The following is a rough transcript which has not been revised by The Jim Rutt Show or Bob Levy. Please check with us before using any quotations from this transcript. Thank you.
Jim: Howdy. This is Jim Rutt, and this is the Jim Rutt Show. Listeners have asked us to provide pointers to some of the resources we talk about on the show. We now have links to books and articles referenced in recent podcasts that are available on our website. We also offer full transcripts. Go to jimruttshow.com, that’s jimruttshow.com.
Today’s guest is Bob Levy. Bob is the Chairman Emeritus of the Board of Directors at the Cato Institute. Prior, he was a Senior Fellow in Constitutional Studies at Cato. Welcome, Bob.
Bob: Great to be with you.
Jim: Yeah, great to have you back. Bob appeared not long ago on EP245 where we talked about the Second Amendment and the Supreme Court. It was a really good conversation. We got a lot of good feedback on it. We’re going to talk about law again today. And it’s really interesting that Bob got into the legal game late in life. After a successful career in business at age 50, Bob went to the Antonin Scalia Law School at George Mason University, where he graduated with distinction. He went on to hold clerkships with a federal district court and a U.S. Court of Appeals before joining Cato.
What are we going to talk about today? We’re going to talk about executive power and maybe the constraints that might be on it. We’re going to start with talking about a topic that’s gotten a lot of interest and a lot of concern, and that is the presidential pardon power. Bob wrote an essay that got published in the Chicago Tribune, and I’m going to start off by reading a hypothetical that he put right up front, which I thought basically heightened the absurdity of the whole thing:
“I do hereby grant unconditional pardons to all United States persons for those offenses against the United States which such persons may have committed to date over their lifetime.”
How about that? And he goes on to say, who would be covered? Everyone. For which crimes? All crimes. So let’s hop in. Tell us about that hypothetical a little bit and is it real? Is it realistic? And then let’s talk a little bit about pardon powers as they are, where they came from, and what we might do about it.
Bob: Well, it’s not too far from real. I mean, we’ve had a couple of pardons that have come very close to that. Ford’s preemptive pardon of Richard Nixon said, and I’m quoting from it, “for all offenses against the United States which he committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” So at least it did define the time period, but it did leave open-ended what offenses we were talking about and included among the offenses that presumably were pardoned, even offenses that nobody even knew whether Nixon committed or not.
And you know, Biden’s preemptive pardon of his family members, plus a whole array of others, including Anthony Fauci and Mark Milley and the House committee that investigated January 6th and the police witnesses that were related to the events of January 6th, that pardon covered all nonviolent offenses against the United States, again, which they may have committed or taken part in. And that was over a 10-year period. Seven of those years was before Biden was even inaugurated.
So you ask if the hypothetical was real and of course it’s not real, but it’s not too far from real. Again, as you indicated, everybody would be covered by that hypothetical. It would cover all the crimes, it would cover all the periods that they may have been committed anytime in the past, maybe even crimes that they never did commit. And then the final question I asked in that Chicago Tribune piece was whether or not that would be constitutional. My answer to that, and that’s really what we should be discussing today, is that it probably would be. A lot of legal authorities think that it would be constitutional, even though I would argue that that case for unlimited pardons is a pretty thin one.
Jim: One thing we should do just for the audience’s sake, there is a pretty strong limit on pardons and that is they only apply to federal criminal cases, they don’t apply to state cases. And most run-of-the-mill crimes are state cases. Rob a store – state case, president can’t pardon you. They also don’t apply to civil actions, as I understand it. So if even in federal court you’re found liable for a $54 million judgment for this, that and the other thing, President cannot pardon that, correct?
Bob: That’s correct. They don’t cover state crimes, they don’t cover civil liability, they don’t cover future crimes, even though as I indicated from the two that I cited, they do cover past crimes, even though they may never have been committed. And they may not cover – this is an open-ended question – whether or not they cover crimes that were committed by the President himself. And that gets to the issue of whether the President can pardon himself. That’s an unsettled issue. Supreme Court hasn’t ruled yet.
Jim: I did do a little research on the pardon power and its history. It goes back at least as far as the British King, where it was initially unlimited and then got gradually constrained by Parliament. Do you know anything about that history?
Bob: I do not know about history back then, but of course it ended up as a result of all that history in Article 2, Section 2 of the Constitution, where the President gets just about total power. The quote in the Constitution is “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” So he definitely can’t pardon himself when he is successfully impeached and convicted. But that’s the only limitation that is stated in the text of the pardon power. And then there were a couple of Supreme Court cases that expanded upon that – those quotes I’m happy to review with you. But essentially those two cases pretty much said the power is unlimited other than the restriction on future crimes and the restriction on impeachment. Other than that, they can cover just about any time period and just about any crime, even crimes that have not been indicted or convicted.
Jim: Interesting. As I was doing my research, I discovered that it was a late addition to the Constitution. It was not in either the Virginia Plan or the competing New Jersey Plan, from which the Constitution was compounded and wrestled around with and compromised around. It came in late in the day from Alexander Hamilton who suggested it. And it’s not entirely clear what the motivation was or whatever, but it was accepted and we moved on with it. Do you have any thoughts on what the purpose of this constitutional provision was?
