Lawfare Daily: Jack Goldsmith on Trump v. United States and Executive Power
Feb 12, 2025
auto_awesome
Jack Goldsmith discusses the Supreme Court's ruling in Trump v. United States and its significant implications for executive power. The conversation dives into the shift towards a more expansive view of presidential authority and how this affects American democracy. Key historical cases highlight the evolving landscape of executive power and enforcement discretion. The talk raises critical concerns about potential abuses of power and the balance between governance and oversight, urging listeners to consider the broader implications for the nation's legal framework.
The Supreme Court ruling in Trump v. United States marks a significant expansion of presidential powers, leading to a maximalist interpretation of executive authority.
The decision's broadened scope of the president's removal power raises serious concerns about accountability and undermines traditional checks and balances.
The interpretation of the Take Care Clause as granting unilateral discretion to the president poses critical questions about constitutional limits and oversight in American governance.
Deep dives
Broad Executive Powers Affirmed
The Supreme Court case regarding Trump versus United States affirmed a broad interpretation of presidential powers within the executive branch, signifying a potential shift towards a maximalist theory of executive authority. The ruling indicated that the president holds exclusive powers that other branches of government, particularly Congress, cannot regulate, exemplified by the president's pardon power. This perspective expands the scope of presidential authority, suggesting that the president's ability to execute the law includes discretion that is immune from prosecution even when it may lead to obstructive behavior. Such a ruling raises critical questions about the limits of executive power and its implications for American democracy.
Expansion of the Removal Power
The ruling has implications for the president's removal power, which the court has expanded beyond previous interpretations, emphasizing the unilateral control the president has over subordinate officials. This shift suggests that the president can use threats of removal as leverage to compel compliance from officials, even in situations where such directives might involve illegal activities. The court's endorsement of this expansive removal power means that Congress could potentially be obstructed in its capacity to oversee executive actions, leading to concerns about accountability within the presidency. This deviation from traditional checks and balances introduces new dynamics into executive authority that could undermine the rule of law.
The Take Care Clause and Executive Discretion
The Supreme Court also made a significant interpretation of the Take Care Clause, positing that the enforcement discretion granted to the president is an exclusive power that Congress cannot regulate. This interpretation implies that the president may determine which laws to enforce or ignore based on personal judgment, potentially sidestepping legal constraints established by Congress. The decision marks a novel application of the Take Care Clause, suggesting that it not only binds the president to enforce the law but also grants the discretion to avoid enforcement that could otherwise be deemed criminal. This reasoning raises critical concerns about the constitutionality of a president exercising such discretion without appropriate oversight.
Non-Enforcement and Presidential Authority
The discussion also highlighted the precedent set by the Trump administration regarding non-enforcement of laws, particularly illustrated through recent executive orders. The analysis suggested that the executive's decision to refrain from enforcing specific statutes not only tests the boundaries of lawful executive action but also challenges the separation of powers doctrine. Instances of non-enforcement previously occurred under the Obama administration; however, the current context appears to extend beyond typical executive discretion into areas of blatant disregard for established laws. Such actions underscore the increasingly fraught tension between executive authority and legislative mandates.
Implications for the Future of Executive Power
The ongoing debate around executive power, particularly post-Trump versus United States, signals a potential trajectory toward an executive leadership model that consolidates authority within the presidency. Concerns were raised that, if unchecked, these interpretations could lead to a systematic dismantling of established statutory and constitutional boundaries that have historically governed executive conduct. The implications of this legal framework extend beyond immediate cases, influencing how future presidents might wield power and interpret their authority within the executive branch. Ultimately, the evolving dynamics between the executive and legislative branches could significantly redefine the landscape of American governance.
Jack Goldsmith, the Learned Hand Professor at Harvard Law School and co-founder of Lawfare, joins Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare, to talk about his recent Lawfare article discussing last year's Supreme Court decision in Trump v. United States and its implications for executive power. They discuss how the ruling extends beyond presidential immunity, the broader shift toward a maximalist theory of executive authority, and what this means for the future of American democracy.
We value your feedback! Help us improve by sharing your thoughts at lawfaremedia.org/survey. Your input ensures that we deliver what matters most to you. Thank you for your support—and, as always, for listening!
