Jamelle Bouie and David French of The New York Times, Sarah Isgur of The Dispatch, and Melissa Murray of NYU School of Law join Jeffrey Rosen to make sense of the relationship between the Roberts Court and the Trump administration. They discuss how the Supreme Court might resolve open legal questions—including impoundment and the unitary executive theory—and debate the Court’s role in maintaining the separation of powers.
This conversation was originally recorded on February 22, 2025, as part of the NCC’s President’s Council Retreat in Miami, Florida.
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This episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock and Advanced Staging Productions. Research was provided by Samson Mostashari and Cooper Smith
Participants
Jamelle Bouie is an opinion columnist for the New York Times, where he covers history and politics. A former political analyst for CBS News, he previously served as chief political correspondent for Slate magazine and staff writer at The Daily Beast.
David French is a New York Times opinion columnist and hosts the legal podcast Advisory Opinions. Before that, he was a senior editor at The Dispatch, which he helped start, and a contributing writer at The Atlantic. His most recent book is Divided We Fall: America's Secession Threat and How to Restore Our Nation (2020)
Sarah Isgur is currently a staff writer at The Dispatch, hosts the legal podcast Advisory Opinions, and frequently appears as a legal analyst on cable news. Prior to joining The Dispatch, Sarah served in the Justice Department as the director of the Office of Public Affairs and as senior counsel to the deputy attorney general.
Melissa Murray is the Frederick I. and Grace Stokes Professor of Law and Faculty Director of the Birnbaum Women’s Leadership Network at NYU Law. She’s also one of the hosts of Strict Scrutiny. She is a leading expert in family law, constitutional law, and reproductive rights and justice. Prior to joining the NYU faculty, Murray was on the faculty of the University of California, Berkeley, School of Law, where she was the recipient of the Rutter Award for Teaching Distinction. From March 2016 to June 2017, she served as interim dean of Berkeley Law.
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
- Melissa Murray (with Leah Litman and Kate Shaw), “Yes, We’re in a Constitutional Crisis” Strict Scrutiny podcast (Feb. 17, 2025)
- Jamelle Bouie, Michelle Cottle, David French, and Carlos Lozada, “Opinion: Don’t be Fooled, ‘Trump is a Weak President’” The New York Times (Feb. 14, 2025)
- David French, “The Trump Crisis Deepens,” The New York Times (Feb. 6, 2025)
- Sarah Isgur and David French, “Lawless or Unwise?” Advisory Opinions podcast (Feb. 14, 2025)
Excerpt from interview: David French predicts the Supreme Court will back a unitary executive model, allowing the president to control agency leadership but not dismantle congressionally established entities.
David French: I think Humphrey's Executor is not gonna survive. I don't know exactly in what form, as if, in other words, if say, the SEC or others are then brought completely and totally under the executive branch umbrella or not. But I do think where you're gonna see the most sympathy for Trump's position is around agency leadership. That's where you're gonna see the most sympathy for Trump's position. I think you're basically gonna see a version of unitary executive that goes like this, which is the president is in charge of the lawful, underline lawful circle, exclamation point, lawful operations of the executive branch. Now that means, and I think that is also gonna mean that the court's gonna say that the President has the ability to hire and fire your policy making employees, your agency heads and things like that. I do not think it is going to mean that the Merit Systems Protection Board and all of that is just gonna fall away. I don't think it's gonna mean that at all. I do think if the reason for discipline, and this is a point I think is so important, I agree with Melissa completely that you can't look at the Supreme Court to "save us" but maybe for a slightly different reason.
And that is the Supreme Court just answers questions, right? It's going to receive cases and it's gonna choose which cases and answer the questions that it thinks are sort of the most constitutionally significant or where the division is most profound, where they have to reach in and settle in. The only governmental body that can mount the kind of full spectrum resistance or challenge is Congress. I mean, it's the one that can turn off the money spigot, correct? But the Supreme Court, a lot is gonna depend on what they take. If they take a case that is Donald Trump is trying to get rid of a head of an independent agency or the governing entities and an independent agency, that's gonna be a clear signal, in my view, that they're gonna uphold what the Trump administration is doing. If they're gonna take a case where it is, we're firing all the merit system protected employees, I think that's a signal they're gonna take that and say the unitary executive doesn't go this far. But my basic assessment of how this will go with the Supreme Court is they're gonna say the President is in charge of the lawful operations of the executive branch.
