What If Trump Just Ignores The Courts? Everyone is asking...
I think we’re beginning to move into the next phase of this Donald Trump term. Remember what Yuval Levin said in our episode last week? There’s a rhythm to the presidency. Presidents begin their terms by unleashing their plans. For weeks and maybe months, the world is responding to them. They set the pace of events.
But soon, because they have exhausted what they can do unilaterally, or because they begin facing events and actors they do not control, or because the very things they have done begin creating uncontrollable backlash, they must begin responding to the world.
Donald Trump’s second term began at — remember Steve Bannon’s term here — “muzzle velocity.” They acted, and the world watched, its mouth agape. But actions create reactions, and we’re beginning to see them and to see how the Trump administration responds to those reactions.
Trump delayed his tariffs after markets shuddered. So far, we are not seeing mass deportations. We’re seeing immigration arrests running at roughly Obama-era levels, but being marketed and conducted with a gleeful cruelty.
And we are now seeing the courts respond. The Trump administration has seen one after another of its most aggressive acts frozen by judges, at least for now: The executive order ending birthright citizenship — frozen. The Office of Management and Budget spending freeze — rescinded and frozen. Transferring transgender female prisoners to male-only prisons — frozen. The Department of Government Efficiency’s access to the Treasury payments system — frozen. The buyout of federal workers — frozen. The destruction of U.S.A.I.D. — frozen.
I’m recording this introduction on Monday, Feb. 10. All of this is moving extraordinarily fast. By the time you hear it, some of it may have changed. These freezes are not the final word. They are a pause on the administration’s actions while those actions are being litigated.
So far, the Trump administration is largely abiding by the court orders. If they began simply saying the court system’s authority is illegitimate, that would throw American politics into a genuine constitutional crisis.
Can the president simply ignore the courts and decide for himself what his power is? And what can or will the courts do if he tries?
Over the weekend, Vice President JD Vance suggested the administration might try just that, writing on X that “judges aren’t allowed to control the executive’s legitimate power.”
That word “legitimate” is doing all the work in Vance’s tweet. Who decides what the executive’s legitimate power is? Typically the courts. Vance is suggesting that it should be the president himself. That also seems to be Trump’s view.
Archived clip of Donald Trump: I have an Article II, where I have the right to do whatever I want as president. But I don’t even talk about that.
We don’t yet know what Vance is really doing here. We don’t know if he’s carrying out a broader strategy that is coordinated with the administration or just freelancing on X. We don’t know if he’s signaling an imminent constitutional crisis or just trying to make himself look tough to the MAGA faithful or useful to Elon Musk.
Is he trying to influence the Supreme Court’s ultimate rulings by telegraphing that, if they rule against Trump too often, the Trump administration will defy them and try to show the limits of their power?
On Friday, I spoke with Quinta Jurecic, a senior editor at Lawfare and a fellow at the Brookings Institution, about the fight it was already clear that Trump was bracing for with the courts and more broadly, the ways in which his actions are now creating reactions throughout the government — and even throughout society.
And then, over the weekend, Vance sent that tweet. So I called Quinta back to see how it changed her thinking, and where her level of alarm now rested. You’ll see that at the end.
Friday, Feb. 7
Ezra Klein: I will say I feel like it’s always a bad sign when I’m reading Lawfare a lot.
Quinta Jurecic: [Laughs.] We joked last time around that our motto was “We’ll tell you when to panic.”
[Laughs.] Have you told us to panic?
I feel like we’re getting there.
Threat level orange?
Yes. Let’s go with that.
Quinta Jurecic, welcome to the show.
Happy to be here.
When you look at what Donald Trump has done through his executive actions in the first weeks of his presidency, what looks to you like it’s merely aggressive and what looks like it is actually illegal or a genuine change in the balance of powers?
I think that’s actually really difficult to disaggregate, because there are a lot of things that might have been lawful but awful — something that is within the president’s legal authority but not something that you would necessarily want an executive governing in good faith to do.
And then the problem is that some of those things, if they had been done in a reasoned way, according to the procedures set out in law, would have been completely fine. But because of the way that the administration has done them, inarguably, in my view, crossed the line.
Can you give me an example of that?
Absolutely. Let’s take the dismantling of the U.S. Agency for International Development.
This is an agency that is created by Congress. If the president thought: I actually don’t think that having U.S.A.I.D. as a separate agency is a good idea — I want to merge it with the State Department. Or: I want to get rid of it completely. That could be done by going through Congress and saying: I’d like you to pass a law to reorganize U.S.A.I.D. or to get rid of it completely.
