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and subscribe at schwab.com slash

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it's Jen. Just a quick heads up before

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we start the conversation. The news

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changed by the time you hear this

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episode. For the very latest news, tune

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in to your public radio station and

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follow updates at npr .org. Big

0:41

news is coming at us at a

0:43

breakneck pace these days, but on

0:45

the cusp of the 100th day of

0:47

President Trump's second administration, let's take

0:49

a pause to go back in time

0:51

to September 30th, 1962. On

0:54

that day, President John F. Kennedy

0:56

sent U .S. military forces to protect

0:58

James Meredith on the campus of the

1:00

University of Mississippi. Meredith was

1:02

the first black student to enroll at the

1:04

school. That night, JFK addressed the

1:06

nation from the White House. Our nation

1:08

is founded. On the

1:10

principle that observance of the

1:13

law is the eternal safeguard of

1:15

liberty, and defiance of

1:17

the law is the surest

1:19

road to tyranny. The

1:22

law which we obey

1:24

includes the final rulings of the

1:26

courts, as well as the

1:28

enactment of our legislative bodies. Even

1:31

among law -abiding men, few

1:33

laws are universally loved, but

1:36

they are uniformly respected

1:38

and not resisted. Americans

1:41

are free and sure to disagree with the

1:43

law, but not to disobey it.

1:46

For in a government of laws and not

1:48

of man, no man, however

1:51

prominent or powerful

1:53

and no mob, however

1:55

unruly or boisterous, is

1:58

entitled to defy a court

2:00

of law. If

2:02

this country should ever reach the

2:04

point where any man or

2:06

group of men by force or

2:08

threat of force could

2:11

long deny the commands of

2:13

our court and our Constitution, then

2:16

no law would stand free from doubt. No

2:19

judge would be sure of his

2:21

writ, and no citizen

2:23

would be safe from his neighbors. That

2:26

moment JFK is describing there

2:28

when the word of the

2:30

Constitution no longer prevails is,

2:33

by most definitions, a constitutional

2:35

crisis. That was

2:37

in 1962. In

2:39

2025, many events

2:41

make it clear the Trump

2:43

administration is challenging our understanding.

2:46

of the rule of law. Over

2:48

the weekend, reports that the administration

2:50

has deported at least three

2:52

American citizens, at least one, according

2:54

to a federal judge, with

2:57

no meaningful due process. In Wisconsin,

2:59

FBI agents arrested a judge,

3:01

accusing her of interfering with deportation

3:03

operations, and new reports that

3:05

the administration has instructed ICE officers

3:07

that they can enter homes

3:09

to apprehend migrants that they think

3:11

are gang members without a

3:13

warrant. So as part of our

3:15

weekly series on the state of our

3:17

democracy, if you can keep it, we're posing

3:19

a big question today. Are we

3:21

in a constitutional crisis? I'm

3:24

Jen White. And I'm Todd Zwollick. You're listening to

3:26

the 1A Podcast. We'll be back with our panel in

3:28

just a moment. Stay with us. We've got a

3:30

lot to get into. This

3:37

This message comes from Charles Schwab. When

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today at mintmobile.com slash switch. Up front

4:23

payment of $45 for three-month five... Let's

4:34

meet our guests. Joining us from

4:36

Ann Arbor, Michigan is Leah Litman. She's

4:38

co -host of the podcast, Strict Scrutiny,

4:40

and assistant professor at the University

4:42

of Michigan Law School. She's also

4:44

the author of the forthcoming book, Lawless,

4:46

how the Supreme Court runs on conservative

4:48

grievance fringe theories and bad vibes. It's

4:50

out May 13th. Hi Leah, welcome back.

4:52

Thanks for having me. And

4:55

Tara Lee Grove, professor and the Vincent

4:57

and Elkins Chair in Law at the

4:59

University of Texas at Austin School of

5:01

Law. Tara, welcome. Thank you for having

5:03

me. So before we go any further,

5:05

let's just define the term. Tara, how

5:07

do you define constitutional crisis? So

5:10

I think it's very difficult to

5:12

define the term constitutional crisis. Some

5:14

people think it is the breakdown in the

5:17

system entirely. Some people

5:19

think that it is when

5:21

officials are questioning the system. I

5:23

think it's an extraordinarily hard

5:25

term to define. But

5:27

I also think it's important

5:29

to consider the following. First,

5:32

when we're trying to figure

5:34

out whether we're in a constitutional

5:36

crisis or not, I think

5:38

it's really hard for people who

5:40

are living in a political

5:42

moment to evaluate that political moment

5:44

while they're living through it.

5:46

I think we'll have a much

5:48

better sense of our current

5:50

moment in a couple of decades.