Bob: Yeah, just a brief comment about that. And that is that there was an ongoing battle between Hamilton and the Madison-Jefferson contingent. The Madison-Jefferson contingent were much more inclined towards checks and balances in the form of two checks and balances, one being the division of power between the feds and the states, and the other the division of power between the three branches. Hamilton was much more in favor of executive power. And that is, I think, the motivation for him to make sure that the pardon power was included in the Constitution because it is one of the core constitutional powers, along with the Commander in Chief clause, along with the power of the President over matters within the executive branch that constitute his gut powers. And that was Hamilton’s objective in cementing the authority of the executive branch, even more so than either the Congress or the judiciary.
Jim: Presumably there must have been a purpose. What was the argument on why this seemingly extremely broad power ought to be granted to a Republican President?
Bob: There were three main purposes. One was to express compassion. That’s a humanitarian purpose. So if somebody gets to be my age and equally feeble and is serving a term and has expressed great remorse and has been in jail for a heck of a long time, and the crime wasn’t all that offensive to begin with, then that would be the sort of circumstance that would justify compassion.
Another is to redress miscarriages of justice. So if there was somebody, for example, given today’s circumstances, somebody in jail for 20 years for possession of some small amount of marijuana under today’s standards, that would be a miscarriage. And I think that would be a legitimate purpose of the pardon power.
And the third was, and we saw this in the case of Ford’s pardon of Nixon, and that is to restore tranquility. So when the nation is torn apart by a major event, in the case of Nixon, of course, it was Watergate. If this were to come up with respect to Trump, it might be his abuse of executive power. But it’s clear that the nation is very much torn apart, and the President in office may determine that the President who was convicted of whatever crimes should be pardoned in order to bring the nation together, to heal the nation. So those are the three presumed purposes: to express compassion, to redress injustice, and to restore tranquility.
Jim: Now, interesting, that third one, I was not aware of how much it was part of the law, but the very first major use of the pardon power was by George Washington, pardoning the participants in the Whiskey Rebellion, which was a fairly serious shaking of the ground around the U.S. Constitution. So that usage goes way back.
Bob: Yeah, there have been a number of others since then. One case I did cite was Ex Parte Garland. That was an 1866 case. And in that case, President Andrew Johnson pardoned a lawyer who had supported the Confederacy. The Supreme Court ruled that the pardon power is broad and absolute, even applying before there was any conviction of a crime.
And then five years later, there was a case, United States versus Klein. There was a law that prevented pardoned Confederate sympathizers from reclaiming their rights to their property. But the Supreme Court ruled that Congress could not limit the effect of the pardon, again showing just how total, how plenary that power was.
And then in Burdick vs. United States, a journalist refused the pardon from President Wilson because he argued that it would imply his guilt. And the Supreme Court ruled in that case that the pardon does have to be accepted in order to be effective. And then finally, in the way of challenges, again, there’s only been four that I’m aware of. The fourth one was Murphy versus Ford, 1975, where the lower court – this did not reach the Supreme Court – the lower court upheld Ford’s pardon of Nixon, confirming what it had already ruled at the Supreme Court level, and that is that a president can pardon someone even if that person has not been indicted or convicted.
Jim: So these are extremely powerful powers the president has, and without any checks and balances. Really, what do you see as the possibilities of abuse of this kind of power?
Bob: Well, I think we’ve seen one – this is my personal opinion that some people might not share – but I think we’ve seen an abuse with the pardon of the January 6th persons convicted of violent crimes against police officers at the Capitol. That, to me, was an abuse of the pardon power. Now, whether or not it’s consistent with the scope of the power, I don’t claim that it’s unconstitutional what the President did, what Trump did, but I do think that he abused his power. The remedy, however, would not be legal. It would be a political remedy. If people had enough angst about his use of the power in that fashion, then they would respond at the ballot box. And so far, there’s no indication that if another election were held today that there would be such a response at the ballot box. So what he did, even though I think on balance it was unpopular, it wasn’t sufficiently unpopular to diminish materially the amount of support he has from the body politic.
Jim: Well, maybe not quite as grievous, but with less recourse, was Biden’s last-hour pardons of his family. Even Hunter, which there was a lot of smoke, if not yet any… Well, actually he was convicted of federal crimes, and there was lots of smoke about corruption and possibly Joe was involved and everything else. And Joe did this at the very end where there was no recourse in election. Do you think that was an abuse of power, if no doubt constitutional?
Bob: I agree entirely. That was – and I didn’t mean by citing Trump’s behavior to be partisan – and I certainly would include Biden’s preemptive pardon of his family, most particularly Hunter, after he had, of course, promised everybody that that would not be occurring. And then also his preemptive pardon of some others, some who I think are innocent. But nonetheless, that doesn’t mean they’re entitled to a pardon. And that would include Fauci and Mark Milley in the House Select Committee and the various witnesses. So those pardons, I think are outrageous. They represent an abuse of the pardon power. In Biden’s case, it’s even worse because there could be no political remedy – he’s already out of office. He had already announced… I don’t recall whether this took place after the election, or at least it took place after he had announced his withdrawal from the election. So there was no political remedy that the voters could have recourse to.
