Your Questions Answered: Trump vs. the Rule of Law

0:00The New Yorker Radio Hour is supported by Dell. Back to school starts now. Get long-lasting battery life on the Dell XPS laptop powered by Series 3 Intel Core so you can work from anywhere. Now starting at$6.99 with exclusive student pricing starting at$5.99. Complete your setup with savings on select monitors and must-have electronics and accessories. Limited-time deals and free shipping on PCs and more await you at dell.com slash deals. That's dell.com slash deals.

0:30The New Yorker Radio Hour is supported by Amazon Music. With Amazon Music Unlimited, you can listen to music, podcasts, and now audiobooks, all in one app. This includes popular titles like Project Hail Mary, one of the most beloved adventure stories by Andy Weir. I have been listening to this audiobook and constantly looking for any pockets of time during the day to turn it on and find out what will happen next in the story. So whether you're catching up on a podcast, listening to your favorite playlist, or, like me getting lost in a great audiobook, it's all right there within the Amazon Music app.

1:02Amazon Music. Music, podcasts, audiobooks, all in one app.

1:09This is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to the New Yorker Radio Hour. I'm David Remnick. Let's get you up to speed now. So the first case to come down was a birthright citizenship case. The U.S. Supreme Court has paved the way for President Trump on one of his biggest campaign promises. He wants to ultimately close the Department of Education. This is a five alarm fire. OK, what we are watching right now is potentially the dismantling of the remaining portions of the Federal Voting Rights Act. Many outlets in this room have been fear mongering the American people into believing there is a constitutional crisis taking place here at the White House.

1:54But in fact, the real constitutional crisis is taking place within our judicial branch. Trump is betting nothing will stop him. And you know what? I think he's probably right, because nothing has stopped him for years. For weeks now, we've been exploring a question. Are we in a constitutional crisis? The answer is yes. A couple of weeks ago, we asked for your questions about the Trump administration and the courts. And there were a lot of pressing questions. so we'll try to answer some of them today. I'm joined by Ruth Marcus, who writes about legal issues in the Supreme Court. Hi. And Jeannie Suk-Gerson, who's a professor of constitutional law at Harvard Law School.

2:35Hi, thank you. They're both regular contributors to The New Yorker. Jeannie, Ruth, we've got a ton of great questions, so let's dive right in. Mike Slane from Greensboro, North Carolina asks this, How is ICE able to conduct searches and seizures without a warrant? Isn't that a violation of the Fourth Amendment? What say, Eugenie? You start. You don't necessarily need a warrant to do searches and seizures. The standard for searches and seizures is probable cause. And it doesn't necessarily have to come from a judge. A police officer can engage in actions based on probable cause. And that's how we get the situation where there's no warrant.

3:20Have there been any lawsuits or legal actions taken against ICE on these kinds of grounds? Yes, there definitely are challenges to these kinds of things, and they're just working their way through the courts. So if I can jump in there. Ruth, go ahead. There was a case out in California just recently where, and if I'm correct, the standard for ICE to stop you may be even less than probable cause. It's reasonable suspicion. But the judge said in slapping down ICE and saying it was acting improperly that their suspicion was not reasonable. Just because you're a person with dark skin at a car wash and just because perhaps other people who were not documented were picked up at this car wash in previous moments does not rise to the level of reasonable suspicion.

4:14So there are constitutional protections, at least in theory, in this place. They just may not be very operative in practice. Kate from Providence, Rhode Island, asks this. How is ICE able to cover their face? You see a lot of people wearing masks, not wear a uniform, or identify themselves while they conduct their raids. Is there a law that prohibits that? There is not a law that I'm aware of that prohibits that. Unless there's a kind of general law against creepy police behavior, which I don't think we have in this country. I mean, you look at the video of the Turkish woman who was a student at Tufts who was whisked off the street by these masked agents who was not even clear to me that at the time they were apprehending her and basically taking her, surrounding her and putting her in a vehicle, explained that they were law enforcement agents.

