It Could Happen Here - Constitutional Law Professor Reacts

Episode Date: February 12, 2025

Garrison asks USC law professor Derek Black about attacks on the Department of Education and the dangers of expanding executive power.See omnystudio.com/listener for privacy information.

Why would you do that to me? Los Angeles, 2021. A friendly neighbor appears out of nowhere and promises to make all my dreams come true. Let's not forget that David Blum was a professional con artist, so you didn't stand a chance. But my dreams soon turned into a nightmare. I'm Caroline DeMore. Listen as I take down my scammer on once upon a con on the I heart radio app Apple podcasts or wherever you get your podcasts

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Last week, I was working on an essay about how the Trump administration is trying to shut down the Department of Education. Now, very quickly, that project expanded to being about how Elon Musk is actually trying to internally coup the federal government and become the CEO of the United States. That article is now published on Shatterzone.substack.com and is also the previous episode of this podcast. But during my research, I talked with law professor Derek Black about the Department of Education, the state of disunion in the country, and if we still have a democracy.

Already some of the things we talked about have begun to happen, like Republicans introducing legislation to expand executive power, while Trump and Musk flirt with denying the authority of the courts. But I decided to publish the full interview because I believe his perspective is still helpful. And the conversational format alters the way we process information compared to me just reading a kind of depressing essay for 40 minutes. So without further ado, here is the interview. I'm Derek Black. I'm a professor of law at the University of South Carolina. My area focuses on education, law, and policy and really sort of how that relates to democracy.

But I teach constitutional law and courses like that. I'm author of a couple books, Schoolhouse Burning, Public Education and the Assault on American Democracy, and then more recently, Dangerous Learning, The South's Long War on Black Literacy. Let's start by discussing what's going on at the Department of Education right now. And maybe let's actually start a little bit further back. Attacks on the Department of Education like are not new.

You know, Reagan, Reagan famously kind of pioneered the rights focus on this. But it's been something they've like struggled to deal sizable blows against, especially in terms of wanting to abolish the organization. Could you talk about like the history of conservative attacks against the department? Yeah, I mean, there's always been this states' rights issue that's been with America since

its founding. It obviously was a big part of the Civil War, a big part of the Civil Rights Movement, a big part of the Affordable Health Care Act debate. So you always have this states's rights argument going on. And at least amongst the folks that are worried about that, public education comes up as being a target because there's this argument always that, well, education is not in the federal constitution.

So what business does the federal government have to be involved? And so it's really more of a talking point as opposed to any particular substantive reason why they wanna get rid of it. But that's really where it's come from. But you know, it's often been not that serious of a critique, but obviously it's gotten very serious here in the last couple of weeks. Yeah, that's the general overall feeling I'm having is that there's a lot of things going on that I would have previously thought are kind of like pipe dreams. Calls to abolish the Department of Education,

even this rallying call from the New Right the past few years to abolish the FBI. General claims of draining the swamp. These types of old, almost stereotypical claims that now, through Musk, they've been able to weasel their way into actually dismantling large systems that make the everyday functionality of the government possible. What should people know right now about the current attacks in the Department of Education?

Trump is still allegedly drafting an executive order. He'll probably have to work through Congress, but we'll see the degree to which he even needs to do that. What are you worried about right now And what do you think people should know about like the current attacks on the DOE? Well, there's the sort of immediate worries and then there's the larger worries. The immediate worries I'll have to say,

I'm not terribly worried about. I mean, if you look at the reporting that we've seen, it is interesting that the White House seems to distinguish between the things that it can do unilaterally, right, without Congress and those things that would need Congress. And I mean, it's a weird silver lining, but that gives me like some, like, measure of comfortability in this weird, bizarre world, only because, you know, two weeks ago, the administration was willing to do things that it had no authority to do, right?

