Consider This from NPR - Are we in a constitutional crisis?

Episode Date: February 11, 2025

President Trump's blizzard of executive orders has run into a snowplow of legal challenges. There are dozens of cases challenging the White House's actions. Judges all over the country have found that the White House acted illegally.The challenges, and the rulings, continue to pour in. But Trump's team is punching back. After a judge blocked Elon Musk's DOGE team from accessing personal data and other Treasury department systems, Musk referred to him as "a corrupt judge protecting corruption" and called for his impeachment.Vice President JD Vance made the controversial claim on Sunday that quote, "judges aren't allowed to control the executive's legitimate power." Comments like these suggest Trump's circle may be willing to ignore court orders and defy judicial authority.So what happens if the executive branch ignores the judicial branch? Is that a constitutional crisis? Is the United States already in one?For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.orgEmail us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

President Trump's blizzard of executive orders has run into a snowplow of legal challenges. There are dozens of cases challenging the White House's actions, and judges all over the country have found that the White House acted illegally. Here's just a few examples. On immigration, several judges have blocked Trump's order ending birthright citizenship. On the federal workforce, a judge blocked the offer encouraging government employees to resign. On transgender rights, a judge blocked the Trump administration from moving trans women to federal prisons for men.

There are also rulings that block the dismantling of USAID, the administration's freeze on federal grants, and more. The challenges and the rulings continue to pour in. And Trump's team is punching back. After a judge blocked Elon Musk's Doge team from accessing personal data and other Treasury Department systems, Musk referred to the judge as, quote,

a corrupt judge protecting corruption and called for his impeachment. And Vice President J.D. Vance made the controversial claim on Sunday that, quote, judges aren't allowed to control the executive's legitimate power. That echoes something he said in 2021 on the podcast, Jack Murphy Live. I think that what Trump should do, like if I was giving him one piece of advice, fire every single mid-level bureaucrat, every civil servant in the administrative

state, replace them with our people. And when the courts, because you will get taken to court, and when the courts stop you, stand before the country like Andrew Jackson did and say the chief justice has made his ruling, now let him enforce it. On Monday in an interview with radio host Mark Levin, President Trump criticized judges for wanting to quote, tell everybody how to run the country. Judges should be ruling, they shouldn't be dictating what you're supposed to be doing. And why is somebody saying that you're not allowed to? These comments suggest that Trump's circle may be willing to ignore court orders

and defy judicial authority. That authority is enshrined in Article 3 of the U.S. Constitution. Quote, the judicial power shall extend to all cases in law and equity arising under this Constitution. A Rhode Island federal judge believes the Trump administration may already be ignoring the court. On Monday, Judge John McConnell Jr. wrote that the administration defied a temporary restraining order by continuing to improperly freeze federal funds.

The Trump administration argues that it acted in good faith to interpret the scope of the restraining order, and it has appealed the ruling. Consider this. Is the U.S. facing a constitutional crisis? And what power does the judicial branch have if the president simply refuses to comply? From NPR, I'm Ari Shapiro. It's Consider This from NPR. What happens if the executive branch ignores the judicial branch? Is that a constitutional crisis?

Many legal experts have been looking at this question right now, including University of Virginia law professor Amanda Frost. Welcome. Good to have you here. Thank you for having me. I know that law professors have debated for many years what a constitutional crisis actually, technically is. How do you define it?

Yes, I think a constitutional crisis occurs when one branch of government, usually the executive, blatantly, flagrantly, and regularly exceeds its constitutional authority and the other branches are either unable or unwilling to stop it. Blatantly, flagrantly, and regularly. So you can maybe dabble in a little judicial defiance and it's not quite a crisis in your view? Yes. I mean, I think the way our system works and frankly is intended to work is that each of

the three branches maybe pushes at the edges of its powers. They're all interpreting laws and applying laws. And then the question is, well, we have checks and balances. And so at that point, the other branches should step in and push back. So let's talk about those checks and balances. Congress's role is to enact laws. The executive branch carries out the laws.

Technically speaking, what is the role of the judicial branch here? Yeah, so the judicial branch resolves disputes when the executive seeks to implement a law and there's a claim that it violates either another federal statute or the US Constitution, or the executive has just gone far beyond its authority, such as taking over the power of the purse, which belongs to Congress. Which some argued President Trump has done in the last few weeks. Yes, I think it's clear that the president has gone beyond the powers of the executive branch by taking over

the power of the purse or attempting to, by attempting to redefine through executive order constitutional clauses such as the citizenship clause granting birthright citizenship, and taking other action which violate lots of different federal laws. So I guess the first half of my definition of constitutional crisis has occurred, but the second half we have yet to see what will happen, which is will the other two branches and particularly the courts restrain or push back the executive? And we're beginning to see that happen. We are beginning to see the courts try to restrain the executive, but we're also seeing

the executive kind of flip the bird to the courts try to restrain the executive, but we're also seeing the executive kind of flip the bird to the courts in some respect. Does that give you cause for concern? So I am deeply concerned, as I think every American should be, about the way in which executive power is being abused, misused, and overstepping the bounds of the authority. But I will say that as of today, at this moment, the executive branch has not taken the position that it can violate court orders or that it does not need to comply with court orders. So as long as we remain in a system in which the executive follows or at least states that it has to follow what a court says, I have hope that the system will hold.