Jim: Yeah, that’s quite interesting. I was playing it out in my head. I mean, there’s some scenarios in the future that if you took these two examples further, you really could lead to some very bad situations. Somebody like, let’s say a Trump could now, and maybe already has, send a signal to his followers that even violent crimes, even fairly atrocious crimes will be forgiven if they’re in the name of the leader. Right now, fortunately, the limit is to DC federal crimes, but it means that one could imagine a Trump or Trump, depending on how bad you think Trump is going to be, essentially signaling to his people, “Beat up congressmen, burn down the Supreme Court. I will forgive you as long as you commit your crime in Washington DC.” Then on the flip side, the Biden pardons strike me as a potential for us sliding into banana republic corruption if that were to become a pattern. Suppose – I don’t know if the Biden administration is any more corrupt than average – but imagine a really corrupt administration that we had in which the president, on the way out the door after the election, after the election of his successor, basically pardons everybody in his administration. And even though everybody knows most of them were thieves and villains, those sort of evolutions of this game make sense to you and sound dangerous.
Bob: They do sound dangerous. And that’s why I suggested in that article that there were limitations that should be made to the pardon power. And if nothing else could be done, given the constitutional provisions, then the proper limitation would have to be implemented by amending the Constitution. I for one, would be very much in favor of that, at least at a minimum, amending it to require that the crime is particularly specifically identified. It can’t be one of these “whatever crimes you may have committed or taken part in,” which was the language used in both the Biden pardons and Ford’s pardon of Nixon. So identification of the nature of the crime, and even some identification of the time period – bear in mind that Biden’s pardons covered 10 years, and as I noted earlier, some of those years, majority of those years were even before he took office. So you wonder how legitimate is that in terms of what is good for the nation? And I think it’s a pretty strong case that there should be some circumscribing of the pardon power.
Jim: Let’s take your suggestion and let’s apply it to the Tranquility case. Let’s use the Whiskey Rebellion, where it was fairly general, lots of people involved, nobody had been charged. I think a couple of leaders had been charged with sedition, but most of the participants had not been charged yet. But there was a movement to do so. How would one operate with a pardon of that sort within the framework that you’re proposing that you’d need to have reasonable particularity the crimes that are being charged? Take a whack at drafting Washington’s pardon for the Whiskey Rebellion after the passage of your amendment.
Bob: Among other items of particularity would be when, what crime, and who. So when – I mean, you could specify when the Whiskey Rebellion occurred. If that’s what the president had in mind was a pardon for those particular events, he certainly could specify when it occurred. Who he couldn’t identify – I don’t believe with particularity the names of individuals, but he could certainly specify that these were the individuals who participated in that act and that the pardon didn’t extend to other persons who did not participate in that act. And then, of course, the nature of the crime itself – he could, if he were implementing the pardon power the way I think it ought to be implemented, identify the nature of the crime, namely the Whiskey Rebellion.
Now, that leaves in the hands of the U.S. Supreme Court the task of interpreting whether or not that’s sufficient particularity. But you know, the Court, as I mentioned in the article, does that all the time when they interpret terms like “unreasonable searches” and “probable cause” and “due process” and “just compensation.” So to determine whether or not there’s sufficient particularity of the crime in the place and the persons, I think is well within the Supreme Court’s competence. So I would favor a constitutional amendment or even an act by Congress and let the court decide whether the pardon power is so broad that it wouldn’t permit Congress to limit the power in that fashion. But if that didn’t work in terms of an act by Congress, then I would favor a constitutional amendment. As your listeners probably know, that’s no mean task. We’re talking about two-thirds of Congress that have to propose the amendment and that has to be ratified by three-fourths of the states. That’s a heavy lift.
Jim: Now, interestingly, if you take – I’m thinking about it here on the fly – you take your proposed amendment and apply it to the other two classes of purpose of the amendment, that seems to be perfectly congruent. So mercy – you know, Bob Levy sitting there in the can at the age of 85 after having robbed his third gas station at the age of 18. And the President says, “Oh, Bob, he was a bad guy when he was a kid, but he’s reformed, we’ll let him out.” And then the second case, the miscarriage of justice, where marijuana is now legal and Bob is sitting in the can for 15 years due to a crazy law back in the day. And specificity works perfectly for those – that crime that day, that person. So essentially your proposal does not break the purpose of the law at all, as far as I can tell. Just requires people to be specific and not provide open-ended immunity. Or in the Trumpian example, the soft promise of such open-ended immunity in the future.
Bob: That’s right. And of course, in my particular case, it would have been most appropriate since I never inhaled.
Jim: Exactly. I believe you. I never bothered to tell such lies. I definitely hung out the freak flag in my days. I mean, being in college in Cambridge, Massachusetts, in the ’70s. Come on now. All right, I think that’s enough on pardons. It’s a really important topic, but somewhat related – Trump is out of the starting blocks right fast in doing things at an unprecedented rate in terms of all kinds of things that are likely to be, already have been challenged in the judiciary. And more challenges threatened and possible. Doubtful any congressional action? A little bit about where you see Trump potentially running into a collision with his constitutional limits of his power?
Bob: Well, the current situation as of – I hope today, although the news is breaking so fast that it’s almost impossible to keep up with it – the following have been blocked by lower courts. Now, none of this, by the way, has gotten to the Supremes, but the birthright citizenship has been blocked. A freeze on grants and loans, transferring transgender prisoners, and closing USAID – those have been blocked. Now, when I say blocked, we’re talking about temporary blocks because the courts have not yet had the time to reach the merits of the case. But one of the grounds for a temporary block is the expectation that the plaintiff in the case is likely to succeed on the merits. So these are meaningful.
