AYESHA RASCOE, HOST:
Almost as fast as President Donald Trump began signing his executive actions, lawyers have been taking the administration to court. Judges have largely been pushing back, temporarily blocking many of Trump's efforts, including pausing the dismantling of government agencies, such as the United States Agency for International Development. President Trump's supporters argue that the president has the power to fire government employees and pull funding. But the litigants say no way. This power belongs to Congress which created the agencies. At the heart of all of this is the Constitution, its checks and balances and lots of assumptions.
SAIKRISHNA PRAKASH: The courts, you know, can issue orders and judgments, and, per the Constitution, I think the president is obligated to follow those orders and judgments. But, of course, there's a practical question, which is how do you get someone to comply with the law?
RASCOE: Saikrishna Prakash is a former clerk to Supreme Court Justice Clarence Thomas, who now teaches law at the University of Virginia.
PRAKASH: The courts are kind of like the pope, right? When the pope says something, lots of Catholics will comply. But if you don't want to, there's nothing the pope can do to you. The court is a similar kind of authority, right? It doesn't have an army. But the executive has almost invariably honored what the court said because it's part of our separation of powers that the courts decide cases. And when they do so, the executive is supposed to honor those judgments, including where the executives are party to those judgments.
RASCOE: What would create a constitutional crisis?
PRAKASH: We can imagine situations where, if judges issued a judgment that we thought was outlandish, that would be a constitutional crisis, and we can imagine situations where the president refused to enforce a judgment. That might be a constitutional crisis. I think, you know, we're not there yet because the president has said he's going to follow the judgment. And from his perspective, it makes sense 'cause he thinks he's going to win. Why would he want this fight?
I think other people who back his agenda want to sound like they're tough, vis-a-vis the courts are saying things that are probably best not said. I don't think that Vance is one of them. I think probably Musk or others who are talking about impeaching judges and whatnot are saying things that are wholly unnecessary.
RASCOE: There are people who may look at what Trump is doing and they may say, can he do that? This seems, on its face, illegal, or if the court said he can't shut down USAID, then he's taking the sign down. And doesn't that mean that pretty much, like, why do the courts even matter?
PRAKASH: One question is, like, independent of what the court's saying is what he's doing legal or not - and it turns out that it turns on some question of statutory interpretation. Most of us have never read that statute. It's sort of like the Biden student loan stuff. A lot of people didn't think that Biden had the power to do this. And it turns out that you thought that more if you were already inclined not to like Joe Biden. If you don't like Trump, you're going to be more inclined to think that what he's doing is illegal. It turns out in the moderate administrative state that the Congress has given vast amounts of authority to the president. Does that mean that he can do anything he wants? No, it doesn't mean that, but there's a lot more discretion than people are aware of.
We have a outdated conception of the way the government works. Congress makes laws, the president executes them and the courts adjudicates disputes. But what's happened over the last 50 or 80 years is that Congress has transferred lots of its authority to the executive. And then what's further happened is that the president feels like he or she should be able to do whatever is necessary to implement their agenda, even if there is no legal authority for it. And that's a function of presidents thinking they have a mandate and then acting upon it and hoping that the courts agree with them, but if they don't, you know, no harm, no foul.
RASCOE: Do you think Americans are losing faith in the judiciary?
PRAKASH: I think a lot of progressives were very disenchanted with the judiciary during the Biden administration. And somewhat ironically, the courts are now the only branch to which progressives can turn to, and so they're now relying upon an institution that they had relatively little faith in. I think the prestige of the judiciary turns in part on what the court does, but it also turns in part on what politicians are saying about the court. And I think in the long run, if, you know, all of our institutions are run down by politicians and interest groups, it doesn't bode well for the country.
RASCOE: That's Saikrishna Prakash, a professor of law at the University of Virginia. Thanks for joining us.
PRAKASH: Great to be with you. Thank you. Transcript provided by NPR, Copyright NPR.
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