The Daily - A Constitutional Crisis

Episode Date: February 12, 2025

As President Trump issues executive orders that encroach on the powers of Congress — and in some cases fly in the face of established law — a debate has begun about whether he’s merely testing the boundaries of his power or triggering a full-blown constitutional crisis.Adam Liptak, who covers the Supreme Court for The Times, walks us through the debate.Guests: Adam Liptak, who covers the Supreme Court and writes Sidebar, a column on legal developments, for The New York Times.Background reading: President Trump’s actions have created a constitutional crisis, scholars say.Sidebar: Is Trump’s plan to end birthright citizenship “Dred Scott II”?For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. Photo: National Archives, via Associated Press Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.

From New York Times, I'm Michael Bobarro. This is The Daily. As President Trump issues executive orders that encroach on the powers of Congress, and in some cases fly in the face of established law, a debate has begun about whether he's merely testing the boundaries of his power or triggering a full-blown constitutional crisis. Today my colleague Adam Liptaak wades through that debate. It's Wednesday, February 12th. Tonight there are warnings that the U.S. is dangerously close to a constitutional crisis. We are hearing the phrase constitutional crisis already less than a month into this presidency.

We've got our toes right on the edge. We are basically on the cusp. We're really heading toward a constitutional constitutional constitutional crisis crisis crisis. Our founding fathers created three co-equal branches

of government to ensure that no one man can be king. But here we are. Listen, I think this is the most serious constitutional crisis the country has faced, certainly since Watergate, the president. I can't tell you how many times I heard constitutional crisis during the first term of Donald Trump. And here they go again. Adam, welcome back. Always a distinct pleasure. It's good to be here, Michael. The phrase du jour, Adam, right now in Washington is constitutional crisis.

And we come to you as our resident scholar of the law and the courts to understand what a constitutional crisis actually is and how you know when you are in the middle of one. Yeah, it sounds serious, doesn't it? It does. But I've been talking to a lot of law professors and what emerges from those conversations is that there's no fixed agreed upon definition of a constitutional crisis. It has characteristics, notably when one of the three branches tries to get out of its

lane, assert too much power. It often involves a president flouting statutes, flouting the constitution, flouting judicial orders, and it can be a single instance, but it's more typically cumulative. But it's not a binary thing. It's not a switch. It's a slope that can descend and it takes on a quality of danger if there's a lot of it. So given that loose definition that seems to acknowledge the fluidity of a constitutional crisis, how should we think about whether President Trump's actions over the past few weeks represent a constitutional crisis or perhaps something else, something less serious? So the consensus is that this is a constitutional crisis. And let me try to unpack why so many people think that. The president will often use his power to its fullest extent to assert a constitutional

authority to do things that other branches may oppose. But what we have with President Trump is a kind of wholesale reconception of the part of the Constitution, Article II, that sets out presidential power, that asserts that he's basically the decision-maker, that he can act alone, he can disregard instructions from Congress, and Congress is in Article I. Congress makes the law. That sounds significant. The president is charged by the Constitution to take care that the laws be faithfully executed. That would seem ordinarily to put him in a subordinate role, but the music of Trump's actions over the past several weeks has been quite different, has been to insist on

his primacy. Well, I want to walk us through some of the specific examples of how President Trump is muddling with our traditional notions of Article 1, Article 2, basically the separation of powers between the legislative and executive branch and how he is trying to expand the powers of the executive. So a couple of quick examples. Congress has instructed the president not to fire people unless he satisfies certain criteria. Sometimes he has to have a good reason. Sometimes he has to wait 30 days. Sometimes he has to explain himself to Congress. President Trump has busted through all those limitations and insisted that as

head of the executive branch, he can fire whomever he will. Congress has also passed laws instructing the president to spend money to do certain things. President Trump takes the view that if those instructions are inconsistent with his policy agenda, he doesn't have to do it. That Congress can't make him spend the money Congress has appropriated. And Congress, of course, has the power of the purse. So you would think there's a pretty good argument that the president has to do with Congress says.