5:53

The second thing I want to keep in

5:55

mind is that whether we call something a

5:57

constitutional crisis or not, What does

5:59

that mean on the ground? What are the

6:01

implications? Does that change the way that

6:03

people act? Does that change the way that

6:05

government officials act? And

6:07

finally, I think it's really important that whether

6:09

we say we're in a constitutional crisis

6:11

right now or not, things can

6:13

be really bad and really concerning,

6:16

and you can be on the verge

6:18

of a constitutional crisis without necessarily

6:20

knowing that you are in a constitutional

6:22

crisis, and that might be something

6:24

that should motivate people to act differently

6:26

than they otherwise would. Leah,

6:29

your thoughts are how would

6:31

you define constitutional crisis? I

6:33

agree with Tara that it's difficult

6:35

to define, but what I would

6:37

say is to my mind, a

6:39

constitutional crisis exists when you have

6:41

a system whereby at least one

6:43

branch of government is acting in

6:45

ways that are antithetical to the

6:47

existence of a constitutional democracy where

6:49

government is subject to the law.

6:51

And I think under that definition,

6:53

we are absolutely in a constitutional

6:55

crisis. Given this administration's broad and

6:57

systematic disregard for legal constraints of

6:59

various kinds on its power, as

7:01

well as its attacks on institutions,

7:03

institutions, including in civic society, but

7:05

also in other branches of government

7:07

that are possible ways of holding

7:09

them accountable to the law. And

7:11

that is aside from all of

7:13

the individual behaviors, practices, and policies

7:15

that I think are themselves antithetical

7:17

to a country that considers itself

7:19

a liberal constitutional democracy. Well, according

7:21

to some of you, we are

7:23

at a moment of constitutional crisis.

7:26

Here's Tamara from WikiWatch in Florida.

7:28

I think when the Supreme

7:30

Court. gave the president full immunity

7:32

while they're in office. That

7:35

right there changed everything from

7:37

a democracy to an autocracy.

7:39

And not only that, Donald Trump

7:42

is adamant about not paying

7:44

attention to certain constitutional amendments. And

7:46

I find this very frightening.

7:49

That was Tamara and Wiki Wachi, Florida.

7:51

Thanks for that message. Tara, Leah

7:53

has made it clear. She believes we

7:55

are in a constitutional crisis right

7:58

now. What's your view? So

8:00

as I said, I think it's really

8:02

hard for us in our current political

8:04

moment to know whether there's a constitutional

8:06

crisis or not. I think back to

8:08

the 1850s, the time leading up to

8:10

the Civil War, and

8:12

did people know that they were in a

8:14

constitutional crisis? They definitely were, or at least on

8:16

the verge of a constitutional crisis, but I

8:18

think it's very hard to know. But

8:21

I think that Lee is absolutely

8:23

right, that the situation is concerning

8:25

either way. and that there

8:27

are many reasons to be concerned

8:29

about current political moments. So

8:31

what I'm hearing, Leah, you say, yes,

8:33

we absolutely are. Tara, you

8:35

say it's difficult to know in

8:37

the moment. From each

8:39

of you, is it important to

8:41

try to assess and make

8:43

a definitive statement about whether we

8:46

are or are not in

8:48

a constitutional crisis in the moment?