The problem with the dismantling, the way that the administration has done it, is on the legal grounds that it’s done it by ignoring Congress altogether — arguing for the complete irrelevance of a coordinate branch of government. And on a policy level, it has also dismantled U.S.A.I.D. in such a chaotic and, frankly, cruel way that the immediate ramifications are going to spread well beyond whatever the stated policy goal might be.
There was reporting in The Washington Post, for example, about farmers in the Midwest who had been selling an extraordinary amount of product to U.S.A.I.D. to distribute. They’re now going to have real economic struggles.
So the carelessness of the implementation has policy implications and also serious legal implications. There are things that they could have done, arguably, in one way that would have been acceptable, but that may be held up in court because they were done so carelessly.
When you say “held up in court,” what does that mean?
There is a lawsuit being formed and filed right now that’s been reported on. And let’s say it works its way through the courts, and the court says: Oh, you actually can’t unilaterally dissolve agencies created by Congress.
What is the actual recourse? What does the court order them to do?
This is where it gets tricky. I think the question of what happens if a court says you can’t continue to dismantle this agency — and then the administration says: Try me — is kind of the big question.
The short answer is: That’s what we call a constitutional crisis. And we don’t really know how it would play out. I think it is worth emphasizing that in the first Trump administration, I don’t know of any instance in which the administration flat-out ignored an order of a court.
Trump never said: I’m simply not going to obey a court order. He would post on Twitter about it and complain, but then his administration would comply. When we came into the second Trump administration, I was not actually that worried about him disobeying a court order precisely because of that.
I think there are aspects of the way this administration has governed in these first few weeks that make me more worried. But at the end of the day, the answer to your question is that we simply don’t know.
Let me hold on this question of whether we are in the world of an administration that is pushing authority or courting a constitutional crisis.
In some ways I think U.S.A.I.D. is actually a complicated example because I don’t think they could have gotten that through Congress.
One thing the Trump administration is dealing with right now is that they have such slim margins in Congress and, to put it lightly, have put no effort into working with Democrats. So they’re going to look a lot weaker when they start having to pass bills.
And according to reporting, they’re already having a lot of trouble designing their spending bills to get enough Republican support. So I think they’re quite worried about what happens when they need to start going through Congress.
That’s why they’re doing so much through executive action. But there are things they’re doing through executive action that you could do just legally.
What did you make of it?
Another example is the spending freezes coming out of the Office of Management and Budget. One thing that I think has not been communicated clearly — and as a member of the press that’s maybe partly on my shoulders, as well — is just how big a deal it is that the administration came in and immediately tried to cut off possibly trillions of dollars of spending authorized by Congress, just all at once.
That’s not just a bull in a china shop. That is, again, an effort to usurp the congressional power of the purse, which is the main power that the Constitution gives Congress, as a coordinate branch of government, as a check on the other branches.
Because if Congress says: OK, you’re going to spend this much money on these things and then the president actually doesn’t want to, you’ve really limited the power of Congress to act in a constitutional fashion to exert any power over the executive.
Now it is true that many of these spending authorizations have particular provisions saying: The executive has this level of discretion in how to distribute these funds in such and such a way.
So part of the problem with looking at this O.M.B. spending freeze is that so much spending was frozen that it’s actually really difficult to figure out whether, if they had gone item by item, they might have been able to turn off the switches or redirect funding in a way that could arguably have been legal. But because they just did it all at once, it is, I would say, not only illegal but an active threat to the constitutional order.
This also goes back to this question of compliance with court orders. Because, as you say, there have now been multiple court orders saying you need to stop the spending freeze, you need to turn the money back on.
And yet there have also been a lot of reports saying the various organizations that were getting this money have not actually received it, despite assurances that they would. I think I saw a report that Head Start programs in a lot of states have not been receiving their funding, for example.
I want to try to take the most generous case for what they’re trying to do here.
When I talk to people from the first Trump term, the resistance they faced from the bureaucracy was very radicalizing — a realization that the executive did not control the executive branch, even though the executive is the only person in that branch who is accountable to the voters.
We’re now talking about this usurping of congressional power and the power of the person and the alteration of the constitutional structure. But they say: Look back on history. Presidents used to have the power to not spend all the money Congress has appropriated — which is called impoundment. They did have more power over the federal bureaucracy. Civil Service protections come in at a certain moment in our history, and then they get strengthened over time.
So what they say is that what they’re attempting is not unprecedented. They are trying to go back to something more like the power the executive used to have in the past because they believe that the administrative agencies have become an unelected fourth branch of government out of the president’s control and particularly out of a Republican president’s control.