The fact that they’ve been blocked – partially blocked – has been DOGE’s access to personal data, particularly Treasury Department data. There have been other accesses that have been allowed to go forward pending a decision on the merits. So that’s why I say partially. And then we have pending: bypassing the civil service regulations, firing the commissioner of the National Labor Relations Board again. Well, you know, this is where you have to distinguish between what you think is a good idea and what is being done in the appropriate manner. I frankly am very much in favor of firing the commissioner of the NLRB. But it really does matter how it’s done.
The buyout of federal workers is still pending. The banning of asylum for immigrants, fast-tracking the deportations, banning transgenders in the military and transgender care for minors, and of course, the legality of DOGE itself. So all of those things are pending. And so far there have been no full Trump wins. So I think for those who are concerned as to whether the courts are going to establish guardrails, and that, after all, is their function under our system of separated powers and checks and balances, at least there’s no immediate concern that I see. The courts so far have done their job. I would hope that they would go further and when they reach the merits, toss some of these things that I do think are beyond the president’s capabilities and authority.
Jim: Yeah, let’s maybe dig into some because, you know, again, I also don’t follow it as assiduously as some. I’ve got a life to live. But I know some people, my wife being one, who follows every little nit and bit back and forth. Do you see some of the things that might be unfortunate, but yet he will probably eventually get adjudicated in his favor?
Bob: I think in his favor, he will be able to bypass some of these civil service requirements and fire government employees in the executive branch. He has fired lower-level employees, FBI agents, Department of Justice attorneys and inspectors general. They are all part of the executive branch. They may, however, and this is the issue to be resolved, be protected by civil service regulations and by contract.
Now, Trump has responded to some of that by offering to buy out the contracts that could require funding. And if so, Congress is supposed to, under the appropriations clause, have the obligation and the authority to appropriate all funds that are spent by the government. Additionally, federal law requires some written reasons and 30 days notice in the case of inspectors general.
Now, Trump may challenge that law and other laws under what he calls, and others call – and this is a raging controversy in legal circles – the unitary executive theory. It says basically the president wields exclusive control of the executive branch. There’s a strong version of that theory that states that any law that gives independence to any other branch or agency or officials would be unconstitutional. If you believe in this unitary executive theory, the president could fire any official at will. We’re seeing on the other side of this, unions challenging Trump’s what’s called Schedule F reforms. That’s a reform that removes civil service protections from higher-ranking career employees.
I think in this case – you asked what’s likely to be approved by the court – the higher-ranking employees, the President may have a decent legal argument. The Civil Service Reform Act exempts from civil service requirements positions that are determined to be either confidential, policy-determining, policy-making, or policy-advocating in nature. And certainly higher-level employees would come under that caption. So he may very well have the authority to fire at will higher-ranking employees. Even though it hasn’t been done in the past, I’m very much less inclined to think that the court will approve his firing of lower-ranked employees that have civil service or contractual protections.
Jim: Now, you mentioned contract. This may not apply to government employees, but in the government contracting arena and in the academic grant arena, one of the things that, as far as I know, is in every single government contract is that the contract can be canceled at any time at the convenience of the government.
Bob: Yes.
Jim: And that’s a really powerful item which in the past has only been rarely used, but it strikes me as a loophole that Trump could drive a truck through.
Bob: Yes, that’s exactly right. Every contract that I’ve seen has a provision that is similar to that. However, I do not think that provision applies in the individual employee context. So his authority to terminate a contract that represents procurement might be a good deal more extensive than his authority to terminate an individual’s employment, given civil service regulation, especially these lower-ranked individuals.
Jim: On the other hand, it would seem like assuming they apply these cases, it might be a very easy way to terminate some of these grants from USAID and elsewhere to NGOs that Trump has targeted.
Bob: That’s right. Now, the other question in those cases is whether or not the grants were established by statute. So if they were established by statute, the general rule is they would have to be terminated by statute, unless within the statute itself, the President has been designated, has been given discretion to terminate. And some statutes do that. But if there is a statute that doesn’t contain a provision authorizing the President to terminate, then I think the termination of a contract would have to be done by Congress and not by executive order.
Jim: Are very many contracts specified? Give $3 million to the Cato Institute at the legislative level? Or are these more baskets that go to something like USAID and they use their authority to decide where they go? Or some of both, I don’t really know.
Bob: Well, if they’ve given millions to Cato, I haven’t been informed and I suspect I would have known about it. So no, I do think these are more like either procurement contracts or research grants, things of that nature, rather than provisions for some think tank to go out and do their thing.
Jim: As far as I know, not too many of them are specific that says, you know, Congress specifies $43 billion to Boeing for thus and such. Rather they specify $43 billion to procure fighter planes and it’s up to the Pentagon to figure out where they’re going to buy them through the administrative law process of government procurement. And I believe all those contracts have the termination for the convenience of the government clause in them.
Bob: I think you’re right about that. I’m pretty sure that that is the case. Most of those contracts do require competitive bidding. There are very few single source contracts. So if they require competitive bidding, then certainly that would be something that could not be directed to an individual party without the competitive bid and the victory by that party in the competitive bid.
Jim: Then we talked about what Congress says. Now, one of the biggest issues on the table is the so-called impoundment provision. There was the Impoundment Act passed back in the ’70s, I think, in response to Nixon that essentially says that if the Congress says spend this money, the executive has to spend the money. There’s been some questions about whether that’s constitutional, what its limits are, et cetera. Do you have any thoughts on whether the Impoundment Act may impinge on Trump’s ability to do what he’s doing?
