On with Kara Swisher - Unchecked and Unbalanced: Trump’s Executive Power Moves and the Rule of Law

Episode Date: February 13, 2025

In just a few weeks, President Trump has flooded the zone with executive orders, which have been met with dozens of lawsuits by state attorneys general, unions and non-profits and complaints by Democrats in Congress. Some of the orders have been blocked in court. But last weekend, Vice President JD Vance posted a tweet implying that a judge can’t tell the executive what to do. So what recourse do the courts, Congress or states have if the administration were to just ignore judicial rulings against them? Kara discusses the strength of our constitutional “checks and balances” and whether we are in or on the brink of a “constitutional crisis” with former US Attorney for the Southern District of New York Preet Bharara (host of the Vox Media Podcast Network’s Stay Tuned with Preet); lawyer and outspoken anti-Trump conservative George Conway; CNN special correspondent Jamie Gangel; and former Assistant Attorney General for Antitrust Jonathan Kanter.  Note: This episode was taped the morning of 2/11/2025, before President Trump said in response to a reporter’s question in the Oval Office that he intended to abide by court rulings and appeal if his orders are blocked. Questions? Comments? Email us at [e-mail] or find us on Instagram and TikTok @onwithkaraswisher Learn more about your ad choices. Visit podcastchoices.com/adchoices

I've heard that I got a shout out. Yeah, you did. Well, it's mostly because when Elon sues us and put us in jail, you're our first call. Well, I hope for you it's the first, not the second. It's on. Hi, everyone. From New York Magazine and the Vox Media Podcast Network, this is On Cara Swisher and I'm

Kara Swisher. I'm coming to you from the brink of the constitutional crisis. Or maybe not. I think so. In the past three weeks, President Trump has flooded the zone with executive orders, 61 and counting as of this taping. They've been all over the map from trying to overturn birthright citizenship to banning gender-affirming care for transgender teens, to freezing government funds including

for scientific research, to memos that put over 2,000 U.S. AID workers on leave. So far, more than 40 lawsuits have been filed by state's attorneys general, unions, and nonprofits. At least 11 judges have placed stays on a few of the rulings. But on Monday, a judge ruled that Trump had failed to comply with his court order. And that's just the first one. The question is, what recourse do courts, Congress and states have if the president just ignores judicial rulings? I want to talk about all that today and whether it constitutes a constitutional crisis with a lineup of highly experienced and esteemed legal and political experts. Preet Bharara is a former U.S. attorney for the Southern District of New York and currently

a partner at the white shoe law firm WilmerHale. Plus, he's the host of the Vox Media Podcast Network's Stay Tuned with Preet. George Conway is a lawyer who has argued cases before the Supreme Court. He became an outspoken anti-Trump conservative during the first Trump administration, while his then-wife Kellyanne Conway worked as an advisor to Trump. Jamie Gangel is an award-winning journalist and special correspondent at CNN. She's been covering Trump 2.0 and reporting on the flurry of orders coming out of the White

House. And Jonathan Cantor, who served as Assistant Attorney General for Antitrust in the Department of Justice during the Biden administration. He was a well-known critic of Big Tech, and he previously worked at the Federal Trade Commission as an antitrust lawyer. Also, I'm excited to announce that On and Pivot will be returning to SXSW this year as part of the official Vox Media Podcast stage presented by Smartsheet. On Sunday, March 9th, Scott and I will be doing Pivot in the Morning followed by an episode of On with guest Chelsea Handler in the afternoon.

Visit VoxMedia.com backslash S-X-S-W to learn more and see everything else happening on the Vox Media Podcast stage. That should be fun, but for today, not so much. We're in the slash and berm second term, so buckle up and stay with us. TD Direct Investing offers live support. So whether you're a newbie or a seasoned pro, you can make your investing steps count. And if you're like me and think a TFSA stands for Total Fund Savings Adventure, maybe reach out to T.D. Direct Investing.

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Jamie Preet, George and John, welcome. Thank you so much for coming on on. Thanks for having us. Thank you. Yeah, great to be here. Thank you. All right. We're talking about some serious constitutional crisis issues. So are you ready to go and give us some insight?

Cause everybody is freaking out who I know. So I've been texting with some of you since Vice President JD Manson's post on X this weekend, which prompted me to do this. I'm sure I wasn't the only one considering your legal and political expertise, just to get everyone on the same page. On Sunday morning, Vance tweeted, if a judge tried to tell a general how to conduct a

military operation that would be illegal. If a judge tried to command the Attorney General and how to use her discretion as a prosecutor that's also illegal. Judges aren't allowed to control the executive's legitimate power. There are a series of rules in federal court that have stopped or at least slowed down President Trump's slew of executive orders. I think there's 61 at this point. It's unclear whether Vance was talking about a specific judge or speaking in broader terms. But I love your first thoughts when you read this. Preet, you start and then Jamie, George, and then John.

Yeah, look, it's of a piece with a lot of statements being made by a lot of people who went to, at least according to the, um, U S news and the world report rankings, very fine and selective law schools. They seem to be forgetting a lot of things. And, you know, at its most innocuous, it is an expression of disagreement with one or more judges' rulings that happens all the time. It is okay and constitutional and consistent with the values of our democracy and the first amendment for people, including people like us on a podcast to criticize judicial rulings and to criticize judges.