8:50

Because Tara, hindsight, as everyone

8:52

says, it's 2020. But if

8:54

you're faced with having to make decisions

8:56

based on whether or not the country

8:58

is in a constitutional crisis, it seems

9:00

like that hindsight approach can leave people

9:02

in a position of weakness. So

9:06

here's my worry. If

9:08

people are too quick to say we're

9:10

in a constitutional crisis, it makes it

9:12

easier for executive officials to defy the

9:14

courts because they say, well, you know,

9:16

we're already in a constitutional crisis. Why

9:18

would I listen to anything? And I

9:21

don't think that that is all what

9:23

Leah is suggesting should happen. But that's

9:25

my worry just in general in terms

9:27

of this general discussion. So

9:29

my view is that

9:31

executive officials should obey

9:33

the courts. The executive officials

9:35

should care deeply about the meaning of

9:37

the Constitution, and they should be encouraged

9:39

to do so. And I

9:42

think it's very important

9:44

that we as the general

9:46

public emphasize the need

9:48

for the rule of law

9:50

and be careful about

9:52

using terms. that lead people

9:54

to say the rule of law is

9:57

already gone, because I don't think that

9:59

it is. I think there are lots

10:01

and lots of concerning things going on

10:03

right now, but there is still an

10:05

opportunity to encourage executive officials to listen

10:07

to the Constitution, to listen to

10:09

the legislature, and to listen to

10:11

the courts. Leah, your response. I

10:14

think one way of saying we are in

10:16

a constitutional crisis is to convey the gravity

10:18

of the moment and to be asking people,

10:20

what would you do in a situation if

10:22

you were living in the United States in

10:24

the lead up to the Civil War? Or

10:26

what would you do in one of those

10:28

big moments in United States history where it

10:30

felt like we were at a moment of

10:32

almost no return? And I think we are

10:34

at a moment where the question is, what

10:36

kind of country are we going to be

10:38

at the end of the Trump administration? And

10:41

I think, public action and

10:43

public statements and public mobilization are

10:45

all essential to helping enforce

10:47

court orders, to getting the administration

10:49

to comply with the law,

10:51

and to getting other branches of

10:53

government and civic society to

10:55

stand up and ensure the executive

10:57

branch remains accountable to the

10:59

law. So if that means using

11:01

the phrase constitutional crisis, I'm

11:03

totally fine with that. And in

11:05

some ways, I don't think

11:07

the phrase constitutional crisis captures the

11:09

gravity. of the moment that

11:11

we are in. Let's talk

11:13

about the case of Kilmora Brego Garcia. On

11:16

many people's site, this case has an

11:18

indication that we're heading toward a constitutional

11:20

crisis. Just catch us up on where

11:22

we stand. We're going to talk about

11:24

a lot of the specific things out

11:26

of the news that are. that are

11:28

fueling this discussion. Abrego Garcia was deported

11:30

to El Salvador. He was in the

11:33

Seacot maximum detention facility. According to El

11:35

Salvador, he's been moved to another facility.

11:37

Now, what part of this could be

11:39

a constitutional crisis? The judge in that

11:41

case has been extremely upset that the

11:43

government has been ignoring her orders. Indeed,

11:45

the Supreme Court's orders to facilitate his

11:47

return to the United States. So upset

11:49

in fact that she started a two

11:51

week discovery process where she wants to

11:54

hear from witnesses as she wants to

11:56

know who in the government is ordering

11:58

that they defy her orders. Now,

12:00

what's happened just in the last

12:02

week, she suspended those proceedings. Why? Well,

12:04

we can infer why it appears

12:07

maybe she suspended them because the government

12:09

has represented to her that they

12:11

are now working to facilitate his return.

12:13

We don't know because the orders

12:15

were under seal. So we're not exactly

12:17

sure. The White House spokesperson, Caroline.

12:20

and Levitt was asked about this today.

12:22

She didn't say no that the

12:24

government isn't obeying the courts. She said

12:26

he's never coming back. El Salvador

12:28

has been clear. He'll never be returned.

12:30

It wasn't a no. We don't

12:33

know exactly why, but that's just one

12:35

judge. And there are many who

12:37

are very concerned that the Trump administration

12:39

is ignoring their orders. So, Todd,

12:41

you're saying we're sort of in

12:43

this moment where we don't really know

12:45

what's happening behind the scenes. Reground

12:48

us in that. The judge in that

12:50

case, Judge Cines

12:52

in the southern district, in the

12:54

U .S. District of Maryland, has ordered

12:56

the government to undergo depositions to

12:58

be witnesses. She wants to know

13:00

who in the government is giving

13:02

orders to defy her orders that

13:05

abrate, that they facilitate Abraigo Garcia's

13:07

return to the United States. That

13:09

is the order, by the way,

13:11

also of the U .S. Supreme

13:13

Court. Now, she's put that discovery

13:15

on pause. We're not exactly sure

13:17

why those proceedings are under seal.

13:20

We can infer why, because she's

13:22

been so adamant and angry about

13:24

all of this. We can infer

13:26

that she's put it on pause

13:28

because perhaps the government has represented

13:30

that indeed they are trying to

13:32

facilitate his return. that word facilitate

13:34

is gushy. It's mushy. A lot

13:37

of people think the Supreme Court

13:39

was intentionally mushy, which goes to

13:41

the question of, is this a

13:43

constitutional crisis? Are you in

13:45

a crisis if you're violating a

13:47

court order in spirit, but not in

13:49

word? Facilitate is not a black

13:51

and white word, and that's part of

13:53

the problem. Let's pause here. When

13:55

we return, we continue talking about the

13:57

significance of Kilmar -Abrego Garcia's case when

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to use. Let's

15:26

get back to our discussion about whether or not

15:28

the U .S. is in a constitutional crisis. The

15:31

actions of the Trump administration, in the

15:33

case of Kilmora Brego Garcia, are

15:35

what caused Democratic Senator Chris

15:37

Van Hollen of Maryland to

15:39

say this in a conversation

15:41

with semaphore last week. At

15:43

some point the courts are

15:45

going to have to hold

15:47

the Trump administration in contempt

15:49

and with sanctions Nobody

15:51

wants to get there, but

15:54

apparently Donald Trump or someone in

15:56

the White House, maybe it's

15:58

Steve Miller, is interested in reaching

16:00

that point. Because my view,

16:02

we're already in a constitutional crisis.