Let's talk about what happens if the executive does turn its back on a legitimate court order. Civilians defy judicial orders all the time and they get punished for it with fines or with jail time. Have we ever seen a president defy a judicial order? Yeah, so we go back way back into our country's history when the Supreme Court was very weak and a new institution at the start of our nation. We had Marbury versus Madison where the Jefferson administration didn't even bother to show

up in the Supreme Court to defend its position. And so that was a moment where we could have called that a constitutional crisis. The court was savvy. It issued a decision that both declared its own power to stay what the law is, and at the same time didn't require the executive do anything to comply, which, of course, avoided the kind of crisis that would occur if the executive simply ignored the court. We heard that quote from J.D. Vance in 2021 before he was in the government where he referenced Andrew Jackson, who as president said, the chief justice has made his ruling, now let him enforce it. Do courts have an enforcement mechanism?

First, I'll say it's shocking to hear J.D. Vance state that as if it's a positive thing. That is not a moment to have been celebrated. The fact that the president may have said, and the statement may have been apocryphal, but the president may have said that he would simply ignore a Supreme Court order. That is not a moment to be celebrated in our nation's constitutional history. As for today, there's a number of mechanisms or tools courts have to enforce their orders. Things like subpoenaing government officials to come and explain themselves if they're not following orders,

holding government officials in contempt or fining individuals. All that said, if at the end of the day, neither political branch nor the people wanna see the law enforced, eventually the courts will fail in their efforts to do so. Our system at the end of the day

relies on the people and elections and the political branches of government to ensure that we remain a nation governed by law. Well, how significant do you think it is that a judge in Rhode Island has now said the Trump administration defied a court order and continued to freeze some federal funds that it was ordered to release? I don't find that to be a moment yet of crisis because the system is working where the response by the Trump administration was, we interpret the scope of the order differently, we are appealing,

not we are going to refuse to follow any order you issue from here on in, we're ignoring you. The response that the Trump administration has given is within the system as we know it. If they begin blatantly violating court orders and saying they don't have to follow them, then we're in new territory. It seems a safe prediction that these debates will ultimately reach the Supreme Court

in one form or another. There is a conservative super majority right now, and the court has taken an expansive view of presidential power. Do you have a sense of how they might resolve this? It depends on what the this is. So there's a number of different, of course, legal challenges based on violations of statute, based on violations of the Constitution.

So depending on the case, the Supreme Court may uphold what the Trump administration has done or may strike it down. So one example is the executive order attempting to redefine birthright citizenship and exclude many people who are currently Americans from citizenship or people that we've always thought would be Americans from future citizenship. I expect and hope that if the Supreme Court got that case on appeal that it would declare the executive order to be unconstitutional. Other cases may come closer to the line for the court and the court will move cautiously I I would think, in this new environment.

What about the overarching question that Elon Musk and JD Vance and Donald Trump have all spoken to that courts just can't check the president, that as Richard Nixon famously put it, and I'm paraphrasing, if the president does it, it's legal. Yeah, so of course no one agreed with Nixon, or at least Nixon at the end of the day left office based on the fact that that view was not accepted by the courts or the people. I would say today we are at an extraordinary moment where the Trump administration is attempting to expand executive power, which by the way has been expanding under previous administrations

as well, but is attempting to expand executive power into new and unchartered territories. I think the courts can slow that expanse beyond the constitutional limits, but it cannot stop it if the political branches such as Congress or the people, who of course will go and elect again new members of Congress and a new president in four years. If the people don't accept it, then I think that is the last check on executive power and the courts can only hold the line for so long. So to end where we started with the question

of whether the US is in a constitutional crisis, I've seen a variety of law professors argue that yes, the country is in one right now. What do you think? I would say that no, we are not yet in a constitutional crisis, but we are undergoing a constitutional stress test. And we have an executive that has usurped the power of Congress and overstepped the boundaries of the office.

And the question is, will the court step up to play their constitutional role in stopping it? And following from that, will the executive comply with court orders requiring them to stop taking action? That is University of Virginia law professor Amanda Frost. Thank you so much. You're welcome. This episode was produced by Mark Rivers and Elena Burnett and was edited by Courtney Dornig and Nadia Lancy. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Ari Shapiro. Want to hear this podcast without sponsor breaks? Amazon Prime members can listen to Consider This sponsor free through Amazon Music, Or you can also support NPR's vital journalism and get Consider This Plus at plus.npr.org.

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