It sort of was claiming authority to do everything. And so there is this, at least recognition that there's not unbounded power. So that's sort of the immediate threat is not that huge because the White House, Trump's power over the department or to close it up is relatively narrow. Like most of the department is established by statute and he can't just dissolve things or move things around

that are created by statute. He can't take money that's for poor kids and spend them on vouchers, right? These things, you know, the law dictates. And the fact that he's implicitly acknowledging or rather his advisors are implicitly acknowledging they need Congress's help gives me a little bit of comfort because I think that getting rid of the department is, I'm not sure there's a majority in the House for that,

but there's certainly not a filibuster, you know, 60 vote majority for that in the Senate. So that's short term. But I think there's something far more disturbing to me and it's the long term, this sort of idea that there's something illegitimate about the federal role in education, that there's something illegitimate about the federal role in education, that there's something illegitimate about public education itself. Those are very dangerous ideas. I have a piece that just came out yesterday in Slate that says, look, the federal role in public education

predates the Constitution itself. Probably not many listeners are familiar, ever heard of the Northwest Ordinances of 1785 and 1787. But before we even had the United States Constitution, this foundational document laid out how our territory is going to become states. And without going through all the details, Congress embeds public education in the very fabric

of what it means to be a state before we even have a constitution. And so that's very important as where we start at the end of the Civil War, right? Where we almost lost our democracy. Congress as a condition of readmitting Southern states into the union says that one of the terms of readmission is that you create public education system and you never take those rights away, right? Forcing public education into the South in places where it never had been before.

You know, people are more familiar with the civil rights movement, so I won't go through all that. But just to take one more pause, I mean, Congress created a Department of Education in 1867, right? To get this public education project off the ground. So this isn't some wild new sort of fantasy of liberals or unions that we need a department so that we can you know hand over the spoils to teachers. This is an idea about what it means to have democracy in America and public education is a centerpiece of that and the federal government has been pushing it for 250 years and that's a good thing. It's a good thing. How do you think that relates to the administration's attempts to centralize executive power, though?

Like, if you look at like what happened with USAID, right, this agency that has been has been enshrined in law that may not be legally abolished now, but they've been effectively abolished. Like all the employees are on leave. It's been hollowed out. It essentially no longer exists. I feel like they're trying to at the very least test the bare limits of executive power and bypass Congress when they can. Part of my fear is like Congress is not willing to fight them on that seemingly. They're not willing to call them on that. They're almost willing to acquiesce their

appropriations ability as well as the ability to actually have to remove departments from existence or create new ones. Yeah, so you're picking up on a thread that's much bigger than a department, right? So when Congress is willing to hand the keys over to the president, then we no longer really have a democracy, or at least the constitutional democracy that was created a couple centuries ago here,

in which the president executes the law, the president doesn't make the law, right? Congress funds programs, not the executive. But if ultimately Congress is going to shift all that authority over, that's a dangerous place for democracy to be. There are no checks anymore. So I think what you're raising up is the fear

that there aren't any checks in place. Fortunately, there still is a legal apparatus. I mean, even if Congress isn't standing up, shouting and complaining, it's still the case. The president can't just do whatever he wants and hopefully the courts would step in. I use the word hopefully. I think courts will step in to limit his ability

to do things that go beyond his statutory power. So the bigger danger I think is that through law itself, Congress cedes more and more power to the president with a new legislation. So if Congress were to pass new legislation, giving the president more centralized power. Well, that would be a concerning thing to me. And let me just stop and we'll get to your next question to go. But we have a larger phenomenon. It's just,

it's not just about Trump and people don't necessarily realize this. I mean, look, I don't think that that President Obama was a dictator or had authoritarian tendencies. I was part of the Obama Biden transition team, but I testified against Arne Duncan in a case or against the United States Department of Education in 2012 or 14 or something like that, because the department was taking power that it clearly did not have in regard to a No Child Left Behind waivers. And I told the current administration,

as much as I hate it, right? I wish we could just wipe away student debt. I feel bad for my students who have huge debt. But I said it is beyond the president's power to just wipe away all this debt. And they did it anyway. The real point here is that both Democrats and Republicans have been asking things of their presidents

that their presidents don't have the power to do and their presidents are doing it anyway, right? And it's because our Congress is broken. Our Congress isn't doing its job. So citizens are demanding that our presidents do things that they really don't have the power to do. And that's like the big thing that I'm concerned about is we talk about these things that presidents are not

quote unquote, like allowed to do. And I feel like both Trump and Musk right now are speed running like the limits of executive power. And they are willing to test the boundaries a little bit more than previous presidents, and they're willing to break the government temporarily to their goals be enacted. And at a certain point, it's really tricky when the thing that you always hear is, you know, like, hopefully the courts will step in, hopefully they'll do something.