5:12So it's something that I think had not really occurred to law enforcement people in a pre-COVID, pre-doxing environment that law enforcement agents would be routinely doing that. So this is one of those maybe there ought to be a law, but there isn't situations. And Jeannie, just following up, what happens if jurisdictions like New York or Los Angeles ban the masks that ICE agents wear? Is that enforceable? And would the Trump administration have a legal recourse there, do you think? Well, if the state or a city jurisdiction were to ban something that the federal government is doing, right, that's a direct clash of federal policy, say, and state government, then you've got issues of federal supremacy.

6:06And so that would have to be argued for. Is there a reason for the federal government to need to have things like masks when they do their law enforcement activity, including ICE? I don't believe that it would be difficult to come up with reasons. We may not accept them. But, for example, we do things like, you know, obscuring the identities of police officers all the time when we're talking about undercover operations and things like that. So maybe a case could be made. But at the same time, in general, when the federal government has a policy and the state government wants to go against that policy, we do believe in federal supernancy.

6:53And that is an issue. Ruth, one listener sends this question. Trump has been floating the idea of denaturalizing and or revoking the citizenship of certain U.S. citizens. Can he do that? And how seriously should we take that? They never taught you these things in law school because he's pushing on areas of the law that are not normally pushed on. But denaturalization is a thing if you obtain your citizenship in an improper way that you've misled authorities about who you are and what you believe and they can come back and show that you obtained it improperly and are not entitled to be a citizen.

7:33It is now actually one of the stated priorities of the civil part of the Justice Department. I do not believe there, though Trump has threatened to do this, there is not, at least extant in the law, a way to denaturalize someone who is, in fact, a natural-born citizen. Jeannie, Jacob Josephson from New York City asks, can Trump legally abolish birthright citizenship with the help of the Supreme Court? Well, with the help of the Supreme Court is the key phrase there. If the Supreme Court rules, contrary to how it's previously ruled, that birthright citizenship does not exist for people who are simply born in the country, then yes, then that will be the rule.

8:20I do not believe that the Supreme Court is on its way to saying that. You don't think the composition of the court has changed in such a way that it would rule in a different way? No, I believe that the Supreme Court will rule that the Constitution mandates that if you're born in the country, you are a citizen. So I don't see this as one of the big risks of this period, that we're going to have a ruling in a few months' time, that if you're born in the United States, you may not be a U.S. citizen. Ruth, you agree? I'm with Jeannie on this. The question is very well phrased. The other piece of the question is, could Trump do this unilaterally?

9:00Could he do it by executive fiat? There is not just the language of the Constitution, but there is a statute on citizenship that makes that clear as well. So you don't even have to reach, if you're the Supreme Court, the constitutional question. You could say the president of the United States cannot do this on his own. Ruth, am I right? The decision about birthright citizenship is tied up with another case having to do with nationwide injunctions. The case is Trump versus Casa, Casa being a Maryland nonprofit, and the Supreme Court decision limited the power of federal judges. Can you at least briefly unpack that?

9:40What's going on with those injunctions? This is the question of what the administration calls rogue, out-of-control lower court judges or local judges willy-nilly issuing rulings that purport to block an effort of the administration, not just in the individual case before it, but throughout the country and to be held up while the litigation proceeds. So let's just be clear that this was not a favorite tactic of the Biden or Obama administrations when they were subject to these nationwide injunctions. And it is not a favorite tactic of the Trump administration when they're subject to them. And there are legitimate questions about whether individual courts ought to be able to do it.

10:29Maybe they could do it if they were a class action. So there's a lot of litigation right now, particularly in the birthright citizenship case, trying to reach the same result of blocking the birthright citizenship order, but doing it through the mechanism of class actions. But this is a tactic that Democratic and Republican administrations have both resisted and that has been deeply hobbled, for better or worse, by the Supreme Court. Lots of people, myself included, for the last 15 years have railed against universal injunctions, which have been used to stop every single major Democratic presidential action that you can think of, including Obama's DACA expansion, which was protecting young immigrants from deportation, Biden's student loan forgiveness initiative.

11:15And so basically you'd see Republican litigants going to places like Texas to get a favorable ruling, and then it would be subject to a universal injunction. Now, we didn't have a lot of trouble seeing why this was a bad thing for those years. And I therefore believe that the CASA decision was correctly decided. And it was premised on the idea that there are these alternatives, as Ruth mentioned, the class action, the ideas that states can sue and get different kinds of relief that are similar. And so the universal injunction, which is like you take one judge, you choose the favorable judge, And then it binds the entire country.

