| Speaker | Time | Text |
|---|---|---|
| Well, we want to thank you for your precious time and sharing with your observation and lessons learned from Ukraine. | ||
| And please join me, a round of applause to General Debbie Patreon. | ||
|
unidentified
|
Thank you. | |
| And thank you all for joining. | ||
| Our final guest of the morning, Kim Whaley of the University of Baltimore School of Law. | ||
| She's a professor there, an ABC News legal contributor, also the author of the book, How to Read the Constitution and Why. | ||
| Kim Whaley, welcome back to Washington Journal. | ||
|
unidentified
|
Thanks for having me. | |
| Most recently, and I'll just give you the headline on the website Zatteo, that you write under the headline that the president's revealed a gaping hole in the Constitution. | ||
| Let's start with what that hole is. | ||
|
unidentified
|
The hole is that so much of it is based on a handshake agreement and on deference to the branches of government other than the presidency. | |
| So we talk a lot about how Congress has the power of the purse, but the president has the checkbook. | ||
| So Congress has the power to declare war, but the president has the power over the military. | ||
| So really, the president is supposed to kind of circle back and follow the instructions of the other two branches of government, and that's worked for 238 years. | ||
| It's just sort of an understanding that even though there's not really an obvious way to enforce the powers of Congress as compared to the president, presidents prior to Donald Trump just did that because they understood that's what their obligation was under the law. | ||
| And particularly with this administration, the second Trump administration, he's just coming in and saying, I don't care. | ||
| I don't care what the law says. | ||
| I don't care what appropriations, you know, what Congress is, how Congress has told me to spend the money. | ||
| I don't care really that there's a due process clause and there are all these restraints. | ||
| I'm going to do what I want because actually I was given all this power as president. | ||
| So the hole in it is really, with the exception of impeachment, there isn't an obvious workable mechanism to force a president to abide by his oath of office and the restraints that the Constitution really imposes with the understanding that you just do it. | ||
| You do it as a good president, as a good citizen. | ||
| And, you know, this president was elected in part because he doesn't adhere to rules. | ||
| He smashes things and he's going ahead and doing that. | ||
| And many voters probably like that for him, that he does that. | ||
| But as a practical matter, it really means the erosion in serious, serious ways of the Constitution because there's no way for the Constitution to kind of grow arms and legs and enforce itself. | ||
| And Congress is standing down to a large degree, and the Supreme Court is standing down to a large degree in terms of enforcing the Constitution as against Donald Trump himself. | ||
| Is it because when it comes, say, to Congress, because both houses are controlled by Republicans, would you say that hole existed? | ||
| Or does the same exist when Democrats ruled the White House as well as both houses of Congress? | ||
|
unidentified
|
Well, you know, the hole has always been there, is what I would argue. | |
| It's just that we've never been in this crisis inflection point because presidents just went along with what the law says. | ||
| You know, if a statute was enacted that creates an agency, for example, Department of Education or USAID, the presidents just followed the law of the statute that Congress created. | ||
| And if they wanted a different law, they'd go back to Congress and try to get supermajorities or majorities to get the legislation passed because they sort of operated under the understanding that they were bound by the law because they are. | ||
| This president is basically said, I don't care. | ||
| So that's really, I think what's novel here is just his willingness to ignore the law and say, I'm going to do what I want. | ||
| Make me. | ||
| do it, make me comply with the law. | ||
| And then we, of course, I think, have, you know, we have both houses of Congress that are controlled by one party. | ||
| That's not new. | ||
| That's happened before. | ||
| But this Congress, this particular Republican Party also seems comfortable or willing at least with allowing the Constitution itself to go unenforce, including its own powers. | ||
| I mean, James Madison wrote in the Federalist Papers, one of the founding fathers in Federalist 51, that the expectation was that pretty much everybody likes their power, right? | ||
| So Congress will push back on the president in ways because they want to keep their prerogative. | ||
| They want to make sure their appropriations power, their power of the purse, for example, stays alive and well, because people like to keep power. | ||
| But with this particular Congress, things have been happening that are really intruding on Congress's authority. | ||
| For example, closing agencies. | ||
| Presidents don't have a constitutional power to close an agency. | ||
| That's up to Congress because Congress makes the agency. | ||
| But this Congress is sitting back and saying, well, if it's Donald Trump, we're okay with it. | ||
| But then the problem with that is now that power is in the presidency period. | ||
