Conservative legal scholar on constitutionality of Trump's first year

Key Concepts

• Imperial Presidency: The concept of a president accumulating excessive power, potentially exceeding constitutional limits.
• Separation of Powers: The division of governmental power among the executive, legislative, and judicial branches.
• Originalism: A legal philosophy emphasizing the original meaning of the Constitution as the basis for interpretation.
• Executive Overreach: The assertion of presidential power beyond what is legally or constitutionally permissible.
• War Powers Resolution: A 1973 law intended to limit the President’s power to commit the U.S. to an armed conflict without the consent of Congress.
• Judicial Deference: The principle where courts defer to the interpretations of government agencies. (Now being overturned by the Supreme Court, according to Shapiro)
• TikTok Divestiture: The legal requirement for ByteDance (TikTok’s parent company) to divest its ownership of TikTok due to national security concerns.

The Expansion of Executive Power Under President Trump – A Year in Review

This discussion analyzes the actions of President Trump during his second term, focusing on the expansion of executive power and potential constitutional challenges. The conversation features Ilya Shapiro, a senior fellow at the Manhattan Institute, offering a conservative perspective on these developments.

I. Executive Actions and Constitutional Boundaries

The conversation begins by outlining a series of actions taken by President Trump in his second term, including imposing unilateral tariffs, asserting control over independent agencies, initiating investigations into political opponents via the Department of Justice (DOJ), deploying federal troops to cities, launching military operations in Venezuela and Iran, and pursuing a nationwide mass deportation campaign. The central question posed is at what point the exercise of presidential power becomes abusive.

Shapiro argues that presidents do possess significant latitude in executing their agendas, particularly within the executive branch. He points to recent Supreme Court rulings that affirm the president’s authority to reorganize the executive branch and remove agency heads. However, he acknowledges that attempts to create new laws or alter existing ones without congressional approval are problematic. Examples cited include the use of the National Guard in cities and the imposition of tariffs, with the latter potentially facing a Supreme Court challenge.

II. Independent Agencies and Presidential Control

A key point of contention is the President’s treatment of independent agencies. Shapiro, grounding his argument in originalism, asserts that these agencies should be subject to presidential control if they are considered part of the executive branch. He frames the issue as a question of accountability, arguing that agencies should not operate as a “fourth or fifth branch” unaccountable to any authority. The Supreme Court is currently considering a case regarding the President’s power to remove a governor of the Federal Reserve, highlighting the complexities of this issue, as the Fed possesses both legislative and executive characteristics.

III. Political Hypocrisy and the “Imperial Presidency”

The discussion addresses the apparent shift in conservative attitudes towards presidential power. Many conservatives who previously warned against an “imperial presidency” now support President Trump’s actions. Shapiro attributes this to a combination of factors, including political tribalism and a general tendency for individuals to adjust their positions based on their circumstances. He acknowledges hypocrisy on both sides of the political spectrum.

However, Shapiro maintains that the current situation is not a radical departure but rather a continuation of a decades-long trend of presidential power expansion, occurring under presidents of both parties. He emphasizes that Congress’s willingness to delegate authority to the president contributes to this phenomenon, allowing it to avoid responsibility for unpopular policy decisions.

IV. DOJ Investigations and Politicization of Justice

The conversation turns to the DOJ investigations initiated during President Trump’s second term. Shapiro acknowledges concerns about the politicization of the DOJ, noting that President Trump himself pledged to end such practices. He concedes that the President has sometimes succumbed to “tit-for-tat” politicization, citing the example of pursuing investigations against figures like Federal Reserve Governor Jerome Powell. However, he also argues that some DOJ investigations are legitimate and target genuine wrongdoing.

V. Military Actions and the War Powers Resolution

The discussion examines President Trump’s military actions, specifically the operation in Venezuela. The question raised is whether Congress has become irrelevant to decisions regarding war and peace. Shapiro argues that Congress’s relevance has diminished, particularly in cases involving limited military interventions that fall short of major wars like Iraq or Afghanistan.

He notes that the War Powers Resolution of 1973, intended to limit presidential power in military matters, has largely been ignored by presidents of both parties. He cites examples from the Clinton and Obama administrations (Kosovo and Libya, respectively) to illustrate this point, arguing that President Trump’s actions in Venezuela are less extensive than those undertaken by his predecessors. He also clarifies that no military action has been taken in Iran, but the President authorized support for Israeli operations.

VI. The Brink of Tyranny and Systemic Issues

The conversation addresses the broader concern that the accumulation of legislative and executive power in the hands of one individual could lead to tyranny. Shapiro argues that the danger lies not solely with President Trump but with a systemic dynamic where Congress abdicates its power to the president. This dynamic is driven by the incentive to avoid political accountability by shifting blame to lower-level officials.

He expresses optimism about recent Supreme Court decisions overturning judicial deference, which he believes will help to check presidential power.

VII. A Specific Constitutional Violation: The TikTok Case

Shapiro identifies the continued postponement of the TikTok divestiture requirement as the most significant constitutional violation committed by President Trump. He explains that this requirement was established by a law passed with overwhelming bipartisan support in Congress and upheld by the Supreme Court. Despite this, the President has repeatedly issued 90-day pauses, attempting to circumvent the law without a legitimate legal basis. He considers this a clear overreach of executive authority.

Conclusion:

The discussion highlights a complex and evolving landscape of executive power in the United States. While President Trump’s actions have undoubtedly pushed boundaries, the conversation reveals that many of the trends observed are not unique to his presidency but rather represent a long-term pattern of executive expansion facilitated by congressional inaction. The role of the Supreme Court in checking presidential power is presented as a crucial, though not always consistent, safeguard against potential abuses. The TikTok case is presented as a particularly egregious example of executive overreach, demonstrating a disregard for both congressional intent and judicial rulings.