This is a great idea for a podcast: What the Trump presidency, with its manifold eccentricities, can teach us about Constitutional law. After all, on almost a daily basis the words and actions of the President raise some question about the powers and limits of the office.
The first episode takes off from Trump’s comment about Judge James Robart, who blocked his first attempt at an executive order banning travel to the U.S. from six mostly-Muslim countries: Trump tweeted that Robart is a “so-called judge.” According to Elizabeth Joh, the con-law professor who co-hosts the show with Roman Mars, that tweet raises the question of judicial legitimacy, which leads her to describe the famous Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, in which the Court ruled that President Truman did not have the authority to commandeer the nation’s steel mills to serve the needs of the military during the Korean conflict. For Joh, the really important point here is that Truman, though angered by the ruling, did not question it — he acknowledged and deferred to the legitimacy of SCOTUS.
But that’s where the podcast ends, which I think is just the wrong place. The vital question that arises is: What if Truman hadn’t so deferred? What if he had said “I do too have this authority, and I’m sending in my people to take over and run the steel mills”? People talk loosely about Trump’s actions producing a “Constitutional crisis,” but that would be a Constitutional crisis. For law enforcement officials, and maybe even the Army, would have to decide whether to back the Court or the President.
Given the current President’s history of demanding that he get his way in all things, and his oft-expressed frustration (even in these first few months of his presidency) at having his will thwarted, something like that could eventually happen: that is, the Executive branch simply refusing to acknowledge the legitimacy of one of the other branches and doing what it wants to do regardless of protests. So what, within the boundaries of Constitutional law, would happen then? I’d like to see the podcast play out some of those scenarios.