And that's gonna be the fundamental principle. Now, that does not mean that the President can extinguish part of the executive branch that Congress has established. But once Congress has established that part of the executive branch, the President is in charge of its lawful operations. And I think that that's gonna be a distinction that will come to the fore. Is Trump trying to run this or is Trump trying to destroy this? Those are different kinds of questions. And I think the Supreme Court will say yes, Trump can run no, if you have a statutorily created entity like a Department of Education or USAID, he cannot destroy that. He has to run it. And running it can't mean destroying it.
Excerpt from interview: Melissa Murray warns of growing power consolidation by the Supreme Court and the administration’s broad interpretation of rulings.
Melissa Murray: So just to clarify, when David mentioned that the Trump administration has the poorest record before the Supreme Court in terms of winning, that is true, but I think it has to be sort of nuanced to some degree. When The Trump administration 1.0 went up before the court and they did lose, it was often on procedural or jurisdictional grounds. So DACA, for example, the Court determined that the President and the administration had not followed the appropriate protocols as described under the Administrative Procedures Act. And for that reason, the recision of DACA was invalid. It said nothing about the substance of the question, the merits of the question. It was like focused on that jurisdictional issue. And a lot of the questions came up in that posture. So we actually haven't really seen the Court delve into whether or not they are fully MAGA in terms of their sort of commitments on the merits questions. And I think we are going to see that going forward. And that's something to think about. With regard to this particular court and what it may do, all I will say is that this is a court which in the three years that it has had a 6 to 3 conservative super majority, has overruled a major precedent in each of those three years.
And I think this will be the fourth year it will be Humphrey's Executor. And that should give us pause because that too is a consolidation of power that is as dangerous and as worrisome as the President accumulating power for himself. And the fact that these things are happening in tandem should really give us pause. Finally, to the question of departmentalism, I completely agree with Sarah. I'm less worried about the President acting in utter defiance of the Supreme Court in as much as I am worried about this administration taking whatever the Court announces and reading it through its own lens. We are already seeing that with regard to the executive orders relating to DEI. We haven't really talked a lot about the DEI orders over the course of the weekend, so I'll raise it here. But the DEI order that was recently elaborated by Craig Trainor at the Department of Education speaks specifically of the Court's decision in 2023 in Students for Fair Admissions versus Harvard, and it is a complete over-reading of that decision. That was a relatively narrow decision that was focused on the question of higher education admissions.
And this letter from Trainor reads that decision to authorize the Department of Education to essentially rescind any kind of affinity group programming at colleges and universities, activities that I think would violate academic freedom, might violate the First Amendment rights of various organizations, might violate a whole range of constitutional rights, and implicate a number of constitutional questions. And so for me, what is actually worrisome is not the President saying let him enforce it, but rather the President taking those pronouncements and putting his own spin on it.
Excerpt from interview: Jamelle Bouie argues that the Trump administration's view of the president as the sole embodiment of the people's will is unconstitutional and breaks from American political traditions.
Jamelle Bouie: So I think one of the things that's important to recognize about the Trump administration's maybe sort of theory of the case, the president's theory of the case, is that it is first not grounded in what I would understand as like a traditional element of like Anglo American political theory, that you see the president again and again and again say something, and his allies say again and again and again, something to the effect of the president represents sort of like the singular will of the people. The president is this embodiment of the will of the people. The entire executive branch has to operate according to what the White House wants, because the president is the will of the people. Elon Musk, in his joint interview with the president on Fox earlier this week, says if the government isn't following the president, who is the will of the people, then it's no longer a democracy. And the thing about all those claims is that part of the point of the structure of the American system of government is a recognition that there's no such thing as a singular will of the people, that the president maybe represents one expression of what some constructed majority wants.