We do it all the time. I myself have criticized judge Eileen Cannon in Florida, anyone of a number of times. So if it's that, and he's speaking to an audience that wants Trump to be able to do whatever he wants and the doge to do whatever he wants, that's one thing. On the other hand, at the other end of the spectrum, if it's really the laying of a foundation, and I'm not there yet, but I hear people's concern about it,

laying of a foundation for outright defiance of court orders, well, that's something quite different. The language that I think is even more crazy than what JD Vance used was another very fine law school educated, went to a very fine law school, Mike Lee, who I believe is the United States Senator. And he talked about this decision by Judge Engelmeyer with respect to access to sensitive treasury information. It's a temporary decision by a temporary judge who's very well respected in the Southern District of New York

about which they can have another argument on Friday, three days from now. And Mike Lee writes, this has the feeling of a coup, not a military coup, but a judicial one. That's just plain crazy bonkers shit, and they should knock it off. Okay. George? Yeah, I mean, I agree with that. I agree basically with everything that Preet says, except that I do believe that's where we're headed. And what JD Vance said was literally a truism, literally, but that's not the way he meant it. This is an administration that insists on violating laws. They do not care about appropriations bills.

They do not care what the statutes say. Right now, they are running a rough shot over the Article 1 powers of Congress to appropriate and to have that money spent. And it would be, as JD Vance points out, a violation of Article 2 for the Speaker of the House to direct the President or the Chief Justice of the United States to direct the President's disposition of troops in a war. All that said, that's not what's happening here, in the sense that that's not what this administration's

position is going to be. This administration is essentially run by sociopaths, by psychopaths. You've heard me talk about Trump being a sociopath and a psychopath before. He is not alone. He has attracted others. One of them is running around the government with a bunch of kids, looking into computer files and doing more.

And they, sociopaths do not follow rules. They think they are above the rules. They think they make the rules. They are arbitrary and capricious and theyious and this is where we are now. He is going to at some point in the not too distant future wholesale say, these courts are biased against me. And he'll say that even about the Supreme Court. He'll say, you know, he attacked Mike Pence, he'll attack the Supreme Court.

He will not obey their orders. He will not obey their orders. He will not obey their orders. And then it is at that point that basically the courts become useless. The law becomes useless because it can't be enforced. And he has the power to do this, the raw power to do this, not the constitutional power, because the way that courts enforce orders are basically to the United States Marshals. The United States Marshals Service is controlled by the Department of Justice. And so Trump has to basically, all he has to do

is put somebody there who is going to follow his orders, not to enforce judicial orders against him, and it's over. Our 236-year experiment in the rule of law, in federal rule of law, in federal rule of law, and constitutionalism is effectively over unless people get into the streets and try to take it back. We'll get to that in a second. All right. Well then, Jamie, I'm going to follow that.

So I'm not a lawyer. I'm not a psychiatrist. So I will leave it to Preet and George to deal with those. But what I will tell you as a reporter is that when I spoke to legal sources, judicial sources, former DOJ people, FBI, people across the government, what they said when they looked at Vance's post, when they look, Elon Musk also posted something about 1% of judges should be fired. What they said is, we are in uncharted territory, the lights are blinking red,

and these are pretty tough cookies who've been around a long time, and the word that I heard over and over again was that they were scared. I've never heard any of these people use that word before, and it's about one thing. They do believe, as George was, that we are on the verge of a constitutional crisis if we're not there already. And I think the Mike Lee post that Preet raised is critical because it shows

that Trump has, surprise, surprise, support from Republicans on Capitol Hill. But their real concern is that Trump is emboldened, that this is not Trump 1.0. There are no guardrails. And that he feels perfectly comfortable, you know, going into this territory. And let's just remember one other thing. This is what Donald Trump is used to doing. He does not mind going to court and defying court. This is what he's been doing his whole career.

And he's very aggressive about it. Okay. John? Yeah. I think it's important to distinguish between constitutional questions and constitutional crisis. And I think we need to avoid being hyperbolic about the former, the constitutional questions, and being extremely concerned about the latter. So for as long as our country has existed, there have been questions about power. Who has more power, the executive branch,

the legislative branch, the judicial branch? That tug of war defines our legal system. And almost every administration thinks they have more power probably than they do, or not enough power and they exert it. And that's okay. This happened during the Biden administration.

Student loan forgiveness or non-compete roles. And what happens? Chamber of Commerce or somebody goes into a court in Texas. And then that court issues a nationwide injunction that stops a policy that the executive branch believes will help people. Which the executive branch agreed to once the court had ruled. Well, that's where I'm going to go in a moment. So it is extremely frustrating. And there used to be norms in our society, pre-social media, pre-current rules of engagement

that you shouldn't criticize courts. And there is some logic to that, right? Because if you undermine confidence in the courts, then the judicial system breaks down. Being upset at a court, being upset at a judge, and listen, I've been on the receiving end of rulings that I think were bad rulings, it's okay. Constitutional crisis exists when a court says, hey, you have to stop doing something, right? You're violating the law.

Our Constitution exists with a code. And that code, it's actually far more fragile than people realize, is that when the court says you have to stop doing something, you stop doing it. And from time to time, people violate that. But en masse, having one branch of government essentially say, I no longer recognize the applicability of the other branch of government, that is a constitutional crisis. And that is where I think we have to worry.

Do you suggest we're there? I don't know. I don't think anyone knows. I think we are there. There's lack of confidence. George thinks, yes. Yeah. I have a view. Okay. Yeah, that we are there. Okay. Let's say the precipice is the end of a cliff, like the Yeah, I have a view. Yeah, I get it. We are there. OK.

Let's say the precipice is the end of a cliff like the ones you see on the Road Runner, right? We are holding the anvil with our foot hanging over the ledge right now. OK? All right. That's where we are. We are this close to it. But you know what's crazy?

