How the courts may serve as a check on Trump’s presidency

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• Geoff Bennett:

  The start of President Trump's second term brought dramatic proposals and unprecedented changes to the federal government. That includes pushing the legal boundaries of executive authority.

  Our new series On Democracy is taking a step back to look at the big questions about changing laws, institutions and norms.

  Stephen Vladeck is a law professor at Georgetown University who focuses on federal courts and constitutional law.

  It's great to have you here.

• Stephen Vladeck, Georgetown University Law Center:

  Great to be back with you, Geoff.

• Geoff Bennett:

  So as Donald Trump pushes the limits of executive power, he told reporters yesterday that no judge — quote — "should be allowed to rule against" the changes his administration is making.

  Add to that a tweet from Vice President J.D. Vance, who appeared to question the judicial branch's authority after a federal judge temporarily stopped Elon Musk and his aides from accessing government systems. Vance said: "Judges aren't allowed to control the executive's legitimate power."

  So that seems to at least raise the idea that the current administration is ignoring or defying — ready to ignore or defy a federal court order. How do you see it?

• Stephen Vladeck:

  So I don't think we're there yet. I mean, I think it's really important to note that, even as we have had 47-some-odd lawsuits challenging policies from the new administration, there's really no sign yet that the administration is affirmatively choosing to not comply with these court orders.

  We just saw earlier today a judge in Rhode Island who said, here are a couple places where you're not complying fast enough. It's not really the same thing. I mean, I think the rhetoric here is far out in front of what's actually happening on the ground, which is an administration at least so far is largely abiding by these court orders, even as we see this dangerous rhetoric about maybe why they might not have to.

• Geoff Bennett:

  So how much discretion does the executive branch have?

• Stephen Vladeck:

  I mean, historically, none. I mean, we should be very clear about this.

  The norm historically has been that, when individual district judges, even in far-off parts of the country, are blocking federal programs, the right remedy is to appeal and to ask first the intermediate federal courts and then the Supreme Court to rule on the ultimate legality.

  The program is what we saw during the Biden administration. Geoff, it's what we saw during the first Trump administration with the travel ban. The reality that — sort of the danger in Vice President Vance's tweet is the assumption that what the executive branch is doing is legitimate. That's not up to the executive branch. Historically, that's up to the courts, acting consistent with the separation of powers.

  And it's up to the branches working together to make sure that no one branch gets too far out of line.

• Geoff Bennett:

  So what would happen if this president, any president, for that matter, were to openly and willingly defy a court order?

• Stephen Vladeck:

  I mean, we have been lucky historically that we haven't had to face that problem.

  The quote about Andrew Jackson and John Marshall is actually apocryphal. Andrew Jackson never said, John Marshall should try to enforce this decision.

  I think what would happen is a political crisis because the question at that point would be, are the courts going to use other tools at their disposal? The federal government depends upon the federal courts almost as much as a plaintiff as it does when it's being sued challenging federal policies.

  So are courts going to fight back? Is Congress, which I think thus far has been far too acquiescing in what the president's been doing, going to push back? It's a red line we have never crossed and one that we haven't crossed, Geoff, for good reason.

• Geoff Bennett:

  Well, on this matter of the president's unilateral efforts to reshape the federal government, Jim Jordan, who, as you well know, chairs the House Judiciary Committee, he was on one of the Sunday shows and he defended the work of Elon Musk by making this argument that Musk is a proxy of the executive branch.

  Take a listen.

• Rep. Jim Jordan (R-OH):

  The Constitution is clear. Article II, Section 1, very first sentence says, the executive power shall be vested in a president of the United States of America, first sentence in the section about the executive.

• Manu Raju, CNN Host:

  But you have the power of the purse constitutionally.

• Rep. Jim Jordan:

  We do, but the — it's the president. It's not a bureaucrat at USAID. It's not some staff person or some employee at the Department of Education. It's the president of the United States.

  And the folks who work for DOGE are federal employees carrying out the will of the executive branch leader.

• Geoff Bennett:

  Does that argument hold up?

