A conservative legal scholar on the constitutionality of Trump’s first year

Jeff Bennett:

Today marks one year since President Trump was sworn in for the second time. Over the past twelve months, the president has overstepped the limits of executive power, defied the Constitution, and reshaped the federal government.

He imposed unilateral tariffs and asserted control over independent agencies. The Ministry of Justice began investigations into his political opponents. He has deployed National Guard and active-duty troops to American cities over the objections of local officials. He has launched military operations in Venezuela and Iran, while threatening action in Greenland.

He followed through on his pledge to carry out a nationwide mass deportation campaign.

To help make sense of all these movements, this week we return as our guests from our On Democracy series, which explores the laws, institutions, and norms that have shaped this country and the different pressures they face today.

Our first conversation was with Ilya Shapiro, a senior fellow at the conservative Manhattan Institute.

Welcome back to the program.

Ilya Shapiro, Manhattan Institute:

It’s good to be back with you.

Jeff Bennett:

I know, from talking to you, that you believe presidents deserve broad latitude to implement their agendas. But at what point does expanded use of presidential power become an abuse of power?

Ilya Shapiro:

Well, I don’t think presidents get widespread respect just because they’re president.

There are constitutional limits. There is a separation of powers. And what we’ve seen in the last year, just in terms of court cases, especially what we’ve seen from the Supreme Court, is that the president is getting a lot of latitude in reorganizing the executive branch. He is the head of the executive authority.

We’ll see. I think the Supreme Court will rule that he has the right to fire the heads of executive branch agencies. On the other hand, when the president tries to make his own laws or change the laws in some way, he gets into trouble.

And we’ve also seen that, for example, when laws are used in a new way to use the National Guard in cities that the Supreme Court has paused, or with tariffs, which I think the Supreme Court will likely rule against on that, even though Treasury Secretary Scott Besent has said there are other ways to set other types of tariffs more narrowly.

I wish they had an idea about that in the beginning.

Jeff Bennett:

Well, yes, I know you based your thinking on authenticity. So where in the Constitution do you see the president’s authority to treat independent agencies as if they were an extension of the West Wing?

Ilya Shapiro:

Well, in the Constitution we have three powers: executive, legislative, and judicial.

There is no fourth branch or fifth branch of agencies that are not accountable to anyone else. So the question is: Is the agency a quasi-legislative body or is it executive? Because if it is part of the executive, the President, as head of the executive, must be able to control it.

And that’s why ultimately I think the Supreme Court will allow him to fire these agency heads. The Fed is different. As we speak tomorrow, the Supreme Court is preparing to hear a case regarding the removal of the Federal Reserve Governor. The Fed is a little different because it is quasi-legislative and quasi-executive. It’s its own kind of thing.

The president does not even introduce the power to remove the governor for any reason. He says he has a reason to fire Governor Cook.

Jeff Bennett:

A question about the politics of all this, because many of the same conservatives who were wary of an imperial presidency now support President Trump’s actions. What explains this? Is it just tribal politics? Or is there something else at play?

Ilya Shapiro:

Well, people change where they stand based on where they sit all the time. There are hypocrites on the right and left. I like to think I’m consistent in believing that the president has power over the executive branch, but wants limited government overall.

And so, I have certain disagreements with the Trump administration in terms of policy, in terms of the scope and growth of even taking over parts of private companies for ownership by the U.S. government. But the nature of what we see is merely a difference in degree, not kind.

We have presidents of both parties dating back decades and even more than a century, who continue to develop what has become known as the imperial presidency. It’s unfortunate, but it’s not just that the president is behaving badly. Congress is also content to pass the buck to the president so that he does not have to bear the consequences of those policy decisions.

Jeff Bennett:

What about the DOJ investigations, and the DOJ opening investigations and investigations into potential political rivals of President Trump?

I know you’ve criticized politicized prosecutions in the past. Why don’t Americans see this as precisely the kind of abuse of prosecutorial power that conservatives once warned about?

Ilya Shapiro:

When President Trump was campaigning for his second term, he said, citing the legal war against him, that he would be different, and that he would put an end to this politicization.

And I think he’s given in somewhat to the temptation to get involved in that by mutual politicking at times, with James Comey, for example, going after the governor of the Federal Reserve, Chairman of the Federal Reserve, Jerome Powell. So I think there are abuses there.

But some investigations, which the Justice Department has been criticized for being politicized, actually seek real wrongdoing.

Jeff Bennett:

Have military strikes in Venezuela, launched without explicit congressional authorization, become irrelevant to decisions on war and peace?

Ilya Shapiro:

I think that’s the case when we’re talking about something other than the Great War. What is the great war? Well, Iraq or Afghanistan, something certainly longer than just in and out, or the Maduro operation in Venezuela, or even drone strikes on fishing boats.

We have a War Powers Act that is more than 50 years old. Most presidents talked about it while asserting that it was unconstitutional. It passed over President Nixon’s veto. President Clinton made a trip that lasted more than 90 days to Kosovo and the Balkans without Congressional approval, and nothing happened.

I think what President Trump does in terms of use of force is less important than what a lot of his predecessors did.

Jeff Bennett:

truly?

Ilya Shapiro:

certainly.

President Obama took active military action in Libya over the course of several days. I mean, this is greater than what Trump did in Venezuela or in Iran or anywhere else. He hasn’t done anything in Iran yet. He gave the green light to Israel to do it, with some help there.

So, yeah, I think a lot of people have short memories. Clinton is perhaps the biggest example of this.

Jeff Bennett:

As you know, James Madison warned that the accumulation of legislative, executive, and judicial powers in the same hands is the definition of tyranny.

Are we closer to this danger today?

Ilya Shapiro:

If we are, it’s not because of President Trump. It’s because of this dynamic of Congress ceding its power to the presidency.

Once again, Congress is controlled by both parties. Both parties control the president. There’s this dynamic that I think Madison lost the incentive to pass the political buck, so that dissatisfied voters, members of Congress could say, no, don’t blame me. It was the Deputy Undersecretary of such-and-such Ministry who issued that regulation that harms you.

So, yes, there are definitely problems with the way our system works. And I see good things from the Supreme Court, for example, eliminating judicial deference to agencies that take — executive agencies, which take expanded powers, and to presidents, for that matter, who monitor President Obama, President Biden, President Bush, President Trump.

So we’ll see. There’s that give and take that definitely happens.

Jeff Bennett:

So, is there any concrete action that the president has taken so far that, from your perspective, you would say crosses the constitutional line, full stop?

Ilya Shapiro:

I think, to me, the worst thing he did legally was constantly delaying the law to divest ByteDance from TikTok.

This law passed by an overwhelming majority in Congress, which never happens again, and was approved unanimously in the Supreme Court. However, the president has said three or four times, I think he’s said four times now, we’ll give a 90-day standstill period, which is what the law says if all that’s left in the divestiture deal is for the lawyers to kill it, which hasn’t happened.

So this doesn’t satisfy anyone’s narrative, but I point to TikTok as the biggest violation by President Trump.

Jeff Bennett:

Ilya Shapiro of the Manhattan Institute always enjoys talking with you. Thank you for being here.

Ilya Shapiro:

Thank you.