16:04

They're clearly, if you listen to

16:06

the judge right now, willfully

16:08

and intentionally disregarding the

16:11

court. So, Tara

16:13

and Leah, I want to hear from

16:15

you how significant this case is for the

16:17

Trump administration and our understanding of the

16:19

nation's rule of law, especially if the administration

16:21

does not comply. Leah, I'll come to

16:23

you first. I think it's

16:25

very significant in part because of the

16:27

authority that the administration is claiming

16:30

to have, whether or not it complies

16:32

with the court order. What the

16:34

administration is arguing is they have the

16:36

unilateral authority to designate virtually anyone

16:38

as an enemy alien who can be

16:40

shipped off to a foreign mega

16:42

prison forced to engage in hard labor

16:44

with no due process or meaningful

16:46

opportunity for judicial review. They are simultaneously

16:48

arguing that when an individual is

16:50

in that foreign prison, they basically have

16:52

no method for getting them back. If

16:55

that's right, then, of course, that

16:57

authority would extend to United States citizens

16:59

as well. And over the weekend,

17:02

of course, we learned that the administration

17:04

has indeed exiled at least three

17:06

United States citizens to other countries, at

17:08

least in one case with no

17:10

meaningful due process of law. So I

17:12

think it is the underlying claim

17:15

of authority that the administration is making

17:17

that is so striking. And of

17:19

course, the Supreme Court gave a mushy

17:21

order, and I think it did

17:23

so because the court wanted to speak

17:25

unanimously. That is problematic

17:27

given how some of the Republican

17:29

appointed justices view what is

17:32

happening in the lower courts as

17:34

basically symptoms of the lower

17:36

court suffering from something like Trump's

17:38

derangement system. Trump derangements'

17:40

syndrome, where they think that the lower

17:42

court judges are ruling against Trump because

17:44

they don't like Trump. I talk a

17:46

little bit about this conservative grievance narrative

17:48

in my forthcoming book, Lawless. And the

17:51

prospect that the administration would even defy

17:53

a court order that gave them wiggle

17:55

room is part of what is so

17:57

astonishing and concerning about the future of

17:59

rule of law in this country, because

18:01

it's not just that the word facilitate

18:03

is ambiguous. It's that the White

18:06

House Twitter account posted an image of

18:08

the New York time story reporting on

18:10

the visit with Abrego Garcia with the

18:12

statement that he's never coming back and

18:14

that suggests they are not going to

18:16

try, they are not willing to try,

18:18

they are just committed to the proposition

18:20

that they get to send people to

18:22

foreign mega prisons and never do anything

18:24

to get them back. Well, Tara, I

18:26

want to hear from you on this

18:28

as well, because members of the Trump

18:30

administration have also stated that even if

18:32

Rodrigo Garcia comes back to the United

18:34

States, he's not saying that he will

18:36

immediately be sent somewhere else, which again

18:38

raises this question of due process. So

18:40

what do you think the significance of

18:42

this case is for our understanding of

18:44

our nation's rule of law? So

18:47

I think the case is extraordinarily significant.

18:52

It is true that the Supreme Court

18:55

used the term facilitate, which allows for

18:57

a little bit of ambiguity, but facilitate

18:59

does not mean nothing. And I

19:01

think it's actually quite important that the

19:03

Supreme Court spoke unanimously in this case.

19:06

People have a lot of assumptions about the

19:08

current Supreme Court being very divided along

19:10

political lines. And I think the Supreme Court

19:12

was trying to say there are some

19:14

things that we agree on and due process

19:16

is one of them. There

19:19

are a lot of complicated cases happening

19:21

right now. I'm encouraged by your own

19:23

reporting that it may be that the

19:25

administration is doing something and that may

19:27

be why the district court judge here

19:29

has said, okay, we're going to take

19:31

a pause and let you guys try

19:33

to figure something out. I

19:35

do think the Supreme Court used the word

19:37

facilitate because it is often hard for

19:39

judges to advise the executive

19:41

on what to do when it

19:43

comes to matters of immigration and

19:45

foreign affairs. But again, facilitate doesn't

19:47

mean doing nothing. I

19:50

want to pivot to another story.

19:52

We're watching three U .S. citizens ages

19:54

two, four, and seven were deported by

19:56

immigration officials on Friday. The Trump

19:58

administration says that their mothers who were

20:00

being deported at the time requested

20:02

they join them, but their immigration lawyers

20:04

say the children's due process rights as

20:06

laid out in the Constitution were violated.

20:08

And at least one case, the

20:10

child's father was frantically petitioning the courts

20:12

to keep her in the country before

20:14

the removal. Tara, what's your reaction

20:16

to this story? So

20:18

I think this is a story

20:20

like many of the stories that we're

20:23

hearing right now that's extremely concerning and

20:25

is still very much in development. My

20:27

understanding is that this just happened and

20:29

I think they were gonna see a

20:31

lot more development happening in the coming

20:33

days, but it's certainly deeply concerning. Leah?

