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The president of the United States has a lot of authority over the government. Selecting cabinet members, signing executive orders, nominating Supreme Court justices. But the president also faces constraints from Congress, the Constitution, the courts and existing laws. In the next hour, we look at some of president-elect Donald Trump’s signature campaign promises and explore what he can and cannot do. He could direct the Department of Homeland Security to ramp up deportations, for example. But building a wall along the Mexican border would require funding from Congress. Guest host Susan Page and a panel of guests discuss executive authority and its limits.
- Jeffrey Rosen President and CEO, The National Constitution Center; author of "Louis D. Brandeis: American Prophet"
- Matthew Dallek Associate professor of political management, Graduate School of Political Management at The George Washington University. He is the author of "Defenseless Under the Night: The Roosevelt Years and the Origins of Homeland Security"
- Julie Hirschfeld Davis White House reporter, The New York Times
- David Axelrod Director, Institute of Politics at the University of Chicago; former senior adviser to President Obama; author of "Believer: My Forty Years in Politics"
MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting for Diane Rehm. She's on a station visit at WESA in Pittsburgh. The president has authority over the government, but faces checks on this power by the courts in Congress. With me in the studio to talk about what President-elect Trump can and cannot do on his key campaign promises once he takes office is Jeffrey Rosen of the National Constitution Center, Julie Hirschfeld Davis of the New York Times and Matthew Dallek with the George Washington University. Thank you all for joining us.
MS. JULIE HIRSCHFELD DAVISThanks for having us.
MR. JEFFREY ROSENThanks for having us.
MR. MATTHEW DALLEKThank you.
PAGEWe're gonna invite our listeners to join our conversation later in this hour with your questions or your comments. Give us a call at 1-800-433-8850. Send us an email to firstname.lastname@example.org or find us on Facebook or Twitter. Okay. We've all heard the promises the Donald Trump made to campaign rally after campaign rally, build the wall, renounce the Iran deal, reverse environmental regulations. We want to talk, in this hour, about what he's going to be able to deliver on himself and the process that he'll have to go through to deliver on some other promises he's made.
PAGESo let's start right at the very beginning, Jeffrey. Give a brief snapshot of what the Constitution says a president can do.
ROSENThe president has very few enumerated powers in Article 2 of the Constitution. He's commander in chief, the executive power is vested in him. By tradition, starting with George Washington, he can receive ambassadors and so forth, but over the course of more than 200 years, vast arrays of executive power have accumulated in the president in ways that make it possible for him to act unilaterally and especially to act with congressional support.
ROSENSo out of the things that you've mentioned, build a wall, you need congressional appropriations. They're the ones who get to spend the funds, but with the money, then he could do that. Repeal environmental regulations, well, he controls the executive agencies and the Environmental Protection Agency. So far, Congress required the EPA to regulate climate change, but he could either repeal that regulation or Congress could repeal it.
ROSENAnd now, there are some things, though, that the president and Congress acting together can't do. They can't violate the first amendment, for example, so repealing libel laws would be checked, even by a Trump court. Or deporting people based on their religion, like Muslims, would clearly violate the Constitution and that might be checked as well.
ROSENBut when you look at the broad array of his promises, and we can get into the details, with the support of a Republican Congress, the president does have broad authority and he can even do a huge amount on his own without congressional support.
PAGEMatthew Dallek, has President Obama expanded executive authority in a way that a President Trump will be able to use?
DALLEKWell, on a lot of national security questions, President Obama has continued, in some respects, what President Bush did in sort of the targeted killing of terrorists using drones, for example. So, you know, there was an article in the New York Times in which someone was quoted saying that, you know, the president has handed President-elect Trump a smoking gun, which is, you know, a scary thought.
DALLEKAnd so, you know, to Jeffrey's point, executive power has expanded quite dramatically. But there also have been important limits. So, for example, President Obama, in 2009, signed an executive order saying that Guantanamo prison should be closed within a year. It's still open, obviously. I think the president has said it's one of his biggest regrets, that he didn’t just close it on day one. Partly, because Congress passed legislation that prevented prisoners from being relocated to the U.S.
DALLEKBut the politics, in a sense, and the logistics and really militated against closing Guantanamo and so there are real constraints and we can talk about some historical examples as well.
PAGEJulie, before we talk about historical examples and also some of the specifics for key promises the Donald Trump made, do you think that President-elect Trump and his team have a understanding of what they can do by executive order on day one with the stroke of a pen, what involves Congress, do you think they have a strategy in which they understand how they will have to go about implementing some of these promises?