11:57It's something I've been very troubled by for a really long time. We have district courts and we have circuit courts, and those courts operate in their own areas. And so therefore, when they issue an injunction, it should apply to the parties before them and whatever district they're operating in. So can I ask, Jeannie, did you think that the three liberal justices who dissented in that case were wrong? I did think they were wrong. Much of what they were saying was overstated. And they pretty much ignored a lot of the issues that a lot of, you know, liberal jurists and liberal lawyers had brought up during the years in which we were against universal injunctions.

12:43I think they were being colored by the merits issue, which is the underlying issue of birthright citizenship. And I think that was the thing that was the confounding factor that kind of distracted people from seeing the correctness of this decision. Ruth, you want to disagree? While I share your concerns about universal injunctions, I thought this was the worst possible case to limit them in because of the flagrant unconstitutionality. Maybe it will turn out that the exceptions that it provides are adequate to protect us from the excesses of the Trump administration. but I'm not so confident of that.

13:25And I was a little bit more moved by the fears of the dissenters that basically the courts can no longer, lower courts can no longer protect us because it's pretty clear that the Supreme Court doesn't have a big interest in protecting us in the interim while these kinds of litigations continue. So I'm more negative on this than you are. Yeah, I think the part of it is maybe underlying or disagreement is two different visions of what it is, what the role of the courts are and what the role of the Supreme Court is. I mean, for one thing, you can't say, you know, if you limit something for lower courts, that's somehow limiting the judiciary as a whole, including the Supreme Court.

14:06So I don't agree, I guess, with Ruth's assessment that somehow the judiciary was the loser here. I think the Supreme Court was asserting its prerogative to regulate the lower courts in a way that would ensure that they stay in their proper lane. In this very, very delicate, not just delicate, but horrific time in which we have an executive branch that is regularly acting lawlessly, you've got to think really carefully about what is the best way, the most clever and wise way for the Supreme Court to conduct itself and regulate the lower courts in the long run. One possible approach is you think courts are supposed to remedy wrongs immediately, including an unconstitutional executive order, and try to make the president follow the law at every turn.

14:54I see that vision as having some merit. The other one, though, is to make sure that you regulate what the courts do so that they can preserve their legitimacy in the long run so that in this tricky moment, it doesn't lose its way. So it preserves its power to issue rulings that people respect, obey, and do not flout, which is a huge risk in this administration. Ruth, you think that this was the absolute worst case to issue this universal injunction decision. I don't agree with that. I think that exactly in those cases where you'd be tempted to be like, oh, but this one, that is what the rule of law means.

15:35You want to be able to issue difficult decisions like this when the underlying merits issues, one that's extremely contentious. Across the board, the amount of harm that this administration can wreak on children who are born here with an entitlement to citizenship, on departments that are dismantled in an effort to do what you would need a statute to do, which is to get rid of them. I'm thinking about the education department on people who are government employees who are fired, who are entitled to their jobs, but take years and years and years to get their recourse. I think what we are allowing by restricting, and I take all of your points about the role of lower courts and about the ways in which the Supreme Court should conserve its power and authority, but there's so much damage that can be wreaked in the years before things get to the Supreme Court and so much willingness on the part of the Supreme Court to allow that damage to be done that I'm just afraid we're in a very bad place.

16:45If I'm getting this right, is that Jeannie's inclination here and her conviction is that if you are arguing for the continuance of the rule of law, then you have to behave like it. And what Ruth is contending to some degree is that we're in such an emergency time in terms of politics that emergency times require slightly emergency measures in the court. And Jeannie worries that if you reach the other side of the Trump administration, you will be left with a permanently damaged system of justice. Am I getting the disagreement right? No, I think I'm not going to concede that I am the rule of law has exceptions person in this argument.

