What if There’s No Way to Stop Trump’s Approach to Power?

Mr. Douthat is a columnist and the host of the “Interesting Times” podcast.

President Trump may forever reshape the boundaries of executive power. This week on “Interesting Times,” Ross Douthat and Jack Goldsmith, who was the head of the White House’s Office of Legal Counsel under President George W. Bush, discuss which cases are most likely to win in the courts and permanently expand the executive branch — for better or worse.

Below is an edited transcript of an episode of “Interesting Times with Ross Douthat.” We recommend listening to it in its original form for the full effect. You can do so using the player above or on the NYT Audio app, Apple, Spotify, Amazon Music, YouTube, iHeartRadio or wherever you get your podcasts.

Ross Douthat: Jack Goldsmith, welcome to “Interesting Times.”

Jack Goldsmith: Thank you for having me, Ross.

Douthat: So let’s dive right in.

In a recent essay, you wrote that Donald Trump is “taking a moonshot on executive power.” So let’s start generally: What does that mean, and how is this administration different from all other administrations?

Goldsmith: The Trump administration is pushing executive power to unprecedented places in new ways on many dimensions. I’ll divide it up into a couple.

First, vertically down through the executive branch, the administration has taken an unprecedentedly broad view of the unitary executive theory. Maybe we can talk about that more later, but the basic idea is that the president gets to completely control the executive branch. Its decisions. Its firings. The interpretation of the law. The president’s views of the law prevail for the entire executive branch, and everyone has to get in line for that. And there have been elements of this before, but this is much more extreme than ever. That’s the vertical dimension.

The horizontal dimension is that they are asserting super broad executive power claims vis-à-vis other institutions that have checkpoints against them, trying to weaken those institutions.

Let’s start with Congress. The executive branch has basically been attacking Congress’s appropriation power, its core power. It’s been attacking Congress’s traditional ability to determine which agencies are which and how they’re organized. And it’s doing something analogous with courts. It has been extremely aggressive in pushing back against and game playing with courts. I would not say that there has been any sort of systematic defiance yet, but they’ve come close to the line and they’re being extremely disrespectful toward courts.

And then they’re pushing out executive power against civil society. You see this in the law firms, the universities and the like.

So horizontally and vertically they’re pushing executive power, sometimes through interpretation of statutes, sometimes through Article II.

Douthat: So we’re going to get into each of those areas. But just at the outset, we expected something like this. I think it was clear from the beginning that Trump back in power was going to be a more aggressive figure. What in this area has surprised you the most, given that anticipation?

Goldsmith: So several things have surprised me. I wasn’t prepared for the extent of the onslaught. It’s really just remarkable how many things they’re doing, especially inside the executive branch, to try to bring complete control of the president.

And I wasn’t expecting the extent of the loyalty tests and the insistence that the president gets to determine what the law is and that there’s no independent legal check.

Douthat: And this relates to the work that you did under George W. Bush.

Goldsmith: Very much what I was doing in the Bush administration.

So my old office, the Office of Legal Counsel, which was traditionally in the Justice Department, traditionally the office that made legal interpretations for the executive branch subject indeed to the review of the attorney general and the president. That office has been basically set aside and the White House is interpreting law, and the basic rule appears to be if the president wants to do something, it’s lawful.

That really does seem to be the operating principle. So the extent of that surprises me. The extortionate elements of the administration, the shakedown elements. They remind me of a book I wrote about Hoffa and the mob. That has all surprised me.

I’m talking mostly about ——

Douthat: This is the law firms.

Goldsmith: And arguably what they’re doing a little bit with the universities.

They’re going beyond what Biden and Obama did and imposing penalties that are probably not lawful in the sense that they didn’t comply with the process. So doing something pretty overtly illegal to try to force settlements knowing that the universities are in a bad position and might not push back — I didn’t anticipate that form of aggressiveness.

Trump and his administration were pretty bad in their disrespect of courts in the first term. In fact, it was about eight years ago that the chief justice issued an announcement not unlike the one from three weeks ago saying that the president needs to stand down a little bit in his criticisms, but this time, they’ve gone much further.

And frankly, I don’t really understand the strategy. It has been a strategy of utter contempt for the courts. Reading directives narrowly, filing massively disrespectful briefs, threatening noncompliance.

I didn’t expect the extent of that, and I don’t fully understand what goal it serves.

Douthat: And so, connected to that point, there’s been a lot of talk just in the first few months from critics and skeptics of the administration looking at these things and saying: We’re already in a constitutional crisis. The administration is messing with the courts, being disrespectful to the courts, not following congressional statute and so on.

In your view, what is a constitutional crisis, and how will we know we’re in one?

Goldsmith: So I’m going to give you an answer you won’t like.

I don’t like that terminology. I don’t like that conceptualization because it gives one a sense that there’s an all-or-nothing line, after which we’re in a crisis. And I’m not quite sure what happens when that crisis hits.

Here’s the way I think about it: There has definitely been a diminution, a significant diminution, in legal checks on the president. He’s wiped them out inside the executive branch. Congress has not only been silent, but it’s facilitated the wiping out of including congressional prerogatives by confirming people that they knew were going to do things that were going to emaciate Congress.

The only real legal check right now on this presidency is the courts.

And so if the courts were issuing directives on a regular basis and he was defying them, or if the game playing continues to such a degree that they’re not really paying attention to law, then we would be in a place where the president was approaching lawlessness. I don’t think we’re close to that yet.

I want to emphasize: It’s extremely early in the judicial process. There’s a lot going on. There are 150 cases, and the administration can do a lot of damage before courts can weigh in and set boundaries.

Douthat: So let’s get into some of the specifics. We’re not going to tackle all 1,233 pieces ——

Goldsmith: I’m very happy about that.

Douthat: Pieces of standing litigation, but I’m going to pick up on some of the categories you talked about, and I guess give them my own spin for a minute.

