Since January 20, 2025, President Trump has issued dozens of executive orders, several of which have attracted legal challenges. Steve Vladeck of Georgetown University Law Center and Gary Schmitt of the American Enterprise Institute join Jeffrey Rosen to parse the flurry of executive orders and preview the lawsuits they face.
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Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Yara Daraiseh, Gyuha Lee, Samson Mostashari and Cooper Smith.
Participants
Steve Vladeck is a professor of law at the Georgetown University Law Center and author of the New York Times bestselling book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Vladeck is CNN’s Supreme Court analyst and editor and author of “One First,” a weekly newsletter about the Supreme Court. Vladeck co-hosts the popular and award-winning National Security Law Podcast. A 2004 graduate of Yale Law School, Vladeck clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the 11th Circuit.
Gary Schmitt is a senior fellow in the Social, Cultural, and Constitutional Studies program at the American Enterprise Institute, where he studies issues related to the American presidency. A former minority staff director of the U.S. Senate Select Committee on Intelligence, Schmitt was executive director of the president’s Foreign Intelligence Advisory Board. Before joining AEI, he was executive director of the Project for the New American Century. Dr. Schmitt’s books include McCulloch v. Maryland at 200: Debating John Marshall’s Jurisprudence
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- White House Presidential Actions
- “Litigation Tracker: Legal Challenges to Trump Administration Actions”, Just Security
- Steve Vladeck, “The Impoundment Crisis of 2025”, One First Substack (Jan. 28, 2025)
- Steve Vladeck, “Trump's Guantánamo Memo”, One First Substack (Jan. 30, 2025)
- Gary Schmitt, “Presidential Impoundment, Explained”, The Dispatch (Jan. 17, 2025)
Excerpt from Interview: Gary Schmitt explains that presidential discretion and Congress's power over the purse often conflict, with Trump’s impoundment claims echoing Nixon’s 1970s actions.
Gary Schmitt: I think the key point is at one level, those just are competing principles that they're baked into the Constitution. I think one of the, I know one of the original reasons for having created the office of the presidency the way they did in the wake of, you know, basically 10 years of poor execution of federal laws and poor execution about foreign policy was to create an executive that would have discretion to manage the daily affairs of government in a more effective and efficient way. So, there's that one principle, and then, of course, there's the other principle, which is that Congress has the power of the purse. And the truth is, at times they've come into conflict. Now, let me step back and say that the impoundment authority that a president might argue having, at least in previous times, was limited to a very narrow set of circumstances, such as efficiency or change in circumstances. And that basically was the way things were until, I would say, in the 1960s when presidents began to impound funds for, particularly weapons programs that they thought weren't needed. What happened at that point was usually the Congress and the presidency would have a known tussle about how to work things out.
And eventually they did work things out. So, there was a kind of separation of powers, check and balance system at play there. This all was the case until the 1970s, when Nixon began to argue for impoundment across a broad range of programs that he just disagreed with as a policy matter. And then, of course, then as a result of Watergate and Nixon's impoundment arguments, you had Congress pass the Impoundment Act, and that sort of tried to define how impoundments could be undertaken. And it's that act that the Trump people are now claiming is unconstitutional. And so, that's where we stand. But again, you're sort of getting a repeat from the Nixon years where Trump's talking about deferring and impounding funds for policy programs that he just disagrees with.
Steve Vladeck discusses Trump’s immigration strategy, focusing on challenges in enforcement, legal issues, and the need for Congressional support.
Steve Vladeck: There's a lot going on in the immigration space, and so it's hard to keep fully abreast of all of the lawsuits. So, the heart of President Trump's immigration strategy is to radically increase how many folks in the United States who are subject to arrest, removal, and being removed from the country are actually picked up. So, Jeff, by some estimates, there are as many as 12 million undocumented immigrants in the United States. There are another substantial chunk of immigrants who are here lawfully but might be subject to removal because of crimes or other misbehavior. And it has never been the case that the federal government has had the resources to find all those individuals to pursue removal proceedings against them, to detain them pending removal, and so on. And I think it's been a real priority for President Trump to ratchet up that capacity. The problem is that to ratchet up that capacity, you need Congress because you need more money for these programs, you need more personnel for these programs. And so, what we've seen instead is the president trying to basically co-opt local and state law enforcement, including in states that don't want to assist in assisting in immigration enforcement.
We've seen the president announce that they're going to expand what's called the migrant operations center, the part of Guantanamo nobody knows about because usually it's not very active and doesn't have that many people as a place to hold up to, to 30,000 non-citizens, while, Jeff, they're in removal proceedings? And I think the key, I think, to put out here is none of this has actually happened at scale yet. No one has been sent to Guantanamo. There's been a threat to local and state law enforcement officials to assist with immigration enforcement, but no one has been prosecuted for not doing so. We've seen scattershot reports of ICE raids in a few places in the interior of the country, but not the kind of nationwide raids that some folks are worried about. So I think here we have to be a little bit sort of careful is not the right word, but just sort of nuanced in how we talk about the legal challenges.
With regard to the legal challenges, I mean, the sort of the effort to commandeer local and state law enforcement, I think will fail. Right. We saw, for example, a memo from the Secretary of Transportation, Sean Duffy last week. Well, I would have thought he had other things to worry about that, among other things, threatens to withhold all transportation funding from local and state governments that don't voluntarily assist in immigration enforcement. That strikes me as a textbook, unconstitutionally coercive spending condition, let alone one that isn't authorized by the relevant statutes. And as for Guantanamo, I mean, Jeff, there's no litigation yet because no one's been sent there, but if it happens, I'm sure there will be. So, the trick here is the president has an awful lot of authority as a matter of both statute and constitutional authority in the immigration space. Some of that authority, I think, is consistent with what President Trump is proposing, but a lot of what he's proposing isn't. And just figuring out when and where he crosses the line, I think is going to depend exactly on what happens going forward. I don't think we're there yet. The way that, for example, during the first Trump administration, you had all of that litigation that first weekend over the travel ban.
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