17:32I'm not saying it has exceptions, but you're worried that the greater damage will be done if it's not rectified by a more aggressive court. I'm worried that enormous damage is being done in the here and now and waiting for the Supreme Court. is being done by the executive branch in the here and now. But in terms of the Supreme Court, is it going to compound that damage? Or is it going to try to wisely navigate through a time when the executive branch lawlessness? I think we at least agree on the crux of the disagreement. We need to throw in there the supine role of Congress in all of this, and whether that should change or not change our attitude towards the role of the courts.

18:15The New Yorker's legal correspondents, Jeannie Sook Gerson and Ruth Marcus. We'll be back with more of your listener questions in a moment. This is the New Yorker Radio Hour. More to come.

18:42I'm Emily Flake, cartoonist at The New Yorker. The New Yorker Radio Hour is supported by Bombas. Summer's here, and we are living for all things outdoors. Whether your thing is jogging, heading to the beach, or grilling in front of your stoop, Bombas makes your comfiest summer staples so you can make the most out of all your summer plans. They've got a whole line of pro-level, sports-specific socks for golf, yoga, the gym, and socks for every kind of runner. I personally do not run if I can help it, but I walk everywhere. And if I don't get my 10 ,000 steps in, my phone will yell at me. These socks are so soft and cushioned right where I need it, whether I'm doing a power saunter in the park or just running a million errands.

19:18Plus, they're airy, sweat-wicking. My feet feel as good after a long day of pounding the pavement as they did when I left the apartment. Head over to Bombas.com slash Radio Hour and use code Radio Hour for 20 % off your first purchase. That's B-O-M-B-A-S dot com slash Radio Hour. Code Radio Hour at checkout. The New Yorker Radio Hour is supported by Mint Mobile. There are things in life that you don't want to be transparent, like your swimsuit or your search history. But when it comes to your wireless bill, transparency is everything. That's why Mint Mobile's wireless plans have no gimmicks and no gotchas, just high-speed data and reliable coverage on the T-Mobile 5G network.

19:58And right now, all plans are$15 per month, even unlimited. Choose from three, six, or 12-month plans and say goodbye to a monthly bill. You can even bring your current phone and your number. To get your new wireless plan for just$15 a month, go to mintmobile.com slash nyradiohour. That's mintmobile.com slash nyradiohour Cut your wireless bill to 15 bucks a month at mintmobile.com slash nyradiohour That's it. There's no catch Upfront payment of$45 for 3 months,$90 for 6 months, or$180 for 12 months Plan required$15 per month equivalent Taxes and fees extra Initial plan term only Greater than 50 GB may slow when network is busy includes up to 20 GB hotspot.

20:50Capable device required. Availability, speed, and coverage varies. See mintmobile.com. Our hometown is not a test tube. 90 miles northeast of Nashville, a battle for the future of America plays out in one small town. Developers with right-wing ties have purchased hundreds of acres of land. We need cities on a shining hill. This is Our Town, a podcast about what happens when a small town becomes the site of a social experiment and fights back. Guess you didn't move in on a bunch of dumb hillbillies now, did you? Listen to Our Town on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

21:34This is the New Yorker Radio Hour. I'm David Remnick. From the battle over birthright citizenship to the gutting of federal government agencies, There is no shortage of Trump legal controversies to choose from. Even I find it pretty overwhelming to make sense of it all. So today we are joined by The New Yorker's legal correspondents, Ruth Marcus and Jeannie Suk Gerson, to help us navigate the new normal that we're all living in. They're answering your questions about the crisis facing the courts in the Trump era. ricka mazaru who is from vancouver asked this very direct question what happens if trump violates a supreme court order and has he already jenny i do not believe that the trump administration's position so far has been i'm not bound by the supreme court in fact one of the really bright spots of Trump versus Caza, the one about universal injunctions, is that in oral argument, the Supreme Court asked the question about Supreme Court orders and Supreme Court judgments.

22:46And the administration said that it is bound to obey the Supreme Court's judgments and opinions, and that also ended up in the opinion. And so I think that that's a very positive thing. So far, we have an executive branch that is acting lawlessly, but it is not of the view that the Supreme Court does not bind it. Ruth, here's a very straightforward question from Sam Klein of Texas, and he asks, is the legal profession changing as Donald Trump consolidates executive power away from the judicial branch? And what does Sam mean there, and what would you say to that? Well, I think it's changing because Donald Trump has scared the bejesus out of law firms, some of whom have capitulated.