DAVISNot that they've articulated to any of us who've been covering him since he won election. I mean, I think they definitely have a clear sense of what he said on the campaign trail and that he wants to keep some of those promises. He knows that the constituency that elected him really is demanding action on some of these things, particularly on immigration, on healthcare, on trade. But I don't think that the president-elect, or the people around him, have fully grappled with the consequences of taking those unilateral actions in the way that he's said he's going to.
DAVISAnd we heard President Obama yesterday in his news conference talk about, you know, this job is a wakeup call and you get here and you realize there are certain things that you can and can't do. And I think the constraints are not so much constitutional necessarily, in this case, as they are political and pragmatic. He's going to run into a lot of sort of important details on the road to fulfilling some of these promises that he won't have contended with and won't have fully thought through.
DAVISAnd that's probably going to limit what he is willing to expend political capital on in his first, you know, hundred days, in his first term -- in his term.
PAGEJust 66 days till the inauguration. Jeffrey Rosen, tell us about how previous presidents have come in when they've been big change agents, as Donald Trump was in this election. He was promising a lot of change. To what degree are they able -- to what degree has previous presidents been able to do big things just in their opening days or weeks?
ROSENPeople can do big things. We all know about FDR's 100 days when he came in and closed the banks to avoid a panic and passed the early new deal agencies that some people thought were unconstitutional and then persuaded the courts to uphold them by threatening to pack the courts. JFK had a famous 100 days. Obama did as well. But what is so striking really about this administration is the combination of the ambitious program of President Trump and of the Republican Congress.
ROSENThis is the main thing, that there's a deregulatory agenda that the Republican Congress has been waiting to implement for a long time ranging from a repeal of much of the regulatory state, but a list of specific regulations ranging from greenhouse gas to climate change, to all sorts of other specifics, to fracking trails to the ozone rule, to -- look at all these wonderful -- the clean water rule, the clean power plant.
ROSENAll of these are things that the president and Congress acting together can repeal. Remember that the president controls the administrative agencies, which are constrained by Congress and then the question is will the courts constrain that? And broadly, if the president and Congress are acting together, the courts have generally been deferential to that action so in 100 days, a determined president and Congress can do a whole lot.
PAGEWell, let's talk about environmental regulations because that was one of the big promises that he would have a very different approach to climate change. President Obama, of course, had to turn to executive action on some of the environmental issues because he couldn't get legislation through Congress. So what happens, do you think, on, say, the EPA regulations that have been, Julie, so controversial?
DAVISWell, I mean, what a President Trump cannot do is just undo all of the regulations. But he does have control over the EPA and over the administration. He does have, as Jeffrey pointed out, a Republican majority in Congress. So what he could do is substantially sort of tamp down on enforcement of some of these rules such that he's not sort of destroying the entire Paris Climate Accord, but he is actually causing the United States not to live up to its emission reductions commitments because he is not imposing the rules the way that President Obama conceived of them.
DAVISIn order for these rules to be able to be carried out, you need an EPA who is going to enforce them in a tough manner. And as President Obama pointed out yesterday, that you already have energy companies and power companies sort of baking these assumptions into their business decisions and they will have come a certain amount of way since the Clean Power Plan came out on sort of how they organize their operations to just undo them with a flip of a switch not only is difficult in terms of the administrative function, but it would wreak havoc, I would think, with the energy sector.
DAVISAnd that's not something that I think a new president would want to do so that there's a political element to that as well.
DALLEKAnd that's why Obamacare, which there's -- it's one of the rare areas of actually consensus between the Trump White House and the Republican Congress, it's a great argument on the campaign trail, but actually repealing it, well, what does that look like? Does that mean that 20 million people get kicked off the rolls? Does that mean that all the provisions that even President-elect Trump has said he likes are ended? Does that mean that, you know, what replaces it exactly?
DALLEKWhat about the insurance marketplace and the insurance companies that have spent many years and I think millions or billions of dollars investing in these new markets? That is a much more complicated issue. President George W. Bush, though, after a very closely contested election, came in and what did he do? One of the first things he did was issue an executive order restricting embryonic stem cell research. That was a kind of cleaner issue. The politics were behind George W. Bush on that one.
DALLEKPresident Barack Obama came in and he overturned President George W. Bush's executive order with his own. That is a cleaner issue. I think it will be much easier for Trump to take these discreet issues, such as a stem cell research type issue, rather than these much more complicated climate change, Obamacare and the like.
ROSENIt might be worth just walking through briefly the Clean Power issue because it shows how many stages there are to the question. So right now, in the U.S. court of appeals for the D.C. circuit, President Obama's EPA's proposal to regulate carbon cutting has been challenged. The new president could come in. He could refuse to defend this rule. Congress could pass a new law forbidding the EPA from defending it. Trump could appoint new administrators. He could be lenient in its enforcement.