Bob: Yeah, well, he certainly has suggested that he would resurrect impoundment as a means to control federal spending. The act back in 1974 does provide that any rescission by the President has to be approved by both houses within 45 days. And interestingly, Congress isn’t even required to vote on any presidential request for rescission. And in the past, most of those requests have been ignored by Congress. So they’ve not consented within the 45-day period.
And still all of the recent presidents, I think from Reagan forward, have supported impoundment, as did a lot of politicians across the political spectrum – folks like McCain and Kerry and Gore and former Speaker Paul Ryan. And by the way, Elon Musk supports it and so does Russ Vought, who is Trump’s OMB pick.
The Supreme Court, as you said, hasn’t ruled on the constitutionality of the Impoundment Control Act. But there was a case in 1975 that came close. It was called Train v. New York. And the Court said that Nixon could not refuse to fund an environmental project after Congress had passed it over his own veto.
So I think it’s likely that Trump is going to relitigate this issue, and I think it’s likely that the Court will base its final decision on the Appropriations Clause, which, by the way, does set a ceiling on the amount of spending. Usually the Appropriations Clause, it says basically, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” So that sets a ceiling, but it doesn’t set a floor, interestingly. And of course, impoundment would be a reduction in the amount of spending.
So that will have to be weighed on one hand against separation of powers concerns and the President, who has a duty under the Constitution to faithfully execute the laws. And presumably that means the laws that have been passed by Congress. Now, let me mention one qualification to all of that, and that is that the Court might view Trump’s proposed freeze or delay in expenditures differently than the Court would view impoundment, which is not a freeze or delay, but a refusal to spend.
Unless a statute has a specific date by which the spending has to occur, then the President might be justified – we don’t know the answer to this yet – but might be justified in postponing the spending until he can, and this is what he’s claimed, certify that the spending complies with other laws and executive orders. Now, whether his claim is pretextual, I couldn’t tell you, but I think the Court might look differently on a postponement, a freeze or delay, than on an outright impoundment, a refusal to spend the money.
Jim: I think the first thing that was blocked by the courts was the administration’s attempt to cancel birthright citizenship. Maybe you could tell the listeners where that comes from and what your thinking is on what will happen in that case.
Bob: Yeah, that’s the doctrine that says that anybody born here is automatically a U.S. citizen. It comes from the 14th Amendment. And the 14th Amendment says “all persons born or naturalized in the United States” – and then here’s the key phrase – “and subject to the jurisdiction thereof are citizens.”
The framers of the 14th Amendment in 1868 added the phrase “subject to the jurisdiction” in order to deny citizenship to two groups. One was children of foreign diplomats who had diplomatic immunity and were not subject to our jurisdiction, and children of enemy forces who were occupying the United States. Obviously, they were not subject to our jurisdiction. But Congress surely did intend that children of permanent legal residents would be citizens. And the Supreme Court did address that question and said so in U.S. versus Wong Kim Ark in 1898, 30 years after the 14th Amendment was ratified.
Now that didn’t resolve the status of temporary resident aliens, for example students and tourists, nor did it resolve the status of illegal aliens. They are, you would think, subject to our laws – they can’t commit crimes with impunity, they’ll be arrested and punished if they do so. So they’re subject to our laws, but they’re only subject to our laws temporarily while they’re here. And they can be prosecuted and convicted of violations, but once they go outside the country, they’re no longer subject to our laws.
I think a natural reading of the phrase “subject to our jurisdiction” suggests that their children are citizens if born here. On the other hand, the 14th Amendment wasn’t enacted to address this issue for illegal immigrants. Back in 1868, when the 14th Amendment was ratified, we didn’t have any illegal immigrants because we didn’t have any laws that restricted immigration. So “subject to our jurisdiction” probably meant something like primary and perhaps permanent allegiance to the U.S. as the sovereign and the acceptance of the U.S., and not some other entity, as the principal lawgiver.
So that’s the background. There’s only one case that has come close to resolving this question with respect to illegals, and it’s really not quite on point. It’s a case called Plyler v. Doe, 1982, and it involved illegals’ access to education. The Court – it wasn’t about the 14th Amendment – but the Court did say as an aside, and this is a quote: “no plausible distinction with respect to 14th Amendment jurisdiction between resident aliens whose entry into the U.S. was lawful and resident aliens whose entry was unlawful can be drawn.”
So my sense of the constitutional question goes something like this: if Congress were to deny citizenship to children of illegal and non-permanent aliens, a conservative Supreme Court might uphold that law, maybe with some qualifications and conditions. It’s a close call. It is much less likely that the Court would uphold a unilateral declaration by the President, again by executive order, without parallel legislation. So there again, there’s those two issues that we mentioned earlier. One is what is he doing and whether that’s a good idea – that’s a policy question. And the other is how is he doing it. And it’s the “how is he doing it” that I think most definitely violates the Constitution. It would require at a minimum Congress, and even then, I think it’s a close call.
Jim: Thank you for that distinction. That was actually very, very helpful. All right, in that same vein, let’s talk a little bit about deportations. We did do a deep dive on this one back recently in EP 275 with Rachel Winkler, who was a former Homeland Security policy person and for the last several years has been a hotshot immigration lawyer. We went through a whole bunch of this – a lot of it was on the practical side, what could actually be done. What do you see as the constitutional and legal issues that may or may not constrain mass deportations of illegal immigrants?