Oh, go ahead, Pri. What's crazy about this vociferous reaction, the judiciary is full of Trump appointees, full, chock full of Trump appointees at the district court level, at the circuit court level. He appointed a third of the Supreme Court justices who are there now. He has a 6-3 margin of conservatives to liberals, and he has four years to appoint another whole legion of judges at every branch of the judiciary. And in that context, at the beginning of a litigation, with one temporary, not particularly

substantive ruling, they have lost their minds. That telegraphs something I think very dangerous. Well, let me keep going. Vance has been pushing the idea of unfettered executive power for years. Here's an interview though that Vance gave on Jack Murphy live in 2021. 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 then 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. Because this is, I think, a constitutional level crisis. If we continue to let bureaucrats control the entire country, even when Republicans win elections, then we've lost, we've just permanently lost, we've permanently given up. So he's just turned that on his head. So he proposed a government purge that's been halted for now and Monday a judge in Boston kept a hold on Trump's government employee buyout offer in place. But clearly from his perspective, it's the agencies with the

nonpartisan civil servants that constitute the crisis, not the administration disregarding the rule of law. Quite a radical idea, which he's been talking about for a while. Go through this, each of you, when he says that, because he's flipping it, that what we're doing is stopping them who have taken too much power. George, you go first. Yeah. I mean, that is the way we're going to have the American equivalent of the Enabling Act of 1933, when Hitler got the Reichstag

to pass a law that basically gave him all power, including the power to legislate. This is effectively what they are intending to do, and that is exactly what JD Vance is describing. We're going to do whatever we want. We don't care whether the laws apply to us, and we are violating them, and we are not going to let judges tell us We can't do what we're going to do

Okay, this is a complete obliteration of the separation of powers that they are contemplating Okay, Donald Trump is everything to Donald Trump. His view is Article 2 lets me do whatever I want and so so that's where we are headed. And it is not ambiguous at all. It's just a question of time. So, Jamie, how do you look at it when you hear JD Vance saying that just four years ago? Look, my concern goes back to who's going to stop them. The Republicans control the House and the Senate. They, according to sources that I've talked to up on the Hill, and these

are Republican sources, those Republican elected officials are not listening to their voters yet. You know, last week their phones were inundated with concern. They are still aligned with Donald Trump. They are still loyal to him. They're putting through all of his cabinet members. I don't see anyone in the Republican Party, and let's just say the obvious, they control the House, they control the Senate, who's in any way willing to stand up to Trump. So just to go back to being on the verge of a constitutional crisis, if you don't have Congress willing to stand up to him and you don't have the party willing to stand up to him. There is no Barry Goldwater there.

Then what's going to make him stop is the question that I keep hearing from people. You talk about Richard Nixon, he had respect for the system in the end. He did feel shame when Barry Goldwater came to him. There was a response. Nixon had respect enough for the institution to resign. There were no Republicans who were going to tell him to stop thus far. And, you know, Donald Trump does not have the guardrails of the first administration in General Kelly, General Mattis, other people. He is picked so far

as we've seen yes people, but I also don't think that we see that Trump has personal guardrails, personal restraint that will stop him. Preet, talk about that idea of that there isn't a way anyone to stop. It's a big problem. In some ways, I think the greatest risk is right now. Um, according to some, right? He's in whatever honeymoon period you have in 2.0. He's at his highest political approval rating of either term. Um, the vibe has shifted according to various people.

Everyone is supporting him. His ratings on, on particular items, like handling the economy, being aggressive, being focused, being energetic are all sky high for him. And someone put it, I think, meaning well, but it's very, it causes you to shudder when you hear it. If Trump doesn't defy the courts now, he might not be able to in the relatively near future. The other thing I will say, by the way, not on some of the issues we've been discussing, but there are other things that sometimes temper Trump.

When there's overwhelming bipartisan public opinion turning against him, like happened with the separation of families at the border, he changed his course. And then when he was going to, I'm not an economist, but when he is going to impose those tariffs, those crazy tariffs on our allies and neighbors, the market tanked. He responds to the market. That's not a great guardrail for the constitutional questions that we're all assembled here to talk about. But there are things that cause him to think twice. John, you were in government. Had Biden done something like this, what would someone like you have done? You were a high ranking Justice Department official. Just imagine what happens mentally within these institutions. Yeah, it's unthinkable that you would defy a court order as someone who's sworn

oath. It's now think about. Well, this is exactly the problem, especially when you have appeals. Yes. So here's it. And again, I think it's really important to make this distinction. There's a difference between saying, hey, I'm not going to devote my resources to enforce the law versus saying a court is telling me to stop doing something and I'm going to give the court the middle finger and just do it anyway. That is uncharted territory, certainly in a government wide way.

And that is the moment. We're not there yet. I'm glad we're not there yet. We might be. And if we are, it is a constitutional crisis versus a constitutional question. We'll be back in a minute. Support for On with Kara Swisher comes from Bombas. Look outside, it's still winter, but you can ride out the rest of the cold weather in a nice little cocoon of Bombas socks, slippers, and underwear. They say their secret is in the fabric, like cozy merino wool or breathable seamless fabric they use in their athletic socks and the details matter too so they design everything to be comfortable for long wear. I've tried Bombas myself and I'm a fan. I'm actually wearing their socks right now. They're

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But one of the things he's doing is he is moving like a bat out of hell. And obviously, there were political groups preparing for this slew of executive orders. But how much as a wild card has Musk been and the speed at which he's doing it? I call him sort of the hit man. He's the junkyard dog. He's going in. He's someone willing to defy rules that also defines him. He always runs right through every rule that gets in his way from tiny things like a sign

in San Francisco to very big things. And he's doing it right now with open AI. Same thing. He didn't get his VIG and he wants his VIG and so he's going to sue them. Jamie, you go first and then the others can weigh in. But how much of a wild card has Musk been in and useful to Trump in that regard? I think he is the factor. He is overwhelming the system. I was talking to someone yesterday who said,

