“Berkeley Law Voices Carry,” hosted by Gwyneth Shaw, is a podcast about how the school’s faculty, students, and staff are making an impact — in California, across the country, and around the world — through pathbreaking scholarship, hands-on legal training, and advocacy.
This episode features UC Berkeley Law Professors Daniel A. Farber and Jonathan S. Gould — experts on presidential power, constitutional law, and the United States Congress, and the faculty co-directors of the school’s Christopher Edley Jr. Center on Law & Democracy. Founded last fall after the death of UC Berkeley Law’s beloved former dean, a national political and policy influence for decades, the center aims to defend and strengthen democratic institutions in the U.S. through actionable research and public leadership.
Just a few weeks into the second administration of President Donald Trump, the center is convening expert panels to explore the implications of the president’s first moves — many of which are setting off alarm bells about the rule of law, the separation of powers, and even the strength of the U.S. Constitution itself. The center’s events archive has videos of these discussions.
What follows is an edited version of the conversation. Listen to the full episode below and visit the “Voices Carry” archive for all episodes.
GWYNETH SHAW: Dan, let’s start with Chris Edley and his legacy, both at UC Berkeley Law and for the nation. How is this center advancing some of his lifelong goals?
DANIEL FARBER: Well, as you mentioned, Dean Edley was a major figure in public policy circles. He served in the White House at a high level and elsewhere in the government. And so I think he came away with a view that law schools should take their mission of public service very seriously. And like the other centers here at Berkeley, this one is an outgrowth of that vision.
More specifically, he was a scholar of administrative law, which is really about the executive branch, how it should operate, its relationship with Congress and with the courts. And throughout that, he had a strong focus on the importance of democracy as a value that we need to take into account. And I think we’re carrying on his legacy in that sense, too.
GWYNETH SHAW: The Trump administration has swept into Washington with a flurry of actions that are raising alarm bells. Dan, what kinds of powers does the president really have in terms of domestic policies? And where do those powers come from?
DANIEL FARBER: In foreign policy, the president has a lot of inherent powers that come from the Constitution. But generally speaking, that’s not true in the domestic sphere. There are, at best, some very restricted inherent powers in terms of dealing with domestic policy issues.
Most of the president’s powers come from Congress. Either Congress passes a law that directly authorizes the president to do something, maybe about tariffs, for example, or Congress passes a law that has some agency, like EPA, and they’re supposed to have authority in some area. But the president oversees those agencies. So the president has power through the agency.
So really, when I’m asked any question about can the president do this, my first question is always, well, what did Congress say? And only after that do you start to get to maybe constitutional issues, if the president is not acting under congressional authority.
GWYNETH SHAW: And in what ways have Trump’s executive actions so far, and there have been a lot of them, been like those of other presidents? Most people are familiar with the idea of an executive order, they’ve seen them from other presidents. How is Trump like others and how is he different?
DANIEL FARBER: So executive orders are really directives from the president. And usually, they’re in the nature of memos — so really telling, say, the head of EPA, “Here’s what I think about an issue, here’s something I think you should consider doing, get on it.” And that could really just as well happen through a phone call, except that it wouldn’t be public. And that accounts for a lot of executive orders.
So people are often misled into thinking that when the president has issued an executive order that’s really done something. And generally, that’s not true. What the president has done is set the stage for a later ultimate action by somebody else in the government.
Trump, besides those, did a number of other things, some of which are actually not labeled executive orders, but they’re all basically the same family. For example, he withdrew from the Paris Agreement, which is on the international side. So his power is broader. He called for changes in some internal government processes, at least some of which he can do because he’s the head of the executive branch under the Constitution, and he has some internal management powers.
He’s announced tariffs — again, not technically executive orders or declared emergencies. Now, those are more unusual. And the sort of pace at which we’ve been seeing all these executive actions is really unusual. So you really get the general impression of the president really ramping things up to a higher level than we’ve seen before.
GWYNETH SHAW: Jon, you study Congress and its procedures. Trump, White House officials, cabinet secretaries, and “special government employee” Elon Musk are pressing hard to take more control over government spending, even for money appropriated by Congress. Can you walk us through what’s happening for people who aren’t necessarily familiar with the authorization and appropriations process?