How do you take that argument?
Two points. First, I think that the fact that Elon Musk is playing an increasingly large role, going around and trying to cut costs in a maximally chaotic and destructive way at all of these agencies, really undermines that argument.
Because if you take the view that unelected bureaucrats not under the control of the president should not have this authority, how do you deal with Elon Musk? Nobody elected him. It’s not even clear what role he has.
Well, I guess they would say he acts at the pleasure of Donald Trump. And the moment Donald Trump wants him out of there, he’s gone. The point is centralizing control back to the president.
I don’t want to get us on too far of a detour here. Taking this argument seriously, a lot of the arguments that the conservative legal movement, for example, have made about the importance of centralizing control, focus on the role of the appointments clause and the importance of having a Senate-confirmed official. Under the appointments clause, you can then serve at the pleasure of the president.
Elon Musk has not been nominated or confirmed to any position. So even if you take this sort of view that it’s very important to have a unitary executive who can act with energy and carry out the president’s will — because of course it’s going to be a “he” — Musk does not fit within that constitutional vision. Because he is functionally an unaccountable private citizen who has kind of been bolted on. And the people working for him are in the same category.
If you look at some of the polling, for example, on Republican approval of Musk playing a significant role in the U.S. government, it has gone down dramatically since the beginning of this administration. If your argument is that we have a serious problem with unelected bureaucrats, then Musk actually is a serious fly in that ointment. So that’s one thing.
The other thing I would say is that walking out the front door and jumping out a fourth-floor window are both ways to leave a building. And if you want to say in good faith that we need to have greater unitary executive control of the government, we want to limit the power of unelected bureaucrats, and so on and so forth, I don’t think that this is the way that you would carry out that project. Because what you have seen now is just wholesale destruction in a way that is going to be very hard to build back.
And you could have made an argument for slimming down these agencies — having more political employees, increasing the president’s ability to fire the individuals leading these agencies at will, in a way that did not need to involve this kind of smash-and-grab effort.
So then you say: OK, is this an example of an administration that comes in and wants to push an, let’s say kindly, extremely aggressive — or to put it unkindly, and perhaps more accurately, an extraconstitutional — vision of executive authority? Or is that an example of total carelessness and total incompetence?
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I think the answer is probably somewhere in the middle. There are reasons to think certainly that this administration has been motivated in a lot of its actions, particularly in the O.M.B. actions, by this kind of extraconstitutional vision of executive authority. But it is also true that if you were an evil genius, and you wanted to pursue that vision in such a way that would kind of get the courts on your side, this is not how you would have done that.
On the other hand, there are ways in which it feels like the Supreme Court that Trump has largely built has given him extraordinary powers and has made the idea that the president is bound by laws into something of a farce.
The president has unrestricted pardon power, pretty much. And then they gave him immunity in his own official acts.
So how do you understand the balance of the Supreme Court, on the one hand, dramatically expanding the president’s zone of immunity and impunity, and your confidence — the confidence I hear from many other legal experts — that they’re not just going to buy into all of this as soon as it gets to them because it turns out they’ve been Trump sleeper agents the whole time?
I don’t want to sound too confident, because I was also confident that they would not give Trump the time of day on the immunity issue. And wow, was I wrong about that. So I want to speak with a certain level of humility here.
The way that I at least understand the court has really changed since the immunity decision, frankly. My metric at this point for whether Trump can get something through the court is — I’m going to say this, and it’s going to sound flippant, but I really do mean it sincerely — whether or not John Roberts thinks that somebody has been rude.
And what I mean by that is: In the first Trump administration, there were a number of things that the administration tried to get through that the Roberts court barred, including the Deferred Action for Childhood Arrivals rescission, for example, and the effort to add a citizenship question to the census. These are examples where the court looked at them and said: Come on, you’ve got to do better than that. At least, for the love of God, give us some kind of an administrative record here. Don’t just show up and say: I did this because I wanted to.
I think that what happened in the immunity decision was in part that Trump’s offenses were farther in the rearview mirror. And Roberts, at least in his majority opinion, seemed kind of offended by the fact that prosecutors were going after these actions to begin with — that it wasn’t gentlemanly in some way, let’s say. And I do think that this is like saying: You know, if the moon were made of cheese.
But if Trump had come in with a number of very well-designed surgical test cases to push the limits of presidential power in a way that I think a court that is disposed to a very particular vision of executive authority would have been really sympathetic to, you could absolutely see the court ruling in his favor on those issues. And it may still on some of these — like the ability to remove the head of the Federal Election Commission, for example. Coming in and just kind of wrecking everything and then saying to John Roberts: Hey, you’re going to back me, right? — I think is not very appealing to Roberts, who wants to see himself as the custodian of this wise, apolitical institution.
