Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
The chaotic, destructive, and dangerous “spontaneous disassembly” of much of the federal government now taking place at the hands of Elon Musk and his coding kids at the Department of Government Efficiency has been met with a volley of lawsuits. Courts are issuing temporary restraining orders and injunctions to make space and time for the wheels of justice to grind, and for the constitutional checks to attempt to do some balancing.
It’s unclear, however, whether DOGE and the Donald Trump administration are actually heeding the courts. What happens if Musk and Trump decide to openly defy the courts? Surely that’s a classic constitutional crisis? On the Amicus podcast this week, Dahlia Lithwick attempts to get closer to the heart of the matter with professor Sam Bagenstos, former general counsel of the United States Department of Health and Human Services until December 2024, and former general counsel for the Office of Management and Budget from January 2021 until June 2022. He is now a professor at the University of Michigan. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: I’ve heard you make the point that there are two warring camps at work in the Trump administration. There are the legalists and then the straight-up hostile takeover people. The legalists just want to have a big old fight that lands up at the Supreme Court about the unitary executive and big conservative principles, and the monarchic view of the presidency they’ve been pushing for a very long time.
I don’t think Musk cares about any of that. I think he cares about getting his Teslas on the streets under the guise of a government contract and ending regulation and oversight of his companies while securing government contracts. I think part of the answer to the question everyone keeps asking as to whether this is a “constitutional crisis” is this observation you’ve made that on one part of the split screen, we’re seeing this administration not walk over the line. A court order comes down, they try to comply, they modify conduct, they say, “Oh, you know, you’re misunderstanding our memo.”
And then on the other side of the split screen is the Musk camp that just doesn’t care. They just don’t care. So can you answer that question of “Have we landed in a constitutional crisis?” given that these camps are pulling in opposite directions, and that we can pay a lot of attention to what’s happening in courts, but what’s not happening in courts is in some ways much more salient now. Is this question of “Are we in a constitutional crisis?” even the right question to be posing right now? Because when you stand up in a court and you are bound to tell the truth, and then you slightly modify your conduct, that looks like maybe the courts are holding, but that’s only half the story.
Sam Bagenstos: I do think there comes a point where some of these words take on a talismanic significance that’s greater than their actual significance. I think we might’ve hit that point with constitutional crisis. Everybody’s asking me this question, and I don’t know what these words actually mean at this point.
Here’s what I can say: Implicit in what you say is a very, very important point that the Constitution—and whether our constitutional system is working—is about a whole lot more than the courts and whether court orders are followed. Because we know—and I can tell you as a former executive branch lawyer, I definitely saw this—probably the overwhelming majority of the law that applies to the executive branch is not something that’s ever going to end up in court, because our courts are limited in the kinds of cases they hear.
But, if you take seriously the structure created by our constitution, Congress is the entity that passes laws, and if the president doesn’t want to follow a law, the president must go to Congress and get Congress to pass a new law changing it (and this president, by the way, has majorities in both houses of Congress—he could do that). Congress has the power of the purse, which is a fundamental principle going back to the founding of our Constitution, and even to before the founding of our Constitution in British practice—Parliament worked really hard to seize that power from the king, and we adopted it in our practice.
If you take all of that seriously, then what you’re seeing right now is a fundamental disregard of basic constitutional principles. You have a president who’s not just saying, “Look, I disagree on this. I read the law differently. I think I have authority here.” Instead, you have a president who is in effect saying, “You have no authority over me. You may pass all the laws you want. I’m only going to follow them if they’re consistent with my policy.” That is fundamentally anti-constitutional, and that has nothing to do with courts and court orders.
I do think that in the cases that get into court, the administration is going to bluster a lot. They’re going to try to intimidate the courts into thinking that their orders won’t be followed, in an attempt to get the courts to back off on the orders they issue.
They’re going to try to intimidate opponents into thinking that fighting against this administration doesn’t matter, so why try? I think there is a real defeatism—it’s a little less than it was a month ago—but there’s still a lot of defeatism among the people who don’t like what Trump is doing. I think he’s trying to feed that by very acutely suggesting he might violate court orders.
In the end, I think they’re going to comply with the orders of the courts. But I don’t think that means that our constitutional system is safe or that we are in a healthy constitutional moment, because I think we still very much have a president and all the folks working for him among his political appointees, and certainly Elon Musk, who believe that they are not bound by what the people’s elected representatives in Congress have done. That’s very antidemocratic and anti-constitutional.
I’ve been trying to figure out why the question of “Is this a constitutional crisis?” is only a tiny piece of the analysis, and I think you’ve just explained it. It’s a constitutional crisis if you’re only focused on what’s happening in the courts, but what’s not getting swept into court is the part we have to talk about.
That is, as Kim Lane Scheppele suggested a couple of weeks ago on this show, how other coups happen. And to say the parts of the coup that we are picking apart in a courtroom is the totality of the story misses everything that’s happening backstage.
With that said, I think we’re both agreeing, and I want to be really explicit, that what happens in the courts is essential. It’s really important, and it is really important to support it, because the courts can’t do it themselves. But we also have to pan way back and look at this in a way that isn’t quite cramped enough to fit into that very narrow question of “Have we reached a constitutional crisis yet?”
Yeah, absolutely.
Sign up for Slate’s evening newsletter.