If things get really bad, who will literally stop them in terms of like the courts told them to halt the funding freeze. And there's still grants that they are refusing to issue that were already approved legally need to be followed through on that they are still withholding. And it's really frightening when it comes down to like basic level of like, is there people, military police who will enforce this if things get really bad? That's something I don't have like a complete confidence in anymore. Well, you know, I deal with this every year

at the beginning of my constitutional law class, right? This is not a new problem. It seems more real and frightening, but it's not a new problem. And so what I tell my constitutional law students is that the rule of law doesn't exist because of courts, it doesn't exist because of police officers, right? That the rule of law, when push comes to shove,

exists in the hearts and minds of Americans. And if they don't believe in it, all is lost, right? So for when Brown v. Board of Education was decided, it was reportedly the case that the president said, if the court wants to desegregate schools, let it do it itself. Because guess what? What's the Supreme Court?

It's nine old people in one building with a handful of Capitol police. Like they can't do anything, they don't have the power to do anything. So our entire system really rests on good faith. Or as I tell my students, like, what if due to something, you know, President Trump or Biden or whoever had done, the federal district court issued an order

directing US Marshals to take President Trump into custody. So that order goes out, the Marshals receive it, they march over to the White House, they come in the door and they say, we are here to take the president, signed. And it's already been fast tracked by the Supreme Court, signed by the Supreme Court. The answer to whether, we'll just use Biden, the answer to whether President Biden

is escorted out of the White House by US marshals is not a function of military, it's not a function of police power, it's a function of when that piece of paper is held up, does the Secret Service member believe that the rule of law exceeds his loyalty to the man standing behind him? That's where it's at, right?

And so, you know, it really is a good faith litmus test. And I think we used to live in an era when I think we all had maybe more faith in the idea that people put fidelity and commitment to the constitution and the law above personal loyalty. But we increasingly live in a Congress and in a world and a situation when it seems that people put personal loyalty

above the Constitution at times. Why would you do that to me when I thought we were friends? We are friends. Los Angeles, 2021. A friendly neighbor appears out of nowhere and promises to make all my dreams come true. Let's not forget that David Blum was a professional con artist, so you didn't stand a chance. But my dreams soon turned into a nightmare. Blum generally targeted people with money. And I was not alone. He took over 100 people for over $15 million.

One of the victims was his own grandmother. I was married to David for almost 10 years. It was insane. I was barely functioning. And I just had this realization that he will not stop until he kills me. Getting a con artist to pay for their crimes isn't easy. Charge David Blum!

I'm Caroline DeMore. Listen as I take down my scammer on Once Upon a Con on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Don't miss Real Life Amigos, Wilmer Valderrama, and Freddy Rodriguez in their new podcast, Dos Amigos. Each episode is a party where the good friends get real with each other about life, careers,

and everything about everything. And you're right there with them. When I discovered acting, I've just found my calling. But a lot of that was just because I wasn't good at anything else, you know? Join the two amigos straight from Wilmer's Speak Easy for a toast to good times. Don't be surprised if some special guests and good friends drop in and always expect lively candid discussions Plenty of genuine moments and lots of laughter Remember here in this commercial are you between the ages of 16?

I was it. Oh, man. Are you between the 14? What it takes to to be a TV personality and commercials Yeah You know morning Saturday morning shows listen to dosigos as part of the MyCultura Podcast Network available on the iHeartRadio app, Apple Podcasts or wherever you get your podcasts. Have you ever looked into the night sky and wondered who or what was flying around up there? We've seen planes, helicopters, hot air balloons and birds.

But what if there's something else, something much more ominous that appears under the cover of night, silent, unseen, watching? They may be right above your car late one night as you cruise down the road or look like mysterious lights hovering above your home? Drones. Or are they? We used to work drone because it was comfortable to other people. One minute it was there and one minute it wasn't. Oh that is beyond creepy.

