Kate Shaw, a contributing Opinion writer, hosted a written online conversation with Times Opinion columnist David French and Jack Goldsmith, a law professor at Harvard and a co-author of “After Trump: Reconstructing the Presidency,” to discuss some of the key legal questions likely to arise in the second Trump administration.
Kate Shaw: We’re about a month from Inauguration Day and the start of the second Trump term. The country is likely to witness an avalanche of initiatives in the first days of the new administration, on topics ranging from immigration to the civil service to environmental regulation and more.
I want to ask about the legal questions surrounding many of these efforts, as well as who will play prominent roles in the incoming administration. But first, I thought we could discuss executive power in a second Trump administration more broadly.
In light of the Supreme Court’s immunity decision from the end of the last term, will Trump possess, or claim to possess, more power than previous presidents? Jack, you’ve written about the immunity decision’s “relative insignificance.” Does that mean you think it doesn’t change much?
Jack Goldsmith: The immunity part of the opinion likely won’t change executive branch practice too much, but at the same time I said that I thought the big deal in the opinion is the way it describes presidential power generally. The court adopted a broad conception of the unitary executive that the Trump presidency will put to use far beyond the question of presidential immunity.
Shaw: Do you think the backdrop of the opinion will change the tenor of legal advice around the president, compared with the first Trump term?
Goldsmith: It certainly supercharges the unitary executive theory that Trump 2.0 pledges to rely on — broad presidential control over the entire executive branch, a strong removal power, a power to direct agency action and the like.
David French: We can’t underestimate the collapse of impeachment as a deterrent against presidential misbehavior. The combination of the loss of impeachment as a meaningful check on presidential power and the Supreme Court’s immunity decision now means that presidents enjoy remarkable freedom from both political and legal accountability.
Shaw: So with the elimination of both impeachment (and perhaps congressional oversight generally) and post-presidency prosecutions as meaningful checks on presidential misconduct or overreach, where do you both see the checks on the incoming Trump administration coming from?
Goldsmith: I would not exaggerate how much impeachment (which I agree has been diminished) or the threat of post-presidency prosecution were ever meaningful checks on the president. One important check is that subordinate executive branch officials through whom the president must almost always act should remain subject to criminal law checks — that has always been a powerful force in checking the president (and was in Trump 1.0). The main and very important check beyond that will come from courts, although courts cannot consider every form of abuse. Before Trump 1.0, executive branch norms did a lot of work, but they, too, are much diminished now.
Shaw: Do you also disagree with at least some of Trump’s advisers — like Elon Musk and Vivek Ramaswamy, at least by the evidence of their recent opinion essay in The Wall Street Journal — who think that the Supreme Court will be a reliable ally in a second term?
Goldsmith: I do not think the court will be a reliable ally of the Trump administration. There were many cases in the first term — the DACA case, the census citizenship case, more — where the Supreme Court stood up to Trump. Ultimately it depends on the issue.
French: I strongly disagree with the Supreme Court’s immunity ruling, but as Jack said, a broader view of the current court’s jurisprudence shows that it’s hardly a rubber stamp for Trump and MAGA legal arguments. For example, in addition to the cases Jack mentioned, it turned back several of Trump’s efforts to steal the 2020 election, rejected Republican arguments about the Voting Rights Act and rejected the core of the Trumpist independent state legislature doctrine. It will be a more robust check on Trump than the G.O.P. Congress, and it’s not close.
Goldsmith: In terms of the Trump deregulatory effort, I disagree with those like Musk and Ramaswamy in that op-ed who say that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo (overturning Chevron deference, i.e., that courts should allow wide deference to executive-agency decisions in applying the law) and West Virginia v. Environmental Protection Agency (invoking the major-questions doctrine, which means that Congress must clearly authorize executive branch agencies to take on matters of political or economic significance) will invariably assist their efforts.
French: When it overruled the Chevron doctrine, in theory it gave the Trump administration less discretion to interpret existing federal laws and less freedom of action in the regulatory arena. One way of looking at recent Supreme Court administrative law jurisprudence is that it is pushing lawmaking responsibilities back to Congress and away from the executive branch. If it holds to that jurisprudence in a second Trump term, he may find his regulatory power severely curtailed.