But Congress also represents an expression of what some constructed majority wants. And in any case, action by the federal government requires compromise, negotiation amongst all these groups under the recognition that you have to build some sort of durable consensus and that there's no sort of inherent majoritarian will that actually exists in a practical sense. And so when I say that the Trump administration sees the presidency as almost unbound by the Constitution, it's because this claim that the president is making about the courts can't intrude on executive action, the administration's open disregard for Congress, even a Congress led by its allies. To me that is actually an expression of this idea that the president isn't simply one constitutional officer among many, but is almost something like a sovereign over the entire political system, a sovereign that embodies this organic will of the people, and that is not constitutional. That has no grounding in our political traditions. That is in fact something very foreign to how Americans have traditionally understood what the executive is, even what the president is.
I know the president has always had this sort of symbolism around them, but there's never been that kind of claim, really, that there is a singular, indivisible will of the people expressed organically through the personage of the President. That's novel. I'll say that. That's novel. And in my mind, it grounds this attempt to kind of assert what I perceive as, in a lot of ways, an extra constitutional level of authority over the entire political system.
Excerpt from interview: Sarah Isgur traces expanded presidential power to progressive-era ideas and predicts the Supreme Court will address birthright citizenship, the unitary executive, and presidential defiance of Congress.
Sarah Isgur: I feel like where we are in terms of this presidency and its extra constitutional theory is the logical conclusion of the Progressive era of the last hundred years. I don't mean the progressive movement politically. I mean the Wilsonian, Rooseveltian view of having experts having a quicker, more efficient, less deliberative, less stuck legislative process. They wanted an invigorated and vigorous presidency, and here we are. How does everyone like it? And you say that it's novel, but it's really just been one little step after another. This starts with Obama allowing Congress and immigration reform, comprehensive immigration reform, to languish in Congress. Admittedly, the House Republicans said they didn't want to continue moving forward. And instead of Obama saying, no, we must, what can I offer? What can we do to get this back on track? He says, I've got a pen and a phone, and if Congress won't do it, I will go to the American people directly. That is the same idea, right? I am the will of the American people, and I am the singular vessel for that. So I'll do DACA and DAPA by myself, along with 79 other executive actions.
That's one step along this very long trail. So what's the Supreme Court gonna do about it? I sort of think of these in three buckets. Three different buckets. I love buckets. Birthright citizenship bucket, for instance. And I'll name them with specific stuff, but you can see what might fill into that bucket otherwise. For birthright citizenship, I would argue that the Supreme Court will, I think, most likely led by a Roberts and Kavanaugh swing in the middle there, say we're not even gonna decide whether the 14th Amendment does in fact establish birthright citizenship. What we definitely know is that the president, acting alone, doesn't get to redo this. So come back to us when Congress has something to say and we'll actually reach the merits. Until then thanks for playing. Please go home. Bucket number two, let's call the unitary executive bucket. That's gonna be the firings, the independent agencies. I'll borrow from Josh Blackman. Humphrey's executor, as a case, is as dead as Humphrey was. That's over. We're not gonna have independent agencies anymore that are independent. That doesn't mean we won't have agencies. It's their independence that is dead, not the agencies themselves.
You can still have a Federal Trade Commission and an SEC. They just have to be within a branch of government. That branch most likely being the executive branch. But for instance, when we talk about the Federal Reserve, it's very possible for that to be a legislative agency. So that's gonna be a really interesting part. You have again, I think, Justice Kavanaugh and his experience as a Unitarian coming up through the Bush administration will feel very strongly about that unitary executive part, but only in the lane. The president has control over his branch, not that he has control over any other branch. And that gets us to the impoundment stuff. This is the idea that Congress tells you to do X and then you as the President, say, no, thank you. I would prefer not to do that. I think that's a real jump ball. I think it's gonna depend a lot on which action gets to the court first, whether they take that, let that ball go over the plate and wait for one that they wanna swing at more. And I think we'll know a lot based on which of those cases that they take as well. It's a mistake that this administration made with shock and awe. There's a lot of good reasons to do the chainsaw method instead of the scalpel, all of that. But one of the downsides is going to be that they don't get to pick their perfect vehicle to challenge the Impoundment Act at the Supreme Court. They're gonna have to take it as it comes.
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