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J.D. Vance was interviewed on a Fireright podcast about like two or three years ago. And he expressed desire for what he called a quote unquote, de-woke-ification program. So again, like, sounds silly, but this is basically happening now. He extrapolated and said, quote, I think Trump is going to run again in 2024. I think what Trump should do 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 stop you, stand before the country and say, the chief justice has made his ruling,

now let him enforce it, unquote. And I feel like we're getting closer and closer to like this scenario. I'm sorry, where did JD Vance make this statement? At what context? On Jack Murphy's podcast. Jack Murphy is like a far right commentator. Wow.

Vance is invoking the political philosophy of Curtis Yarvin, who is becoming increasingly popular in the New Right. Well, lots of what Musk and Trump by extension have been doing the past few weeks is taken pretty directly out of Curtis Yarvin's playbook for seizing executive power. And I feel like we're getting closer and closer to this. And so much of what's happening in various agencies, it is about proving loyalty to Trump so that if there is some kind of constitutional confrontation, people side with them.

Doge is basically installing loyalty tests and running through communications to see what the loyalty to Trump is for different levels of administrative employees. The FBI are negotiations to stay on, but only if they can prove their loyalty to the president. And like, it's all of these scenarios that again, like, originally would be kind of farfetched when you're hearing someone like JD Vance talk about this a few years ago on some like right wing podcast.

That's one thing to watch this like happen in real time for people like me who study like this type of like more like esoteric Far-right political theory it's kind of surreal To watch the type of thing that you've been like writing about and thinking about like on background for years now happen I just kind of rambled there But uh, do you have any like I guess thoughts on like this idea that like Vance is talking about in terms of like creating this constitutional crisis. Well, I mean, look, I tend to be I tend to be the guy in the room that says let's not

let's not overreact. Let's see what happens. There's a lot of institutional history and there's a lot of Americans who I think the majority are good and decent people and they don't they don't want Authoritarianism so this this is me right? This is my predisposition But a week or so ago I had a huge crisis of confidence and shall we say they were just a few events in the news and that I was just like I Just never thought that this would happen in America

I never thought a governor would, I mean, some of this was what governors were doing. I never thought a governor would do that. I never thought a president would do that. I just never thought, never thought, never thought. And so I said to myself, are any of my opinions or projections valid anymore? Because I'm the guy who never thought.

And so that was a tough 24 hours for me, I'll have to say. So, I don't know if like I just rebooted and for self sanity and move forward or whether there is still some truth and reason to believe in certain stability. And I mean, I will say this, as we started this conversation, the fact that the White House is conceding

that it can't do everything to the Department of Education that it wants to do without Congress is a good thing. If you read the five executive orders for however many that they've already issued there, it's a good thing that actually, if you read them carefully, it's mostly directing appointees to think about stuff, not actually do stuff,

but to think about stuff. And of course the president can appoint them to think about stuff. If they do the stuff they're thinking about, that becomes a problem. But again, it is this sort of like, can I grab a headline about what would sound like an awful reality, but really all I've done

is to think about that reality. That gives me some faith, right? And not withstanding the fact that this United States Supreme Court granted an immunity to all presidents that I never could have imagined, this court does issue opinions that surprise us

every single term and they line up with the rule of law. It's just, it's unpredictable to some extent, which opinions those are gonna be. So I have this faith, these sort of pieces of the puzzle that still suggest we're still a democracy and are gonna remain one, but I have my really bad days. I think a lot of people have a bad day every day right now. I just feel thankful mine are fewer

and further between than others. And maybe that's just psychological coping, I don't know. Why would you do that to me when I thought we were friends? We are friends. Los Angeles, 2021. A friendly neighbor appears out of nowhere and promises to make all my dreams come true. Let's not forget that David Blum was a professional con artist, so you didn't stand a chance. But my dreams soon turned into a nightmare.