ROSENBasically, it'd have to go through a whole bunch of steps before repealing it, but Trump could do it if he wanted to.
PAGEWe're gonna take a short break. When we come back, we'll go to the phones. We'll take some of your calls and questions. 1-800-433-8850. Or you can send us an email, email@example.com. Stay with us.
PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And we're talking this hour about the powers of a newly elected president to take things over, to deliver on his campaign promises. We're going to talk now to someone with personal experience on that front. Joining us by phone from Chicago, David Axelrod. He's now director of the Institute of Politics at the University of Chicago. But he was a senior aide to President Obama during his 2008 campaign and during those early years in the White House. David Axelrod, thanks for joining us.
MR. DAVID AXELRODSusan, good to be with you.
PAGESo you came into office, I'm sure you remember those heady days in 2009 when President Obama was inaugurated. He had made a lot of promises. Was it easier or harder than you expected to do the things he had promised to do?
AXELRODWell, plainly, it was harder. He obviously -- he followed through on a number of them. It took years to accomplish some of those things. Some of those things weren't. I remember on the first day he signed an executive order to close Guantanamo within a year and ran into congressional opposition to that. And Guantanamo is still open today. I mean that's just one small example of things that you -- that he promised, that he wanted to follow through on but were frustrated. And that's the nature of this process.
AXELRODHe said yesterday that something -- I'm paraphrasing -- that the American government is like an ocean liner, not a speedboat. And it doesn't turn easily. And that is the fact. And that's what Donald Trump's going to discover as well.
PAGEI wonder if your perspective on that, David, has changed from eight years ago? If eight years ago you found it very frustrating that there were these other competing centers of power and challenges as trying to do things you were expected to do. And now, you look at that system and you think, hey, this looks pretty go to me.
AXELRODYeah. I mean that's also the nature of democracy. It depends on from what end of the spectrum you're looking. But I, you know, this system was built not to move easily. This system was built with checks and balances. And it was built to be hard to do, particularly big things. And, you know, that was done with some wisdom. Because the Founding Fathers, putting together a fractious country, different colonies and then states with different interests, wanted to make sure that no one was overrun. And so change is very difficult.
AXELRODAnd, you know, what they couldn't have foreseen was the modern media environment and the influence of money in these elections and all the things that add to people's impatience and inflate those things that aren't moving quickly in the public consciousness. So it -- if you're an agent of change in an era of modern media and with the system that we have, it can be a combustible stew.
PAGEBut, David, President Trump, when he's inaugurated will have the same happy situation that President Obama had initially, which is party control of both the House and the Senate. Does that put him in a position to push through something big, as you -- your administration, President Obama's administration was able to push through the Affordable Care Act?
AXELRODHarder because while he does have control, he has 52 votes in the Senate, we had 58 or 9 when we arrived and ultimately 60. And given the filibuster, it is easy -- not easy, but the minority has the ability to frustrate some of these things. They could change the rules and make it easier. I'm not sure that Mitch McConnell wants to do that. Because, first of all, he's an institutionalist. Secondly, I suspect there are elements of the Trump program that he doesn't think are particularly wise. And if they get frustrated, it wouldn't be -- it'd be okay with him. So I think it's going to be a bit harder.
AXELRODIt's also harder because, despite all this talk of mandate, you've got an incoming president who lost the popular vote and won the electoral college with some room to spare, but on the strength of states that he carried by just a few thousand votes. So, you know, if they proceed in a rational way, they need to be a little bit careful because they don't really have a mandate.
PAGEYou know, David, just one last question. I think a lot of Democrats are -- and voters who did not support Donald Trump are looking at this new administration with a lot of angst and worry and even fear.
PAGEAnd I wonder how you're feeling.
AXELRODYou know, I believe in this process. I believe in democracy. I am horrified by some of the things that I saw in this election and some of the things that Mr. Trump has said. I'm not sure how many of them are deeply held beliefs and how many of them were for the purposes of making the sale and how the presidency will impact on his thinking on some of these things. But I can accept the fact that you win elections and you lose elections. When you lose there are, you know, you're going to see policy go in a different direction. I'm disappointed about that.
AXELRODThe thing I worry about is the utter lack of preparedness for the job that I see. And I've sat next to a president of the United States for two years. I know what that job is. I know how complex and difficult the issues are that come to that desk. I know the burdens that rest on the president's shoulders. I'm not sure that Mr. Trump has fully contemplated or prepared for that. And that's the thing that worries me.