And I know that people are going to listen to me and think: But of course the court is just a political institution these days. I think that certain justices on the court — certainly Roberts and, I think, Amy Coney Barrett — want to be seen as more than politicians in robes. And that is going to guide their behavior, as well.
So for that reason, I am very skeptical that things like trying to assert a really aggressive presidential impoundment authority or assert a sensible reinterpretation of birthright citizenship are going to make it through, designed as they have been designed. There are a lot of ways where there are particular authorities the executive could have used to say: We’re going to tweak this funding, we have this authority, etc.
Or they could have said: Actually, Congress puts this condition on this funding stream, and we think that condition is unconstitutional because there are national security concerns. And we’re going to make an extremely targeted court case to argue that the legislative constraints that Congress has placed on the executive’s ability to impound funds are unconstitutional and convince the courts and the Supreme Court on that.
That would be the clever way to do it. And in a way, that would have given you a lot more luck in the Supreme Court. The way that they have actually done it — just kind of coming in with a sledgehammer and smashing everything — is not likely to get the courts on their side.
So if this is a kind of evil master plan to destroy constitutional government, they’re not doing it very well. That doesn’t mean that it’s not extremely dangerous. It is. But I think it’s important to be careful about the extent to which we portray this as part of a very well-thought-through plan.
This is a big argument that I’ve been trying to make recently. Part of the danger in believing that Trump has the powers he’s asserting he has — and believing that everything they’re doing is a good idea — is that if they convince everybody of that, then their success is a lot likelier.
But I don’t think they have these powers. And I don’t think a lot of this stuff is going to work out for them in the long run. It’s early, and their strategy might change, but they don’t seem to have much appetite for backlash and friction. They’ve been getting stopped by courts, and they seem to be stopping.
We understood tariffs to be the thing Donald Trump cared most about. But after he announced tariffs on Canada and Mexico, there was a market reaction, and, at least for now, he has backed off those tariffs entirely, taking basically things Canada and Mexico either already were doing or would have happily done anyway and pocketing those as the win. The Trump administration sort of backed off the O.M.B. spending freeze as soon as the political system started saying: Wait, you’re stopping Medicaid? And U.S.A.I.D. does not really have a domestic constituency aside from liberals who believe in it.
But the Trump administration doesn’t really want difficult fights — at least not yet, which is also why they’re not doing very much in Congress. They want to act like they have all this power. I’m not sure they want to go through the upheaval it would take to actually claim it.
That seems right to me. And I’ll point to another example, as well. One of the most terrifying things that has happened in the last week — and it’s difficult to rank them — is the news of Elon Musk’s wrecking crew of young men who have reportedly been dispatched to a variety of federal agencies to supposedly look for inefficiencies. But it seems from the reporting that what they’re actually doing is barging their way in, demanding access to data and then wrecking as much as they possibly can.
And there are a lot of ways in which that’s concerning. The most concerning has been the reporting about what’s going on inside the Treasury, where I believe two of Musk’s acolytes had access to very sensitive Treasury data — and particularly the corner of the Treasury Department that is kind of the nerve system that actually sends out the payments that the United States government is sending around the world. And that is concerning because it could cause a global financial crisis.
Imagine the worst-possible-case scenario. The U.S. government says: Actually, we’re not going to pay any of this money that we owe anyone. Even if they target that at a very particular sector, you can see how the ripple effects would extend because —
Or even imagine if they just accidentally break it. And they don’t even mean to stop paying everybody, but they stop paying bondholders, and the whole thing goes into chaos because nobody knows how to fix it. Sometimes these systems are very complicated.
Exactly. So reportedly there are two people who had been mucking around in these systems. There was a lawsuit filed trying to block this. The court stated that those two Musk aides should be barred from being able to change anything, that they should only have read access.
Now, to be clear, their having read access is very concerning, but the fact that it was downgraded, or at least that it was downgraded after this court order, is a very good thing.
And then the other thing that happened is, not too long after that court order was issued, The Wall Street Journal reported that one of those aides, a young man whose name is Marko Elez resigned because The Journal confronted him with a number of extremely racist tweets that he had posted. And by racist, I mean that he posted things like: “I was racist before it was cool.” So I’m using his own self-descriptor there.