JONATHAN GOULD: This is really much more an executive branch story. There’s a lot that could be said about how Congress legislates with respect to federal spending, but the key point for our purposes is that Article I makes clear that Congress is the branch that decides what money to be spent.
So Congress will pass a bill spending a billion dollars to take on this infrastructure project, for example. And when Congress does that, the law provides that the executive has to spend the billion dollars on the infrastructure project. The executive can’t say, “Actually, that project’s not that important,” or “Actually, I want to use it for some totally unrelated purpose.”
There are some exceptions. If they come in under budget, then they get to return the money to the taxpayer. There are some exceptions. But as a general rule, when Congress says “spend,” the president is legally required to spend.
There’s a long history of contestation over spending over two centuries. But the key point for us is the Impoundment Control Act, which was passed in the 1970s, in the aftermath of the Nixon administration and Nixon impounding money in ways that made Congress unhappy.
When Congress made reforms to the budget process, they included this anti-impoundment provision that says, to simplify only slightly, the president can’t impound — period, full stop. So if President Trump is involved in impounding, then the question is, what’s the legal authority for that? There are a number of actions.
There was the initial executive order that purported to freeze all federal spending, and then there were some carve-outs, and then there were subsequent memos, then it was enjoined by a court.
And there’s been a whole set of wrangling. And it can be tough to follow, kind of agency by agency, the state of things. But there have been a number of executive actions that have called for impoundment in either broader or narrower form.
And I think what’s happening is a teeing up of a Constitutional challenge to the Impoundment Control Act, because under the statute, this is quite clearly unlawful.
So if you’re the Trump administration and its lawyers, what’s your response? Your argument that this is actually somehow subtly or unexpectedly consistent with the Impoundment Control Act is going to be a pretty weak argument. That’s not going to carry a lot of water.
The argument that they’re going to make is that the Impoundment Control Act is actually unconstitutional. And they’re going to look to Article II of the Constitution. They’re going to look to broad provisions around the president holding the executive power, and they’re going to try to read a lot into that.
They’re going to talk about the president’s power to take care that the laws be faithfully executed. There’s a lot of con law built on provisions like these. And they’re going to argue that these provisions give the president such broad authority that actually the Impoundment Control Act is an unconstitutional infringement on that authority.
What I expect is that we will see in subsequent weeks and months in the district courts, then in the circuit courts, and I assume ultimately in the Supreme Court, the attention will turn to this constitutional question that the Trump folks seem to be teeing up around the constitutionality of the Impoundment Control Act.
DANIEL FARBER: This is a really crucial question, not just for constitutional law scholars who find it intriguing, but really for everyone. Because if the president has the right to decide what projects that Congress has authorized to carry forward, what policies to carry out, what appropriations to spend, then basically, the president has the power to cancel Congress’ policy decisions on many different fronts. And that would be a really sweeping shift of power from Congress to the president.
JONATHAN GOULD: That’s exactly right. And I would just add, that sweeping shift is worrisome for at least two very practical reasons, in addition to the obvious constitutional law separation of powers reason.
One is that we all depend on different types of federal spending, whether it’s money for universities — I’m speaking here from my office in Berkeley — but also farm subsidies and food stamps and military spending and money for technological innovation and student loans.
There’s a whole range of almost every American directly or indirectly benefits from federal spending. And it’s a dangerous world if that spending can be cut off by any president. And I think Democrats who are upset about what Trump is doing are rightly focused on the many sources of money for things that code progressive that could be cut off.
But I would encourage Republicans to think, what are the things that you really care about that you might worry a Democratic president could unilaterally shut off if the Impoundment Control Act were found unconstitutional? This is not going to be a rule just for Trump. Someday someone else will be president. We have to think both what is the best rule now, and what’s the best rule in the long term?
The second point is the potential to use funds for political repression or retribution, which is something that we’ve seen many warnings and some actual action.
Imagine if the Trump administration sees that Congress has appropriated money for wildfire recovery in Los Angeles. But you know what? There are too many Democrats in Los Angeles. I’m going to cancel that money. You can imagine many, many situations where this cancellation authority could be used, vindictively or punitively, in a way that whatever our politics, we can agree isn’t good for the republic.
