Trump v. United States and the National Security Constitution
Jul 2, 2024
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Legal experts Harold Koh, Deborah Pearlstein, and Matthew Waxman discuss Trump v. United States and the National Security Constitution, exploring implications of executive power, presidential immunity, checks and balances, and calls for structural reforms to strengthen Congress in national security matters.
Supreme Court expanded presidential immunity, weakening checks and balances.
Incentive structure fosters executive overreach, court deference, and congressional inaction.
New executive immunity standards raise concerns about accountability and obstructing prosecutions.
Deep dives
The Expansion of Presidential Immunity
The Supreme Court's decision in Trump vs. U.S. marks a dramatic expansion of presidential immunity, allowing for absolute immunity for core executive functions and presumptive immunity for official acts. This decision alters the law of executive power and weakens checks and balances, as highlighted by Harold Hong-Joo-Koh. The Court's shift towards broad immunity reinforces negative incentives for the branches, exacerbating unilateral executive actions.
Challenges to Accountability in the System
The structure of incentives in the American system presents challenges to accountability, with a tendency for executive overreach driven by bad incentives. The executive's power to overreach, courts' deference and acquiescence, and Congress's lack of proactive action create a cycle of undermining checks and balances. The new immunity standards set by the Supreme Court intensify the risk of unchecked presidential actions, hindering accountability.
Effects of Executive Immunity on Presidential Conduct
The Supreme Court's decision on executive immunity establishes immunity for certain presidential actions, potentially shielding private acts from legal repercussions. Justice Sotomayor's dissent highlights how this immunity could obstruct prosecutions for attempts to undermine elections or engage in illegal activities. The broad scope of executive power outlined in the decision raises concerns about the constraints on holding the president accountable for misconduct.
Confronting Presidential Unilateralism
The discussion delves into the challenge of balancing a vigorous executive with a system of checks and balances. The evolving trend towards executive unilateralism poses risks to democratic principles, requiring structural reforms. The debate emphasizes the pivotal role of Congress in strengthening its oversight and reforming its procedures to enhance accountability within the government.
Addressing Structural Issues for Constitutional Reform
The conversation underscores the pressing need for structural reforms in the face of increasing executive power and weakened checks and balances. Proposals to strengthen Congress's role, enhance internal checks, and promote accountability are vital for upholding the constitutional framework. Efforts to reform the national security constitution and restore balance in the branches of government are crucial for safeguarding democracy and constitutional principles.
In this episode, Harold Hongju Koh of Yale Law School, Deborah Pearlstein of Princeton University, and Matthew Waxman of Columbia Law School join Jeffrey Rosen for a conversation to explore Trump v. United States and the updated edition of Koh’s landmark book, The National Security Constitution in the Twenty-First Century. This program originally streamed live on July 1, 2024 as part of the NCC’s America’s Town Hall program series.