• Stephen Vladeck:

  I mean, so far as it goes, Geoff, which is to say, not very far.

  I mean, yes, the — DOGE is an office within the executive office of the president. The president is allowed to have subordinates who do his bidding. But those subordinates are even more bound to follow the relevant statutory constraints as the president is. And in this case, there are mandatory appropriations that the executive branch is not abiding by.

  There are statutes limiting, for example, the ability to cut funding for NIH, which the executive branch is not abiding by. So I think that's a fair amount of deflection the part of Chairman Jordan's part. The reality here is that we have an executive branch that is claiming the authority to exercise just about unfettered control over federal spending, over the federal bureaucracy, and, at least through the vice president, over the federal courts.

  And James Madison wrote in one of the Federalist Papers that the accumulation of all powers, legislative, executive, and judicial, may justly be pronounced the definition of tyranny. We're not there yet, but there's a reason why these statutes are important constraints. There's a reason why we depend upon the courts to enforce these statutes.

  Just because Elon Musk has all of this sway within the executive branch doesn't change any of the legal analysis about whether the executive branch can really trample on these congressional powers.

• Geoff Bennett:

  And, to your point, the system was never set up to have the courts be the only check on the executive. And yet that's the situation in which we find ourselves, because Democrats are out of power, and Republicans are giving broad consent to Donald Trump.

  So what are the implications?

• Stephen Vladeck:

  I mean, I think the implications go well beyond our current moment. Our constitutional system is premised on the idea, to quote James Madison one more time, that ambition must be made to counteract ambition, that each of the branches should be pushing up against each other, even when they're controlled by folks who largely agree with each other.

  We have an ambitious president. We have an ambitious judiciary. We have a Congress that is doing almost nothing to assert its institutional prerogative. And I think that's a big part, Geoff, not just of where we are today, but why in recent years so many of our national policy fights have turned into fights between the executive branch and the courts.

  It's not sustainable in the long term. And I think we're starting to see a lot of evidence as to why.

• Geoff Bennett:

  How do you answer the question that some Republicans ask, which is, well, isn't this what Joe Biden did when he tried to waive student debt? The Supreme Court said you can't do that, and he tried to find a path forward regardless.

• Stephen Vladeck:

  Yes, I mean, so I think, again, we ought to be careful to be nuanced here.

  So President Biden, after he lost on the HEROES Act version of his student loan program, tried again through a different statute. What he did is he said, I want to try to accomplish the same policy result through a legal authority the courts have not yet blocked.

  Now, he lost that one too. But, Geoff, nowhere along the way in either of those rounds of litigation did you have President Biden or Vice President Harris or anyone else in the administration say the courts have no power to review the legality of this program. They conceded that they did. They just tried two different ways to get there.

  That's not new. President Trump himself tried three shots at the travel ban during his first administration. The third one worked. What's different about what we're hearing this week is the notion that there's something inherently illegitimate about federal judges reviewing the legality of what the executive branch is doing.

  That has never been how we have understood the relationship between the courts and the executive in this country.

• Geoff Bennett:

  So what will you be watching for moving forward?

• Stephen Vladeck:

  A lot. I mean, there's a lot to keep track of.

  I think, to me, there are a couple of real big pressure points here. One, which of these cases gets to the Supreme Court first? Two, how's the executive branch going to react if it loses in the Supreme Court? I mean, even this Supreme Court, which obviously gave President Trump a huge win last July in the immunity case, I think is not going to be inclined to completely restructure the separation of powers the way that President Trump wants to.

  If he loses in this court, is he going to abide by those rulings? And then, third, Geoff, what is it going to take to get at least some Republicans in Congress, even a handful in the House, a handful in the Senate, to actually think that Congress' institutional prerogatives are worth asserting?

  What's going to be the red line past which we see those folks really begin to push back? I think that's the big question looming over all of this litigation activity.

• Geoff Bennett:

  Stephen Vladeck, thanks, as always, for your insights.

• Stephen Vladeck:

  Thank you.

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