| So whether it's Donald Trump or it's Kamala Harris or whoever it is in the future, that president now, because Congress has given up the power over money, that president's moving forward, there's a precedent now to just ignore the law and do whatever they want with agencies hiring and firing people regardless of what the law says, spending money they don't have or refusing to spend money that Congress said they should spend. | ||
| All of these things, it's almost like an example I use in the, I'm a mom, teenagers, the example I use in the piece is like, you know, if you give, you can give two teenagers a credit card and one, and you can say to both of them, listen, this is for you to use in an emergency, but you've got to call me or text me before you use it to get my permission. | ||
| Don't buy a Starbucks without my advance permission. | ||
| One teenager will dutifully call mom and make sure mom is okay with it. | ||
| The next teenager will go out and buy her friends whatever they want and just deal with the consequences later. | ||
| Every president, I would argue, before Trump, with some rare exceptions in certain issues, is teenager number one, said, listen, we want to make sure Congress is okay with this. | ||
| We better go to Congress and try to get the votes to do what the White House wants to do. | ||
| This is teenager number two. | ||
| I'm going to use the credit card however I want, and I'm the one that has the police force. | ||
| I'm the one that has all the power. | ||
| So what are you going to do about it? | ||
| And I think right now, America in general is sort of frozen. | ||
| People are a little paralyzed, not knowing what to do with this particular teenager who's using the credit card however he wants and daring the other branches, daring protesters, daring media companies, daring universities, daring other people to stop him. | ||
| And the parents aren't home. | ||
| The parents are kind of checked out, really, in a lot of ways. | ||
| So we're seeing so much power concentrated not only in one office, but in one person. | ||
| And we've never seen that in this way before. | ||
| And that's why me and many others now, I mean me for a long time, would say we're in a constitutional crisis because the Constitution isn't really operating to constrain the actions in the White House to make sure they comply with the rule of law. | ||
| And I argue in the piece, it's because there's really an understanding up until now, you just do it. | ||
| You do it because that's the right thing to do when you take an oath to uphold the Constitution, meaning you follow the rules even if there's nobody to force you necessarily to follow the rules if you breach the rules. | ||
| Kim Whaley with us, and if you want to ask her questions about the topics related to the piece that we've been referencing, you can do so on the lines: 202-748-8000 for Democrats, 202748-8001 for Republicans, and Independence 202-748-8002. | ||
| Text us your thoughts at 202-748-8003. | ||
| Kim Whaley, how does the judiciary fit as far as the checks and balance systems are concerned related to this president? | ||
|
unidentified
|
Right. | |
| So, Congress makes the law. | ||
| The president is supposed to take care that the laws are faithfully executed. | ||
| Don't get to optionally ignore laws. | ||
| And then you've got the judiciary that if the president does violate the law, you can file a lawsuit. | ||
| So, there is that third branch. | ||
| But the judiciary doesn't have an army or police force any more than Congress does. | ||
| So, what we're seeing is in the judicial branch, we've seen some instances where this president, for example, migrants get due process. | ||
| Maybe people think they shouldn't get due process, but they get due process under the Fifth Amendment and under a Supreme Court precedent. | ||
| And he has said, Well, I'm going to send them, I'm going to send them, you know, to third countries without due process anyway, even though courts have said that. | ||
| So, again, we've got the teenager saying, I don't care that mom says I'm supposed to follow the rules. | ||
| I'm going to go buy all my friends a beer. | ||
| It doesn't matter. | ||
| What are they going to do to me, right? | ||
| So, we do have the lower courts, lots and lots of lawsuits. | ||
| The wrinkle here, also, I think that is pretty unprecedented, very unprecedented, is for some of these cases, the lower judges are saying, No, you can't do that. | ||
| I mean, the law applies to everybody, including presidents. | ||
| You've got to abide by the law. | ||
| I'm going to issue an order saying abide by the law. | ||
| In some instances, the Trump administration has gone along with the law, presumably. | ||
| In some instances, they've ignored the law. | ||
| In some instances, they've gone up to the Supreme Court and said, Listen, this lower judge told me to abide by the law. | ||
| And we've seen many times where the majority on the Supreme Court have just reversed the lower court with no explanation and said, We're just going to lift that injunction telling him to comply with the law. | ||
| We're not going to explain why we think it's okay to ignore the law. | ||
| We're just going to reverse the injunction in a one-paragraph order. | ||
| That's really, really unprecedented for a couple reasons. | ||
| And I think it's really outside the boundaries of what the Supreme Court should be doing. | ||
| The first reason is that one thing about law and judges and lawyers is that they explain stuff. | ||
| I mean, you see these long, long opinions with dissents. | ||
| The idea is the law is really squishy, and there's always arguments on both sides. | ||
| So, the court's job under Marbury versus Madison, 1803, is to say what the law is. | ||
| And that means you've got to say it and explain why you are letting Donald Trump do this. | ||
