The Opinions - Trump and Musk, the ‘Co-Presidents’

Episode Date: February 19, 2025

In this episode, the Opinion editor Aaron Retica and the columnist Jamelle Bouie discuss how President Trump, Elon Musk and their supporters are trying to sidestep Congress and reshape executive power.Thoughts? Email us at [e-mail]. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

This is The Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it. I'm Aaron Redica, an editor-at-large for the opinion section of the New York Times, sitting with Jamel Bowie, a columnist for Times' opinion, with whom I work very closely. Before the election, we worried a lot about what was going to happen if President Trump became president again. We talked a few weeks ago and things were already looking pretty bad on the constitutional crisis front. And we're talking again now, and I think it's safe to say things look even worse. So, Jamel, thanks very much for taking the time to talk with me.

Always a pleasure. Okay, so let's start with almost like a typology of executive power and how they're asserting it, because we're seeing different things. At the Justice Department, we're seeing one kind of takeover. The new Trump administration has fired federal prosecutors at the Department of Justice who were involved in the criminal cases investigating President Trump and his role in the January 6th Capitol riots. At the Consumer Financial Protection Bureau, we're seeing a different kind of takeover. The U.S. government headquarters for the Consumer Financial Protection Bureau is closing down this week.

This comes after an email ordered employees. to stop virtually all of their work. So could you talk a little bit first about what they appear to be doing and trying to do with their assertion of executive power? Sure. I'm not sure that there are multiple typologies here. I think it's actually a singular thing that they're doing. They are really sort of asserting the fullest form, the most expansive form of the unitary

executive theory. And because what the Trump administration, but the Trump presidency is trying to establish is this idea that when Article 2, Section 1, says that the executive powers shall be vested in the president, that this isn't just a formalistic, the president is the chief executive, that this means that anything that comes out of the executive branch,

anything that touches the executive branch, anyone who operates under the executive branch, regardless of where they get their, authority is essentially an appendage of the president, a part of the president's body in a way. So if that's true, right, if every single person working in the executive branch, working within the federal bureaucracy is in some sense going to represent the president's will, then the president has the total and absolute and unreviewable right to fire that person, to order them to do whatever.

Like, there's no limit because the executive power is vested in the president. Now, one of the immediate problems here, and this has been true for the entirety of American political history, and I think it's kind of a fatal problem for the unitary executive theory, is that the executive branch, the Constitution establishes an executive branch, but the actual composition of the branch doesn't flow from the president. It's a creature of Congress. The CFPB, for example, Congress creates CFPB. Congress gives those employees, those agents, a set of duties. So statutory duties, and in carrying out those duties, members of that agency are essentially operating in a ministerial role, right?

They're simply doing what they're being told to do by Congress. But in a literal sense, although the CPP exists in the executive branch, it is a creature of Congress. And that's true for most or many executive branch agencies. And it's been true for the entirety of American history. This is just like a thing. And the truth of the matter is that the executive branch, the federal bureaucracy, is a creature of in jointly controlled,

a joint custody of the president and of Congress and of the courts to an extent. But what Trump is asserting is that, no, I'm the only parent here, and I can do whatever I want with my children. That's happening in different ways, right? There's a theory, the unitary executive theory. And, of course, Trump made waves recently by posting,

well, it's a quote from Napoleon, except it's not actually from Napoleon. No, it's from Waterloo. It's from the movie. Right. Which is appropriate. Which fits, yes. What he posted, though, was he who saves his country does not violate any law, which also

picks up from the Nixonian idea that he famously said to David Frost after he resigned, that if the president does it, it's not illegal. So there's that assertion of that authority. But in practice, they're also doing a lot of things. They're attacking all these agencies. You called it an attempted hijacking. Brooke Carrington, who's a sociologist at Dartmouth, refers to it as a hostile takeover.

And you asked in one of your articles, you know, whether the Constitution, as we know, it would still be in effect. Trump knows that his two opponents, and that is how he thinks about it, right? He's not thinking, getting back to your analogy of a divorce, right? He's not thinking of choice custody, right? He's thinking, like, I will have sole custody of the,

powers of the American government, which is obviously not the way it was set up. But he is trying to make those branches feel his lash, right? That's part of why you send absolutely breathtakingly absurd candidates like Robert Kennedy, Pete Hague Seth, Tulsi Gabbard, and perhaps choicest of all, Cash Patel. That's part of why you send them, right? It's to actually humiliate these senators and make them vote for someone they know perfectly, many of them know perfectly well, are not the least bit capable of doing the jobs they're being asked to do well. That's part of it. And then on the court side of things, right, they're trying a very typical MAGA tactic, right? As he would put it, you know, the Marxist left, you know, is conjuring up this constitutional

crisis, but as Carolyn Levitt, the White House press secretary put it. The real constitutional crisis is taking place within. our judicial branch where district court judges and liberal districts across the country are abusing their power to unilaterally block President Trump's basic executive authority. So all of this is coming together. How do you see it going forward? I see going forward. One thing it's useful to do, to go back to that Waterloo quote, that kind of faux-N-Polene quote. Waterly we should say is, I think, a 1970 movie.