I’m interested in talking about issues of deportation, deportation to El Salvador in particular, to a Salvadoran prison, especially. Then there’s power over the federal bureaucracy, and then I think we should mention power over economic policy and tariffs. Then we’ll circle back to crisis scenarios, and also non-crisis scenarios at the end.

So let’s start with power over noncitizens. You have visa and green card holders being detained, and people have had their visas canceled over political activism and participation in campus protests. There’s some debate about the specifics, but in one case, it appears that a woman had her visa canceled because of an op-ed she wrote.

And then the administration invoked the Alien Enemies Act, a law dating to 1798, giving the president broad wartime powers to detain and deport noncitizens. They have used that as a justification for the deportations to El Salvador in particular.

So first, to continue what we were saying before, just how radical do you think this set of actions are?

Goldsmith: I haven’t studied the visa removals, but I do know the secretary of state has broad authority to do that. I mean, I find them despicable because they’re basically punishing someone because of their speech, and pretty mild speech in some cases.

I know more about the Alien Enemies Act. This is extreme and novel because this statute, which dates to the 1790s, has only been used a few times, and only in war — real war.

It has two provisions, one of which allows deportation when there’s actually a declared war, and then another provision which allows deportations when there is an invasion or predatory incursion by a foreign nation or government. That is the part they’re relying on.

It’s very questionable whether the Venezuelan terrorist organization that has come to the United States in some respects satisfies that. I think they’re probably going to lose on that, ultimately.

There’s nothing wrong with the administration trying to invoke the Alien Enemies Act. It’s a statute on the books, and there’s nothing wrong with them invoking it. But it was wrong for them to deport 240 people, basically an anticipatory circumvention of a district court judge, maybe unlawfully — I think they were probably deported unlawfully — before a court had time to rule on it.

And then the Supreme Court kind of weighed in on that in an emergency orders opinion, and basically said these folks all had to have due process and notice before this could happen. So they’re trying to put a stop on it going forward.

But that was very bad.

Douthat: And that was the precedent, right? That even in cases like World War II, that if you detained someone and deported them because they were German or you had suspicions of Nazi sympathy, the precedent suggested that they still got a hearing, right?

Goldsmith: Well, the precedent is actually extremely unclear, I’m sorry to tell you.

Douthat: That’s fine.

Goldsmith: There, it’s a precedent involving actual alien enemies in wartime. There, they were actually given due process in the executive branch before they came to court, and I read the case to say that there’s judicial review over whether the person is actually an alien enemy. That’s the important point.

Douthat: So in this case, you would be able to contest whether you are actually a member of the Venezuelan gang.

Goldsmith: And I think that’s what the court basically affirmed in that short order. That’s the important thing — and not only whether you’re a member of the gang, but whether the gang satisfies the statutory criterion. They might not constitute an invasion by a foreign nation or government. They probably don’t. They’re a private entity.

The government in its briefs is trying to argue that they’re closely associated with the state. The government, in my opinion, has an uphill climb to even get the statute to apply.

So that needs to be litigated, in my view. And also the question of whether, if the statute does apply, the individuals actually fall under the statute.

Douthat: And that’s the claim that’s being made on behalf of the people who have already been sent to El Salvador. Right? That they were not actually in the gang, that they were misidentified as gang members based on tattoos and so on.

Goldsmith: That was the claim for at least some of them, and maybe all of them, yes.

But even if they were gang members, they still might have been deported illegally because those gang members might not implicate the statute.

I don’t think it does. I don’t think that this is a predatory invasion by a foreign nation.

Douthat: But that will have to be litigated, like most of these things, all the way to the Supreme Court, right?

Goldsmith: Yes.

Douthat: In the end, the Supreme Court is going to issue, presumably, a ruling on whether you can apply the Alien Enemies Act to this gang.

But for a little while, was the administration formally arguing that its power here was unreviewable?

Goldsmith: They basically, early on, were arguing that their power was unreviewable.

Douthat: But then they walked part of that back? By the time it had reached the Supreme Court, they were saying: Well, of course we concede that people get some kind of review.

Goldsmith: Yes. And this has been a pattern. The solicitor general’s brief in the Supreme Court — it wasn’t a perfect brief, but it was a much more sober brief on the law.

And this has been a pattern. The lower court briefings have been making wildly extravagant claims, and by the time it gets to the solicitor general and goes to the Supreme Court, it gets toned down and refined.

Douthat: So let’s talk about probably what is now the highest profile case involving an illegal alien remanded to El Salvador.

And that is the case of Kilmar Abrego Garcia. He was deported to the Salvadoran prison. He is presumably held there at the moment, and there was essentially a stay of removal, is that right?

Goldsmith: Yes. He was determined to be removable, but not to El Salvador, because the court determined he would be subject to persecution there.

So this was the one place he was not supposed to be sent, and they sent him there, they didn’t explain it, but they said it was an “administrative error.” They’ve acknowledged that it was a mistake and he should not have been sent there. So he’s there now. And the question is: What to do about it? What can, if anything, the courts do about it?

Douthat: Right. And something may change with this case between the time we’re having this conversation and when the podcast actually appears, but right now, what is the state of play? Because the Supreme Court has actually spoken on this case, to some extent.

Goldsmith: Yes. So I’ll try to be brief — and tell me if I get too technical — but basically, the Supreme Court issues in an emergency order what was an ambiguous opinion at the time and has grown more ambiguous as we read it more and see what’s happened since. It basically said that the order properly requires the government to “facilitate” Garcia’s release from custody in El Salvador. That sounds good for him.

But it also said that the district court may have overstepped its mandate by saying that the government had to effectuate the release. And it also said that the district court had to pay the government — the president — deference in foreign affairs.

As they have in every other context, they took a maximal interpretation of the deference foreign courts have to give them. And they’ve been exerting claims of foreign policy exclusive power. Anywhere there’s a foreign policy issue in the case, they’ve been saying the courts can’t deal with it. It’s an extravagantly broad position.

