How Trump is challenging America's judicial system during his second term

Geoff Bennett:

America's judicial system is undergoing one of its most consequential stress tests in decades, as the president pushes the limits of executive power and strains the nation's system of checks and balances.

Over the past year, the courts have moved to the center of the country's most significant political fights, while the Trump administration has increasingly challenged the authority of judges, whose rulings have stalled key parts of its agenda.

As we mark a year into President Trump's second term, we're returning this week to guests from our On Democracy series, which explores the laws, institutions, and norms that have shaped this country and the different pressures they face today.

We're joined now by Steve Vladeck, a constitutional law professor at Georgetown University.

Welcome back to the program.

Steve Vladeck, Georgetown University Law Center:

Thanks, Geoff. Thanks for having me.

Geoff Bennett:

I want to start with immigration enforcement because it's raising the most immediate constitutional questions.

As you well know, there is this newly revealed internal ICE memo that authorizes federal agents to forcibly enter homes with an administrative warrant, instead of a warrant from a judge. And the whistle-blowers who presented this memo to Congress says this goes not just against their training, but also the law.

How do you assess the constitutional legitimacy of this policy?

Steve Vladeck:

Yes, it's not legitimate. I mean, the whistle-blower is right.

So the Supreme Court, even as it has poked holes in the Fourth Amendment over the last 35, 40 years, the one thing it has kept coming back to is that an American's home is their castle. And so there are exigent circumstances in which law enforcement officers are allowed to enter a home without a warrant.

We just had a case about that a couple of weeks ago. There are circumstances where a law enforcement officer might have probable cause to believe that there's a crime being under way in a home.

But this notion that an ICE officer can simply sign a piece of paper called an administrative warrant and use that as a basis for entering someone's home without any probable cause, without any exigency, without a federal judge signing off has no precedent in our jurisprudence and is, frankly, flatly inconsistent with everything the Supreme Court has said about the Fourth Amendment.

Geoff Bennett:

Our team reached out to DHS and received a statement, part of which reads this way.

"The officers issuing these administrative warrants also have found probable cause. For decades, the Supreme Court and Congress have recognized the propriety of administrative warrants in cases of immigration enforcement."

Is that the case?

Steve Vladeck:

No.

So, administrative warrants, when there is a basis for believing that there is a crime under way or when there's a basis for believing that you're definitely going to find someone who's immediately arrestable and subject to mandatory detention, that's closer.

But, Geoff, you can't put the cart before the horse. You can't say, we went into the house without a judicially signed warrant and then found someone who we could arrest on an immigration violation. That's bootstrapping.

The reality is that the government's not supposed to be able to go door to door without warrants, barging into American's homes. I mean, just to go way back, this was one of the grievances against King George III that we list specifically in the Declaration of Independence. There's a reason why we have a Fourth Amendment. There's a reason why it applies even to folks who are suspected of and may well be out of status from an immigration perspective.

Geoff Bennett:

If immigration enforcement in particular is pushing the limits of executive power, where does the president's constitutional authority begin and where does it end?

Steve Vladeck:

So, I mean, at least historically, we have viewed immigration enforcement inside the country not as part of the president's exclusive Article II powers, but as a shared authority between the president and Congress.

Maybe, Geoff, it's different at the border, because the president could have an argument at the border that now I'm engaged in my Article II self-defense function. But once we're talking about law enforcement on a house-by-house basis in American cities, that's where it has historically been up to the president to carry out what Congress has provided for.

Congress hasn't provided for this. And this dovetails with this broader push by the Trump administration, also dating back to last summer, to treat anyone who's in the country who was never lawfully admitted, even if they have been here 30 or 40 years, as if they were stopped at the border, so that the government can then try to deny them a bond hearing if they're arrested.

It really is a categorical wholesale rethinking of immigration law that, Geoff, so far federal courts have been blocking overwhelmingly judges from across the geographical and ideological spectrum.

Geoff Bennett:

When we spoke almost a year ago about this very topic, whether the courts could meaningfully act as a check on executive power, we didn't really know much because it was so early into the second term.

But looking back over that year, what has stood out? What has surprised you the most?

Steve Vladeck:

I think a couple of the points that stand out, one is, the federal courts, I think, have done a really remarkable job of at least serving as a speed break on many of this administration's more aggressive tendencies.

The Alien Enemies Act, for example, was never successfully deployed because of the federal courts. President Trump's birthright citizenship executive order still hasn't gotten into effect because of the courts. But the courts can't do it alone.

And some of that's because we have had all these interventions from the U.S. Supreme Court that have allowed the administration to carry out a bunch of these policies while these cases are going forward. But even in the cases where there hasn't been Supreme Court intervention, the courts are more of a rearguard action here, Geoff, right?

And you really need multiple institutions holding each other accountable.

Geoff Bennett:

Are we in the midst of a constitutional crisis?

Steve Vladeck:

That question, I think, is -- sort of has different meanings to everybody.

I don't know what the -- where the line is, where you cross the line and say, hey, now it's a crisis. I think we're in the middle of an institutional crisis, and we have been for the better part of a year. And it's a crisis caused largely by the fact that we have an ambitious executive, we have a, I think, fairly well-functioning judiciary, and we have a completely sort of indolent Congress.

And the founders set up our constitutional structure so that the branches would work the best and our rights would be best protected when the branches were all pushing against each other. With an ambitious executive and ambitious courts and no Congress, I think we're seeing the problem, which is everything comes down to injunctions, temporary restraining orders, and whether the executive branch is going to comply.

I don't know that it's a constitutional crisis, but also I'm not sure that that's the relevant question. Our institutions are under pressure in ways that they really haven't been in American history. And although I think the courts have done a very good job of holding the line to this point, you know, there's going to come a point where they need some help.

And whether that's going to be from Congress perhaps on the far side of this year's midterm elections or from some other actors, I think that's going to be the critical question as we look toward the next 12 months of this presidency.

Geoff Bennett:

Steve Vladeck, always a pleasure to speak with you.

Steve Vladeck:

Likewise, Geoff. Thank you.