Right, right, right. It's quite good, too. Okay. So to go to that Napoleon quote, and they go to Napoleon himself, like part of Napoleon's deal, he crowns himself emperor of the French. He doesn't say emperor of France. He's emperor of the French. And he himself is presenting himself, and I use the word again, as almost an emanation

of the French people themselves, like the Volksgeist of the French. I think Trump, in whoever postings, posted that. But even in how Trump presents himself, he just present himself as not simply the elected administrator of the federal government, not simply the head of state. He presents himself really as, like, the spirit of the American people. And so when thinking about what's happening, first of all, and I said this in the conversation with some of our colleagues on matter of opinion, and Trump isn't just staking out some expansive vision of executive power.

He's really making a claim about where sovereignty lies in the American system. And he's saying it lies with me. And, you know, he saves the country, it doesn't break the law. That is almost more, I think, than the Nixonian. It's not illegal and the president does it. It's much more of a,

because I'm sovereign, what the law is, is subordinate to my will. I literally cannot break the law because I'm kind of like I'm this instantiation of the country itself. And so when Carolyn Leavitt says the Constitution Crisis in the Judiciary and that they're, like, you know,

assurping the president's executive authority, if any of these people had any kind of traditional constitutional understanding, this would be absurd, right? Like, an executive order, which is what this is all about, isn't some royal decree. executive order is essentially a bit of statutory interpretation. And by definition, then, it is subject to statutory review by the actions of judges. But if you think of an executive order

is a royal decree, as you think of the executive order is almost like an emanation of the people themselves, then yes, some district court judge blocking it seems like it should be illegitimate. So where does this go? The thing about these sorts of assertions of sovereignty, is that it's only true to the extent that political actors treat it as true. And unfortunately, the people who are treating it as true are the people who currently hold the majorities in the House and the Senate, which is where looking to the future, where this gets tricky, because when Congress does not act in response to a presidential or judicial, for that matter, provocation,

to an assertion of power from either of the other two branches, from power grabs from the other of the two branches, when Congress chooses not to act. What Congress effectively does is validate the assertion, validate the power grab. And so Congress refusing to act in the face of what's happening in the administration, refusing to take its custody of these agencies. Well, and specifically the power of the purse,

which is the source of its constitution. Right. Right, right, right, right. Congress refusing to do that is seeding away its power of the purse. And so... And just, can I make this point super clear for people? By giving it away, right? What you're saying is by not asserting it, right?

They are giving it away, right? Because as I'm always saying, you don't, and I think I stole this from some other political scientists, you don't take power. You make it. Right. And to specify whatever it would look like for Congress to not give you. give it away in this circumstance. All it would take, I mean, and Republicans clearly like, I mean, what Doge and Trump are doing are making cuts that they long would have wanted to make had they

ever been able to get the votes to do so, which is part of why they're probably not pushing back. They realize that if you do this legally and constitutionally, it probably couldn't happen. Or they would face too much political blowback. But what would it look like, too, for them to maintain the power of the purse, is just to pass a bill giving Doge the kind of authority that it's claiming, giving Doge access to these agencies, giving it like a gloss of congressional legitimacy. They could even say, you know, you can't unilaterally turn off programs or destroy agencies, but you can make recommendations, and they'll go to the Doge committee in Congress and it'll be written up into a bill,

and then we'll vote on the bill. Can we pause for a second just to recognize the amazingly evil sound of doge? I hate it. I'll be totally honest with you. Let's just have a linguistic moment here. I hate saying it because it's a reference to a stupid meme, and I just don't

and Elon... So they're thinking about Elon Musk, right? Not a reference to the Venetian Republic, huh? Not a reference to the Venetian Republic. People floated that. And it's like Elon Musk is not. It's not that smart. I'm sorry. He is thinking of the dog meme from 15 years ago, and he thinks it's really funny still. That's... I'm going to come back to Elon Musk because when we're talking about delegating power and the Constitution, I want to talk about him and the appointments clause. But before we get to that, there is resistance brewing within the executive branch. Last week, Danielle Sassoon, who was then the acting U.S. attorney, well, U.S. attorney in the...