Goldsmith: Even if the Musk-Ramaswamy initiative, DOGE, thinks a Biden regulation runs afoul of the major-questions doctrine, the administration still has to comply with many procedural rules in changing the regulation.
Shaw: At the end of the first Trump administration, there was much talk of strengthening checks on the president — including formalizing internal executive branch constraints on things like political bias in law enforcement. Has any of that happened? If not, what legal guardrails prevent the Justice Department and other federal agencies from targeting political adversaries of the president?
French: At the beginning of Biden’s term, I was hoping he’d tackle both Electoral Count Act reform (to help prevent another Jan. 6) and to reform the Insurrection Act (to limit the president’s ability to deploy troops in American streets). Congress did pass the bipartisan Electoral Count Reform Act, but the Insurrection Act was untouched. Another way of putting it is the Biden administration protected American elections from Trump but did not limit or reform the presidency itself.
Goldsmith: There has been no material reform on strengthening internal executive branch checks on political bias in law enforcement, or much of any other reform of the numerous loopholes and weaknesses in presidential accountability identified in Trump 1.0.
French: There are abundant legal guardrails that protect political opponents from actual incarceration, but few guardrails protecting them from ruinous investigations.
Goldsmith: And that is small consolation for those targeted. An administration can do a lot of financial and psychological damage with groundless investigations and indictments of opponents even with judicial guardrails. Trump and his supporters believe that this is what happened in the Biden administration’s investigations and prosecutions of Trump, which Trump holds up as grounds for retaliation.
French: The targeting of political opponents is most likely to occur in special counsel investigations and the like. Politically, they’re more palatable (Trump can tell the American people that he’s merely trying to find out the facts). I fully expect a Trump Justice Department to retaliate.
Goldsmith: This is part of a broader and awful back-and-forth investigation scheme going back to the Obama era Russia investigation of the Trump campaign, the subsequent Mueller investigation, the Bill Barr-John Durham investigation of the investigation of Trump, the Biden Justice Department investigations of Trump, numerous inspector general investigations of past actions that often were damning, and now Trump’s threatened investigations of his enemies. I am not equivocating here — some of these moves were more justified that others. But the overall effect is a disaster for the Justice Department and the rule of law.
Shaw: For what it’s worth, I do still think there are still some internal guardrails — there needs to be a predicate for even an investigation. But the failure to pursue meaningful reform that would shore up those norms feels like an enormous failure, no question.
Shaw: Let’s shift to the potential personnel in this White House. Do you anticipate that this administration will include most or all of Trump’s pending picks — including people like Kash Patel at the F.B.I. and Pete Hegseth at the Defense Department? And if so, will they be confirmed via the normal Senate advice-and-consent process, or installed via something like recess appointments or the Federal Vacancies Reform Act?
French: Most likely the Senate will confirm Trump’s nominees, and Trump won’t have to resort to attempting recess appointments or to the Vacancies Reform Act. The MAGA response to Senate doubts about Hegseth is instructive. The instant his nomination was in doubt, the “MAGA swarm” activated, and now his nomination looks much more secure. At the same time, we’ve seen key senators express support for Kash Patel.
Goldsmith: I do not think recess appointing will happen — too many political and legal hurdles. And Trump has enormous discretion to fill any slots that fail in the Senate through the Vacancies Reform Act.
French: Trump’s picking his cabinet when he is arguably at the apex of his political power. It’s possible that a small number of Republican senators will stand up to Trump and reject one or more of his worst nominees, but after nine long years of Republican capitulations to Trump, I’d be foolish to predict it.
Shaw: Let’s move on to potential policy initiatives. If Trump really does begin to pursue mass deportation immediately or at least early in his term, what legal obstacles exist?
Goldsmith: Trump has authority to deport. Whether he can do so on a mass scale depends a lot on resources and whether he plans to use the U.S. Armed Forces or the National Guard to help. There are perhaps surprisingly robust authorities to use the National Guard to help with border enforcement — Trump did some of this in his first term, and will likely expand this approach. Also, the writ of habeas corpus will be an obstacle.