23:33But major law firms across this country are not accepting clients, are not bringing cases, are not participating in the kind of pro bono litigation that they were an essential part of in the legal effort to stop some of the initiatives of the first Trump administration. And so like the education and colleges space, the legal profession is changing before our eyes and not in a good way. Jeannie, anything on that? I will disclose that I have filed amicus briefs in all of the cases brought by law firms against the Trump administration about that executive order or series of executive orders about law firms.

24:19And yeah, it's a real problem, even though we have success so far in the courts, so that the law firm executive orders were considered to be unconstitutional. But the bottom line is, as Ruth says, just having a ruling from a court, that doesn't solve the problem because there's still the chilling effect. There's still the idea that people are scared, and who knows what other retaliatory measures could come upon them if they do something that the administration disapprove of. As we're speaking, Jeannie, I have to think that you're in the middle of so much of this. You're in academia. You're at Harvard University.

24:57You write for The New Yorker, and you've seen the pressure on the press, and you filed amicus briefs for these law firms. Yes. It's just an incredible multi-front onslaught that seems to me successful in so many ways. It is successful. Also, I'm an immigrant and a naturalized citizen. There you go. I think Ruth brought up earlier that with the denaturalization debate, when I thought about that, I thought, well, okay, if you lied or there was some falsehood in how you got your citizenship, then that could be a cause for denaturalization. That seems straightforward. But I guarantee you there are lots and lots of naturalized citizens who you could find something that's not perfectly correct in their documents.

25:48I think there are lots and lots of, say, Korean immigrants who came to this country. It was a country that was divided North and South. Where you're from. And birthplace, there's no way that they represented their birthplace as somewhere in North Korea, even though, you know, after the Korean War, they came after their birth to South Korea. So there are just things like that all over the place. And if the federal government is determined to do something to you, they can find a way to do it. And that is what we are finding with Harvard University. When we go back to our earlier, you and Ruth were having an interesting disagreement on a point.

26:28It must be particularly painful to you, Jeannie, to on the one hand be at the center of all this onslaught from the Trump administration as a player in one way or another, and at the same time stick to your guns as you see it about the way the court should deal with these things. It must be a terror. I'm not saying it's contradictory, but I'm saying it must be incredibly difficult. What's excruciating is the lawlessness all over the place emanating from the executive branch. But what we have in our system is that we're stuck with the Supreme Court as a way to push back on that executive lawlessness.

27:10And in the end, it's backed by a theory that the executive branch seems to have, which is about the supremacy of the executive branch. And there's going to be disagreement about how best to deal with that and how best for the Supreme Court to push back on that in the long run, not just one case at a time. And so it will definitely be imperfect, but it's not just excruciating, it's a potential comfort to me that we still have a Supreme Court that hasn't completely blown its credibility and legitimacy, which I would be very tempted to do myself if I were on the court. Ruth, what do you make of the appointment of former Trump attorneys, for example, Emile Bove, Alina Habba in New Jersey, Todd Blanche, to elevate a judicial role in U.S.

28:00attorney positions? Is there any precedent for a president putting such people with such close ties to him personally in these spots, or is that business as usual? Well, we don't usually have presidents coming into office with a stable of criminal lawyers who have represented them in a number of criminal proceedings. and trials before they came into office. To have Emil Bovet with the background that he has and the behavior that he's demonstrated while at the Justice Department, including his role in getting rid of the Eric Adams indictment, about to become a federal appeals court judge, and from there potentially about to be a Supreme Court justice, is really something.

28:41But then if you want to get to the really something we have to talk about, Alina Habba, because she is not unique in the absence of any prosecutorial experience whatsoever in coming in there. She said coming in as a U.S. attorney that she hoped she could use the job to turn New Jersey red. That is not how prosecutors are supposed to use their jobs. This is the sentence I keep saying. This is not normal. I don't feel strongly about this. No, clearly not. Jeannie, we get a lot of questions about the future of the court. During Biden's first term, some Democrats talked about expanding the court or imposing term limits, for example.