Southern District of New York refused to drop the case when she had been ordered to buy the Department of Justice in Washington. But the woman who actually did that, right, she was not a liberal. She was appointed by him. She was a federalist society. I don't remember is the right word. She's clerked for Scalia. So is it possible that that is one area where not a resistance in the, you know, women's March sense, but a resistance, an important reassertion of judicial power will occur, or is this a fleeting moment of conscience that actually we shouldn't put too much stock in? You know, it's hard.

I think it's really hard to say at this stage. If Trump is trying to run roughshod over the judiciary as well as Congress, I have to imagine that they would be jealous of their authority and jealous of their power. and would on that basis want to push back, especially since they would not suffer any political consequences. It's not like they have to run in a primary or anything. It's not like they can be pressured out of the job. It's their job until they don't want to have it anymore.

I must have said that there had to be a lot of impeachments, but that's not the same as offering to bankroll primary opponents. Right, right. As far as within the executive branch, I mean, this is where it gets interesting, because you can assert this hierarchical control of the entire executive branch. And I say that, and I feel like it's worth saying that I think that many Americans do imagine that the executive branch is structured in the sort of like top-down pyramid.

Right. And that's that kind of- You can fire anyone. And honestly, you know, if you, the least sinister version of where Trump is coming from is just like he's been at the head of a company his whole life. And so he imagines that the corporate structure can be, or the not even the corporate structure, the closely held firm, you can just transport it over to government. One way you can describe what you're trying to doing is trying to make the government look like a closely held firm. But as I was saying earlier, the executive branch really isn't hierarchical in that way. It's, I'm trying to think of like a good analogy for it. It's more like the president represents one especially powerful and influential, like, magnet.

It's like a board with lots of metal filings. And all the metal filings are the various agencies and bureaus and employees and everything. And there are just various, there's the president magnet, there's the Congress magnet, there's a court magnet. And it's sort of like, depending on positioning, depending on area, depending on relative strength, all these things, the files will go in one direction or the other. But it's not something top down in a way like a company is.

I mean, this is Trump's worldview, right? He's got this, you know, and here I'll tap into your film expertise. It's this rat-pack film noir idea about the world, right? Everybody screws everybody else, and that's it. Like, that's all there is. No one is an idealist. No one is, right? It's the anti-Frank Capra idea, right?

And you see it in a million ways with him. And you see it with Greenland. You see it with Mexico, Panama. And now we're saying, oh, Ukraine, you'd like some help. we're going to take all your minerals or, okay, we'll settle for half. That's connected to all of this, right? And in fact, it precedes any kind of constitutional authority or assertion of power. So how do you see all of this coming together in Trump?

I mean, I think what fundamentally drives Trump is this belief that might makes right, right? That, like, if you are big, you have a right to dominate everything around you. The U.S. can have Greenland and Canada because it's big. Can I have Panama because it's big and they're smaller. Russia can have Ukraine because it's big. Perhaps China can have Taiwan because China's big, right? This sense that simply being the biggest is entitles you to whatever you want. It's quite frankly a child's vision of power and a child's vision of how things should work.

And what it misses this desire to impose rigid hierarchies, and dominate them, is that even in autocratic systems, power is reciprocal. Even in authoritarian countries, leaders cannot act with total impunity. They have to be attentive to public opinion to some extent. They have to be attentive to subordinates, to potential rivals, to all sorts of people within the regime.

And if you have that cynical view, you see them everywhere. Right, right, right, right. there's no way to actually have a stable hand, hold stable authority, and run roughshod over everyone, suppress your opponents this way. You can't do both. One thing I do think is interesting is, you know, there will be mounting legal efforts. You can sense that the public that like maybe the demobilized opposition is beginning to get mobilized again. Yeah. Which is very recently his approval rating is also starting to slip a little bit.

So maybe he's, and here's the thing, right now, you could say that all this stuff that is happening is really only capturing the attention to people like us, but there are these large layoffs happening, right, that are affecting just ordinary federal workers. If there are enough of these things in a short enough period of time, that's a real economic hit. That's people, you know, maybe they're not paying rent, they're not paying mortgages, they're not buying as much, it's an actual economic hit. Maybe he gets these tariffs that he wants and doesn't back.