we all need to do triage, learn to do triage, just to be able to deal with the combination of legal cases and executive orders and Musk and his team running around town. I asked someone yesterday, do we even have a list of the agencies that he's been into? I'm not sure. We really understand clearly every place he's been. So I think the speed is really a problem. As you said, he's not scared to break dishes. He's not scared of the courts. And to go back to something that Preet said, and Jonathan mentioned this, which I think is a critical counterpoint to the speed, it's going to take a while for voters to catch up. It's going to take a while for the voter to realize, oh, I wanted the consumer protection bureau. Oh, I need those community health centers in my community that are the only way for

me to get medical care. I just think, as Preet said, the fact that they can do it so quickly now, and that Musk is in there, is just perhaps the most important tool they have. This is the problem when you let businesses run our country, right? I was against this when the Obama administration let the Googles of the world come in and take over our government, right? We all turned a blind eye. But this is a fully realized version of that, where these tech oligarchs come in, they think

they know how to do better, they run it like they're a founder. But this is not a startup, right? And they don't have a golden share. This is a country that is for the people, by the people, and there are consequences to actions. And I think we need to do a much better job at saying that the people in government need to be wholly in service of the American people and nobody else. Yeah, Jonathan, it's called hardcore.

It's hardcore and it's founder mode. So get out of their fucking way. Apreet? One thing I would say is none of this is very conservative. Is it? One thing I would say is none of this is very conservative. Is it radical, rapid change, extra judicial, um, defiance of the judiciary. Um, none of that is a conservative approach. So, you know, to all the people who are debating whether or not

Donald Trump is a conservative, I think the answer to that question in many respects and in many ways is no. To me, there's never been a debate. No, no, I think that's right. Transactional and self-interested only, wherever that is on the ideological spectrum. I think we spend a lot of time parsing out whether the Congress is supine,

whether the executive branch is overly muscular and the judiciary is somewhere in between, and the fourth branch, the fourth estate, some of us are in that estate, are doing their jobs. I think eventually if you move too fast, too far, without understanding the consequences and without bringing people along and over-reading your mandate, you're going to fall in your face. Okay.

Or to use a different Greek metaphor, you know, you're going to fly too close to the sun. Right. And I think we are not a fledgling democracy. We're a fledgling society. And if you try to do too much too fast, I have great confidence that there will be a counter effect. George, talk about that because Elon hasn't been stopped. He's never been stopped. This is how he operates. I agree with a lot of what I've been hearing in the sense that, you know, you can't run the government like a business.

Why people like Elon Musk have been able to make so much money, why all these companies that are being quiet now and trying to gain the favor of the government, what they don't understand deep down is what I would tell all these CEOs is it's the stability that we have in the United States created by the rule of law that allows us to be able to profit the way we profit and to have the world's greatest economy. And that goes to the point that Preet was just making. If you go far too fast, you create instability and it is not a reliable world in which to invest. So they're going to learn that lesson. The problem is, as you say, Kara, there's a lag time. People are going to understand maybe in six months, maybe in two years, that this doesn't help the price of eggs. Shutting down USAID isn't going to help farmers.

It's going to hurt farmers. They're going to learn all of these things in due course. But most people don't understand the way things work. I agree with Jonathan that legislators have a duty to go and try to explain that to the people. Political leadership of all kinds have the obligation to do that. But of course, at this point in time,

we're not seeing that kind of leadership. So where does this leave us? Well, what's going to happen is he is going to transgress these boundaries. He will stop obeying court orders. At first, he may just do it sub-cellennial. I mean, it's a problem that Justice Department lawyers always have is they may not know what their clients are doing

because the government is so big, but in this circumstance, it's compounded by the fact that nobody is acting in good faith and lawyers are going to go in and make representations of the court that are based upon lies because they're being lied to. And they're going to violate the court orders bit by bit. And then finally, they will declare that these orders are unlawful, that the president cannot be told what to do about anything because he is an independent co-equal branch,

this is the JD Vance situation, and then chaos will ensue, but Trump is going to lie about the source of the chaos. The source of the chaos is him and Elon, but he is going to say that it is the Democrats. It is Canada. It is Greenland. He is going to lie, and a portion of the public

is going to agree with that or accept it, because they're not watching this podcast. They're watching Fox News. So one of the things that they do do is deflect and everything else. But there are ways to deal with that, of course, over the many years. And it's very difficult when someone's pointing elsewhere. We've heard a number of Democrats saying it's a constitutional crisis from a different perspective. But what

can Congress do if he ignores the courts? Congressman Al Green, for example, said last week he was filing articles of impeachment against Trump, but of course that's not effective. They can block. This is on the Democratic side, and then on the Republican side, they've been largely silent or defended Trump and Musk's actions, so they're compliant. So I'd like each of you very briefly to talk about what happens in the congressional sense from a legal point of view. John, you start and then we'll go through everybody. Yeah, the part here that puzzles me the most is the appropriations process. And so anyone who's been in Washington

knows that the most powerful portion of Congress is the Appropriations Committee, the people who control the money. And they don't like it Republican, Democrat, or moderate, anyone who tells them how to spend the money. And they get very defensive and very protective of that. And they very much believe and very protective of that. And they very much believe in the power of the purse lying with the Congress, not with the executive. And I do find it puzzling

because that is typically where you'd expect the opposition to come from. The question is if Congress has made a decision telling you how to spend it, it's the job of the government to deliver the money, not to determine where it goes. And to the extent there's a really important constitutional issue here, it's that the decisions are being made in the executive branch. And this was litigated in the 1970s. There's something called the Empowerment Act. There was a train versus New York case where New York was concerned that the money that

was supposed to go to fund sewage removal and things like that, the money was being impounded and diverted elsewhere. And the court held quite clearly, and George, you may know more about this than I do, but quite clearly that ultimately it was the obligation of the executive branch to make sure that the money went where Congress said it was supposed to go. Yeah, that's absolutely right. The irony was these were conservatives interpreting the text of statutes that basically said you must spend this money in word substance.