PAGEAll right. David Axelrod, he's director of the Institute of Politics at the University of Chicago, former senior adviser to President Obama. He's the author of "Believer: My Forty Years in Politics." Thanks so much for joining us.
PAGESo, Jeffrey, what do you make of what we've heard here from David Axelrod?
ROSENVery interesting observations. His reminder of the importance of the filibuster as a check is central, as well as his caution that it could, in theory, be eliminated. He was sanguine that Mitch McConnell, as an institutionalist, wouldn't want to eliminate it. It's possible, if Democrats tried to filibuster President Trump's Supreme Court nominees, that Senate Republicans would feel differently and would blow up the filibuster. And that would dramatically change the calculus.
ROSENAnd his cautions also about the new forces, like social media and money that have speeded up the pace of deliberation in a way that the founders didn't anticipate and challenges the notion that you have to go through lots of steps and take time before forming consensus is also really interesting. But David Axelrod is a seasoned politician and it was interesting to hear that he believes that checks do exist and the idea that in -- a president, especially an ill-prepared one, could immediately transform the government may be alarmist.
PAGEYou know, he also talked though about that he -- that Donald Trump didn't win a majority -- didn't win the popular vote, doesn't really have a mandate. On the other hand, we saw George W. Bush come in. He lost the popular vote. He won the electoral college in a dispute that went to the Supreme Court. And yet, Matthew, I don't think he really had any trouble exercising executive authority.
ROSENYeah, I mean, George W. Bush came into office very aggressively. Democrats -- and I actually remember this because I was working on Capitol Hill at the time -- arsenic levels in the water, you know, as an example of an EPA regulation that President Bush pushed through very aggressively. I mentioned the stem cell executive order. Tax cuts -- there was a -- before -- this was all before 9/11. Issues like climate change. I mean, there were a number of issues in which the Bush administration, despite the election contesting, Gore v. Bush and all of the acrimony left over, they left -- said kind of good-bye to all that and we're pushing our agenda.
ROSENMy sense is that President Trump, the Republicans in Congress will absolutely feel the same way. The difference though, and this I think is a significant one that David Axelrod hinted at, is that there are significant fractures within the Republican Party. So on an issue like trade, for example, let's say Donald Trump comes in and he tries to rip up every trade deal he finds in the Oval Office. Well, that directly contravenes the free trade -- devotion of free trade that Paul Ryan and Mitch McConnell and the vast majority of Republicans on Capitol Hill have. I'm not sure how politically easy it will be.
ROSENAnd then there's going to be potentially economic fallout. Which, if you're going to be the sort of greatest jobs president ever, that also is potentially a problem. And then one final thing, too. You know, presidents have only so much political capital. President Obama, part of the reason he couldn't get Guantanamo done is that, you know, they were consumed with health care reform. So, you know, they can't do a hundred different -- they can do a ton in a hundred days, but they've only got so much capital. And if Donald Trump goes down a kind of rabbit hole, let's say, of trying to prosecute and jail Hillary Clinton, that could consume a lot of his agenda.
PAGEOkay. Let's talk about some specific promises, jailing Hillary Clinton, he said. There was no more popular chant at a Trump rally than lock her up. It's a chant we also heard at the Republican Convention. Jeffrey Rosen, could President Trump lock her up? Could he launch a criminal investigation of Hillary Clinton?
ROSENWell, the president controls the Justice Department, which controls the FBI. And we know that the FBI has investigated Hillary Clinton's emails and concluded that there is nothing prosecutable. There are other potential investigations, including alleged, you know, improprieties by the Clinton Foundation. There are checks within the Justice Department. And there's a tradition of independence, as we saw for better or for worse by James Comey's decision to thwart the recommendation of President Obama's attorney general in releasing his letters about the email investigation.
ROSENSo that's a long way of saying that -- you know, the tradition of locking up your political opponents, which we've seen in Argentina and other countries like that is not part of the American tradition.
PAGEHas it ever happened?
ROSENLocking people up criminally, do you know?
PAGEGoing after your opponent. Beating your opponent and then...
ROSENYeah, and then locking them up.
PAGEOr at least investigating them.
ROSENWell, the most dramatic example, Eugene V. Debs, the Socialist candidate for president, actually ran from jail in 1920, partly because of his anti-war speech, a conviction upheld by the Supreme Court. But that was less about political than because of his opposition to the war. I can't -- no, I -- maybe our listeners will rebuke me, but I can't think of an example where an incoming president has attempted to lock up his predecessor. And the tradition of independence within the Justice Department, by prosecutors, by line attorneys, is strong. And then, of course, there are the courts. And really, any prosecution that wasn't well founded would be unlikely to survive the many rigors of the American legal system.