So for example, what you just said would apply to the congressionally appropriated money for USAID, the foreign aid agency that the president has decided to shut down. Yes. Congress told the president what to do. The president is doing the opposite. That seems to contain some real seeds of what most people would think of as a constitutional crisis. And this is notable too, Michael. He's doing this in the face of a Congress that's not opposing him. To the contrary, if President Trump were to seek legislation from this Congress limiting

or shutting down USAID, I think he'd be very likely to succeed. But he seems not to be interested in working with the other branch, a branch that he essentially controls, but to insist that he has the sole power to do things. So what might deepen this sense that we are in a constitutional crisis is not just that the president is ignoring Congress's will, its actions, its appropriations, but he's not even engaging them on these questions in a way that he very much could. Yeah, it's a raw assertion of power and it's a little surprising. I mean, if you have a

Republican controlled Congress that's ready to do your bidding and you could button this down and make lasting change that's unassailable, it's a little bit surprising that in the early weeks of a four year term, he wants to do everything at once. And that has the quality of a crisis too, this notion that we're flooding the zone with endless executive orders and scores of lawsuits. It just gives rise to the sense that we're encountering a wholly new and maybe dangerous atmosphere. Well, where else do his actions seem to potentially be creating a constitutional crisis? Somewhere to begin. He has shut down all kinds of federal spending that Congress has instructed him to spend.

He's deputized Elon Musk and his Doge Warriors to inspect all kinds of government logs and computer activity that gives rise to at least some privacy concerns. And maybe notably, he has, by executive order, purported to do away with what is generally thought to be a fundamental constitutional right of birthright citizenship that is with very rare exceptions if you're born in the United States, you're a United States citizen. Matthew 4.30 And that list of actions that you just went through, it feels like they aren't all the same. So which ones in your mind and in the mind of the legal scholars that you're speaking

to are just the president seeking to expand his authority, which we've always understood President Trump to want to do even during the campaign. And which ones seem like just frontal assaults on the Constitution and potentially the stuff of a constitutional crisis? So I think I'd put it in three buckets, Michael. One is Trump's role as the head of the executive branch. And there he has pretty good arguments that he's the boss, that he can decide who works for him,

and that he can fire people, including heads of independent agencies that Congress has tried to insulate from political pressure, inspectors general who have an important role in keeping fraud and corruption out of agencies. That may not sound like the best idea as a policy matter, but the Supreme Court has been increasingly sympathetic to the idea that at least where it's all inside the executive branch, the president has a lot of power. So that first bucket, he may well succeed in many of his arguments. Right. He has a legal leg to stand on.

Right. The second bucket gets much harder, where Congress has specifically instructed him to do something, to spend money, to maintain agencies, USAID, the Consumer Financial Protection Bureau, the Department of Education. The notion that the president is allowed to disregard congressional instructions on things like that, that's a tough argument. And then the third bucket gets even harder, where the Constitution, most people think, has insisted that there's a constitutional right to birthright citizenship. And under the conventional understanding, you can't do away with that by executive order. You can't do away with that by statute. Congress can't do away with it.

It's in the Constitution. If something's going to change, it needs to be done by constitutional amendment. So the president's order in the early days of his administration that says, I declare that this constitutional right doesn't exist is quite brazen and bold. So now that we know that Congress does not seem inclined to act against this president, the Republican-controlled House and Senate, and given that the president doesn't seem all that interested in engaging this Congress, it very much does seem like we're at a point where, if we are, as these scholars have told you, in a constitutional crisis of one form or another, that it will be the courts, the federal courts, that will play a major role in keeping the president

in check. Right. And the courts are already dealing with an extraordinary number of suits. They seem to multiply by the day. And while none of them have reached the Supreme Court yet, in the coming, I would say weeks, we are going to have major clashes before a Supreme Court that, you know, is dominated by six conservative appointees and will be sympathetic to some of what Trump wants to achieve but is not going to be on board for the whole project. And then the open question is, assuming the court rules against President Trump, will he obey that judgment?