They didn't even get, the Supreme Court in training didn't even get to the impoundment control act, which adds all sorts of bells and whistles to it. But anyway. So, George, now you go, what Congress can do? Virtually nothing. Okay? Because what are you going to do? Pass a law.

Let's pass a law that says money that we have said must be spent must be spent. Okay? Let's assume Trump signs the law, which he will not do. He will veto it. Or let's assume he vetoes it and it passes both houses of Congress by two-thirds majority. He's just going to ignore that law. The only thing they have, what the framers intended for them to have is impeachment. You remove a president who disobeys the law, who refuses to carry out his oath, who commits high crimes and misdemeanors.

But we know the Republicans will not do that. So essentially, Congress has taken itself out of the fight for democracy. And that's why it's going to come down to the face-off with the courts. But the problem with that is the courts have no soldiers. They have no police. I mean, the Supreme Court has a police department, but it only works to clear people out of their hallways. They have no people to enforce their order other than people who are beholden to Donald

J. Trump. All right. Jamie? Look, you said what can Congress do. I think it's what will they do. And I come to the same place as George. As long as the Republicans control both the House and Senate, I don't see anything. Also just from a political perspective, I can't tell you the number of people, civilians

and people in politics, who keep saying, where are the Democrats? And I think that is a problem, just messaging, rapid response, knowing how to deal with Trump. I will say that one of the things in dealing with Trump, the Democrats have a lot of work to do, but again, to get to timing, we have two years until the midterm elections. Maybe when we get closer, some of these Republican members of Congress are going to get worried about getting reelected, and they will start listening to the voters calling about, you know, why didn't my social security check come or Consumer Protection Bureau or the price of eggs?

But to go back to timing right now, I don't see them doing. Doing anything. Preet? I think that if I were a Democratic member of the House, and there's a limit to what I'm about to say, I would be spending a lot of time thinking about how to get the House back in 2026 and how I would exercise my committee authorities, notwithstanding the fact that you might not get the Senate back and how I'm going to exercise the power of my gavel because until then I

think nothing's going to happen. By the way, the other pessimistic note that I'll sound is further to what George and others were saying, there's all this debate about whether or not you can close the Department of Education or close USAID. You don't have to close anything to render vast government agencies ineffective or powerless or superfluous or useless. The CFPB essentially is no longer effective in any way, shape or form because it's been taken over in

enacting capacity by a member of Trump's cabinet who just basically we're not going to do anything. Right. And you don't have to dismantle the building. There are large swaths of the Justice Department who don't have work to do now because Pam Bondi has said by virtue of a memo, and you can agree or disagree, but this is a fact of life, that there are certain statutes, including the Foreign Corrupt Practices Act, that we're really just not going to care about anymore and enforce anymore. And there's nothing that Congress can do.

Congress can't force the enforcement of priorities. The most it can do potentially, and this is what Jonathan has been talking about, and the courts can also prevent you from doing something that's bad. But if your goal is to stop doing stuff, it's very hard to get you to do it. Can I jump in on that, Carrick? Sure, sure. Because I think this is where we need to mobilize

as a citizenry and speak up in our own voices, right? People are pissed off about healthcare. They're pissed off about egg prices. They're pissed off about the state of education. Farmers are upset about the ability to operate an independent family farm. How is any of this, this is a question, it's not rhetorical, it's an actual question. How does addressing USAID help that? How does eliminating the Department of Education help that? There needs to be public accountability

because in the absence of a mechanism for Congress to say stop, simply protesting outside an agency and saying we will win is not going to get you anywhere. You got to go in and explain to people, okay, you're at a moment, you're going to lose this, you're going to lose healthcare, you're going to lose your social security check, you're going to lose your kids' education and teachers are going to get fired. Do you want that or not want that? If you don't want it, then you have to speak up. Members of Congress have the benefit of

understanding how this stuff works, and they have to go back to their districts and explain it. So one of the other ways is the free press. Obviously, Elon Musk said in October that all government data should be made public for maximum transparency. I personally laughed when he said that because he's the most secretive person I know, and also tends to not tell the truth much of the time.

But then on Monday, the White House designated Musk Doge office, the Department of Government Efficiency, which I call now the Department of Government Extermination, to be part of the Executive Office of the President, which means it now falls under the Presidential Records Act, which means we can't look at what he's done until 2037 at some date like that. So Jamie, where is the role of the media here and how moves like this exacerbate the crisis? There was also reports they were using Signal, which you can't see, and hiding what they're doing. And of course, they are secretive and they

think stealth is, they imagine themselves ninjas, I think, in some weird way. And they're ninjying their way through the government. I'll go back to the word triage. First of all, I think we're all being overwhelmed. Again, this notion of the speed, flooding the zone, pick your term. But I think that what we sort of have to do is focus on, if we can, what are the shiny objects and what's the substance?

Where is the real danger? I just want to go back to Elon Musk quickly. I've spoken to IT tech people, sources in the government who've been doing this for a long time. They are very concerned about these Doge teams that have gone in and had access to computers. One source called them the tech lads, and they meant that actually as a sign of respect. They said, they're better than we are.

They are the best in the world, and we don't really know what they're doing in those computers, what they may be leaving behind, and what the national security implications could be going way forward. Yeah. And not only that, but the other advantage they have is it's easier to destroy than to build.

That's a really important point, because ultimately, again, it's about solving problems. The administration made promises that they were going to fix, you know, trade imbalances they were going to fix trade imbalances. They were going to fix the ability for people to get high paying jobs. They were going to fix prices. And the question needs to be asked, well, how does breaking this down fix that? How does it make it better?

Well, I think if you read their books, actually, if you read Peter Thiel's book, they do want to destroy it and start from zero. Start from this unitary executive theory. I've said this for years. I'm like, they want to break it. And they're like, oh, fix it. I'm like, no, break it. No.