Bob: Well, the most basic one is that Congress in Article 1, Section 8, has power over naturalization, and that’s been interpreted to include power over immigration. So it’s not likely that the President can do a whole lot without Congress’s approval. And most particularly in the current context, what the President is proposing to do is to disallow all claims for asylum. That’s quite clearly contrary to U.S. law. U.S. law says, and I’m probably oversimplifying a bit, but just for brevity, it says anyone who reaches the United States, even if they reach it by swimming across the Rio Grande, climbing a barbed wire fence and they get here illegally, they still can make a claim for asylum. And if they do so, they are entitled to a hearing.
Of course, the problems have been a lot of people do that knowing that they are entitled to a hearing. And of course, we don’t have the judges, the administrative officials that are required, the courts, nor do we have the appropriate detention facilities. And so what’s happened? Well, these folks have been told, “Okay, come back in two years and we’ll have our hearing.” And some of them do, but a lot of them don’t.
So I don’t think there’s much question whether or not it would be a good idea to change that law. It is an absurd law, and we simply can’t handle that influx of people. Unless Congress is willing to give the immigration authorities sufficient funding to hire enough judges to create enough facilities that are humane to have the administrative structure that will handle all of this, then if they can’t do that, if they won’t do that, then certainly they have to change the law. But I think, again, back to this distinction of what’s a good idea and what the President can do unilaterally, it may be a very good idea to change the law. It’s a very bad idea to have the President with the unilateral power to override a statute that’s been enacted by the U.S. Congress, and that’s what Trump is trying to do.
Jim: According to Rachel Winkler, there apparently are a lot of areas that have been under-enforced by previous administrations, including Trump. One, particularly about immigrants who have been convicted of crimes, in which case there’s a much more expedited process that could be taken, including requiring them to be held in detention until their case comes up, etc. And so that’s going to be quite interesting that there’s a kind of complicated wall of laws and regulations of various sorts and some things are easier to do and some things are harder to do.
Bob: I agree with you that those things are among the ones that are easier to do. So if somebody has been conditioned, convicted of a deportable crime, then this is simply a matter of executive enforcement. And the executive branch is the enforcement branch. That’s their job to see that the laws are faithfully executed. So this doesn’t involve a change in the law, nor does it involve a unilateral act on the part of the executive branch that would either alter or overturn a previous enactment by the U.S. Congress. This is something within the President’s authority and he certainly is justified in rounding up any criminals who have been convicted of deportable crimes and deporting them.
But the other thing he’s trying to do is related to that – two things. One is Title 42, which is the declaration of an emergency, which Trump says is the basis upon which he can override statutes. And there is an emergency act that gives the President the power, if he declares an emergency, to do certain things that he wouldn’t otherwise be entitled to do. But there’s certainly a considerable question of whether we’re talking about an emergency. Trump has even gone so far as to say this is an invasion. We think of an invasion as an influx of a lot of people who are intent on taking over the government or going to war against the United States or somehow committing violent acts en masse that have as their goal the circumscribing of power that otherwise would have been granted to our existing officials.
Well, we don’t have that. So I doubt that he would have power under this so-called emergency authority to do what he pretends to do. Nor do I think he would have power to reinstitute, although this is a much closer call, what he’s called the “remain in Mexico” power. That remain in Mexico power is that these folks that the law says are entitled to a hearing, they can have their hearing, but they can’t wait here. And of course, the purpose for that is to have them wait in Mexico. Unfortunately, the conditions in Mexico have been something less than humane. But on the other hand, we don’t have the facilities here to detain all those folks. So the remain in Mexico policy has certainly been a deterrent to folks coming here.
On the other hand, there is again the procedural question: Does Trump have the authority to institute a remain in Mexico policy contrary to what the statute calls for? I have my doubts about that.
Jim: Okay, let’s go on to another one. This is the big stick Trump’s been wagging amazingly much, which is tariffs. Apparently, Congress has granted the President quite considerable autonomy about tariffs.
Bob: It has indeed. And the recent laws protect industries that are harmed by global trade and give the President authority to implement tariffs for that purpose. So the real question is whether he has more extensive authority to implement blanket tariffs on all foreign goods, even if coming from particular countries – not just goods that have hindered particular industries which are within his statutory authority, but on all goods, either for multiple countries or single countries.
And in particular, we have the U.S.-Mexico-Canada Agreement negotiated by Trump himself just five years ago in 2020, and that provides for duty-free trade among the three countries. So when there is a treaty that meets the requirements of Senate consent, it’s much disputed whether the President has the ability or the authority to withdraw from that treaty. If the treaty had been implemented without Senate consent as a mere executive agreement, then I think it’s likely that the President could withdraw. Or if the treaty provided specifically within its terms that the President could withdraw at any time, then he would be obviously entitled to do so.
And by the way, the interesting question, and this is out of my usual area of expertise, to the extent I have any expertise, this is more in the area of economics, and that is whether these tariffs are going to be inflationary. Typically, they’re paid for by the importer. So that leads us to a couple of questions. One is, is the tariff then going to be passed on to workers in the form of lower wages or shareholders in the form of lower profits, or is it going to be passed on to customers in the form of price increases? Now, you would think if it’s the latter, if it’s price increases, that that would necessarily be inflationary – not so. It’s possible that customers could pay higher prices, but the offset would be lower prices because they have less money left to pay for other goods. So while there might be inflation in the tariff goods themselves, in terms of the overall inflation level, if there was an offset in price reduction somewhere else, then there wouldn’t be an inflationary impact. On the other hand, it may be that the higher prices in the goods covered by the tariff are counterbalanced by lower sales. And that’s likely to happen. Of course, you price something higher, you buy less of it. And if that’s the case, then of course the price increases in a particular product would be reflected in overall price increases, and would therefore be inflationary.