20:37

I think it is extremely concerning. The

20:39

district judge who suggested that a United

20:41

States citizen was deported without due process

20:43

has scheduled a hearing. However, that hearing

20:45

is not going to be for at

20:47

least another 10 days. And I at

20:49

least am concerned that the administration is

20:51

going to continue to attempt to abort

20:54

United States citizens, basically stripping some citizens

20:56

of birthright citizenship. Some of the children

20:58

in these cases were, of course, the

21:00

children of undocumented mothers whom the Trump

21:02

administration is attempting to take away their

21:04

birthright citizenship from. And I'm concerned that

21:06

they will will continue to do so,

21:09

at least until a district judge or

21:11

some court orders them not to. So

21:13

a lot of what we've been dealing

21:15

with so far is the narrow question

21:17

of a constitutional crisis, when or if

21:19

the executive disobeys judicial orders. There

21:21

have been a lot of other things going on

21:24

in the news too, though, that speak to the

21:26

question. Here's one. On Friday,

21:28

federal prosecutors, FBI agents, actually,

21:30

arrested a Milwaukee judge who they

21:32

claim got in the way

21:34

of an immigration arrest operation. The

21:36

Trump administration has already been

21:39

publicly calling on federal judges who

21:41

rule against it to be

21:43

impeached. There have been implicit threats

21:45

that Donald Trump might order

21:47

federal marshals not to protect federal

21:49

judges any longer in an

21:52

effort to make them feel vulnerable

21:54

and unsafe. This

21:56

arrest represents another step. Leah, how

21:58

do you read the arrest of

22:01

Judge Hannah Duggan in Milwaukee? The

22:03

message it sends and how it

22:05

fits into this discussion. I

22:07

think the arrest absolutely has to

22:09

be interpreted against the context of

22:11

the Trump administration's broader attacks on

22:14

judges who have attempted to hold

22:16

them to the law, because it's

22:18

not just that the Trump administration

22:20

has arrested a single judge for

22:22

not allowing them to carry out

22:24

a maximal version of their immigration

22:26

enforcement priorities, but it's also that

22:28

the administration has been attacking judges

22:30

who rule against them, calling the

22:32

judge in the Alien Enemies Act

22:34

case a radical left -wing lunatic. is

22:37

suggesting that judges who rule

22:39

against them are acting illegally, calling

22:41

for those judges to be

22:43

impeached. And I think raising real

22:45

concerns about threats of violence

22:47

against judges who rule against them.

22:49

And so I take the

22:51

latest arrest to be an escalation

22:53

in the administration's efforts to

22:55

force judges and to basically browbeat

22:57

judges into not trying to

22:59

hold them accountable to the law.

23:02

And Tara, love your take as well. So

23:04

for quite a while now, I've

23:06

been concerned about attacks on the

23:09

federal judiciary and attacks on individual

23:11

judges coming from a lot of

23:13

different places. And

23:15

years ago, I wrote

23:17

a piece about the norms

23:19

of judicial independence, one

23:21

of those norms being obedience to

23:23

federal court orders. And one

23:25

of the things that I found in studying

23:27

the history of obedience to federal court

23:29

orders, it matters a lot. The

23:31

way that we talk about the federal judiciary, the

23:34

way we talk about federal judges,

23:36

and in that paper and some other

23:38

scholarship as well, I cataloged

23:41

some of the recent attacks

23:43

on the federal judiciary and

23:45

the federal courts. I

23:47

worry frankly in part about attacks on

23:49

the U .S. Supreme Court having a

23:51

trickle -down effect on our attitude towards the

23:53

lower federal judiciary. I

23:55

think it is extremely important whether

23:57

a federal court issues a decision

23:59

we like or that we dislike,

24:02

that we respect the power and

24:04

independence of federal courts. And

24:06

I think anyone who is

24:08

attacking the federal judiciary today or

24:10

in recent years should be

24:12

very, very aware that that may

24:14

impact the power of any

24:16

federal judge to do anything. So,

24:18

Tiara, I just want to have

24:20

you clarify your answer just a

24:23

bit because you talked about attacks

24:25

on the judiciary. And

24:27

I want to make sure

24:29

we make a distinction here

24:31

about criticisms of the judiciary,

24:33

whether it's around questions of

24:36

ethics or even criticisms of

24:38

the decisions they make. And

24:40

the executive office actively moving

24:42

not to obey judges. orders.

24:45

Where are you drawing that distinction? Or to

24:47

arrest them. Or to arrest them. Where are you

24:49

drawing that distinction? Right, so

24:51

of course, many of us have judicial decisions

24:53

that we disagree with and we can

24:55

say, hey, we think the court was wrong

24:57

in that case. I think

24:59

it's a different level when

25:01

people describe the federal judiciary

25:03

as illegitimate, as partisan, just

25:06

across the board, regardless of what

25:08

they're doing, as driven by nothing

25:11

other than their political

25:13

and ideological views. And

25:16

I've been hearing a lot of this

25:18

over the past five or 10 years from

25:20

different people about different judges. And

25:23

I think that kind of talk

25:25

makes it much easier for people to

25:27

talk about attacks on the judiciary

25:29

and on individual judges. So some of

25:31

the attacks on the judiciary have

25:33

been expanding or packing the United States

25:35

Supreme Court. Some of them

25:37

have been disobeying

25:39

particular judicial orders. And

25:41

more recently, we've been hearing more

25:44

and more about impeaching particular judges.