| Tell us. | ||
| And the second piece is that that's especially important when what they're doing is overruling long-standing precedents. | ||
| So, for example, for certain agency heads, the head of the National Labor Relations Board, for example, Congress says, you know, you can't fire this person unless you've got cause, unless you have a good reason. | ||
| That's been in place for the most part since for 90 years. | ||
| That rule that Congress can limit the president's ability to fire certain people on the idea that you want some independence, you don't want all political actors in the executive branch. | ||
| Now, again, people can disbate whether that's a good idea, but that's been the law since Humphrey's executor. | ||
| The Supreme Court basically let Donald Trump fire the head of the National Labor Relations Board and didn't really explain why they're ignoring Humphrey's executor, which has been around for 90 years. | ||
| This is really, really, really unusual. | ||
| And it's really bad because not only do people not get an ability to weigh in on why it's maybe a good or a bad idea to overrule effectively Humphrey's executor, but then judges in the future and Congress and they pass new statutes, they don't know what's right and what's wrong because the Supreme Court hasn't explained it. | ||
| So they don't know, are we allowed now to make an agency and limit the president's ability to fire them for cause? | ||
| Because they let them do what the NLRB, even though that was a constitutional statute for years and years and years. | ||
| So we're seeing the U.S. Congress kind of like cave and not do their job, and we're seeing the Supreme Court majority cave and not do their job. | ||
| And the other big issue, which is I'm so appreciative to have the opportunity to talk on a show like this, is this isn't being discussed. | ||
| I mean, most Americans don't have the expertise to understand these nuances, and this is why I'm here. | ||
| But also, you know, the media isn't really covering it in the kind of forealarm fire they should be covering it because it goes to, again, the roadmap for government, which is the Constitution, which is about limiting the power of a bullying government. | ||
| It's about limiting the government from bullying Democrats. | ||
| It's about limiting the government's ability to bully Republicans. | ||
| It's about limiting the government's ability to bully migrants. | ||
| It's about limiting the government's ability to bully MA supporters. | ||
| I mean, wherever you are in America, if you give government too much power, it can turn against you. | ||
| And you want rights. | ||
| You want to be able to hold the government accountable when you're the one that the government decides to bully, whether it's this administration or five years or 10 years or 20 years. | ||
| This is why it's an issue that goes across party lines. | ||
| It's not red, blue, you know, what your citizenship status is, whether your LGBTQ, whatever it is. | ||
| It's for everybody. | ||
| And right now, it's really not functioning in the way that the framers designed it to function because no one has dared to violate so many parts of it. | ||
| And the other branches aren't standing up to Donald Trump and saying you got to stop. | ||
| We have a lot of those Americans ready to ask you questions about the topics that you're bringing up. | ||
| Let's start with Derek. | ||
| Derek's in Marilyn, Independent Line. | ||
| You're on with Kim Whaley. | ||
| Go ahead, Derek. | ||
|
unidentified
|
Oh, hi, yeah. | |
| Thank you. | ||
| I'm also an attorney. | ||
| Ivy League educated. | ||
| Also, I was a faculty member in a law school. | ||
| I think it appreciates the discussion. | ||
| However, your guest is extremely partisan, and it would be in full disclosure. | ||
| She should also disclose who she voted for and which party she usually supports and everything like that. | ||
| And that would give context to some of her opinions. | ||
| You know, she states things are this is the law, this is the law. | ||
| In fact, not really. | ||
| You know, was she upset when Barack Obama said, I have a pen and I have a phone and did DACA without any congressional authority? | ||
| Was she upset when Joe Biden decided to forgive billions and billions of student loans without congressional authority? | ||
| Was she upset when the Biden administration put all these DEI and transgender policies in place without congressional authority? | ||
| I mean, this is so much, so much of this is what she's saying is hyperbole, particularly if you just listen to the way she talks. | ||
| I've done just as much constitutional stuff as you have, probably. | ||
| Everybody knows it's a, you know, the independent agencies, where are independent agencies in the Constitution, right? | ||
| Where are they? | ||
| They're not in there. | ||
| And Chevron, thank God, was overturned. | ||
| Thank God some of this other stuff was overturned. | ||
| And the Supreme Court does issue opinions. | ||
| I mean, you know, and you are not the arbiter of what the law is. | ||
| The Supreme Court is and Congress and everything like that. | ||
| Okay. | ||
| Well, Derek, we'll let her respond to your points. | ||
| Ms. Whaley. | ||
|
unidentified
|
Well, I'm certainly not going to respond to the accusations that I'm partisan and that other people know more. | |
| I mean, certainly other people do. | ||
| I'm really interested in debating the merits of those things. | ||
| And I am happy to go through all of those. | ||
| DACA was about executive enforcement policy. | ||
| That is, can the president decide not to enforce the law as to children that were brought here by their parents? | ||