Ruin it. It's been a fantasy on the right, enhanced by kind of libertarian, and Rand kind of elements to basically destroy the government. It used to be just rhetoric. I mean, I kind of sympathize with the rhetoric. One that was just in the abstract decades ago, I'll give an example, is Grover Norquist used to talk about, our object is to make the government so small

we can drown it in a bathtub. They just want to drown it in the bathtub right now. And again, it's just easier to destroy than it is to build. And, you know, the people, these tech oligarchs, they think all of these people out here doing whatever they do are useless. They're just ones and zeros.

Okay. But at least George will have measles. Ha ha ha. We'll be back in a minute. Support for On with Kara Swisher comes from NerdWallet. Folks, if you're anything like me, your day is a non-stop balancing act. You've got things to do, places to be, and honestly, hunting for the best auto insurance deal is not exactly the top of the list.

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I'm really scared. The United States was the best place in the world to do science and that has never felt more threatened in my career than it does right now. This week on Unexplainable, what does all this mean for the future of science in America? Follow Unexplainable for new episodes every Wednesday. The Republicans have been saying lots of things. Just yesterday, their leader said he wants to own Gaza? The U.S. will take over the Gaza Strip and we will do a job with it too.

We'll own it. On Monday, the Secretary of State said an entire federal agency was insubordinate. USAID in particular, they refuse to tell us anything. We won't tell you what the money's going to, where the money's for, who has it. Over the weekend, Vice President Elon Musk, the richest man on earth, tweeted about the same agency that, you know, gives money to the poorest people on Earth. We spent the weekend feeding USAID into the woodchipper.

Could gone to some great parties. Did that instead. But what have the Democrats been saying? People are aroused. I haven't seen people so aroused in a very, very long time. Huh. That's a weird way to put it, Senator. We're going to ask what exactly is the Democrats' strategy

to push back on Republicans on Today Explained. The White House has pushed back on these stays, quoting, each executive order will hold up in court because of every action of the Trump-Vance administration is completely lawful. There's a thing being tested here, what is known as the Take Care Clause, which is part of the Constitution that grants and constrains presidential power.

I'd love each of you to talk about something that they've done that is not lawful, even though they say they're completely lawful, and then we'll finish up talking about the Supreme Court. George, why don't you start? Yeah, I mean, it's great that you mentioned the take care clause. Take care clause is that clause in the Constitution that tells the executive what he is supposed to do, which is that he is supposed to take care that the laws, the constitutional laws are faithfully executed.

And that's why the Constitution essentially has an oath that repeats that. And what we have is a government that basically does not care to follow the law if they disagree with the law. I mean, a perfect example is the clause that talks about citizenship in the 14th Amendment says that all persons born or naturalized in the United States shall be citizens. It's not that complicated. They're going to lose that case. They're going to lose it in the initial court.

They're going to lose it in every court of appeals. And they will lose it in the Supreme Court. I'll give a second example, is all this funding stuff. The statute says you shall spend this money on X. You're required to spend it on X. It is basically just because that is what the law is, and if you're taking care that the laws be faithfully executed, if you're the executive, you're told by a statute that you have to spend money on X, you've got to spend that money.

So where does this lead? They're going to lose that case in the Supreme Court, too, just the way the city of New York won that case that Jonathan talked about earlier. The problem is we're not going to get to the Supreme Court. And if we got to the Supreme Court, he's going to say, these justices disappointed me. They're not doing what I appointed them to do. He's just going to basically run roughshod over the judiciary because the judiciary has no troops and no police officers of its

own. The reason why we are able to sustain a constitution of democracy all these years, even though the judiciary has no soldiers, is because we respect the law. We have shame and we know the difference between right and wrong. But right now we have a government that is incapable of it because it's run by sociopaths. All right, so Pre, George is saying the Supremes, you know, they did give presidential immunity to Trump and other, whatever the president is,

and it happens to be Trump. What happens when it gets there? So I'm not sure I'm yet where George is, who says we're not going to get there. I think there's some things that Trump will lose ultimately and some things that he will win ultimately. But I'll make a slightly different point. If you're the strategist behind all these policies, it almost doesn't matter if you're going to ultimately win or lose, because it's a win-win for you no matter what. And this is true in a bunch of different areas. So on birthright citizenship, which I agree, slam dunk, they're going to lose ultimately. But even if they lose ultimately, what they've

accomplished along the way is a message to everybody politically about where they stand on this stuff and America first and a certain kind of American. They've sent a message to people abroad that, you know, don't be so sure if you come to this country, and some people think that's a good thing and some people think that's a bad thing, and you will accomplish some kind of, I think, chilling effect, which is part of their goal. On the civil service firings and reduction of force, I think that's going to violate and be contravening law as well.

But along the way, people will be gone if the status quo is not maintained. And people's interest in working for government is gonna be mitigated and diminished because they're not gonna believe they have the same job security they had before. The same thing with sending questionnaires to FBI agents, asking if they touched the January 6th case in any way, even if that's ultimately withdrawn

or shown to be in bad faith or stopped, it is telling every FBI agent going forward Before I open an investigation or even agree to handle a lead in my jurisdiction I have to think to myself does this target this target in any way Is he any way connected to Donald Trump or his family or his resources or his businesses? I'm not gonna risk that my livelihood being taken away from me. So it almost doesn't matter, win or lose. Yep, it's- I absolutely agree with that and I'll make a point. I mean, it just brings to mind what happened

with that memo that Bo sent out about Mayor Adams. This is New York Mayor. It is completely insane that that prosecution is going to be dismissed because they don't have a substantive basis for saying, oh, we're wrong. He's not corrupt. OK, they didn't cite one.