Now that sequence is reassuring in the sense that they backed down. They blinked. But I was very concerned that we were going to end up in a situation where a court said: Department of Government Efficiency folks, you need to get out of there. And then Elon Musk said no. And then you have a standoff.
Because the U.S. Marshals Service — the agency that actually carries out court orders in these kinds of situations — is actually under the control of the Justice Department. So what happens if Trump then tells the Justice Department not to comply? That didn’t happen.
What the Trump administration really fears and hates is the federal bureaucracy. That is what Elon Musk has basically been tasked with: Break the federal bureaucracy, buy them out, push them out, put them on leave, fire them. That’s what they’re trying to control.
They’re also, at the same time, creating a lot of fury, resistance and anger from that bureaucracy. Even compared with the first term, I’m not sure a lot of these people were planning to be their opponents.
How do you think about these opposing forces?
Like many people in D.C. — and by that I don’t only mean official D.C., I mean D.C., the city where people live. I have spent the last couple weeks having a lot of conversations and hearing about a lot of conversations with people who work in the federal government. People who wanted to work in the federal government, who are connected in some way to the federal government and who are really frightened and angry. And that includes, overwhelmingly, people who are civil servants — who have their own political views but who were extremely prepared to serve this administration as they have served every other administration.
The Justice Department, for example, has a program called D.O.J. Honors that is aimed at pulling in bright young law students and young lawyers to work in the department. It has persisted for many years. People will go into the D.O.J. through that program, whatever their political beliefs, under any administration, because they want to work at the Justice Department. They want to be civil servants.
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That was untouched during the first Trump administration. But within the first two weeks of the second Trump administration, they announced that they had rescinded all D.O.J. Honors acceptances. It’s not clear whether or not they will reopen the program. And the people who are affected by that are Democrats, Republicans and independents. They are not people who were coming in with a particular political agenda.
People who go in through D.O.J. Honors often work for the government for their entire careers, across administrations. So I think there is a real level of hurt that the administration is coming in and treating people in government — people who were excited to go into government, even if their political beliefs were squarely opposed to this administration, because they really believe in the project of apolitical Civil Service and serving their country. So to be treated as enemies in this way is kind of radicalizing.
And you can see this in public. If you look on Reddit at r/fednews, which was previously just a subreddit where people posted: Hey, has anyone heard about this program or that program or whatever —
A quite obscure subreddit.
Yes, not one that I had previously frequented. [Laughs.] And it started being a place where people post: What am I going to do? I have to lay off all these people. I have to rescind all of these offers because of the hiring freeze. I was going to start in this role, and I moved across the country, and I was so excited, and suddenly it has been taken away from me.
That was kind of the first stage. And now what you see is a real anger.
“Resistance” is a loaded word at this point, but there’s a desire to hold on and not give up the ship. And I am sure that if you are sympathetic to the president, that may look to you as these people are #resisting Donald Trump and want to take him down. But I really don’t think that’s what it is.
I think that these were people who wanted to engage in the work of apolitical Civil Service and now feel like they have been stomped on because of nothing that they did — and who now have been turned against the administration because of that.
And I don’t mean they’re going to try to undermine it from within or anything like that. I just mean that there was a willingness to play ball, and that is gone because of the way that they have been treated.
And I think you see that in the bizarre “Fork in the Road” emails that the Office of Personnel Management sent out. This is clearly an Elon Musk effort.
“Fork in the Road” was the title of the subject line of an email that he sent out to Twitter employees when he took over, essentially offering them a buyout program. And he sent the same email to federal employees saying: We will give you this buyout option if you take what they called a deferred resignation, agree to resign, and then leave your position on Sept. 30.
And part of the problem is that the terms of that agreement keep changing. It’s very unclear what people have actually agreed to. It has been blocked by a court until there can be another court hearing. So the status is extremely unclear.
O.P.M. put a “Frequently Asked Questions” on their website that said: We encourage you to find work in the private sector, and this is “the way to greater American prosperity” — for people in the public sector to find more productive work in the private sector.
And there was a really striking post in r/fednews where someone said: I don’t think these people understand why we are engaged in the work that we’re doing. If I wanted to be in the private sector, I could go to the private sector. I am working a very difficult job, for not very much pay compared to what I could make if I left government. And I’m doing it because I believe in this project of public service. I believe in the work that the U.S. government does and what it provides to the world and what it provides to the American people.
And the approach that Musk — and the Trump folks who are aligned with Musk — are taking of: We can just come in, these people are enemies, they’ll find other work elsewhere — who cares? — is just completely orthogonal to the worldview that civil servants take.
If you treat people as your enemy, they’re going to believe you.
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