We'll be right back. Adam, so far, it is not the Supreme Court, as you said, but the lower federal courts that have weighed in on President Trump's actions. And my sense is that so far, they have taken a very dim view of his efforts to expand his executive power and encroach on the powers of Congress. — He has been on an epic losing streak. Some of that can be explained by plaintiffs suing in friendly courts, but appointees of all different kinds of presidents, including President Trump himself, have ruled against him, and have said that Elon Musk can't have access

to some materials, that people can't be fired, that agencies can't be disassembled, that the birthright citizenship order is unconstitutional. And some of these judges have been very harsh. One of them in blocking the birthright citizenship order said that he had difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order.

It boggles my mind. So that gives you a flavor of how Trump is doing in the lower courts. Right. And of course, this has prompted some around the president to say, well, hold on a minute. The courts are overstepping their bounds in reigning in our efforts to expand our bounds. Right. And JD Vance, the vice president, has taken the most assertive attitude toward this,

saying that the president doesn't have to obey rulings from courts that are at odds with his understanding of the Constitution. I just want to read what JD Vance wrote about this because he tried to put it into a larger legal context. And he seemed to write this right after the president had lost a series of rulings of the kind you just went through. And he wrote, if a judge tried to tell a general how to conduct a military operation, that would be illegal. And he goes on to say, if a judge tried to command the attorney general in how to use

her discretion as a prosecutor, that would be illegal. And then he goes on to apply this logic to the president. He says, judges aren't allowed to control the executive's legitimate power either. So what do we make of that argument? So it sounds quite radical, doesn't it? I mean, we generally agree as Americans that the court has the last word over the constitutionality of congressional action, executive action. And if JD Vance is suggesting as a general matter that the president disagrees with that,

well, that's a constitutional crisis. I guess I would make though an observation, Michael, that there are probably some areas where if the Constitution distinctly and exclusively commits some right to the president, like say the pardon power, and a court were to say, no, you can't pardon your buddy, the president's interpretation of the Constitution could well govern there. And there's a flavor of this in the Supreme Court's decision in July, granting Trump broad immunity from prosecution, where the court talks about those powers that are core executive powers are for the president only. the Vance statement seems to resonate with

that way of thinking too. In other words, it may be a narrower interpretation of when the president can ignore the courts than perhaps it seems. Right, but I don't want to minimize it. I mean, it's a hell of a thing to even contemplate the Supreme Court saying to Richard Nixon, you got to turn over the White House tapes. And Richard Nixon, and he thought about this, saying no. That would be a classic constitutional crisis.

Well, what Vance is writing here seems to presuppose that there's going to come a moment pretty soon when these lower court rulings get appealed all the way up to the Supreme Court and the Supreme Court issues a ruling against President Trump that attempts to reign in his power. And I guess I'm curious based on your legal analysis and your reporting over the past couple of weeks, where we think the Supreme Court may choose to weigh in

and attempt to curtail the president's power. We don't know, of course, exactly what case will reach the court and exactly how the court will think about it. I think the court will be very scared of, alert to the possibility of a constitutional crisis, of a pure impasse. So my guess, Michael, is that the court is going to try to find a case where in a splashy way, it rebukes Trump, rules against him, but ideally in a case where the president can't really disobey the court's judgment. And birthright citizenship is the classic example of this. And why would the court think that Trump could not, even if he wanted to, disobey that ruling? It's just a logistical nightmare.

It requires Trump to essentially instruct every hospital administrator in the nation about how to track the citizenship of every newborn. It's hard enough to do if you had the law at your back. In the face of a Supreme Court judgment, it becomes really hard to imagine. I'm curious, Adam, what would be a case where the Supreme Court might fear that Trump would disobey them? A pretty staggering thing to contemplate, but from what you're saying, the court actively does fear that.

I guess I can think of lots of examples, but why don't we talk about USAID? The president wants to do away with that. The court says, you can't do that on your own. You can go to Congress. But you are not authorized, Mr. President, to disobey Congress's instructions about the existence of and the nature of and the spending of that agency. And Trump, let's pause it, says, I disagree disagree and shuts the agency down anyway. Right.

The court doesn't want to find itself in that situation. The court has always through its entire history been very sensitive to the idea that it's not really clear why we do what it tells us to do. They don't have an army. They don't have the power of the purse. They have this kind of fuzzy thing we call legitimacy and authority. And they're very wary of that being undermined. And all it takes is for the president one time to say, as Andrew Jackson did say, apocryphally, the chief justice has made his decision.