PAGECould a president instruct his attorney general to appoint a special prosecutor against Hillary Clinton?
ROSENWell, we know that there's no longer an independent counsel of the kind that investigated President Clinton, because Congress mercifully allowed that ill-considered law to expire after the Starr investigation. Independent counsels are under the control of the attorney general. And they can be appointed for particular matters. But they're ultimately under -- unlike the Clinton independent counsel -- they'd be controlled by the Trump justice department, but ultimately constrained by the courts. They don't have different status than ordinary prosecutors.
PAGESo it'd be up to his attorney general, whether to appoint this new -- this sort of independent inquiry.
ROSENYes. And he would have to ask the attorney general. And we have seen examples where attorney generals have balked. And the Saturday night massacre of President Nixon, there were resignations by the attorney general. Finally Robert Bork, the solicitor general, had to do the firing. So -- but this is such an interesting thread. Because Nixon -- President Nixon was undone by his effort, if not to prosecute his opponents, at least to use the IRS to investigate them, his enemies list, the Watergate break in related to his sort of paranoid efforts to insulate himself from his political opponents. These sort of efforts have not ended well historically.
PAGEJeffrey Rosen, he's president and CEO of The National Constitution Center. And we're also joined in the studio by Julie Hirschfeld Davis. He covers the White House for The New York Times. And Matthew Dallek, an historian, associate professor of political management at the Graduate School of Political Management at George Washington University. He's the author of "Defenseless Under the Night: The Roosevelt Years and the Origins of Homeland Security." We're going to take a short break. When we come back, we're going to talk about building the wall and immigration. Stay with us.
PAGEWe're back. We want to talk about build the wall. Julie Davis, could Donald Trump build a wall?
DAVISHe cannot build a wall by himself. This is something that he will definitely need Congress to do. He needs congressional appropriations. He would need, you know, Congress to act in a fairly significant way in order to step up, you know, the building of a border wall. Now he has said since he's -- he won that in places it could be a fence. And of course there is some fencing on the border already. So we don't -- we're not sure how much of a wall he's really planning to build. But he would certainly need congressional action. Now it is a Republican...
PAGECongressional action because he would need money.
DAVISBecause he would need appropriations.
PAGEHe wouldn't need them to authorize him to build it. They would just need to provide the money to do so.
DAVISThey would need to provide the money to do so, yes. And he would also need to sort of reorder the priorities of the immigration authorities in this country. I mean, President Obama has, you know, done a lot with executive action because he could not get traction on Capitol Hill for a comprehensive immigration reform. So he, for instance, has shielded from deportation immigrants who were brought her as children. He attempted to extend that to their parents and give them work permits for temporary legal status in this country, although that's been challenged in court.
DAVISBut he also enacted some new -- and you can do this as president unilaterally -- some new sort of priorities for who the immigration authorities focus on when they are looking for people to deport. So he has said they should focus on criminals and people who have come here recently. Donald Trump, as president, could say, well, we should focus on anyone who overstayed a visa or people who came here, you know, 15 or 20 years ago. He can reorder those priorities so that, in addition to building a wall, you're essentially telling your immigration officers and agents at the border, you're casing a much larger and wider net here and being much more aggressive in trying to find people and remove them if they don't have authorization to be here.
PAGESo, Matthew, this effort, in particular, to shield DREAMers, people who were brought here as young people but illegally, and young people signed up for this protection, so they're on record as acknowledging that they're here illegally. Could he decide to target them?
DALLEKAbsolutely. And this, I think, is an example where the power of the presidency, if he wants to marshal his political capital behind this, he could sign an executive order overturning what Obama did to provide those legal safeguards to the DREAMers. Now, then the question is, does he then order immigration officials to target those people and try to deport them. Part of it is, we have a really shifting target here from Donald Trump. Because during the campaign, he said famously, infamously, he was going to have a deportation force and deport all -- they all have to go, he said. Now, he's pulled back on that and he said, well, two to three million.
DALLEKSo I don't think he even knows what he's going to do. But I would not be surprised if he, as a symbolic and a substantive gesture to one of his key campaign planks, if he overturns that Obama executive order. And immigration is an issue on which he's going to have a lot of leeway. But the last thing I would say is that, you know, Obama -- President Obama famously said, you know, I have a pen and a phone. The pen is very powerful. But that means when you no longer have the pen, it's powerful in somebody else's hand. And, you know, this is an example of that.
DALLEKBut it also, I think, will speak to the limits on now President Trump. This is not to downplay what he can do. But this is not necessarily permanent if he signs and executive order, because a new president could come in, in four years, five years and overturn that.