25:46

And I think all of these things

25:48

actually work together. The more that we

25:50

denigrate the judiciary as a whole, the

25:53

easier it becomes for any political actor

25:55

to say, hey, I'm not going to

25:57

obey this particular order, or hey, we

25:59

should impeach this particular judge. And I

26:01

think all of it is deeply problematic

26:03

for judicial independence. We

26:05

mentioned at the top of

26:07

the hour another bit of news

26:09

that came out over the

26:11

weekend related to deportations under the

26:13

Alien Enemies Act. Instructions

26:15

from the administration, Leah

26:18

Litman, that ICE agents may go

26:20

into homes without a warrant if

26:22

they think the person inside is

26:24

a gang member. If they have

26:26

reasonable suspicion, I think is the

26:28

standard in the memo. I think

26:30

I have that right. put

26:32

that one in context of what we're talking

26:34

about today. I think we

26:36

should understand a lot of what

26:38

the administration is doing to basically claim

26:40

the authority to announce exceptions to

26:42

the Constitution. So there the administration is

26:44

basically saying, well, we just decide

26:47

that the Fourth Amendment to the United

26:49

States Constitution, which generally requires a

26:51

warrant in order to enter a home,

26:53

does not apply when we are

26:55

trying to enforce immigration law. They have

26:57

largely argued the same with respect

26:59

to due process in the context of

27:01

immigration. Indeed, I think they

27:03

have argued something similar when we are

27:05

talking about immigration summary expulsions more

27:07

generally, as well as the president's power

27:09

to decline to spend federal funds.

27:12

They've just argued that the Constitution gives

27:14

the president all of this authority. can

27:17

just ignore the fact that the

27:19

Constitution allows Congress to participate in these

27:21

decisions as well. So I think

27:23

across the board, the administration is really

27:25

just declaring the power to make

27:27

exceptions to the Constitution when convenient to

27:29

them. But that's not how constitutions

27:31

work. Let's take a quick break here.

27:33

We'll be back with more of

27:35

the conversation in just a moment. Stay

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28:36

also mentioned federal spending and

28:38

the power of the purse. Let's

28:40

talk doge. The Constitution,

28:42

Article 1 is clear, no

28:45

money shall be drawn from the

28:47

treasury, but in consequence of

28:49

appropriations made by law, that's in

28:51

the Constitution. But Donald Trump,

28:53

of course, has used expansive interpretations

28:55

of executive power to slash

28:58

federal agencies, fire workers, dissolve

29:00

authorities of federal agencies, do away

29:02

with some of them entirely. all

29:04

without the say so of Congress.

29:07

And indeed, the GOP majority in

29:09

Congress has not moved to block

29:11

any of these efforts. They've abrogated

29:13

their authority here. Talk about

29:15

Doge, Leah Litman, a little bit

29:17

in how you see this as fitting

29:19

into our constitutional crisis discussion. Yes,

29:22

so this is one of

29:24

those examples where I think

29:26

it evinces how we are

29:28

in a constitutional crisis because

29:30

you have the administration acting

29:32

in what I think is

29:34

an anti -constitutional way where

29:36

they are asserting the power

29:38

of other branches of government

29:40

and taking away the big

29:42

checks that are supposed to

29:44

exist on executive branch authority.

29:47

Congress's power of the purse,

29:49

its ability to indicate what

29:51

money can and can't be

29:53

spent for, is one of

29:55

its most significant powers, and

29:57

one of the most important

29:59

ways that Congress can keep

30:01

a rogue executive branch and

30:03

administrative agencies in check. Instead,

30:05

what has happened is the

30:07

administration, including specifically through DOGE,

30:09

has been seizing the power

30:11

to usurp Congress's spending power.

30:13

So for example, early on

30:15

in the administration, the president

30:17

signed an executive order which

30:19

then was carried out by

30:21

other federal officials to basically

30:23

freeze all funding at the

30:25

United States Agency for International

30:27

Development, as well as any

30:29

foreign aid that is administered

30:31

through the Department of State.

30:33

But Congress, in several appropriations,

30:35

riders had allocated money to

30:37

those agencies to be spent

30:40

for particular purposes. There is

30:42

also a separate federal law,

30:44

the Impoundment Control Act, that

30:46

was passed in response to

30:48

Richard Nixon's attempts to decline

30:50

to spend federal funds that

30:52

Congress had appropriated. And that

30:54

law does not allow the

30:56

president to institute full -on rescissions

30:58

of federal funds. limits

31:00

the process by which the

31:02

president could implement pauses on

31:04

federal funds and the president

31:07

entirely disregarded that, not just

31:09

in the USAID case, but

31:11

also when it comes to

31:13

withdrawing federal funds from universities,

31:15

when it comes to limiting

31:17

the money that research institutions

31:19

can receive from the National

31:21

Institutes of Health or the

31:23

Department of Energy in order

31:26

to compensate for what are

31:28

called indirect costs, basically costs

31:30

associated with research to help

31:32

carry it out. And as

31:34

you know, in all of

31:36

those instances, Congress basically In

31:38

fact, you had some members

31:40

of Congress suggesting that appropriations

31:42

were not actually laws when,

31:45

of course, they are done

31:47

pursuant to law, appropriations law

31:49

or statutes passed by Congress

31:51

as the Constitution contemplates. And

31:53

so this is an important

31:55

example whereby the executive is...