Blum generally targeted people with money. And I was not alone. He took over 100 people for over $15 million. One of the victims was his own grandmother. I was married to David for almost 10 years. It was insane. I was barely functioning, and I just had this realization

that he will not stop until he kills me. Getting a con artist to pay for their crimes isn't easy. Charge David Lowe! I'm Caroline DeMore. Listen as I take down my scammer on Once Upon a Con on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Don't miss Real Life Amigos, Wilmer Valderrama,

and Freddy Rodriguez in their new podcast Dos Amigos. Each episode is a party where the good friends get real with each other about life, careers, and everything about everything. And you're right there with them. When I discovered acting, I've just found my calling. But a lot of that was just because I wasn't good at anything else, you know? Join the two amigos straight from Wilmer Speakeasy

for Toast to Good Times. Don't be surprised if some special guests and good friends drop in. And always expect lively candid discussions, plenty of genuine moments, and lots of laughter. Remember here in this commercial, are you between the ages of 16, what's that? Oh man.

Are you between the ages of 14 and 16 years old? Do you think What it takes to be a TV personality and commercials and Saturday morning shows? Listen to Dos Amigos as part of the MyCultura Podcast Network, available on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Have you ever looked into the night sky and wondered who or what was flying around up there? We've seen planes, helicopters, hot air balloons, and birds.

But what if there's something else, something much more ominous, that appears under the cover of night, silent, unseen, watching? They may be right above your car late one night as you cruise down the road or look like mysterious lights hovering above your home. Drones. Or are they? We used to work drone because it was comfortable to other people. One minute it was there and one minute it wasn't. Oh, that is beyond creepy.

Do you feel like this drone was targeting you specifically? Yes, absolutely. Listen to Obscurum, Invasion of the Drones, on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. When I smoke weed, I get lost in the music. wherever you get your podcasts. There's someone crossing the street. Sorry, I didn't see him there. If you feel different, you drive different. Don't drive high. It's dangerous and illegal everywhere.

A message from NHTSA and the Ad Council. Let's, I guess, close with talking about disunion and how that relates to the general feeling I think a lot of people are experiencing around the country as well as, you know, linking back again to the attacks on Department of Education. Yes, I spent a pretty good deal of time on this disunion question in my new book, Dangerous Learning, because most of that book is focused on the three decades leading up to the Civil

War. So that like the Civil War doesn't just happen overnight. It happens over the course of late 1820s to 1860 with the South is saber rattling over and over again, openly talking about disunion, right? So that you had a South that actually was diverse in lots of ways in its opinions about various things. I'm not gonna say that they were your bunch of abolitionists, but there was a manumission society in North Carolina

in 1829 that had, I think, 1600 members, right? The very idea of 1600 anti-slavery advocates in North Carolina in the 1820s is shocking to a lot of people, right? But 10 years later, only 12 people show up to the final meeting, right? So you had something that changed there, right. And so you have this sort of period of escalating disunion and censorship and propaganda

and sort of policing what is publicly, acceptable commentary in the South. All this stuff is happening, sort of going in and editing their sort of censoring textbooks, demanding that books only be written by Southerners, like, oh, I make it go on and on and on, we don't have time for it. What I point out though, in my analysis of what's going on

right now over the last few years in education is that there are a lot of policies that are attacking public education in the way that they previously had. And a lot of them are symbolic of disunion instincts, right? Sort of, just sort of anti-government, right? Anti sort of whatever the current culture is. And then there's actually policies that I argue

are facilitating disunion. And one of those that I talk about is our public school voucher. I say private school vouchers. You are so upset with, you're so raging at the public school voucher, I say private school vouchers. You are so upset with, you're so raging at the public school system that we need private school vouchers, right? And we are effectively paying,

we're going to pay individuals to leave the public school system. And I call this a coded call for disunion, even if people don't think that's what they're doing. If we look back at where we started this conversation, which is institution of public education as something upon which American democracy has been built. Of course it had lots of flaws and it wasn't perfect, but it's been