PAGEWe're going to take a short break. When we come back, we'll continue our conversation and we'll go to the phones. Stay with us.
PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. We're talking with Matthew Dallek the historian, Julie Hirschfeld Davis, the reporter from the New York Times, Jeffrey Rosen from the National Constitution Center about what a newly elected President Trump will and will not be able to do in quick order when he takes over in January. Robin was our very first caller. Let's go there. Robin's calling us from Orlando, Florida. Hi.
ROBINHi there. Can you hear me?
PAGEYes, I can, please go ahead.
ROBINWell, as I remember, the LGBT community here in Florida, I think the big question of our entire community is will Trump and Pence be able to overturn marriage equality. Most of the folks I know are quite scared.
PAGERobin, thanks so much for your call. Let's ask our panel. Jeffrey?
ROSENOnly the Supreme Court could overturn marriage equality. President-elect Trump will be able to appoint at least one and maybe more justices. He has signaled marriage equality is fine. So his own view is that marriage equality should not be overturned, but Roe v. Wade should be overturned. Now that doesn't mean that the justices he appoints would share that view since both marriage equality and Roe v. Wade rest on an enumerated right to privacy and dignity that share jurisprudential roots.
ROSENStill plenty of people have speculated that even a Trump might feel that because marriage equality has inspired so many reliance interests, as a lawyer would say, so many people have come to depend on it, that even a conservative court would be unwilling to disrupt existing marriages and tear families apart. By contrast, it might be more willing to overturn Roe on the grounds that people have not come to rely on the right to choose in the same way.
ROSENBut there's no guarantee at all of that distinction. Trump justices might feel differently. Some of the justices on Trump's list, the candidates, have criticized Roe v. Wade in the strongest possible terms, as saying -- calling it a jurisprudential disaster, such as William Pryor, one possible candidate. And a justice who felt that way about Roe v. Wade might well feel the same way about marriage equality, so it would really just come down to how strongly the court felt about precedent and so forth.
ROSENBut just to reassure the caller in the immediate term, with one Trump justice, the court goes back to the balance that it was under Justice Scalia, and that is a court where there is a five-to-four majority in favor of the core of both Roe v. Wade and marriage equality because Justice Kennedy is in the swing seat. It would take another retirement by a conservative justice in order to shift the balance on marriage equality and Roe and to put both of those decisions into danger.
PAGEAlthough given the age of some of the justices, it wouldn't be surprising if Donald Trump got a second appointment to the Supreme Court.
ROSENIt would not at all. Justice Kennedy is 80, Justice Ginsberg is 83, Justice Breyer is in his late 70s. So it's not -- wouldn't be unlikely at all.
PAGEIf the court overturned the right to marriage equality, what happens to same-sex couples who have already gotten married?
ROSENIt's a -- it would be up to the court to decide that. When the California Supreme Court overturned a referendum granting marriage equality, it essentially grandfathered in the existing couples who had been married during the brief period when people were allowed to marry in California. So it's possible that a court could say the existing marriages are stable and will be recognized, but there will be no new marriages. But the court could reach a different conclusions, as well.
PAGERobin, thanks very much for your call. Let's go to Ann, she's calling us from Wells, Maine. Hi Ann.
ANNHi, thank you for taking my call. My question is will he be able to restrict the press in regard to his presidency. What I'm thinking is maybe isolating himself.
PAGEAll right, Ann, thanks very much for your call. Let's ask the reporter on our panel. Julie, what do you think?
DAVISWell, I mean, there are certain things that yes, he can do. He can do actually quite a bit. He can't, as Jeffrey mentioned earlier, sort of disregard the First Amendment and, you know, shut down newspapers and the like, but, you know, the White House press corps really operates not based on any law or even rules but by tradition. The press pool that follows the president's movements around the White House, events at the White House, when he leaves the White House, when he travels abroad and outside of Washington, D.C., the press -- he has a protective press pool, which means that we're with him basically at all times that he has a public schedule.
DAVISAnd a President Trump could decide that he did not want to submit to that kind of -- that kind of convention. And likewise, the White House controls the press credentials that we wear around our necks to get into the White House complex every day and go to the briefing room for daily briefings. They could decide, if they wanted to, that they didn't want to have a daily briefing or that they didn't want reports to have permanent credentials to be able to enter and leave at their will.
DAVISWe don't know of course if he's going to do any of this, but the point is none of it is governed by law, and he will have to decide what kind of relationship he wants to have with the press. During the campaign, I was not on the campaign trail myself, but my colleagues, you know, would bring back tales routinely of having been kept at an arm's length, much more so than in prior campaigns they had covered by the Trump campaign, not allowed to be in the vicinity of the candidate, on the plane with him and to question him routinely.