Douthat: Right. And the government’s claim, just to be clear, is that they made a mistake. But now he’s in a foreign country under foreign sovereignty. The foreign sovereign, as of this taping, has said they’re not going to return him. And then, presumably, you could argue that it’s not in the interests of U.S. foreign policy to force that foreign country to return him, which is a not entirely plausible argument, given that El Salvador is a client state of the United States.

Goldsmith: I would say it’s an implausible argument.

Douthat: Yes.

Goldsmith: So this goes back to the district court, and basically, I see the court as trying to nudge both sides to do the right thing.

The right thing is, obviously, that the district court cannot tell the president that he has to negotiate with a foreign sovereign, and to ensure that this person is brought back to U.S. custody and brought back to the United States. As I see it, that’s one side of what they’re thinking. On the other hand, the president made a mistake, and should — and may — have a duty to do everything he can to bring this person back.

I read this ambiguous decision as trying to get both sides to cool down and reach some accommodation. And unfortunately, that is not what happened on remand. On remand, the district court, in my judgment, acted hastily and did not give deference to the government. It required it to immediately start giving information.

The government responded obnoxiously, basically saying: We’re not going to play ball here. They gave a little information: They said he was alive. And the government gave an extremely narrow interpretation of what the Supreme Court’s order meant. So both the district court read the opinion one-sidedly and then the government read it one-sidedly, and now we’re in a worse position.

Douthat: I want to pull back from this just for a second and talk about the larger moral question here. And I’m curious how much of a legal and constitutional question it is. A big part of why these deportations have become so understandably controversial is not just about whether they are following the precise procedures involved or whether there have been mistakes made; it’s because we’re deporting people to a prison.

Goldsmith: Yeah. And a bad prison.

Douthat: A prison that advertises itself as a bad prison! And the Trump administration has explicitly said: We are glad we’re sending bad people to this tough, tough prison.

Goldsmith: And this is part of their P.R. campaign.

Douthat: Right. To me, politically, I think it is clear the Trump administration came in with a political mandate to increase deportations. The Biden administration’s immigration policy was, I think, widely acknowledged to be at least somewhat disastrous. I would say generally disastrous. The Trump administration is understandably impatient with realities, like in the case of Garcia, where you have someone who’s been in the United States illegally for many years. And yet, you can’t deport him to his home country because of a judicial order.

Goldsmith: Right.

Douthat: When I’ve talked to people who are sympathetic to the administration’s position, they’ve said: Look, if you’re doing this for every illegal alien, we’re never going to be able to achieve anything.

And my response generally is, That’s fine to say, but you’re sending people to prison.

How much does that enter into the legal and/or constitutional side of this debate? Maybe it doesn’t. Maybe we’re just saying, Well, we deported them to El Salvador. That’s a sovereign country, and by coincidence, the government of El Salvador put them in prison. What’s the legal debate here?

Goldsmith: So this is actually something of a novel issue. Let me just say one thing to amplify what you said, and then I’ll answer your question.

It’s a serious problem that the administration has, because there are lots of unlawful immigrants in the United States, and the lawful process to deport them takes a lot of time and a lot of resources. And the Alien Enemies Act was a possible shortcut.

Douthat: But even if the Supreme Court blesses it ——

Goldsmith: It’s narrow.

Douthat: It’s still just talking about a particular gang from Venezuela.

Goldsmith: And maybe other gangs that they could find to meet that statutory criterion, which I don’t think is going to happen. So are you asking me, does the moral argument ——

Douthat: I’m asking you: Are there any particular legal issues raised by deporting people to foreign prisons that would not be obtained if you were just deporting them and leaving them at the border of El Salvador and waving goodbye?

Goldsmith: I don’t really know the answer to that question. The problem is that the executive branch is going to claim — and it will have some authority for this — that once they’re outside of the country and under the control of another sovereign, then formally they’re not in their custody, and formally the government can’t do anything about it. So the custody matters for that point, it’s under sovereign control. But that might be the case even if the person weren’t in prison. That’s where the legal issue comes up.

Judge Wilkinson, for whom I clerked, said that this case is a real dilemma.

One very important thing for everybody to understand is federal courts have limited remedies. They cannot right every wrong under their proper doctrine. And this is an especially hard one, once the person goes out of the country. And there is going to be a limit to which the court can order the executive to negotiate to do this release. Ultimately, I think it’s going to have to depend to some degree on the president’s good faith.

On the other hand, as Judge Wilkinson pointed out, and I think Justice Sotomayor did, too, you’re setting up a system where the president can snatch someone, send him abroad and say: I can’t do anything about it. And that clearly is not something the courts can tolerate, as Judge Wilkinson put it. How that cashes out into the law is to be determined.

Douthat: How about the citizen-noncitizen distinction here?

Let’s say that after this podcast airs, someone comes up and puts us into custody and we get sent to El Salvador together. Hopefully, we share a cell. And the government says: Oh, we’re very sorry. We meant to remove two illegal aliens who were also in the New York Times Building at that time. We accidentally took Jack Goldsmith and Ross Douthat. Unfortunately, they are in a foreign country under the government of El Salvador’s sovereignty. We can negotiate, but we can’t guarantee we’ll get them back.

Is that a different legal issue than the one the Garcia case presents?

Goldsmith: Not from the government’s perspective, as far as I can tell. Their claim is: Once the person is outside of sovereign control and in another country, then it’s outside of their hands. That’s the best I can read their argument.

Douthat: That seems like a problematic argument.

Goldsmith: Well, it seems like a problematic argument. I agree with you. The question is: How are courts going to remedy it?

Because there are going to be limits to courts ordering the president to negotiate with a foreign sovereign. In any other presidency, this person would have been returned by now because this is — should be — a political disaster.

But really, this person was taken out unlawfully and a U.S. citizen would have been taken out unlawfully. And that should be enough to trigger the return. But the government hasn’t spoken about citizens, but nothing in their argument distinguishes citizens from noncitizens, as best I can tell.

Douthat: Would there be any distinction in, let’s say, the legal exposure of the agency that did the deportation? I’m talking to my lawyer from El Salvador and I’m saying: Who are you going to go after?

