is a crisis moment. I think it is important to recognize it as a crisis moment.

You know, I one of the aspects of this is that, you know, we have a three system government. There's the courts. There's the executive branch. It does feel at this moment that Congress has a role to play. I mean, Trump fired the inspectors generals that Congress had put into place to make sure that there is no fraud and corruption within government.

Is this a particularly acute moment because the Republican-led Congress seems to be acting more as a rubber stamp to the executive branch, Dahlia?

Absolutely. I think that's the sort of that's the initial breakdown is that you have an entire system that rests on three independent co-equal branches checking and balancing one another out of a theory that, you know, as Jamal just said, they want to protect their own prerogatives. Right. They're not doing it altruistically. They're doing it because they're

Congress is supposed to be the, you know, entity that writes the laws and that appropriates the funds. That's the way this is supposed to go. When Congress opts to be supine, to just say, take away our power, go ahead, you know, you go ahead and impound all the money you want or, you know, go ahead and rewrite the Constitution, rewrite the 14th Amendment.

preclude birthright citizenship. The theory is supposed to be that Congress stands up and roars and says, you know, not on my watch. There's no roaring. There's been zero roaring in no small part because I think we have become so party focused and so loyal to, you know, for whatever complicated reason to the notion that Donald Trump and Elon Musk are superior in every single way that you're not

seeing any kind of checking coming from the Congress. And that means, and I think it's important to sort of say this explicitly, we're not in a fair fight. We are now talking about the judiciary doing the work of two branches instead of one because one branch just like lay down on the field.

Yeah. I mean, it seems kind of alarmist to say this, but is it practical to start wondering how and if Trump will attempt to amend the Constitution, Jamal? I mean, in arguing for birthright citizenship, the DOJ said they were trying to clarify, correct a misunderstanding about the 14th Amendment.

Do you see a future in which Trump will say, let's start rewriting parts of this? Or is it the playbook to just say, let's ignore parts of this? You know, I think the first thing to say is there's nothing to be clarified. The 14th Amendment is clear about this. Good point. Federal law is clear about this.

The Supreme Court has been clear about this for more than 100 years. So there's nothing to be clarified. I think it's also important to note, and this is maybe a note of optimism, perhaps, about those who are inclined to resist what the administration is doing, is that they don't have anything like the numbers they would need to have for a constitutional amendment. And it underscores the fact that

This is someone who won a presidential election. It was a very close presidential election, as presidential elections have tended to be in recent years. This is not a kind of what sometimes people in law call a constitutional moment where the country is mobilized in favor of some outcome, like in the 1930s when FDR is putting forward the New Deal and the court is resisting and he's getting...

530 or so electoral votes and pushing through his agenda, this is someone who won a very narrow election now doing things that he said he was not going to do when he ran for office.

And so there's no kind of – this is not a popular moment of the courts are standing in the way of the political branches. This is a quite narrow majority trying to impose its will. And I just don't think that that can happen through any normal constitutional process or even through statutes. They're not even going through Congress to do these things, even though they have both houses of Congress. That shows unpopularity, not popularity.

Well, we've also seen with the Supreme Court and, you know, with the caveat that many of these cases that we're talking about won't get to the Supreme Court. Nevertheless, with that caveat, we've seen how the Supreme Court can overturn precedent and has looked back into time to see how the Constitution should be interpreted as Supreme Court is meant to do. Dahlia, does that give you pause in terms of what role the court might play here?

I think that's going to turn entirely on what subset of issues the court is looking at, right? And I think that it's really important to be mindful that even in that sweeping immunity decision that you asked Professor Green about, you did not have six votes for absolutely blanket sweeping immunity. You had Amy Coney Barrett, you know, trying to slightly narrow a

the majority holding in that case. So I think really on so many of these, you're going to get into and I sort of hate doing this reading of entrails. But, you know, what is Brett Kavanaugh think? And what is the chief justice think? And what is Amy Coney Barrett think? Because they will be the deciders on every one of these issues, as you point out.

And then I think you just have to say, like, are they going to rewrite the 14th Amendment by fiat? I don't think so. Are they going to change impoundment law that has been understood for a very long time? I don't think so. Are they going to be amenable to vastly expanding executive power? You know, this unitary executive theory that's now being used.

held out as though it is already established. I think they're very open to those ideas. So I think we're going to have to take it doctrine by doctrine, case by case.

And I, you know, I shudder to say it, but I think we're going to have to watch Amy Coney Barrett and Brett Kavanaugh and John Roberts because they will be the arbiters of how much is going to kind of go into the dumpster and how much they're going to be true to what they purport to be true to, which is the original intent of the founders, the original intent of the drafters of the reconstruction amendments. We're going to find out. I think that's what we're going to do.

Well, you're listening to Forum, and I'm Grace Wan in for Mina Kim. Dahlia, I wanted to kind of end the hour with a statement from one of the opinions issued in the birthright citizenship cases. I think it's in a statement that you said you want to make your own ringtone at some point. This is from Judge John C. Kuhnauer writing about how the Trump administration was seeing that 14th Amendment. Could you share that with us?

Yeah, this is an 84-year-old Reagan appointee who said from the bench last Thursday, quote,

whether that be for political or personal gain. Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.

I think that's something that we can take with us for today, which has been an interesting but sort of kind of disturbing hour. I want to thank both of our guests for being here. We've been joined by Dahlia Lithwick. She's the senior editor and legal correspondent for Slate and host of the Amicus podcast. She's also the author of Lady Justice, Women, the Law and the Battle to Save America. Dahlia, thanks for being here.

Thank you so much for having me. We've also been joined by Jamal Green, a constitutional law professor at Columbia University. He has served as a deputy attorney general working in the Office of Legal Counsel at DOJ. Jamal, thank you so much for joining us today. Thank you. We want to thank all our listeners and callers for their comments and questions. And you can always look for our podcast wherever you find your podcasts. I'm Grace Wan in for Mina Kim. Thanks for listening to Forum.

Funds for the production of Forum are provided by the John S. and James L. Knight Foundation, the Generosity Foundation, and the Corporation for Public Broadcasting.