31:58

one of the more significant

32:00

and potentially powerful constraints

32:02

on its own authority. We

32:04

heard from Paul who wrote, you

32:06

can wax philosophical about definitions all you

32:08

want, but what we have is

32:10

a serious problem of government overreach. Ironically,

32:13

this is historically what those on

32:15

the right have always protested against. And

32:17

Pat in Michigan said, we are

32:19

in a constitutional crisis. What do we

32:21

as citizens do? Since it

32:23

appears that none of our leaders, current or former,

32:25

are willing to stand up for our constitution, we

32:28

the citizens must do our job. We

32:30

must lead the way and demonstrate our

32:32

power. And I think this is one

32:34

of the challenges with a discussion like

32:36

this, because you can talk about the

32:38

definition, you can talk about how to

32:40

decide whether we're in that moment, whether

32:42

it's from a historical perspective or we're

32:44

trying to look backward and make that

32:46

assessment. But at the end of the

32:48

day, people who are concerned

32:50

and there's polling to suggest that

32:52

people are very concerned that the

32:55

executive office is overreaching, they

32:57

don't know exactly what to do

32:59

in this moment. Tara, I'm curious to

33:01

hear your thoughts. If

33:03

people, are concerned that we

33:05

are either approaching or in a

33:07

constitutional crisis, what power

33:09

do they as citizens of this country

33:11

have in this moment? Right,

33:14

so I think this is one of

33:16

the most difficult questions facing everyday people

33:18

because people are both concerned about, or

33:20

many people are concerned about what's going

33:22

on in the world and yet they

33:24

have regular lives that they have to

33:26

have to lead. And I

33:29

think this is something that our country

33:31

has faced on many past occasions. The

33:34

reality is, many of

33:36

our most important successes in

33:38

the courts have come

33:40

not primarily from the

33:43

courts, but from political mobilization.

33:46

It was not just the Supreme Court

33:48

in 1954 issued Brown v. the Board

33:50

of Education suddenly. No, this

33:52

was a long campaign with a

33:54

lot of ground -up support. And

33:56

so I think there's a lot

33:58

of opportunity for political mobilization in

34:01

nonprofit groups and other places. for

34:03

people to start to raise their

34:05

concerns, whatever concerns they may have.

34:07

But Leah, when I hear an

34:09

explanation about things moving through the

34:11

court, we know that takes time.

34:14

Things don't necessarily move through the court very

34:16

quickly. And there for many

34:18

is a sense of urgency. And

34:20

with the Trump administration

34:22

going after individual law

34:24

firms, for example, or

34:27

going after universities, There's

34:29

this sense that the time

34:31

that it will take to have

34:33

things wind through a judicial

34:35

process, it's not going to move

34:37

quickly enough to slow down

34:39

what the administration is trying to

34:41

do. I think

34:43

that's absolutely right. The courts were

34:45

never going to save us, in part

34:47

because litigation takes time. If you

34:49

think about the litigation challenging the funding

34:51

freezes at the United States Agency

34:53

for International Development, for example, when

34:56

the federal government declined to pay

34:58

out some of those contracts, that immediately

35:00

jeopardize the provision of food and

35:02

medical aid to individuals whose lives depended

35:04

on it. And with the delay,

35:06

the food and medicine sits there and

35:09

goes to waste. And those individuals

35:11

can't be made whole if a few

35:13

weeks later, a court directs the

35:15

federal government to all of a sudden

35:17

payout programs that would allow the

35:19

delivery of that food and medicine. Moreover,

35:22

there are some actions that are

35:24

just difficult to unwind for courts. If

35:26

you think about the mass firing

35:28

of federal employees, for example, that's something

35:30

that it's really hard for a

35:32

court to basically restore The status quo

35:34

that existed before the administration fired

35:37

thousands of workers, some of whom might

35:39

have decided to go on to

35:41

other jobs, some of whom might be

35:43

difficult to contact or to find. And

35:46

so courts have real limitations

35:48

that make them highly, highly imperfect

35:50

checks on the executive branch.