DAVISAnd we've certainly seen that since he was elected. We still haven't had a news conference.
PAGEOne of the other things that the Trump campaign did during the campaign was pull credentials for some organizations when they did stories that he didn't like, he thought were unfair or inaccurate. Could the Trump White House pull credentials for news organizations if they wanted to?
DAVISAbsolutely. They -- I mean, the Secret Service maintains the sort of protocol around granting credentials, but if they get -- you know, in order to apply for a credential, you need a letter from the press secretary, and if the Trump administration or Trump White House press secretary wrote to the Secret Service and said, you know, we are hereby canceling the credentials of Julie Hirschfeld Davis, I think that they would have to honor that.
DAVISI don't know that it's ever been tested, but, you know, they are the ones that control the press corps of the White House and who has access and who doesn't.
PAGEThere has been -- sometimes people who apply for credentials have been denied them because the judgment is that they don't actually work for a legitimate news organization. But I'm not aware of a time when a news organization, a legitimate news organization, had their credentials pulled. Maybe one of our listeners will have an example of that that I don't have.
PAGEHere's a -- Matthew, here's a question that was posted on Facebook by Gwendolyn. She writes, is Trump the only, the one and only decision-maker in terms of whether to use a nuclear bomb. Is it just up to him?
DALLEKWell, he has -- look, that's one of obviously the biggest fears, I think, and it came out in the campaign in the form of revisiting the daisy ad from 1964 that was run against Barry Goldwater, this idea that, you know, do you want Trump having the nuclear codes. He is the decision-maker. He is the president, the commander-in-chief. Unless he's incapacitated, nobody else is allowed to order a nuclear launch.
DALLEKHaving said that, presumably there will be advisors around him. There will be military officials. And these people do provide breaks to some extent on the ability to deploy military power. But yes, this is an awesome power that the president, in the modern era, sort of since World War II really, has held, and even during -- and I think it was in the early 1970s when President Richard Nixon was asleep, and I think he was drunk, actually, and some of his aides, including Henry Kissinger, said essentially that we are going to raise the DEFCON level, the nuclear -- the military threat, nuclear threat level, during the -- I think it was the Yom Kippur War in the Middle East.
DALLEKSo there is vast power, and I think this is frankly the -- you know, there are a lot of questions, and I think this is one of the most central ones, sort of the use of military force and who will be doing the restraining, and will it be effective.
PAGEYou know, I think I remember, and please correct me if I'm wrong, that was it Schlesinger who told the generals not to obey an order during the Watergate investigation to -- for Nixon to launch a nuclear bomb unless they check with him. Is that -- is that correct? But it was extralegal, right? He didn't really have the power to make them do this.
DALLEKWell look, when Trump said we're going to do -- during the campaign, when he said we're going to do torture and worse, you know, we're going to target families of terrorists and kill them, well, that would be, my understanding is, asking military -- U.S. military officials to commit war crimes, and they would -- and maybe, you know, Jeffrey, you might be able to speak to this better, but, you know, they would I think be able to refuse an illegal order.
DALLEKWhether they would do that, you know, I don't know, but this is I think, again, part of -- and then the other point, though, I want to make is generally, based on all these calls and your question, I think -- I think the more fundamental question here is, you know, this campaign was the most divisive, I think, that -- in a series of divisive campaigns that I can remember in my lifetime, at least, the past two, three decades.
DALLEKAnd so the question is how divisive is Trump going to be as he governs. How aggressive is he going to be in attacking the media? Are some of the tactics that the Trump campaign used during the campaign, are they going to then employ them in the White House? They might. What about issues of immigration. Again, how many people are going to deport? Surveilling Muslim-American communities, which was an idea he raised, banning Muslims or people from entire countries.
DALLEKAnd I think these are again great unanswered questions, but they are fueling a lot of the worry that the people legitimately have.
PAGEJeffrey Rosen, what do you think?
ROSENActing illegally even on the basis of an order doesn't immunize you from liability. We remember from the investigations into the Guantanamo tortures that there were some who wanted to prosecute the prison guards who engaged in torture and then the idea that there had been some legal opinions suggesting it was okay, didn't immunize them, although the president and inspector general ultimately recommended against prosecution.