Goldsmith: Yeah, can you sue the government? So I teach a course called Federal Courts, which involves issues like this. And this would be an action for damages against a federal officer for violating the Constitution or violating a statute.

Douthat: That sounds good. I’d like to sue for that.

Goldsmith: Yeah, that sounds good. And the Supreme Court has put up massive barriers to that in the last 20 years. So this might be a case that squeezes in the very narrow exception, but basically, it would be hard.

Douthat: OK. So it seems like the Supreme Court has a very, very strong interest in figuring out how to get the Trump administration to get Garcia back to the U.S.

Goldsmith: I would say yes, and I think that order was a first effort. I think that, really, their strongest interest is to try to stop it going forward. I think the court is really trying to lay down markers for the future as much as for trying to fix this case. This is not a happy thing to say, but if the Trump administration plays hardball here and says, We are not going to negotiate and you can’t make us, I don’t think the court can make them negotiate with a foreign sovereign.

Now, there may be some sanctions they can impose, I’m not sure, but I don’t think that that’s going to be effective. I hope it doesn’t come to that.

I want to emphasize that ultimately, it’s going to be very hard to enforce a remedy here if the Trump administration doesn’t want to play ball. And I’m not sure that there are five justices on the court that would even try to go there.

Douthat: Are you familiar with Gödel’s loophole?

Goldsmith: No.

Douthat: OK. So this is the idea of the famous Austrian mathematician Kurt Gödel, who supposedly told friends that he had studied the U.S. Constitution and discovered the loophole whereby a president could become a dictator.

The story goes that he found it, that essentially, he knew what it was but no one else knew what it was, and the secret died with him. And listening to you describe these scenarios, it does sound a little bit like Gödel’s loophole.

Where, essentially, the president can do whatever he wants as long as he manages to remove his enemies to foreign soil, right?

Goldsmith: Yep.

Douthat: To the extent that this is a suddenly discovered loophole, what would be the remedy for it?

Goldsmith: So let me back up.

Much of our law depends on a presumption of regularity in the presidency. It depends on the courts thinking that they can trust the president to comply with orders, and to be honest and truthful in court. If we got to that situation, the court would have to impose more and more extreme remedies, ordering the government in more and more extreme ways not to take steps to send anyone out of the country.

They would just have to enjoin the various agencies, and you’d have to get the right kind of case and the right kind of plaintiffs and maybe the right kind of class action. And it might be tricky. But there could be forms of ex ante injunctions. But again, this is back to the earlier conversation. If the president defies the injunction and just does it anyway, then the court does not have many tools.

Douthat: So this would be a case where, if this practice continued, you would need congressional legislation basically saying: We are imposing penalties for removing American citizens from the country without trial.

Goldsmith: But then that gets us to our conversation about whether they’re going to enforce the law.

Douthat: Right.

Goldsmith: But it’s extremely hard to predict how these things are going to work out because we haven’t had this before. And I think what you would see, and I’m really speculating here, is a series of increasingly stringent remedies. I don’t think Congress is going to be able to act to override a veto. I mean, that seems implausible.

So I think the only hope is that the court issues increasingly stringent injunctions preventing this ex ante, and that the administration complies.

But ultimately, this is only going to work if there’s public consensus and pressure behind this. We’ve seen conservatives, and especially libertarian conservatives, not liking the whisking away of people without due process, illegally — which is what they’ve been doing. But I just can’t emphasize enough that the court can be wise and prudent in crafting remedies to try to constrain the president.

But if you have a president who is willfully engaging in bad faith in complying with those remedies, the court ultimately only has whatever support the country will give it through the political process.

Douthat: Let’s leave our hypothetical selves in the prison, then, for the moment and turn to a different area, which we’ve already previewed a little bit, which is President Trump’s claims of power over the administrative state, but then beyond that, over federal spending as a whole.

So these categories include all of the attempted firings of federal employees, the restructuring of agencies like U.S.A.I.D. and others. At the base line, this to me seems like both the place where a conservative-leaning Supreme Court is most likely to be sympathetic to the president and also the area where, at a base line, I think the administration just has the strongest case. You mentioned the unitary executive theory, which is a sort of right-leaning theory of constitutional power. Why don’t you just talk for a minute about that theory and how it shapes this debate?

Goldsmith: So the unitary executive theory has been kicking around since the founding, but that name got really popular during the Reagan administration. It’s basically the idea that, as the Supreme Court said in Trump v. United States, the president is the executive branch.

All executive power, all of it, is vested in the president. The president alone has the power to take care to faithfully execute the law. What flows from that, under the pure theory, is basically that the president gets to control and direct and fire all subordinate direct executive officials. That’s the pure theory.

Whether it’s an administrative adjudicator or someone on a commission or someone in the Justice Department, the president can direct and control and fire them if they don’t obey.

The Supreme Court has never gone that far. It’s actually never gone close to that far. And what the Trump administration is doing is trying to push it as far as it can.

The cases they’re most likely to win, in my judgment, are the ones where they’ve been firing. This is the N.L.R.B. and the Merit Systems Protection Board. These are independent agencies. That means they’re agencies where the members have protections for cause for inefficiency and malfeasance and the like — i.e., the president needs to give a reason before they can fire them. And the administration is making a frontal assault on those, and that’s where they’re most likely to win.

Douthat: In practice, though, they have been trying to fire within administrative law, right? This is why they’ve tried to fire people who are provisional or people who’ve been newly hired or, I think, idiotically, people who are on track for a promotion, right?

Goldsmith: Yes.

Douthat: And they therefore fall into this category that is legally vulnerable to firing, maybe?

Goldsmith: More or less, yes. That’s basically right. There are various ways that executive branches have to fire people. Put them on administrative leave. Probationary employees can be fired. There are a whole bunch of statutory ways to fire individuals, and that’s how they’ve primarily been doing this.

I think in setting up a Supreme Court case for firing the highest-level career appointees, they have also asserted the Article II argument. And that’s where they’re going to begin at the next level going down.