part of how we build a democracy. It's always been a bipartisan project. Now becoming the thing that we rage against. Now becoming the thing in which we are going to finance exit from. This is a step towards disunion from a fundamental institution of American democracy. What happens to us if they actually execute on that plan? I shudder to think about where we might be because it's not just some private school that's the equivalent of the public school. We're talking about people on the public dollar retreating into their religious silos, into their racial silos, into their culture silos. And if there's anything I think that we could all agree on

is listening to only the people that you like on Twitter or listening only to the people that you like for the evening news is what got us here. And if what we have is education that becomes the equivalent of MSNBC and Fox News and Newsmax and whatever else like that is a dangerous place. I don't know how we build democracy on such a system. What's the solution here? I mean, like beyond beyond people diversifying where they get their media from and, like, for a vast wealth of the country, I think that that line's been crossed a long time ago. If you look at the way, like, Twitter functions, the way that people just exist in their bubbles and are happy to, like, people don't want to hear anything else. And with the most hostility coming from like both extreme ends.

Yeah. I don't know how to get around this problem. This is something that we've thought about a lot the past eight years, but certainly longer. Well, I'll say this. You know, public schools can't solve all of democracy's problem, you know, be a fool to say otherwise. But if what we're doing is talking about education itself, I think number one is that I think our leaders need to understand, better understand the dangers of vouchers, for instance.

Like right now, and I'm writing about this, they think it's just a policy dispute. And if you just look at the surface level, it's like, well, who cares if we give some more vouchers? And that makes the most far reaches of our party happy. But I think really stepping back and appreciating the most far reaches of our party happy. But like I think sort of really stepping back and appreciating how dangerous this is to our democracy is step one.

And that's hard, right? I'm talking about teaching adults to see things differently than what they currently see them. But as to our schools, I mean, I've got a little bit of stiff medicine for both sides. I mean, I do think that in the push for more justice in our public schools, and I think we do need, I mean, that's what I've devoted my career to.

I do think that, well, I don't think our schools did any of the awful stuff that the writer said, but I do think that they maybe were not as open to people disagreeing with them as they should have been. And what I really mean is, in the push for justice, I think there was a bit of shutting down conversation, not teaching children to reach their own conclusions, but giving them conclusions and expecting them to reach them. And so one of the things I'm working on my new book is that, like, I really think we have to rethink how we teach

history, you know, how we teach literature, maybe not so much literature. I think our literature teachers are pretty good, but rethink how we teach those things such that we are not committed to our children reaching particular conclusions. What we're committed to is our children engaging in free and open thought amongst themselves, right? With hopefully an adult in the room that can establish some guidelines.

But I think, you know, public education didn't do that very well five years ago, 10 years ago, 30 years ago when I was there. But I think in this moment of cultural fracture, we do really have to commit to free speech, open debate, inquiry, listening harder, thinking harder, not just bullet points, not just bullet points. What would cross the Rubicon for you?

People throw around the term constitutional crisis. What would actually happen that would make that something that you would be like, this is like it, like it is happening. What is that like make or break moment? Are you wanting me to imagine a realistic one or just sort of give you some sort of example that makes sense?

No, like what would that be like for you? Because I think everyone has their own personal rubric for like, what is too far in my mind? Like what is something that's like, this is completely unacceptable? And for some people this may have already happened. But like in terms of like legitimate, like constitutional crisis. Yeah. What is that for you? Well, let's just rewind. And this is, I guess, an example of why, you know, someone still got their finger in the dam, holding back, holding it together.

You know, the president of the United States asserted unilateral authority over the entire federal budget when he came into office. He does not have that power. Federal District Court enjoined it. He then backed down from that. But let's say he didn't back down. It's like, well, okay, maybe as a district court.