ROSENBut yes, all of the checks that you've talked about are, by tradition, and certainly a determined president who wanted to launch nuclear attacks could do so unless he was formally declared incapacitated according to the Constitution. What's so striking of course is that it's Congress that has the power to declare war. For generations Democrats objected that too much power was being assumed by the president in the war arena, the War Powers Resolution requires the president to report to Congress if he keeps troops out for more than 60 days, but in practice that's just very hard to enforce, and the president can do a heck of lot of what he likes with the nuclear codes.
PAGEDo you hear more -- you've been a big figure in constitutional law for some time. Do you hear more kind of concerns about this with this transition than in previous ones?
ROSENThere are both because of the unusual nature of Trump's candidacy, which was resisted not only by Democrats and civil libertarians but by libertarian conservatives, who found his kind of nationalist authoritarianism, according to some, to pose challenges to the checks imposed by the Constitution. And that combined with the fact that the president and Congress are now controlled by the same party has made many to ask what would the framers have thought of our current situation, what would Madison have thought, that this -- the framers who were so keen to divide and separate powers to prevent any one branch from gaining too much of it.
ROSENWhat would they make of a determined, centralizing president who wants to amass power in his own hands? And then what would they have made, too, about the other factors we're talking about, this speed of deliberation, which results in this incredible polarization where people live in filter bubbles, both sides don't talk to each other? It's the antithesis of the compromise and reasoned deliberation that they thought was necessary for democracy to survive.
ROSENSo this question of whether the framers would believe that our system was broken and whether the Constitution is adequate to perform the function that they hoped in checking in a president who's trying to encroach on those boundaries is crucial. It's really important to have this conversation. I think I would say to listeners, don't -- let's not be emotional or assume we know what's going to happen. These are relatively unchartered territories.
ROSENWe've talked about the possibility that many of these checks could kick into play. Remember David Axelrod's reassurance that it's hard to act unilaterally, especially with the president without congressional support. But it -- the question of whether the Constitution will live up to its job of constraining the president is one of the most urgent questions before the country today.
PAGEI'm Susan Page, and you're listening to the Diane Rehm Show. Let's go back to the phones. Let's talk to Julia, who's calling us from Dayton, Ohio. Julia, thanks for waiting.
JULIAHi, thank you very much for taking my call.
PAGEYes, please go ahead.
JULIACan you hear me?
PAGEYes, yes, we can.
JULIAYes, ironically my question kind of goes with some of the comments that have been -- and discussion that have been going on in the last few minutes. My question was with our -- you know, with our future President Trump being at -- you know, such a seemingly such an admirer of people like Vladimir Putin, is there a change that, you know, depending on, like, you know, the people that he surrounds himself with and if he, you know, and as an example that I gave the screener about, you know, talking about limiting press coverage and things like that, is there any danger that, you know, my -- part of my concern is could he kind of, since he's such a pusher, turn things around to where he could become more -- not necessarily a dictator yet but kind of start taking us down that road and being more authoritarian.
DALLEKYeah, well, my sense is that he could take steps that resemble, and look, there has been a longstanding debate, certainly from the founding, but it's accelerated since World War II, about what the proper powers are for the president, especially because, as Jeffrey said at the beginning of the show, they're not really enumerated in the Constitution.
DALLEKThere are absolutely things that Donald Trump could do that would resemble, in terms of going after the press, targeting particular communities, using the power of law enforcement, which is an awesome power, to target enemies. Some of these things frankly President Richard Nixon did or attempted to do. And it destroyed his presidency.
DALLEKNow I'm not saying that the same thing will happen under a Donald Trump presidency, but -- and, you know, we can argue whether the checks are in place in the same way that they were in the early 1970s. One thing I would say, though, is that first of all, I think the media, traditional media, for all of the attacks that have been leveled against it, may be more important now to the functioning of democracy than it has been in a long time because what kind of checks are left.
DALLEKWell the media is there, and they did some tremendous reporting during the campaign, I think on both sides. They performed a real -- a service in exposing the records of the different candidates. And I think that will be an important check. In 1952, Harry Truman, during the Korean War, he used the war in part to justify seizing the steel mills, which were suffering through labor turmoil.
DALLEKWell, the Supreme Court, a lower court and then the Supreme Court said actually no, that's unconstitutional, you're not allowed to do that, and he lost on that, and that was during a military crisis in the early Cold War. So, you know, I do take hope historically that there are some checks, although then again Franklin Roosevelt with executive order, stroke of the pen, interned tens of thousands of Japanese-Americans at the start of World War II.
PAGEMatthew Dallek from the Graduate School of Political Management at George Washington University, Jeffrey Rosen from The National Constitution Center, Julie Hirschfeld Davis from The New York Times, thank you all for being with us this hour.
PAGEI'm Susan Page of USA Today, sitting in for Diane Rehm. Thanks for listening.
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