I really want to emphasize how broad-based and multifaceted this strategy to incapacitate the executive and control the executive branch is. But mostly yes, what you call the administrative law strategy is how they’ve been proceeding.

Douthat: Right. And then it’s not just the place where they seem to have the strongest constitutional argument. It’s also the place to me, as an observer of American politics, where they seem to have the strongest political argument.

I just spent the weekend reading, in our own newspaper, accounts from the Biden administration of how impossible it is for the executive, the actual executive, the president of the United States to effectuate policy through the system of government that we have built up.

The roadblocks are not obviously all just within the administrative state. There’s lots of different roadblocks, but it does seem to me that the system as we have it is one where we elect a president, the president has incredibly broad powers in theory, and then in practice, the inability to exert control over the government is a big problem for American governance.

And I can certainly see why liberals and Democrats would not want the Trump administration in particular to exert that kind of control. But it also seems to me like an end game where there’s a bunch of Supreme Court decisions favorable to executive power. And presidents just having a little more direct control over who is hired and fired in their agencies and administrations is something that, in the long run, could be good for the workings of American government?

And I know this is a political question and not a legal question, but I’m curious ——

Goldsmith: I’d like to weigh in on it, though. I’m very sympathetic to the claim, and it’s true. I think there’s a general consensus now that the government’s not working well. It’s too slow, it’s too burdensome, it’s too much bureaucracy, too many rules.

Getting at the employees and controlling them is only part of the problem. There’s still a procedure that has to be gone through before you change some of these burdensome regulations. It’s not just a question of controlling employees.

But let me say that there are costs to getting control of the government. The president, when he gets control of the Federal Reserve, that might not be a good thing. When he gets control of the F.C.C. and starts using the F.C.C. to weaponize the F.C.C. because he has control and it’s not an independent agency, that’s not going to be a good thing.

There are downsides, serious potential downsides, especially for a president unconstrained by norms inclined to weaponization. Serious downsides from having the president have complete control. The point I want to make is there’s a bit of a mismatch between thinking there’s too much red tape and the answer is giving the president full control of everything. I mean, it’s not quite that simple.

Douthat: Well then, let’s talk about what seems, to me, like the furthest extent of this argument and the place where my own sympathy for it starts to break down. Which is the question of presidential control, broadly, over how congressionally appropriated funding is spent and, ultimately, whether it’s spent at all.

There’s a couple of questions here where I think, again, we’re going to have Supreme Court cases on all of these things. But first you have the question of whether Congress appropriates money for U.S.A.I.D., right? The question is how much control can the executive exert over how that money is spent? Can it take that money and say, OK, Congress appropriated this money for foreign aid, but we think the interests of the U.S. government are served best if we define foreign aid to mean subsidies for conservative podcasters in East Asia, Singaporean podcasters, instead of humanitarian aid or something, to take an imaginary example. So you’re still spending the money, but you’re spending it differently.

But then there’s also the more potentially sweeping claim, which I’m interested in because it seems like it would push executive power basically as far as it can go, which is the claim that the president has what is called impoundment power over federal spending. Can you describe what that argument is?

Goldsmith: Sure. The impoundment power that the Trump administration has been talking about is the idea that the president has power under Article II of the Constitution to basically not spend appropriated funds. That this is an element of the executive power and of the president’s discretion under the take care clause, which is the clause that says the president has a duty to take care that the law be faithfully executed and that has a discretionary component.

So the basic idea is that the Congress’s core power to tell the president to spend this money on this program can be basically killed by a president in his discretion if he doesn’t want to spend the money.

What we’re talking about here is how much discretion the president has in the Trump context. In the Obama context, it was spending money that he maybe shouldn’t have been spending. But in the Trump context, it’s not spending money that Congress wanted him to spend.

Almost all of the arguments they’ve made thus far have been what you called administrative law and what I’m calling statutory arguments — i.e., they’ve been down in the weeds of this, and it’s really amazing how much in the weeds it’s been, this statute actually gives us discretion to not spend if we don’t want to.

There’s something called programmatic delays, which give any administration discretion to delay spending because there may be some legal thing you have to consider over here or some new policy over there.

A lot of it has been breaching contracts that they claim they have the authority to do under relevant statutes. So most of what they’ve been doing, as far as I can tell, is taking advantage of their super planning and knowledge of the appropriation process, taking advantage of weaknesses in that, and what they’re doing on the firing side, they’re doing on the spending side.

So the argument you were talking about, the impoundment argument was the one that both President Trump and Russell Vought, who’s the head of the Office of Management and Budget and a hugely influential person in the administration, this is the argument that the president has a constitutional power that regardless of what the statute’s saying, there’s a statute called the Impoundment Control Act that purports to tell the president that he has to spend money with a few exceptions that are hard to meet.

Douthat: And this was passed under Richard Nixon.

Goldsmith: After Nixon, because Nixon tried to assert the constitutional impoundment authority that Trump is trying to assert now. Congress said no and wrote a statute. Vought and the president have said, We have the Article II power to do this — i.e., we have power under Article II to not spend money if we don’t want to.

They haven’t, as best I can tell, made this argument squarely in the litigation yet. I might be wrong, but I have not been able to find an instance where they’ve made this argument squarely. I’m not sure why. I think it’s a clear loser of an argument at the Supreme Court. So maybe that’s why.

Douthat: So your perspective is first that the Supreme Court would probably say that the Impoundment Control Act is constitutional?

Goldsmith: The Impoundment Control Act is clearly constitutional, and the president has a duty to enforce it and comply with it. And he doesn’t have any Article II power to not comply with it.

There might be an exception. If you look at historical practice and a memo Roberts wrote when he was in the White House in 1985, there might be an exception for military spending. There’s going to be an argument about that.

Douthat: Because a war could end, right?

Goldsmith: A war could end, or the president might think this spending demand is just inconsistent with my battlefield needs. There are a whole cluster of arguments. There has been a history of impoundment throughout American history. Not clear if it was a constitutional argument or a statutory argument, but they were more aggressive in the defense context.