They're not citing one. They're basically saying, oh, he's got an election coming up a year from now. OK, this year, like later at the end of the year. He was indicted last year. OK, so what this is telling people is that if you are friendly with Donald Trump, you're going to get a pass. So that tells people out there who are doing his bidding that the law is not going to be enforced

against them. And it tells prosecutors, even in cases that don't normally go to main justice, that they better be careful when it comes to people who are... And that's the chilling effect that Preet is talking about. It is. It's the same thing with the chilling effect that we were just talking about.

It is. It is. It's the same thing with the press. Okay, Jamie? Just, look, I'm not the Supreme Court expert, but so I'm going to go 30,000 feet here. My concern, look, government, it's nice if it's more efficient. We have a joke in my family, are they getting the job done down at the DMV? We've all had frustrating moments. But to me, the number

one job of a president is to keep our country safe at the end of the day. So when you look at this erosion of government, whether it is the case where they're trying to take away funding from NIH, as Preet says, welcome to the measles. Or the Eric Adams case where who knows what kind of impact that's going to have. We now have this new version of the memo between the White House and DOJ, which traditionally was sort of a firewall that you're not supposed to talk to each other. Well, the message, as George says, is chilling. But I just want to go back big picture. There's also a very serious national

security concern. What does the Pentagon think about this? What do CIA agents, what do NSA, the national security implications, the erosion of our national security, I can't tell you the number of sources in intelligence and national security who have said to me that we are in an extraordinarily dangerous time because of all of this chaos, because of taking apart the system, we are sitting ducks to be taken advantage of. Yeah, I've heard that from many cyber security people. So John, what are your thoughts?

The Supreme Court has a six to three conservative majority. Do they have any role here? And will they feel pressure to do a ruling that establishes their own independence? And will it matter? I think they will. I think they will. I think ultimately the question is whether the executive branch will listen.

And I think that's why it goes down to the constitutional crisis because as we've discussed in this podcast, the Supreme Court does not have its own self-enforcing mechanism. It has to rely on the executive branch to enforce the law. And if the executive branch isn't willing to listen to the Supreme Court does not have its own self-enforcing mechanism. It has to rely on the executive branch to enforce the law. And if the executive branch isn't willing to listen to the Supreme Court because it disagrees, then the whole system breaks down. And the honor code that I talked about at the beginning of our discussion becomes exposed and the whole thing goes away. In terms of issues that make me really concerned, I think there

hasn't been enough emphasis on privacy and ethics. And so I think the takeover of our government by corporate interests is something that I think we should be very concerned about. We don't want to live in a surveillance state, whether it's the federal government or private companies. And I think once we let those barriers drop, we are all at risk. Similarly, if people who have interests, financial interests, in decisions that are being made have a lot of power, then those financial interests distort their ability to use that power for the benefit of people. And I think those are the kinds of things that have really concerned me, and handing

the keys of our government over to people who have a financial interest in the outcome is extremely dangerous. So I want to finish up this end game. Obviously, most of the lawsuits against Trump's orders are filed by Democratic states. AGs and governors are also fighting back. New York Attorney General Letitia James warned New York hospitals last week they would be violating New York's anti-discrimination laws if they stopped offering gender-affirming care for people under 19.

Illinois Governor J.B. Pritzker said he would not follow Trump's order, eliminating birthright citizenships. States' rights have long been a conservative rallying cry, but they could be the last defense for Democrats or others who oppose this. And we're describing a universe where the executive branch is openly defined in the Supreme Court, where states are openly defying the executive branch. If we take it to the extreme, the rule of law does really begin to falter. We know Trump has toyed with the idea of martial law before.

Are states effective in any way? Jamie first and then George. Very, very quickly, when I'm talking to politicians and elected officials on Congress who have not stepped up, they believe governors will be key here, that there may very well be a difference between living in a blue state and a red state in what happens. That said, can I just say this issue of martial law, which I think we all have to keep an eye on. You know, a lot of my national security sources have been saying, you know, people are going to take to the streets, people are going to demonstrate. There's going to be a time when we're not going to take this.

As they have done in Germany or elsewhere. Right. Anymore. anymore. The concern is the next step, which is does that give Donald Trump an excuse to say we're going to have the Insurrection Act, we have a national security issue here, and invoke martial law, and then we are way beyond a constitutional crisis? George? I'll add to that. I mean, I do think that the states are going to be very, very important because I think what we are seeing as we speak, as I've been saying, is that we're seeing the disintegration

of the federal law. I think he can, you know, if there are people going to go out and march in the streets, he might declare martial law. But I also think there are going to be a lot of people who are going to disobey his orders in the government. American troops, for the most part, I think are not going to be a lot of people who are going to disobey his orders in the government. American troops, for the most part, I think are not going to shoot American citizens. I think there are going to be people who are going to disobey his lawless orders precisely because they take an oath of office to the Constitution and the laws of the United States

and not to Donald J. Trump. So what I think we're going to see at the federal level at the end of the day is complete chaos. And that's where the governors can come in. And I say this also for the reason that what's going to happen with the courts is the courts aren't going to be able to compel the federal government to do what it is supposed to be doing. At the same time, the federal government isn't going to be able to compel states from doing

what they believe they have an obligation to do under the Constitution. The only exception that could be, you know, the cutting off of appropriations, that could have an impact. You know, we have to look to other sources of legal authority, you know, where people exercise authority and are going to adhere to the rule of law. And that's going to be state governors in most states or some states, and it's going to be state legislators and state judges. Okay, we are watching, again, in real time, the devolution of power to the states is part

of what's happening here. Okay. Last question for each of you. In the scenario you're talking about, which is pretty dire, each of you have been pretty dire. Thank you for the bummer interviews here. What's your personal plan, game plan? Preet, first you.

And then I want you to say something positive. Lots of drug. No, I don't do drugs. That's Scott Galloway's. No. So, look. And what's your positive too? Yeah.