| I mean, enforcement authority is classic executive branch authority. | ||
| If you're a police officer, you don't have to pull everybody over who is speeding. | ||
| You can pick and choose who you pull over, who's speeding. | ||
| Independent agencies, of course it's not in the Constitution. | ||
| There's lots of things that aren't in the Constitution. | ||
| There's actually, with the exception of the Department of the Treasury, there's no agencies in the Constitution. | ||
| Congress creates those agencies. | ||
| So that law does need to be upheld until Congress amends the law. | ||
| So, you know, you mentioned Chevron was reversed. | ||
| We can have a debate as to whether it was a good or bad idea, but there's the Supreme Court actually taking oral argument, having briefing, and issuing a long opinion explaining why Chevron was reversed. | ||
| Joe Biden's student loan program, there was statutory authority for that. | ||
| There was a disagreement as to whether that statutory authority actually covered it. | ||
| The Supreme Court found that there wasn't. | ||
| Sure, there's ambiguity in the law sometimes, and that's how it's always gone with presidents. | ||
| And, you know, politically, I actually worked for Ken Starr investigating Bill Clinton in the Whitewater investigation. | ||
| So, you know, I'm an equal opportunity accountability holder when it comes to presidents. | ||
| I think every president should abide by the law, but the caller is actually blurring some complex legal issues into some kind of umbrella that it's all politics, and it really is. | ||
| And I've been teaching constitutional law and writing on it, scholarly articles and now four books for about 20 years. | ||
| And I'm happy to debate people on the merits, but not based on ad hominem attacks around my politics. | ||
| Democrats line from Stephen in Maryland. | ||
| Hello. | ||
|
unidentified
|
Hello. | |
| I was just reading an article about 3,400 civil rights cases being dismissed between March and June by the Department of Education. | ||
| And just the wholesale destruction of these various agencies is really concerning to me. | ||
| I'm just wondering what your thoughts were in terms of the unions having the ability to confront like federal employee unions confronting their destruction of their own jobs, mass firing and layoffs. | ||
| You mentioned it a little bit before, but is there anything that you see in the future for them to be able to do to protect their own jobs? | ||
| Thanks. | ||
| Yeah, well, I mean, there's always lawsuits, like I said. | ||
| I mean, that's an important component of our system of government, our separation of powers, is that if the government does something that is illegal in a union, the benefit of a union is if you join a union, you have the safety in numbers. | ||
| It's not like just you suing for your job. | ||
| The union sues on behalf of the workers, and then the workers have more leverage with respect to the employer than an individual. | ||
| That's the idea behind unions. | ||
| It's actually very empowering for just regular workers, as again, against the government. | ||
| When it comes to the Department of Education, one of these cases I mentioned where the Supreme Court is rubber stamping some of the things that are happening out of the Trump administration, the Department of Education is one of those. | ||
| It was in the last couple of weeks, the Trump administration has been firing people en masse. | ||
| And that went up on an emergency motion because a lower federal court judge put an injunction in place and no, we need to keep the Department of Education intact until this is litigated. | ||
| The Supreme Court reversed that injunction, sided with Donald Trump. | ||
| And so we're going to see mass cuts to, we have already seen it to the Department of Education, including could impact the 7 million kids who are special needs and have support through the Department of Education to have their educational needs met consistent with federal law. | ||
| For people who want to get into the sort of the legal arguments, I really encourage folks to look up some of the dissenting opinions because as much as the majority in some of these cases isn't explaining why it's doing what it's doing, the dissenting justices, Justice Jackson primarily, but also Justice Saidomayor and sometimes Justice Kagan, they will kind of give an explanation for what's going on. | ||
| So if people want to inform themselves, not listen to me, you know, or other experts, so to speak, but read it yourself. | ||
| It's all online on the Supreme Court's website. | ||
| And I encourage people to look at those things with an open mind, again, about the broader question of government, not Trump, not Biden, not particular presidents, but government itself, because it's really there to protect all of us, the regular people that don't have the power that the government has. | ||
| That's what it's for. | ||
| And that's what, if I'm partisan towards anything, it's partisan towards regular people to have their rights protected against, you know, a government that has law enforcement power, has military power, all the things that we've given our government through the Constitution and federal law. | ||
| Let's hear from Matt, who joins us from New York State. | ||
| He's on our line for Republicans. | ||
| Matt, you're next up. | ||
| Good morning. | ||
|
unidentified
|
Good morning. | |
| I find her to be quite energy. | ||
| And we're going to leave this program to take you live to the House floor for a brief session. | ||
| The House will be in order. |