So the argument for a constitutional impoundment is, I would say, slightly stronger there. But outside of that context — and frankly, I don’t think it will even work there — there’s just not really a good argument that the appropriation power is given to Congress quite clearly. It’s its core power. The president has a duty to take care to faithfully execute the law.

The argument is going to be — this is the TikTok case — that the discretion to enforce the law is discretion not to enforce the law.

Douthat: Right.

Goldsmith: That is an argument that builds on precedents from other administrations. The Obama administration with its marijuana policy and with DAPA and DACA.

Douthat: Right. So those were, just to be clear, because I think it’s a useful thing, the Obama administration, in my view, essentially tried to change U.S. immigration policy in a pretty sweeping way in its second term by saying, We are going to carve out big enforcement ——

Goldsmith: Discretion.

Douthat: Discretion, exemptions. Right.

Goldsmith: Yeah. And so basically what they did was they exercised enforcement discretion to make the statute be something that it wasn’t.

Now, typically, the Obama administration had some fancy arguments and they were closer to the law than what Trump, who doesn’t care about that, is doing. They said: Well, we’ve got conflicting priorities and there are resource constraints. And those kinds of arguments are kind of legitimate arguments. I did not find what they did there successful. And by the way ——

Douthat: Neither did the Supreme Court.

Goldsmith: It never really got there, but yes. The lower courts did not find it persuasive. And conservative heads were exploding over it, of course. And now Trump ——

Douthat: Right. I mean, I wrote in a couple of columns that I refer to it as “Caesarism.”

Goldsmith: Yeah. And the TikTok — let me just explain this — the government’s refusal, for no reason other than they don’t like it, to enforce the TikTok ban is a more extreme version. It’s basically saying: We have a policy objection; therefore, we’re not going to enforce.

And a cousin of that would be what the impoundment argument is. They would rely on a historical practice that doesn’t give them what they want. And they would say that they have enforcement discretion that they can exercise as they want.

And I just really feel very strongly that argument is not going to work.

Douthat: Right. So this is what I don’t understand about that argument, and maybe it’s connected to the practice of the past, prior to the Impoundment Control Act. But if you took that argument to its logical conclusion, wouldn’t it mean that Congress could create Medicare by statute and a Republican president could just say, We’re not going to run Medicare?

Goldsmith: Yes.

Douthat: Right. But if this kind of argument came before the Supreme Court and you were a lawyer for the administration and the Supreme Court said, OK, well, what is the limiting principle on this claim? Do you think they would come up with a limiting principle?

Would they say, well, of course, all this means is we can cancel discretionary spending but not entitlement? Would they try and find some kind of ——

Goldsmith: I haven’t seen — the level at which Vought and his general counsel have made this argument, have not drawn those distinctions. They’ve been at the level of Article II. And let me just say the Supreme Court has been tentative here.

They’ve been sensitive to the idea that in some context the president has to make enforcement decisions. There are resource constraints. He can’t comply with every directive that Congress gives him. Therefore, there has to be some nonenforcement discretion. And how far that goes, we don’t know.

But they also said in those cases, if it ever came to just not enforcing the law, period, basically for a policy reason, that would go too far.

Douthat: I’m interested in this both because I think it’s a terrain where they have signaled potential for litigation, but it is also the place where if you were imagining a total constitutional revolution as the outcome of the Trump administration, this would take you to a total subordination of the legislative, to the executive, right?

Goldsmith: Yes. But let me emphasize, so would nonenforcement generally.

I mean, the TikTok precedent is really just as, if not more, dangerous, because it applies across the board. They just said the ban was clear, the Supreme Court upheld it and the president said, Don’t enforce it, attorney general, and tell the private companies they don’t need to comply.

That is a more broad-based threat if that took hold. So it’s happening on many dimensions.

Douthat: Well, and then obviously, in certain ways, the biggest dimension that it’s happening on is the economic policy of the United States. And the tariff debate, I think, has not been framed as much as these other debates that we’re talking about as a kind of legal constitutional issue.

But the scale of the Trump tariffs has prompted lawsuits, or at least one lawsuit, I think, and threats of further lawsuits.

Again, as a layman, I read through some of the claims and arguments that Trump is exceeding his authority, that nothing in the tariff delegation power allows for these kinds of moves at this scale, with this kind of duration. What do you think?

Goldsmith: I’m a dissenter on this.

Douthat: Interesting. Good.

Goldsmith: Not a strong dissenter. I think it’s much more complicated. This is the one issue of presidential power that has brought out the conservatives. They haven’t been complaining about anything else, which is shocking.

Douthat: In fairness to, in fairness to the conservatives, it has had ——

Goldsmith: These are my friends, by the way.

Douthat: It has had immediate and dramatic effects on the global economy, has threatened — I mean, there are principles that work in legal debates, but there’s also, policy scale matters. And the scale of this policy seems quite substantial.

Goldsmith: My only point is that he’s done a lot of other things that are extremely dangerous and should be contrary to conservative legal principles, but fair point.

But I’d like to reframe it a little bit from the way the commentary’s been treating this. First of all, Congress has been delegating tariff authority to the president since the 1790s on increasingly broad terms. The Supreme Court in several decisions, several famous decisions, has upheld pretty broad interpretations of tariff authority to the president many times. Um, and the president has many statutory bases for issuing these tariffs.

Now the focus has been on IEEPA, the International Emergency Economic Powers Act. I have to get into the law just a little bit.

Douthat: Do it.

Goldsmith: So this is a statute that was enacted in the 1970s. It is an extraordinarily broad delegation of power to the president that gets triggered whenever the president finds an unusual and extraordinary threat outside the United States. And then the statute says that the president, once that trigger is made, gets to regulate imports.

People have been saying, Oh, this isn’t one of those situations.

Sorry, but presidents have used IEEPA dozens of times, and made emergency findings of an extraordinary threat outside the United States much lower than the economic threat President Trump has identified. So that part of IEEPA will not be hard to satisfy.