Shaw: Right, but expanding beyond the border will raise (also untested) legal questions about the limits of Trump’s authority, won’t it?
Goldsmith: Yes, maybe, depending on what he does. There has been talk about using the Insurrection Act for these ends, but I do not think that will work. He can invoke emergency authorities to use armed service members to build detention camps, though that will be contested in court.
French: I tend to think that the obstacles to mass deportation are more practical than legal. As Jack said, the president does possess broad legal authorities. Many Americans simply don’t understand the sheer logistical and practical challenge of finding and forcibly relocating millions of people. There is a backlog of more than 3.7 million immigration cases, with more than 1.7 million of those people facing asylum hearings. That’s an immense number of people.
Shaw: And the legal and practical may be intertwined. Let me ask another immigration-related question. David, what do you make of the suggestion that Trump might seek to challenge one of the most important — indeed core — guarantees of the Constitution, birthright citizenship?
French: I don’t think there’s a credible constitutional argument for revoking birthright citizenship. The 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The MAGA legal argument is that children of illegal immigrants aren’t “subject to the jurisdiction” of the United States, but that’s fundamentally wrong. They’re subject to American law in every way that matters.
The limitations in the 14th Amendment are designed to deal, say, with the children of diplomats (who aren’t subject to American law) and some of the complexities of 19th-century relationships with American Indian tribes. But illegal immigrants are subject to American law in ways that diplomats are not and members of Indian tribes were not.
Shaw: A few final questions, and if possible, short answers. Which obscure federal statute will Americans become familiar with first: the Impoundment Control Act, the Federal Vacancies Reform Act or the Civil Service Reform Act?
French: I’m going to go with the Civil Service Reform Act. The Senate will likely capitulate on Trump’s nominees, and there is no real indication that MAGA cares much about deficits and government spending. Trump’s deficits were larger every year of his presidency, even before the pandemic. But MAGA does loathe the federal bureaucracy, believing it’s “woke” and undermines Trump. That means taking on the civil service.
Goldsmith: I think the Federal Vacancies Reform Act, which is rising in public salience, and will continue to do so. Trump, like past presidents, was aggressive and imaginative in using the vacancies act throughout his term to manipulate and control the bureaucracy and will be more aggressive and imaginative this term. “I like ‘acting,’” Trump said in 2019, referring to filling vacancies with acting officials. “It gives me more flexibility.” He is going to like it and use it more in his second term.
Shaw: Which constitutional provision will prove newly significant in the coming years: the Recess Appointments Clause, the Speech or Debate Clause or the 22nd Amendment?
French: The 22nd Amendment — but not because Trump will actually seek a third term. There will be endless (and frivolous) social media debates about it, which will only serve to needlessly inflame public anger and anxiety.
Goldsmith: As a scholar of the executive branch, I’ll be predictable and depart from the list to say the executive vesting clause, which will be invoked in ways beyond what the original unitarians in the Reagan administration (two of whom, Chief Justice John Roberts and Justice Sam Alito, are on the Supreme Court) ever imagined implementing.
Shaw: Well, for unitarians, that clause of the Constitution swallows everything else, so it seems fair to depart from my list for it.
Which Supreme Court justice will most surprise us in his or her jurisprudence in the second Trump term?
French: Is it a surprise if I say that the already surprising Amy Coney Barrett will continue to surprise? She’s going to be particularly important in the debates over the precise meaning of originalism, and she’s proved that she doesn’t play ideological favorites.
Goldsmith: Yes, I also think we will see Justice Barrett continue to occupy the powerful center of the court. I also expect Chief Justice Roberts to surprise many by often being there with her in the middle, even on many executive power issues (as he was in many cases in Trump 1.0).
Shaw: Thank you both so much.
The post ‘It Will Be a More Robust Check on Trump Than the G.O.P. Congress’: Three Legal Experts on Trump 2.0 appeared first on New York Times.