Jim: Yeah, I would think, particularly in some of these deep-stacked infrastructure things like aluminum and steel. Right. There’s the elasticity to produce more steel and aluminum in the United States is quite limited. It’s not zero. You can run the plants a little harder, but it’s not huge. And you end up putting a 25% price increase on these commodities that are used across the economy. It’s hard to see how that doesn’t float through into end user pricing.
Bob: Yes, I certainly agree.
Jim: Trump has threatened to abolish a bunch of agencies. He campaigned on getting rid of the Education Department. You know, he’s already tried to get rid of USAID and no doubt will try other ones. What is the state of play of the President’s authority to restructure the administration at that level? Does it require Congress? Can he do it unilaterally? Is it an open question?
Bob: Well, yeah. Can the President close an agency like USAID, or for that matter, he’s proposing now to close – we don’t know whether he’s always serious about these proposals – but Department of Education? And the answer is yes, he has that power, but only under specified conditions.
They would be, number one, if the agency is authorized by executive order and not by statute, then it’s pretty clear the President could repeal the executive order. So that’s one pretty clear case. Number two, if the statute establishing the agency gives the President that discretion, then that also is pretty clear. Or number three, sort of a part and parcel discretion issue – is the agency authorized only for a limited period? Then obviously the President has the authority once that period is over.
And if Congress has already appropriated funds to run the agency, then there’s the question: did Congress give the President discretion not to spend the funds? If it did, then the President would be justified in not spending the appropriated funds. And if the agency were out of money, that would effectively close it. If he doesn’t have that discretion, then there’s the issue we just discussed a moment ago – would he unilaterally decide to impound the funds? And if he did, without authorization, what would the Supreme Court say about that?
So those are all the issues that are very complicated as to whether or not he can close an agency. It’s a slightly different issue as to whether he can remove an agency head. The Constitution interestingly covers appointment of agency heads but doesn’t say a word about removal.
So there was a big case in 1935 called Humphrey’s Executor vs. US and the Court held that the Federal Trade Commission didn’t exercise executive power. If the President, who of course is the head of the executive branch, wanted to remove an FTC commissioner, it would be outside of his executive branch. And so he could not do so simply at will – he could only do so for cause.
And then in another case involving the independent counsel issue, did that violate separation of powers principle? And the Court said no, it didn’t because the President could fire the independent counsel, would not increase the power of one branch at the expense of the executive. So the President wouldn’t be blocked from carrying out his constitutional obligation to ensure that the laws were faithfully executed if there were a requirement for firing only for cause. And that sort of was the sense of law until five years ago.
And we had this case involving the CFPB. The Consumer Financial Protection Bureau was a 5-4 case along straight ideological grounds. Seila Law was the name of the case and that held if removal was only for cause – and by the way, those are things like inefficiency or neglect or malfeasance – whether such a law requiring for cause only would violate the separation of powers. The Court noted that the CFPB was headed by one director with substantial executive power. And the Court concluded that Congress can’t restrict the President’s removal discretion except if it was an inferior officer, certainly not the head of the agency, and that officer had limited duties and no policymaking or administrative authority, or if the agency was headed not by one person but by a commission, and that commission was balanced, as is required for a lot of agencies, along partisan lines, and they have staggered terms and they perform mainly quasi-legislative or quasi-judicial functions.
So that again is the new state of the law. And by the way, the President can – I don’t think there’s much debate about this – he can remove the chair of an agency from his leadership role, but without removing him from the agency itself.
Jim: I’ll tell you about my big picture takeaway from this discussion so far. I wish I owned a Porsche or Mercedes dealership in the D.C. area. This is going to be a feeding frenzy for lawyers for the next four years, and all those fat cat lawyers in D.C. are going to get fatter.
Bob: Yeah. And you can see from our discussion how complex this all is, number one, and number two, how barren it is in terms of Supreme Court precedent. So it is both very complicated and without any guidance that has been promulgated by the court. So that does mean, as you put it, a feeding frenzy for lawyers.
Jim: Too bad you’re retired.
Bob: Yeah, that’s right.
Jim: Let’s now go to the last thing we’re going to talk about, which is how might this actually play out? You know, Trump does X, a court says no, he does it anyway. What are some of those scenarios where the branches collide? We have the case of allegedly Andrew Jackson telling the Supreme Court to go pound sand and he got away with it. Run through some scenarios of what might happen in the back and forth between the executive and the judicial, and possibly the legislative. But it sounds like this is going to be mainly between the judicial and the executive.
Bob: Yeah, of course. You’re asking me the $64 – well, I guess in today’s terms, the $64 trillion question. So the answer, of course, is I don’t know what’s going to happen. But just a couple of observations.
What we have seen over the past decade, maybe even longer than that, is an increase of the power of the President. We’ve seen an abdication on the part of Congress – I think quite a craven abdication. The Congress has just ignored its constitutional responsibility to be the lawmaking body and has delegated that authority not only to presidents, but even more importantly to these administrative agencies. There are more than 300 of them now that exercise lawmaking authority, even though the Constitution says in its very first sentence after the preamble, “All lawmaking powers vested in Congress.” Congress has found it comfortable to ignore that.