President Nixon did this, too. He did a 10 percent import duty under the predecessor to this statute with identical language, which justified the 10 percent duty.

So in my judgment, the president has at least a plausible argument on the face of the statute. So I don’t know who’s going to win or lose this. But the president is on stronger legal ground. There are a lot of tricky legal issues.

Douthat: But those tricky legal issues also matter because the framing for this entire conversation is not just what the Constitution says but the political context and the political climate, right?

Goldsmith: Yes.

Douthat: And the Supreme Court clearly doesn’t want to be in 17 different direct collisions with an aggressive administration. So if you tell me, I think this, the administration has a plausible case here. What I hear is that Chief Justice John Roberts and Justice Brett Kavanaugh, maybe Amy Coney Barrett, are going to want to pick their fight somewhere else.

Goldsmith: Maybe. But the opposite could be the case. This may be the example in which they show that the major questions doctrine is a principal doctrine. Or they finally address the extent to which it applies. In this context, the extent is arguably foreign relations.

It’s very hard to predict. But I’ve been reading commentary that says this is obviously illegal, and I haven’t seen one contrary piece to that. But I want to insist that this is much more complicated than people have been letting on.

Douthat: How much do you think the framing that I just sort of offered, though, is a good way to think about these things?

Goldsmith: About how the court thinks about this?

Douthat: Yes. How much in this highly politicized moment is the court thinking to itself that this is a difficult administration with threats of what someone could call a constitutional crisis? And therefore, we are really self-consciously picking our battles?

Goldsmith: So I don’t know, obviously. And it’s important to understand that the court is a they and not an it. There are nine people.

Douthat: It’s kind of three people, though: Roberts, Kavanaugh and Barrett.

Goldsmith: Yeah, I agree. Fair point. So it’s three people.

And I’m pretty confident that the chief justice is thinking in these terms, which is an extremely complicated calculation.

The court has discretion about which cases to take for full review and when. They can decide to take a combination of cases that — I’m not suggesting they think this way, but they might — give the president some wins, but has some very important losses. And the wins make the losses easier to swallow.

I don’t know exactly what their calculus is, but the way they’re dealing with the emergency docket and pushing things off and trying to find the right case suggests that this is clearly part of what’s going on.

Douthat: And you don’t think that they’re ducking fights?

Goldsmith: Absolutely not. I think people who say that are wrong.

And the reason is: It is extremely early. The Supreme Court typically takes a case after trial and appeal, right? It’s dealing with these cases before we’ve even had a trial. And it might take some of these cases early, but that is very, very unusual. All it’s doing now is setting the base line for how these cases are going to be litigated.

Douthat: Let’s just push a little further from that into actual worst-case scenarios. We were talking earlier about the case of Kilmar Abrego Garcia, the man sent to El Salvador. In a way, that’s the clearest point of tension right now.

Your argument there is that’s a case where you could effectively have a kind of collision between the executive and the courts, but in the end, the executive doesn’t do what the courts want, but there isn’t a formal constitutional argument that they have to, right?

Goldsmith: Again, I’m really reading tea leaves. But I believe that the meaning of that short order was to try to nudge the president to do the right thing without ordering him to do it, and with a signal that there might not be an ability to order that.

Douthat: Right. So that would be one set of cases where the court just decides that it has some constitutional limits on what it can force the executive to do, even if it thinks the executive is doing the wrong thing.

Goldsmith: Correct. And, I want to emphasize: Executives do wrong things. There are illegalities that occur in the world for which there are not judicial remedies. That’s something people don’t understand, and it’s a bitter pill to swallow often.

And I don’t think that the Supreme Court is going to go to the mat in ordering the Trump administration to negotiate with El Salvador to get this person back. I don’t think this is where it will pick its fight. And it would not be on its strongest ground in picking a fight there.

Douthat: But you could imagine, then, a situation where the court would pick a fight.

Goldsmith: Yes.

Douthat: And in a case where the Supreme Court was on pretty strong constitutional ground, you don’t think the administration would want to defy or be seen as publicly defying the court?

Goldsmith: Have I said that before? I guess I have.

Douthat: You’ve said that. You can say something different now.

Goldsmith: No, I do believe that. But I’m not 100 percent confident of it. So my view is it really depends on the case, the clarity of the order and whether the Supreme Court is unanimous and the like.

I do not think that — and I hope I’m right — that the Trump administration is going to defy a clear order from the Supreme Court, and I think the Supreme Court will be sensitive about where it issues those. I’m confident that it will pick its battles, and it will try to find places to have maximum impact on the clearest, most legitimate ground with the largest majority it can find.

And that is an art, not a science.

Douthat: OK. But now, what about a scenario where you get such a Supreme Court ruling that is clear what compliance means and what noncompliance means and the Trump administration straightforwardly is not in compliance?

If you’re John Roberts in that situation, what tools does the court have in a situation of clear noncompliance to use, besides its moral authority?

Goldsmith: In my view, very few tools. It can sanction litigants who argue before the Supreme Court, but that’s small bore in this context.

Douthat: It does have marshals, right?

Goldsmith: It has marshals, and the marshals are under the control of the attorney general.

Some people have talked about the possibility of civil contempt against officials that maybe could be enforced in state courts against officials. But if the Trump administration takes the momentous step of blowing off the Supreme Court in a clear way, I just don’t think those remedies are going to be the important ones.

The only remedies in my judgment are what the feckless Congress does and what the American people do.

Douthat: And going back to the hypothetical calculations of the Supreme Court, do you think that their calculations change then after, say, 2026?

Suppose you have a Democratic House after the midterms. Does that make the court feel more confident in how it pushes against the White House?

Goldsmith: You’re asking me to speculate more than I’m comfortable with.

Douthat: Well, yes.

Goldsmith: I’m happy to do it. I’m just telling you I’m not comfortable.

It’s not clear which way it cuts. If you push back against Trump too much and there’s a Democratic Congress, he may get worse in the other direction. I think it takes more than one House. I think it takes the American people saying to their politicians this has gone too far.