GWYNETH SHAW: Who has standing in this? Is it going to be Congress that’s going to have to argue that this is a valid statute? How does this work in practice, leaving aside the politics and what’s going on right now?
JONATHAN GOULD: So standing is sometimes tricky. Here, I think standing is quite easy. Standing will be there for anyone who should have gotten money under the statute but didn’t get money under the impoundment. So that could be individuals, that could be private companies, that could be state and local governments, that could be nonprofits or universities — anyone who felt secure based on the statute that Congress enacted, that there was money coming their way, and then the Trump folks say, “No, there’s not,” any of those folks would have standing.
And standing law gets tricky when we’re talking about abstract injuries or dignitary injuries. It’s very easy when we’re talking dollars and cents. That if you’re denied dollars and cents that you think you’re legally owed, you have standing.
GWYNETH SHAW: Jon, House Speaker Mike Johnson just said that the courts should take a step back and let some of these cuts and freezes that Musk and his people have put in place happen. He said he’s met with Musk, and he said “exciting” that Musk and the Department of Government Efficiency, or DOGE, are doing what he said is what Congress has been unable to do.
Are you surprised that members of Congress aren’t doing more to protect this power of the purse, which is such a fundamental role for Congress? And what do you think is on the horizon from the legislative branch in terms of does this essentially become a way for cuts that might be unpopular politically to happen by executive power?
JONATHAN GOULD: I’m thoroughly unsurprised that Congress hasn’t done more. And I’ll say more about why in a moment. But first, just a line on the speaker’s comments and the fact that he thinks these cuts are a good thing, or that he thinks the cuts are doing work that Congress should do but can’t carries absolutely zero weight.
The Constitution sets out one way for Congress to make law through passing a bill through the House and the Senate, and either the president signing it or overriding a presidential veto. Congress passes spending bills every year. Congress passes numerous measures to spend money.
If Mike Johnson thinks that we as a country should be spending less, he should whip the votes to spend less. The problem, of course, is that spending less actually imposes harm, including harms on some of his core constituencies.
Does he think we should be spending less on the military? Does he think we should be spending less on rural America? Does he think we should be cutting Social Security and Medicare for America’s seniors?
He doesn’t want to take these positions. His caucus doesn’t want to take these positions and take the votes that would require them to look their constituents in the eye and say, here’s why we’re cutting your spending. So he’s trying to hide behind Elon Musk. And thankfully, the Constitution doesn’t allow that.
The Constitution absolutely allows Congress to cut money for any of those things, but Congress needs to own it. They need to put bills through the House and Senate.
The politics of this, I think, are pretty straightforward. And there’s a catchy name that has been known in the law review literature for a while, but has gotten more popular attention lately, which is this idea of the separation of parties, not powers, that our Madisonian system assumes that we’re going to have separation of powers, we’re going to have counteracting ambition across the branches, that Congress will guard its prerogatives against the executive and vice versa.
The problem is when you have parties that are sufficiently strong, sufficiently polarized — and especially when you have a charismatic president who’s as able to exercise really strong control over his party as Donald Trump is — the Congressional accountability falls apart.
Even with these very thin majorities, so long as they are Republican majorities in both chambers, which for now they are, you’re not going to see meaningful accountability, you’re not going to see meaningful breaking from Trump.
To give one example, Joni Ernst, a Republican senator from Iowa, who has fostered a bit of a reputation as an independent thinker, I learned yesterday is the head of the bipartisan Inspectors General Caucus in Congress. So you might think when a bunch of inspectors general get fired, if one Republican is going to stand up, it’s going to be her saying, “This is unacceptable.” And she and other Senate Republicans have a lot of power. They could freeze nominees, they could refuse to confirm judges, they could refuse to go forward with the tax cuts.
Has she done any of those things? Absolutely not. What she has said is, “I look forward to working with the Trump administration to get new IGs in place,” which is about as milquetoast a statement as you can get in the face of something that seems to threaten the core interest of this caucus that she purports to lead.
So I think we’re seeing a lot of what might be called colloquially spinelessness from Senate Republicans, but they’re also responding to a set of political incentives. They don’t want primary challenges. They don’t want Trump or Musk tweeting about them being traitors. I also think we can’t discount the fact that a lot of congressional Republicans may be worried about political violence.