But if the United States Supreme Court or a court of appeals told the president you lack the authority to sequester those funds And he still did it so just the budget. That's it. Just the budget You know just the belief that the president can spend our money however, he wants with no with no constraint and That would be crossing the Rubicon Now I'll tell you, and this is why, you know, you had to kind of be like a constitutional law professor,

or well, you don't have to be a constitutional law professor, but you've been following it. It's like, you know, I've been alarmed, and this goes back, this isn't just a Trump problem. Like I was alarmed with the NCLB waivers, probably nobody in this even knows what I'm talking about, right, like, you know, a decade ago. Not that like President Obama was like going to take over the country, but alarmed that somehow or another he thinks he can do this. Like, why is he even testing

the boundaries this way? Like... Executive power has been steadily expanding, certainly. Yeah. And so, but I was like, you know, you can kind of get it. There were some gray area, this where you kind of need to be a constitutional law professor to kind of figure out why that was such a big deal. But when Biden, I mean, think back and again, I don't begrudge people needing their debts relief, but when President Biden effectively asserted the power to allocate federal dollars to pay off debts, that was like, you know, half of the discretionary funds of the entire federal government. Like that's a big move to just say,

I can commit this nation to a 50% increase in its fiscal outlays tomorrow. That's not constitutional democracy. But now, right, we have a president going even further than that. But he, like Biden, at least thus far, stepped back, at least from the district court, right, when the court said can't. So it's really that sort of defying

of the court at that point. Yeah. They've all been pushing the boundaries. He's pushed them further. Thus far, they've all complied with judicial orders, but it would be the refusal to comply with judicial order. I mean, I guess the main difference there for me relates back to what you said about acting in good faith. Something that people on the left, I think, get mad about sometimes is Democrats seeming a complete commitment to acting in good faith sometimes. And it certainly appears that Trump is willing to push a little bit farther, especially in terms of like tests for loyalty.

And it's at a certain point, like, if he does something really bad, at least for these next two years, like, I don't see a way that he'll get like impeached or removed from office, like, certainly not with this Senate, not with this Congress. Like that check and balance just no longer is viable due to the last election. And acting with that popular mandate has, I think, given them a bit more courage on their side to go a little bit further, play a little bit more fast and loose,

lose some of these checks and balances than what we've previously seen. But this is certainly still developing. Well, the thing that really sort of jumps out at me, and I was telling some several reporters is that, you're right, he's pushing it further, it looks scarier, but part of why it's scarier, to be quite honest, well, I think it's scarier, I don't know,

is that he's doing it out in the open. I mean, on some level, some of this stuff, like telling people to cook up crazy plans to do this, that presidents have been doing, like Nixon was paranoid. He was like, this is what presidents do, but it's not appropriate to do it in public, right? You do it behind closed doors, offer some plausible rationalization for what you're doing and you minimize it, act like it's no big deal.

What's startling here is that he is out in the open expressing his designs to us, giving us the sort of thoughts and that's very unusual and it does show that what's acceptable from public officials is much different now because had Nixon shared his designs with the American public, he wouldn't have made it as long as he did. And probably true of a lot of other presidents,

they would have been gone. So what's actually acceptable as public behavior has clearly changed. What's acceptable as a policy agenda has clearly changed. And so he's just putting it out there. He's putting his dirty laundry out there and people are like, oh, this is normal. Unless you have anything else to add,

do you wanna talk about where people can find you and your writing? Yeah, I mean, I'm on Blue Sky more recently. Still on Twitter. I sort of have, you know, just lots of friends on there, so I'm still there. Me too. Me too. Yeah, you know, I'm not on there as often as I used to be. You know, I gave up blogging a long time ago.

So you know, as we drink out of a fire hydrant, I spent a lot of time just trying to explain basic things about public education to reporters, but you can find me there. I'm a professor of law at the University of South Carolina. And like I said, dangerous learning just came out a week or so ago, really helping us, I think, helping us to see this current moment

through a long lens of war on black equality, black freedom, and to be quite honest, just free and open debate. We've had those wars before and we scarily are having them again. All right. Thank you so much. Thank you. If What Happened Here is a production of Cool Zone Media. For more podcasts from Cool Zone Media, visit our website, CoolZoneMedia.com, or check us out on the iHeartRadio app, Apple Podcasts, or wherever you listen to podcasts.

You can now find sources for It Could Happen here listed directly in episode descriptions. Thanks for listening. Why would you do that to me? Los Angeles, 2021. A friendly neighbor appears out of nowhere and promises to make all my dreams come true. Let's not forget that David Bloom was a professional con artist, so you didn't stand a chance. But my dreams soon turned into a nightmare.

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