So, maybe you've experienced this, Kara. After the election, people were like, I can't follow the news anymore. I can't bear it. I and you and some others don't have that luxury because we're partly in this business. And these are people who care about their country, but they said, I'm going to just garden. I'm going to play with my dog. I'm going to read novels.

Maybe I'll write a novel. And what I've seen, because these are people who have been good citizens and care about their country and want to be informed, is that there's been a gradual, I think, reassertion of citizenship on the part of people who care. Um, they're a little bit nervous about it because it's a lot to take and it's a lot to deal with. Um, but, but I think as every week goes by, we're only three weeks after the inauguration and people see what's happening and people are listening to conversations like this, I think they're more willing to not take all

the same kinds of bait that they took the first time around and And eventually, maybe not tomorrow, maybe not the day after tomorrow, but eventually will form a coherent, I think, phalanx against the worst things that are happening. Okay. Do you have a personal plan? My personal plan is to do the things that I love, not get overly freaked out about everything, try to maintain a calm demeanor, but every once in a while, I curse more on the podcast now, Carol.

Good, excellent. I'll do mine very quickly. My personal plan. I thought, someone asked me what my personal game was, Elon does not like Carol Swisher, for example, and I thought, oh, maybe I should be cautious. You know, I was talking to my wife and she goes, well, maybe you should be cautious. And I go, no, fuck it should be cautious. You know, I was talking to my wife and she goes, well, maybe she'd be cautious.

And I go, no, fuck it. Fuck it. Just fuck it. Yeah. Yeah, I think the F-bomb helps. You only live once. That's correct. Jonathan, what's yours?

And then Jamie and then George, go ahead. Yeah, listen, I think I'll try to end on a more optimistic note, which is I believe in the resiliency of our country and our people. And I think one of the things that's gonna to come out of this is people are going to realize that they need to focus on the issues that matter most to the most Americans. And you can either give a negative vision of what that future looks like, or you can

give a positive vision. And I think it's time for a shift in new leadership, particularly in the Democratic Party. We need younger, we need more progressive voices who are going to focus on health care, who are going to focus on economy, who are going to focus on education, who are going to focus on the issues that people really care about. Is there someone you think is doing a very good job? I think there are a whole bunch of folks in the House, young members, Maggie Goodlander, Chris D'Aluzio, Becca Ballant, Pat Ryan.

I think there are a whole bunch of folks who are emerging. And the other thing that gives me a sense of optimism is I think there are folks on the other side of the aisle. I think there are a whole new generation of conservatives that are realigning around issues that they believe are important, who are not in favor of tech oligarchs, who are not in favor of corporate power, who are not in favor of turning the keys of government over to Silicon Valley and Wall Street. And I think as time goes on, there's going to be more opportunity for that realignment

to come together and create a more positive vision for the future, even if they don't agree on everything. Jamie? My biggest concern is the chilling effect this is having across the board. Chilling effect on journalists, chilling effect on government workers, chilling effect on elected officials. I'm also really concerned about misinformation. We are so spread out.

You talked about people have turned off from the news, but they have not turned off from their phones, right? They're still getting those algorithms. So I worry about that even more now than ever because of the chaos. My greatest hope that I'm optimistic about, I like these judges. I especially like judges who've been appointed by Donald Trump and other Republicans who are standing up and I hope that my mother who's turning 95 is a retired judge. So I really have hope that these judges are going to stand up and do the right thing. Oh, that's great. George, finish up.

All right. So I agree with everybody here. I know that I sound like the purveyor of doom. Cassandra. Cassandra. Cassandra. But I am optimistic too, just not in the short or medium terms. I think at the end of the day, the pendulum will swing.

People will see the evils of Donald Trump and Elon Musk and this kind of autocracy that they're trying to create, this tech oligarchy, autocracy, if you want to call it that. And they will begin to understand the importance of the rule of law once again in a way that has to be relearned every so often by free peoples. It's going to be the hard way, and we're going to go through some horrible moments in the interim. My personal plans, my original hope was that Kamala Harris would win the election, I could write a book about what just happened, and I'm not going to do that now because it's

still happening and it's getting worse. I'm going to go practice law again. I'm going to join a New York law firm. And that's a funny thing for me to say after having said, I believe that the federal rule of law is about on the precipice here and that he's not going to obey court orders. But I do think it's important still to litigate, to have these judges like the ones that Jamie has been talking about, including Republican judges, basically say, this is illegal. And we have to create that record of illegality even if he tells the courts to go screw themselves. You know, we have to create that record of illegality, even if he tells the courts to go screw themselves.

We have to keep fighting. But we have to understand what's at stake and how dangerous a moment this is. And I think we are going to go into the precipice. We're just going to have to figure out a way to climb our way out of it. I completely agree with you. And we're all staying. We're all staying in the United States. It's our country.

Yes, we are. We're all staying. Jamie. Yep. I'm looking for a Canadian girlfriend, but you know. We're not going anywhere. Sorry. Anyway, I appreciated all of you. And thank you so much with an incredibly intelligent and fantastic conversation. Thank you. Thanks. Bye, folks. On with Kara Swisher is produced by Christian Castro-Razsell, Kateri Yocum, Dave Shaw, Megan

Verney and Kaylin Lynch. Nishat Kurwa is Vox Media's executive producer of audio. Special thanks to Kate Furby and Claire Hyman. Our engineers are Rick Klon and Fernando Arruda. And our theme music is by Trackademics. If you're already following the show, you're ready for the constitutional crisis. If not, you better go read The Constitution. It's a pretty cool document. Go wherever you listen to podcasts, search for On with Kara Swisher and hit follow. Thanks for listening to On with Kara Swisher from New York Magazine, the Vox Media Podcast Network, and us. We'll

be back on Monday with more.