I think the worst thing that happens if you cross the Trump administration is not that you get primaried and lose your seat. The worst thing that happens could be something much more dangerous for you or your family. And who’s to say that the people who perpetrate that won’t get pardoned afterwards? I think the Jan. 6 pardons set a real backdrop here.
So we’ve not seen pushback from the Republican Congress. I think it’s unlikely that we will.
So what type of pushback will we get from Congress? I think there are two options. One, Democrats could take control of Congress, and then we’d see, obviously, a radically different environment. Or two, things could go so badly for Trump, and his popularity could dip so much, that Republicans start to break ranks. And that’s possible. His popularity is also much, much lower than a typical president at the start of a term. That said, it would have to get a lot lower than that.
So think about the dips that we saw after Jan. 6 or after the mismanagement of COVID. I think we would need to see something on that scale in order to induce Republicans to break ranks. For the sake of the country, I hope we don’t have disasters of that scale, but I think that’s what it would take in order to get real accountability from the Republican Congress.
DANIEL FARBER: If I could add one thing, I think that although Johnson might like some of the cuts that Trump is doing, I don’t think he really wants his fingerprints on that. If he did, Congress could pass laws, as they have sometimes done, saying something like “The president may spend up to $500 billion on national defense,” leaving it open to the president to pick any number between there and 0. And they could pass laws that do that in other areas, and then they would be clearly giving the president discretion
I don’t think they want to be responsible for budget cuts that the president makes. I think that they are aware that a lot of these things may end up being very unpopular. If he wants to do it, fine, but I think they would just like to distance themselves. Not only not try to get in his way, but also maybe not really do anything that puts them on record as supporting specific budget cuts.
GWYNETH SHAW: Is there another example you can think of a situation like we have right now with Elon Musk coming in as this unelected person — not really an aide to the president, but in a role that has been used for aides and political advisors — asserting this much power?
DANIEL FARBER: Well, I don’t think so. There’s been a discussion among con law scholars of whether Musk isn’t like the chief of staff at the White House and having that kind of power? But I don’t think the public sees it that way, and I think rightly so. I think Musk is exercising an independent power and a hands-on operation of the government of a kind that I don’t think that we’ve really ever seen before, and I think does pose real questions in a Democratic country.
JONATHAN GOULD: I think that’s exactly right, and I would echo everything Dan said. The one point I would add is that usually people who exercise as much power as Elon Musk have to be confirmed by the Senate. Certainly every cabinet secretary, but also a lot of sub-cabinet folks, deputy assistant secretaries of this, that, or the other, whose names you don’t know, have to go through Senate confirmation.
In this Senate, most of the folks are getting confirmed, but not all. Note that Matt Gaetz had to withdraw. And we may or may not see others who don’t get through. But even for the ones who do get through, they have to, under oath, answer questions from senators from both parties before they can exercise immense public power. And Elon Musk hasn’t been subject to that.
There are various, I’m sure, legal excuses that can be made. I don’t find those especially persuasive. Others may. I just want to emphasize, in addition to the power being unprecedented, we have a set of mechanisms in our constitutional system for people who are going to exercise great power. For the president and vice president, of course, that means getting elected. But for other senior executive branch officials, that Senate confirmation, which is provided for in the Constitution.
And it’s telling that Elon Musk hasn’t gone through Senate confirmation. Part of that, I think, has to do with conflict of interest rules. And obviously, as the richest man in the history of the world, he has more potential conflicts of interest than the rest of us.
But also, it’s not clear he would get through Senate confirmation, or would want to answer questions about his business interests or his past or his opinions. And I think the fact that he has been able to circumvent that and is exercising all this power makes it doubly worrisome.
GWYNETH SHAW: Much of what Trump has done, such as his executive order ending birthright citizenship, is being presented by Republican politicians and the media as a done deal. You alluded to this earlier, Dan. What’s your take on that?
How should legal scholars, media, and opposition politicians be framing these things when you read an article and a Republican Senator says, “Well, if the president wants to end birthright citizenship, that’s his right?” How should these be framed, given the actual constraints here?