Now let him enforce it. Right. You're saying the court's authority is a norm, and Trump likes to subvert norms. And you think the court would go out of its way to avoid rulings, even when they are correct on the legal merits, that Trump might seek to subvert, which is pretty fascinating. I think you would get some motivated reasoning

from justices who probably wouldn't put this at the forefront of their minds, but would talk themselves into thinking, well, maybe we rule for the president here, maybe it's not such a bad thing. And somewhere in the substrata of their consciousness is the lurking feeling that if we go the other way, things are going to be bad for the institution.

So, what we would seem to be looking at, Adam, based on everything you're saying, is a legislative branch that's not at all enthusiastic about curtailing the president's authority. We're looking at a judicial branch with the Supreme Court atop it that is disinclined to try to curtail the president's power out of fear that he may ultimately just ignore them. And so it seems very possible that as these legal scholars have told you, we may be in what they see as a constitutional crisis. I guess my question is, what happens if we are in a constitutional crisis and most Americans

don't care. And I ask that because Trump was elected by tens of millions of people who wanted him to shake up the system. And early polling does very much suggest that many people are pleased at the pace at which he's fulfilling his promises. And part of that promise was a stronger executive who's just busting through any barrier in his way. And so is it a constitutional crisis if a lot of Americans don't see it as a crisis? It can be thought of, and I take your point, as simply a reimagining of what the Constitution calls for,

that maybe people approve of and maybe what we're on the cusp of here is, you know, without an amendment, without a constitutional convention, just a reorientation of the separation of powers in a way that elevates separation of powers in a way that elevates the president to a role that we've not seen before at the expense of the other branches. But all of that said, a crisis is a crisis. And if our very understanding of the Constitution is being tested by a president who legal scholars say seems to have a contempt for the document, we are in the midst of something profound, whether or not people are taking it seriously today. Adam, thank you very much. Thank you, Michael.

On Tuesday night, President Trump personally denounced the federal judges who have blocked his actions over the past few weeks, especially his attempts to shut down agencies like USAID and freeze their funds. And it seems hard to believe that judges want to try and stop us from looking for corruption, especially when we found hundreds of millions of dollars worth, much more than that, in just a short period of time. And he delivered what appeared to be a thinly veiled threat against the judges who stand in his way.

Well, so maybe we have to look at the judges because that's a very serious, I think it's a very serious, I think it's a very serious violation. I'll ask Elon Musk to say a few words. We'll be right back. Here's what else you need to know today. I'll ask Elon Musk to say a few words and we'll take some questions. Elon, go ahead. Sure. During an extraordinary 30-minute appearance in the Oval Office on Tuesday night, Elon

Musk, joined by his four-year-old son, defended his plans to drastically shrink the size of the federal government. We have this unelected, fourth unconstitutional branch of government, which is the bureaucracy, which has in a lot of ways currently more power than any elected representative. And this is, this is not something that people want. But Musk made multiple unsubstantiated claims about government fraud, including the claim that officials at USAID have taken kickbacks. And he acknowledged that some of his most inflammatory public claims, for instance,

that aid workers planned to send $50 million worth of condoms to Hamas, were wrong. Well, first of all, some of the things that I say will be incorrect and should be corrected. So nobody's going to bet $1,000. I mean, we will make mistakes, but we'll act quickly to correct any mistakes. And during a visit to the White House, King Abdullah of Jordan rejected President Trump's proposal that his country take in Palestinians living in Gaza. Nevertheless, Trump reiterated his plan for the United States to take over Gaza through unspecified means, and for Jordan and Egypt to accept Palestinians who would be permanently

displaced as the U.S. redevelops the territory. Today's episode was produced by Will Reed, Carlos Prieto, and Mary Wilson. It was edited by Maria Byrne, contains original music by Alisha Ba'Eop, Alyssa Moxley, and Dan Powell, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landfork of Wonderly. That's it for the Daily. I'm Michael Bobarro.

See you tomorrow.