down finally. He just rips off the band-aid and does it. It's not hard to imagine within the next month or two, all of this coming to a head to produce outcomes that regular people notice and feel. Cutting Medicaid, perhaps most strongly of all. And then what happens? Truly barbaric. Right. Like, you've done none of the work to prepare the ground. You've done none of the work to build political support. You've acted like an autocrat. But, like, public opinions still exist. Other political like the society still exists. And so, you know, shock and all was successful in March 2003, and it meant nothing six months later. So before we close out, I want to talk a little bit about Musk's role because it's also connected to these constitutional issues. He is clearly acting as a

principal officer of the... federal government. So he should be subject to the advice and consent of the Senate. On Monday night, in a court filing, the administration asserted that he actually wasn't the head of Doge, that he's just a special advisor to the president. They're doing that, I assume, because they're trying to slip out of any danger that he would have to appear before the Senate or that just publicly disclosed his finances. Or I'm not sure exactly what the reasoning is there. But that part of the constitutional crisis is some guy, if I could use that for his, has gone under the radar somewhat, but is actually perhaps the most obvious manifestation

of the constitutional crisis right now. It's been actually quite strange to me to see how how little discussion this has gotten. Okay, so if he's a special... Maybe explain the appointments clause because like, let's live on planet Earth. Not everybody knows what the appointment's clause is. So the Appointments Clause of the Constitution simply empowers the President to nominate and with the advice and consent of the Senate appoint public officials. It comes from Article 2, Section 2, Clause 2, and states, and the President shall nominate and bind with the advice and consent of the Senate shall appoint ambassadors, other public ministers, and consuls, judges to the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law. may by law vest the appointment of such inferior officers as they think proper in the president alone in the courts of law or in the heads of departments. We're back up.

For early American Republic through the 19th century, basically the way things worked is that there were cabinet heads and bureau heads for smaller agencies. There wasn't a big White House staff, as we would recognize it. That really only emerges in the 20th century, but sort of the rise of the either. administrative state and the rise was sort of like the large. Right. And can we pause for a second to say that the rise in the administrative state, the rise in the state came in the response to seeing what happened when unfettered capitalism was allowed to reign free. Right. One way to think of the administrative state, and I'm sure people who

hate it are going to be like, this is a bias way of thinking about it, but hey, you're listening to us and not them. One way to think of the administrative state is that the advocates for a larger, more rational and more expansive federal bureaucracy, were looking out at economic society and civil society and seeing large concentrations of wealth, seeing large corporations that had, in effect, the power of states. And there's just no way to control them. No way, there's no counterbalancing force in society. So the federal administrative state is a counterbalancing force. It is a force of comparable size and complexity and strength that can work its will on concentrations of wealth, on concentrations of economic power, and so on and so forth. And so, yeah, it makes sense that these people would hate this thing because it was designed to be in the way of their predecessors. But in mid-century-ish, Congress essentially passes a law that allows the president to hire all kinds of advisors, all kinds of aides, and so to really expand out the White House staff and make it bigger and more able to actually manage things. These weren't Senate confirmable positions because they weren't really exercising power. They were advisors to the

president. They are helping run the White House. But Musk is not a chief of staff. He's an advisor, but he's an advisor whose agents can destroy entire federal agencies. Yes, the world's weirdest sleepovers. Who has been granted extra legal and extra constitutional authority over critical parts of the federal government. And so I would say that, like, if the appointment clause is about presidential officers who are exercising direct presidential power, then Musk, who is exercising presidential power, I mean, and that's a nice way of putting it. I feel like in a real sense, you can make a real case that, like, Musk is serving as a kind of co-president.

If that's the case and he has to be Senate confirmed. I mean, if that's the case, then the Congress needs to pass a bill creating the Office of Doge or something and then investing it with authority and then confirming him. But, like, as it stands, it really is, I think, an extra constitutional assertion of power. it certainly seems to me like Musk is like just being the president right now and like kind of looking back over shoulder every so often to be like okay Trump and Trump is like I don't care sure

they're kind of co-presidents and that muddies the lines of responsibility tremendously and if Elon Musk has to be issuing orders for the members of the federal bureaucracy he does need he needs to be some formal he needs some formal Senate confirmed role

and if there isn't one if he's going to be acting as co-president without any accountability. That is, I mean, that is, that is, that is, it's not great. It's bad. We're going to have to come back to this because we didn't even discuss the just massive inherent conflicts of interest. Right, of course, yeah. Which is like, it just, I mean, it's actually billions of dollars of contracts that Musk's businesses have with the federal government.

They've successfully been able to demagogue public health measures that cost pennies. from the dollar to the American taxpayer. Meanwhile, Elon Musk could, and probably has at this point, awarded himself hundreds of millions, billions of dollars in valuable contracts. To say nothing of what he's doing with all the data that people have access to. It's like, pay attention. Hey, hey, look, we're spending on literacy in Iraq, a country we invaded, by the way. Don't pay attention to the fact that it looks like, you know,

the official car of the State Department might be Tesla. That's the next step. Jamel, thanks very much. My pleasure. If you like this show, follow it on Spotify, Apple, or wherever you get your podcasts. This show is produced by Derek Arthur,

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