DANIEL FARBER: I was just looking at another specific order, or not even an order, a tweet really, in which he demanded that energy efficiency standards be rolled back. And I noticed some of the stories, not just on Fox News, but at other kinds of outlets, said “Trump rolls back energy efficiency standards.” No such thing. Trump was lobbying EPA to do it. EPA, in fact, probably cannot do it, legally. But somebody who was just looking at the news would think it was already done.
The birthright citizenship thing is even more extreme because really, all that Trump can do about that is offer his opinion that the Constitution does not require birthright citizenship.
There is no statute giving him any power to define who’s a citizen. And it will be up to the courts — I think pretty clearly, ultimately the Supreme Court — to decide what the Constitution actually means in terms of birthright citizenship. So basically, the order he issued has the equivalent legal status of an op-ed.
GWYNETH SHAW: Where do you expect the Supreme Court to get involved, given the volume of cases that’s happening, given some of the cases that they’ve taken involving the administrative state or other powers recently? Where do you think a majority of justices might block or back the Trump administration, given their history?
JONATHAN GOULD: There’s the old Yogi Berra line that “Predictions are hard, especially about the future” which comes to mind here. So I won’t purport to predict Supreme Court outcomes in particular cases.
I think some of what’s been done is clearly unlawful. I think the birthright citizenship case is the easiest case there, where I think the Supreme Court definitely should, and almost certainly will, disagree with the Trump administration.
I think there are other issues where what the administration has done is clearly unlawful under existing law, but they’ll be asking the Supreme Court to change the law. The impoundment issue is one of those. Clearly, there are violations of the Impoundment Control Act. Whether the Supreme Court chooses to find that act unconstitutional is their business, and I can read the tea leaves, but ultimately that’ll be their decision.
So too with the extent of Article II. For a president who made his name saying “You’re fired,” the question of who Article II gives him the power to fire is a question on which there’s a very long history of jurisprudence and a somewhat confused line of cases articulating who in the executive branch the president has the prerogative to fire, and who Congress can protect from firing except for cause.
The Supreme Court may move the law on that to be more favorable to presidents wanting to fire folks. The law is in a somewhat stable though middle ground place right now, and I think it might move to a place that’s much more congenial to presidential firings, to the dismay of those who are worried about excessive presidential power.
So I think there are some things that are clearly unlawful under existing and I expect future law, there are some things that are unlawful under current law, but may or may not be lawful, depending on where the Supreme Court chooses to go. So that’s my quick map of the terrain.
I think there’s another set of questions, which I’m happy to go into now or later, on what happens if and when the Supreme Court rules against Donald Trump? And does he acquiesce in that or disobey, and what that dynamic looks like, because that’s one that’s been getting a great deal of play in the last week or two.
DANIEL FARBER: I would add a third category. I think there are some things that he’s done that are very likely to be upheld by the courts. Not sure things. But even though I may strongly disagree with the policy that he’s adopted, I will be somewhat surprised if they’re rejected by the courts.
One is withdrawing from the Paris Agreement, which I mentioned. I’m not even sure that that would get to court, but if it did, I’m pretty confident that would be upheld. I think there’s a very good chance that if the tariffs that he’s imposed are challenged, they’ll be held to be within his legal power. Not a sure thing — I’ve read some pretty good arguments on the other side — but for whatever my guess is worth, I think he’s likely to win that one.
But I think the biggest cases, at least in terms of the structure of government and the democratic governance, are some of the ones dealing with just how much control does he have over the executive branch.
Is everybody in the executive branch really, in a sense, essentially a puppet whose strings he pulls? Or are there limits on his ability to impose his will throughout the two million or so civilian employees of the federal government?
JONATHAN GOULD: I certainly agree with all that.
It’s taken for granted that every president gets sued a lot and wins. We live in an era where every major executive action gets challenged in court. It happened to Bush, to Obama, to Trump 1, to Biden, it’ll happen in Trump 2.
And a lot of the time, the administration is on sound legal footing. That on many issues, Dan mentioned a few of them, but there are certainly others, Congress has delegated a great deal of power to the executive branch to make decisions, and the executive branch will make those decisions.
And there are reasons to object on policy grounds to them, that there are a lot of things that are going to be happening that I and you both, and I suspect many of our listeners, are quite unhappy about. But if it’s just reversing a Biden policy or reverting back to a Trump 1 policy on an issue of domestic policy on which Congress has granted the executive branch a great deal of discretion, that’s one where they’re on very sound legal footing.