We’ve also seen, I think, particularly lately, some increase in the authority of the courts. I think primarily that’s because of the abdication by Congress. So the courts have sort of made up for Congress’s dereliction by increasing its power and serving as the main guardrail against an overreaching executive branch, and in particular an overreaching administrative state. And we saw a major reining in of administrative power with the overturn of the so-called Chevron doctrine in a recent case.
So you ask what would happen if the president were to simply ignore the court’s pronouncement that what he is doing is impermissible, either because it violates a statute or it violates the Constitution. Trump has, I might add, said as recently as a day ago that he would abide by the dictates of the courts, even though he didn’t agree with them. Of course, we don’t have a great history of reliance on what Trump has said from time to time. So we’re not sure that that’s what he would do.
Even if he said that he would do it, what would happen if he didn’t do it? And again, I’m not sure. The contempt power of the courts, or the Congress for that matter, does not extend to the presidency. It does extend to other members of the executive branch. But the Justice Department has a policy that says that you can’t indict, much less convict, a sitting president. So at best they could hold him in contempt after he leaves office. But that wouldn’t do much to resolve the problem.
So the obvious recourse, and frankly, the only recourse that I see, given that Congress seems to be groveling, seems to be subservient to Trump’s wishes – the only recourse is impeachment. And you know how likely that is. Not very likely. I think it would be a very serious constitutional crisis if that were to happen. On the other hand, I don’t think we’re there. I think the courts are doing what they’re supposed to do. And so far, at least, Trump hasn’t indicated that he’s going to create a constitutional crisis by simply refusing to do what the courts have done.
Now, that said, one reason he hasn’t created a crisis is the court hasn’t really reached the merits on any of these issues. And the one big case where the court did rule was the immunity case, which its immediate impact was on the January 6 charges, but its much more important impact is on an overall and general increase in the power of the presidency.
So Trump has little to be concerned about at the moment. He’s had one big case go in his favor. And even though he lost the cases about election denialism, I think he’s comforted by the fact that he’s been reelected. So his concern now about the current judicial environment, I think, hasn’t reached a point at which he could say that he’s happy or unhappy because the courts haven’t yet ruled with finality on these very significant issues that are now in play.
Jim: So we talk about the fat cat feeding frenzy of lawyers in Washington. How long will this take to play out? He wants to fire the head of an agency and he gets a TRO from a federal judge, says he can’t do it for two weeks or whatever. What happens then? How does this play out?
Bob: Well, it could play out very quickly. If he does something that really does create a serious fiscal effect or a serious personnel effect or some impingement on the operations of a major agency, then I think the courts would move very fast. Of course, we’re at the discretion of the trial judge. That’s where it goes first. And trial judges are under no particular timetable. Some of them work very quickly. You know, we have in Virginia what’s called the rocket docket because the judges have moved very quickly. But in other jurisdictions it takes a long time. Now it’s less likely to take a long time when the issue, of course, is very important. So I could see that these things would move through the courts in a matter of, even up to the Supreme Court, in a matter of low number of months. I couldn’t see anything happening immediately because it has to go through the trial courts and the appellate courts even before it gets to the Supreme Court, unless there’s a statute that requires and provides for direct Supreme Court jurisdiction.
Jim: Okay, so we expect that assuming Trump decides not to violate any court orders, this will take some single digit number of months to play out on a number of these big questions. Does that sound about right?
Bob: Well, we’ll have a decision in the trial court relatively quickly, I think, but then it has to go to the appeals court. Yes, that could take a while because then you have, of course, briefing and even in the trial court you have discovery and interrogatories and the like. So even if we get a quick decision in the trial court, it has to go to the appellate court where you’ll have briefing by the parties. And then of course, the Supreme Court will have jurisdiction. Now, I do think that the Supreme Court may in some of these cases decline to take the case. And that would be true if there were no split in the circuits and particularly Chief Justice Roberts, who’s an institutionalist and who’s concerned with the institutional reputation and respectability of the court, he may want more than anything else not to go near some of these issues. And if there’s no circuit split, and that could be the case with something like birthright citizenship, which I think is a relatively clear-cut case, if there’s no circuit split, it may be the Supreme Court will simply say we’re not going to take it and then we’d have a final answer very quickly.
Jim: Interesting. Now, presumably a lot of these administrative law questions are going to be adjudicated in the Court of Appeals for the District of Columbia. What’s the current constitution of that court? I really haven’t looked at it recently, but that’s always been called the second most powerful court in America.
Bob: Yeah, I, you know, frankly I haven’t looked at it either, but my recollection is that it’s slightly left-leaning. It used to be a pretty conservative court, but I think as a result of retirements and justices moving to senior status and Obama’s considerable number of appointments, I’m not sure about whether Biden had much effect, but certainly Obama did. And I think that court now is a relatively left-leaning court.
Jim: That’ll certainly be an interesting place where the rubber will meet the road as this plays out. Alrighty, Bob, I really want to thank you for a very wide-ranging, very erudite conversation about what might happen here in the months ahead.
Bob: It’s been great to be with you and we covered, I think, quite a lot of ground. There’s a lot of ground to cover and every day you pick up the newspaper, that ground shifts as we read.
Jim: Absolutely. Audio production and editing by Andrew Blevins Productions. Music by Tom Muller at modernspacemusic.com.