35:52

And that assumes that we have

35:54

a system of federal courts

35:56

that is inclined to hold this

35:58

administration accountable to the law. So,

36:01

Tara, you mentioned that we've been here

36:03

before in some way. some would argue

36:05

whether we've been here to this extent

36:07

since 1860 really. Let's talk about... history

36:09

a little bit and what it might

36:12

teach us about the moment that we're

36:14

in. States have constitutions

36:16

in addition to the U .S. Constitution

36:18

that we're talking about and in

36:20

1872 Arkansas spiraled into what legal

36:22

scholar Marcus Gadson called a constitutional

36:24

crisis. Both candidates in Arkansas claimed

36:26

to win the election for governor

36:28

and when a partisan Supreme Court

36:30

ruled in one of their favors,

36:33

the other refused to concede, raised

36:35

a militia, at least 20 people

36:38

died in the ensuing conflict. it's

36:40

more deadly but reminiscent of what

36:42

happened on the steps of the

36:44

Capitol on January 6th. When we

36:46

take this question of a constitutional

36:48

crisis through the lens of history,

36:50

whether at the federal or state

36:53

level, Tara, what do you see? Sometimes

36:56

I'm asked, is the current

36:58

moment the worst that America has

37:00

faced? And I point

37:02

to The decades and decades

37:05

of enslavement of many, many

37:07

people in this country, the horrors

37:09

faced by many people due

37:11

to Jim Crow in the aftermath

37:13

of the Civil War and

37:15

Reconstruction, the country has faced

37:17

a lot of very big crises. And

37:20

I think that's a lesson

37:22

to us that whatever we are

37:24

facing today, There is

37:27

hope for the future, but

37:29

also a lesson that the

37:31

difficult times can be very,

37:33

very long and difficult. I

37:35

think of a case involving

37:37

a Supreme Court finding someone

37:40

to be in contempt of

37:42

court. This was a case

37:44

involving sheriff ship down in

37:46

Chattanooga. That

37:48

case arose out of the criminal

37:51

prosecution of an African -American man

37:53

who was accused and convicted

37:55

of sexual assault of a woman

37:57

and sentenced to death, and

37:59

his attorneys took the case all

38:02

the way up to the

38:04

US Supreme Court. Pretty extraordinary. This

38:06

was the early 1900s, and

38:08

Justice Harlan in the full court

38:10

said, we want to review

38:13

this case and see if this

38:15

individual's rights were violated. While

38:17

the Supreme Court was considering the

38:19

case, a group of

38:21

individuals in Tennessee lynched this defendant,

38:23

and the Supreme Court never got

38:25

to hear the case. What's

38:27

also extraordinary is that the

38:29

presidential administration at the time,

38:31

the Teddy Roosevelt administration, actually

38:34

prosecuted the sheriff and some of

38:36

his deputies for allowing this to

38:38

happen, for allowing this individual to

38:40

not get justice, right? And they

38:42

were ultimately found to be in

38:44

contempt of court. I

38:46

think that's a lesson of what

38:48

courts can do. It's also a lesson

38:50

of what courts can't do. Because

38:52

at the end of the day, the

38:54

sheriff returned to his town even

38:56

after having been convicted of contempt and

38:59

was allowed back into the community

39:01

and was not shamed. Kind of man

39:03

was dead. Leah, quickly.

39:05

Take us to other

39:07

countries with constitutions that have

39:09

slid into autocracies. For

39:11

example, Russia, when you

39:13

take a global look at constitutional

39:15

crises, what do you take

39:18

away from other lessons? I

39:20

think one of the most

39:22

concerning lessons is that there

39:24

isn't a single moment where these

39:26

countries descend into a constitutional

39:28

crisis and cease to be

39:30

liberal democracies. Instead, what happens is

39:33

you have authoritarian leaders who

39:35

basically hollow out institutions and

39:37

provide the appearance of legitimate elections

39:39

or the appearance of an

39:41

independent media or the appearance

39:43

of a legislature or the appearance

39:45

of universities that are independent

39:48

when in reality they have

39:50

exercised such significant coercive economic threats

39:52

that they have made those

39:54

institutions no longer independent and

39:56

consolidated so much authority. in the

39:58

executive branch and entrenched their

40:00

own power. So I look

40:02

at countries like Hungary, for example,

40:05

or Turkey, where, again, they

40:07

have elections, there is media,

40:09

there are universities, and yet, in

40:11

substance, those countries operate

40:13

like autocracies. And that is part

40:15

of what I am concerned

40:17

could happen here, that there wouldn't

40:19

be a single moment where

40:21

people would recognize, oh, we are

40:23

in a constitutional crisis, this

40:25

is the moment at which we

40:27

are going to decide, are we

40:29

going to continue to be

40:32

a constitutional democracy. Instead, it would

40:34

be gradually over time. The

40:36

administration uses the law and legalism

40:38

to effectively convert this country

40:40

into an autocracy. Before

40:42

we go, I would just like to

40:44

point this back to Donald Trump's

40:46

own words on social media on February

40:48

15th. You've heard this quote before. The

40:50

president wrote, he who saves

40:52

his country does not violate any

40:55

law. That's political rhetoric, but

40:57

it makes clear what Donald Trump's

40:59

view of the Constitution and

41:01

his responsibility to follow it, in

41:03

fact, is. A big thank you

41:05

to our guests today. Leah Litman

41:07

is co -host of the podcast, Strix

41:09

scrutiny. She's also assistant professor at the

41:11

University of Michigan Law School. And

41:13

she's author of the forthcoming book, Lawless,

41:15

how the Supreme Court runs on

41:18

conservative grievance fringe theories and bad vibes.

41:20

It's out May 13th. Also with

41:22

us, Tara Lee Grove. She's a professor

41:24

in the Vincent and Elkins Chair

41:26

in Law at University of Texas at

41:28

Austin School of Law, and of

41:30

course, 1A's Todd Zwollick. Thanks to you

41:32

all. Today's producer

41:34

was Avery Jessachapnik. This

41:36

program comes to you from

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