I think there are going to be a lot of those. They are, in some ways, the stuff of ordinary politics. That presidents do things and they get sued, and if they’ve crossed their Ts and dotted their Is procedurally and given reasons for their action, they very, very often win.
The Trump administration will probably lose more than it should have, especially if Trump 1 is any indication, just because of sloppy lawyering and bad administrative records. But we shouldn’t discount the fact that we have a powerful president.
And there are good reasons for that. There are good reasons to allow the executive branch to make big policy. Only a few months ago, progressives were arguing that the Biden administration ought to have the right and ability to make big policy.
So for me, my focus is, in some ways, especially in the democracy capacity, less on just policy choices and much more on big structural system-wide questions around who holds what types of power.
And when Trump is doing something that past presidents, Democratic and Republican, did before, that’s the ordinary stuff of power politics. With things like impoundment or some of these others or some of the civil service issues, there’s much more anxiety around trying to make structural changes that weren’t done by past presidents, Democratic or Republican, in the modern era.
GWYNETH SHAW: What happens when a court, whether it’s the Supreme Court or a lower court, issues an order and the Trump administration ignores it?
JONATHAN GOULD: This is the question, and if I had a clear answer, I’d be shouting from the rooftops. But let me try to give some speculation: Historically speaking, there has been a desire by both the courts and the president or the executive branch to avoid a direct confrontation.
So if you’re going to get something that looks like disobedience, is going to be partial disobedience, and the courts are going to acquiesce a little bit. There’s this mutual accommodation that has happened in many instances.
That might not be what the Trump administration wants. The Trump administration might want to have a much more overt confrontation, where he holds a press conference and channeling his hero Andrew Jackson, says something along the lines of “The Supreme Court has made its decision, now let it enforce it.” It’s probably apocryphal that Jackson ever said that, but nonetheless, the point holds.
And in that case, the courts have some really hard choices. There is the power of contempt. It is not inconceivable that a cabinet official would be arrested for contempt if they move ahead with a policy that the courts have said is unlawful. That’s an obviously extreme remedy.
We don’t want to get into a place where the U.S. Marshals are in a confrontation with executive branch security around taking cabinet secretaries into custody. That has a banana republic feel that we rightly want to avoid, but that’s the end game of this. I think the courts will very much try to avoid that.
There’s been some anxiety expressed about the courts capitulating on the merits of some of these cases, out of a fear that if they didn’t, they might end up being ignored and wanting to avoid that particular dynamic. But I think that’s the kind of judicial self-help remedy is such a dramatic one. Not inconceivable that we’d see it. But that would be the stuff of what looks like constitutional crisis.
In legal theory, there’s talk about judicial supremacy versus departmentalism, with departmentalism being the idea that every branch gets to interpret the Constitution for itself. And there’s a complicated scholarly debate between these positions.
But the strongest version of the departmental view says, you say this is unlawful, but I’m just as good as you at interpreting the law. So I say it’s lawful. Who are you to tell me what to do?
And that starts to look like a real rule of law problem for the obvious reason that the executive branch then becomes the judge in its own case. It wants to do something, it declares it to be constitutional or pursuant to statute, and even if the court says no, it moves ahead anyway.
I mentioned judicial remedies. The other remedy, of course, is Congress or the people or the press, and state governments.
So if the president does defy a court order sufficiently openly when the court order is sufficiently clear, you could imagine Congress acting — probably not this Congress in its current permutation, but you could imagine a situation where if the political facts on the ground change, Congress would do something. We saw Republicans voting for impeachment. Not enough, but some. So I think we could see that. But it’s not obvious that there would be accountability.
And I’ll say one last thing, on the TikTok statute, which was bipartisan, with huge majorities in Congress, upheld by the Supreme Court, including the justices that Trump appointed. And he announced a 75-day pause.
Now, could you make an argument that there’s an enforcement discretion thing going on there? Sure. But it certainly looks like he’s just ignoring a duly enacted federal statute. And people haven’t taken to the streets. It was front-page news the day it happened, but there have been so many other things, we’ve moved on. Congress isn’t holding hearings about it.