I think that might happen if he clearly defied a clearly legitimate Supreme Court decision.

Douthat: Certainly you’d have mass protest. To me, the question in that case is what does John Thune do? What do the embodiments of Senate Republican legitimacy do in that situation?

Goldsmith: Well, you’re the political expert. What do you think happens?

Douthat: To use the hedge that you’ve availed yourself of, I think it depends on what the case is and what the circumstances are.

My running question is: What kind of conversations are people like Thune having around those kinds of issues? And what kind of conversations are they having with the White House and so on?

I have a certain amount of confidence — that is not universally shared — in American democracy as an actual check on a rogue president. And I had this confidence when the positions were reversed. I had a lot of conservative friends who looked at the convergence of unified Democratic control of Congress with unified progressive control of Silicon Valley’s institutions and they said: Oh, we’re headed for a world where no Republican can win the presidency again.

And I think it’s clear that assessment was wrong and that American democracy was resilient to a certain kind of left-wing consolidation of power. Trump is a very different kind of figure.

But I’m hopeful that American democracy is the interest it creates for Republican senators in swing states.

Goldsmith: I am accused of being naïve on this point, but I tend to agree with you. And it’s hopeful, but it’s also my belief.

Let me just say one more thing. I’m not sure what Trump’s aim is, but if the ultimate aim is to consolidate forms of executive power that are going to persist, it’s much better to have the Supreme Court on board, saying, This is something you can do, and therefore maybe accepting his wins with his losses.

It’s hard to predict what the legacy looks like for what he’s trying to accomplish. But I assume he is trying to accomplish something beyond his term if he’s blowing off the Supreme Court and basically blowing up legal checks on the presidency altogether.

Douthat: Let’s say there is no worst-case scenario, and there’s no explicit conflict between Trump and the Supreme Court. There’s wins and losses, but overall the court blesses a lot of what the administration wants. The administration accepts whatever curbs it offers. That is the best-case scenario for a Trump executive power revolution.

What does that look like going forward? How would you describe the post-2028 constitutional landscape that would usher in?

Goldsmith: I think you’ve written about this, and I’m reminded of the Bush administration. I would say there’s a decent chance that the Trump administration is going to end up in a worse place.

That, yes, they’re going to win on some issues, that the court was going to move there anyway, but the Frankenstein version of the unitary executive is not going to be viewed well and that a lot of these moves they’re making are ultimately, could be constrained by the court in ways that weren’t clarified before.

Douthat: So this is where they could lose, and it could weaken the presidency’s powers relative to Bush and Obama.

Goldsmith: Yeah. If all of the spending and firing, those lower-level things, were clarified that you can’t do that the presidency would be weakened there, then it could be that there are going to be new due process and related constraints on immigration because of what we’ve seen can be abused.

A lot of these issues are undecided. They’re being contested for the first time, and if they result in losses, that could be a constraint on the president.

But if it goes well for them, then I think the plausible scenario is that you have a much more robust unitary executive. That would mean the president controls agencies to an unprecedented degree, and maybe controls a good chunk of the Civil Service as well, either by statute if he’s able to do that or, better for him, under Article II, so it couldn’t be reversed.

I think that is the most likely significant change to come about. And we haven’t talked about the kind of abuses and what the legacy of the abuses are.

It’s not clear what the Democrats are going to do in response to a lot of this stuff. It’s not clear if we’ll have tit-for-tat and weaponization. It’s not clear if we’ll have more extreme versions of directing officials to do what the president wants.

But the only thing I’m really clear on is that the unitary executive and presidential vertical control over the executive branch will be broader and firmer and constitutional.

Douthat: Let’s end by imagining a future democratic president or a future democratic control of government.

Democrats win and have a trifecta in 2028 after a period where there’s been a consolidation of executive power, but there have also been a lot of abuses.

Do you imagine the Democratic Party taking up some of the ideas that you advocated for after the first Trump administration and saying: We’re looking at what Trump did and we think he went too far in all these ways, and we are going to put in new limits on presidential power through statute?

Obviously, if things are decided constitutionally, they can’t limit it. But can you imagine executive power limits as an issue re-emerging the way it did in the 1970s?

Goldsmith: I mean, Jimmy Carter ran on it basically after Nixon. My senior Democratic political friends tell me that it’s almost certainly going to be retaliatory. And that the idea of constraints after what’s happened now is going to be impossible. And it’s going to be impossible to resist doing everything Trump is doing in reverse, whatever that looks like. And that takes us to yet a worse position.

It would be great if we could have the opposite. The reaction to the degradation of the executive in Vietnam and Watergate was Jimmy Carter. And for better or worse, he was a rule of law presidency. And a lot of things happened in the ’70s to put the executive branch in a better place.

I would hope that would happen. But unless things get completely out of control such that there’s a massive bipartisan consensus that there’s been failure that needs fixing, and is there ever bipartisan consensus that there’s failure that needs fixing?

Douthat: Not these days.

Goldsmith: I fear that it’s just going to go to a worse place.

Douthat: All right. It gets worse in the next round. On that note, Jack Goldsmith, thanks so much for joining me.

Goldsmith: Thank you very much, Ross.

Thoughts? Email us at [email protected].

This episode of “Interesting Times” was produced by Sophia Alvarez Boyd, Elisa Gutierrez, Andrea Betanzos and Katherine Sullivan. It was edited by Alison Bruzek and Jordana Hochman. Engineering by Pat McCusker. Cinematography by Marina King. Video editing by Jan Kobal and Dani Dillon. Original music by Isaac Jones, Pat McCusker and Aman Sahota. Fact-checking by Kate Sinclair, Michelle Harris and Mary Marge Locker. Audience strategy by Shannon Busta. Directed by Jonah M. Kessel. The director of Opinion Audio is Annie-Rose Strasser.

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Ross Douthat has been an Opinion columnist for The Times since 2009. He is the author, most recently, of “The Deep Places: A Memoir of Illness and Discovery.” @DouthatNYT • Facebook

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