So it’s possible — perhaps the most arresting possibility — that for some of these, he just gets away with it. Not a guarantee, and I certainly hope that wouldn’t be the case. But the TikTok example, I think. is a warning in that regard.
DANIEL FARBER: If the question is whether it’s a constitutional crisis, I have a really high standard for that. I wrote a previous book about Lincoln and the Constitution. So the Civil War — that was a constitutional crisis. I’m not sure that the sort of thing we’ve seen so far comes that close to the kind of threat to the constitutional order. We could get there, but I don’t think we’re there yet.
I would add, though, I’m not sure that he really wants to have that confrontation. Jon said that the Trump administration may be looking for a confrontation of that kind. But of course, the Trump administration is many people, including, but not limited to, the president. And they may have different ideas about where they want to go with this.
I think on the executive side, too, there are ways of avoiding the precipice. With TikTok, for example, the President said he was pausing enforcement. He didn’t say, given that I have the right to ignore any statute I don’t like, I’m overruling Congress on this issue or something. He kind of soft-pedaled it.
I think there’s a good argument that the administration maybe deliberately violated a temporary restraining order relating to the spending freeze because they continued to keep stuff frozen.
But it seemed to be there was no way of showing that it came from above, that it wasn’t just individual officials. It’s a TRO, temporary restraining order, which is a very short-term thing that’s not quite as big a deal in some ways from a district. They didn’t push it. They didn’t say “No, no matter what the courts say, we’re sticking with this.”
So I’m hoping that we don’t actually get to that kind of head-on confrontation because I think all bets are off, really, as to what Congress might do, as to what the public might do, as to what the military might do if there was strong public opposition.
People don’t think of it in these terms, but I think it could also be very important what the stock market and bond market do in response to that. And we just don’t know. We would be moving into really uncharted territory. That would be, I think, pretty scary for everybody.
GWYNETH SHAW: Do you think the impoundment issue is a place where they’re really going to go for it because they may think that they can wrest that certain amount of power away from Congress?
DANIEL FARBER: I think impoundment is one area because that’s the biggest power grab. On the other hand, there are questions about whether the politics would be good for them on that issue. How important are these budget cuts to them, really?
They don’t like the foreign aid, but is that a hill they really want to die on? And we just don’t know. I think that there’s a fair chance that they’ll just try to get there some other way. That’s what they did in the first term.
They did the travel ban and it got struck down, they tried again, it got struck down. The third time they did it a different way, and it got upheld. They may very well just want to go down that road. But to be honest, if predictions are hard, especially about the future, I’d say predictions are hard, especially about Donald Trump. So we’ll see what happens.
JONATHAN GOULD: I think that’s exactly right. I do see confrontations coming on at least some of these issues. Again, the impoundment issue, or any other issue, the biggest problem is if there’s disobedience of a court order.
If the Supreme Court moves the law in a direction I don’t like, that’s just the way constitutional politics works. But if the Supreme Court says no to Trump and he disobeys, that’s a very different thing altogether from the standpoint of the rule of law.
The last thing I’ll say, because it’s always good to end on a note of hope — though I recognize this is far from guaranteed — is that on some of these issues, there may be a degree of political posturing.
That given how unpopular many of these cuts would be, it would not be unreasonable for the Trump administration to say, you know what? I’m going to talk publicly about all this spending waste. I’m going to put forward this plan. The courts are going to strike it down, and then I’m going to get to blame the courts for striking down my spending fix.
That, politically, might be more advantageous to them than cutting a bunch of spending that really affects people’s lives in a day-to-day way. I don’t think that’s what they’re thinking. There’s not been a lot of indication that this is a wanting to lose-type case, but we have seen presidents in the past either wanting to lose or at least knowing they’re going to lose their being OK with losing. And that’s, I think, our perhaps best hope for some of these, but it’s a remote one if we’re being candid.
DANIEL FARBER: Another thing I think we have to remember is a lot of voters really don’t pay very careful attention to what’s going on in Washington and the nuances. Even if the Supreme Court says, no, you couldn’t abolish foreign aid, that message may never reach a lot of voters. They may give them credit for doing it anyway because he said he was doing it, and it was in all the headlines. And so that’s it.
How much does he care about the reality behind that as opposed to political theater that he’s really brilliant at that will keep his base excited and on board?