Cecily Zamora
The podcast What Trump Can Teach Us About Con Law is hosted by acclaimed podcaster Roman Mars and Professor Elizabeth Joh, who teaches constitutional law at the University of California, Davis School of Law. The podcast was inspired by one of Professor Joh's tweets about the challenges of teaching constitutional law during the Trump presidency. The show explores the ways in which the Trump administration pushed constitutional limits and raises new and challenging legal issues. It covers topics such as presidential immunity, civil court suits against the president, and immigration policy. The podcast debuted at #2 on the iTunes charts and remains popular with listeners, offering short and cerebral episodes that provide an educational and engaging take on constitutional law.
| Characteristics | Values |
|---|---|
| Podcast name | What Trump Can Teach Us About Con Law |
| Host | Roman Mars |
| Co-host | Professor Elizabeth Joh |
| Professor Elizabeth Joh's occupation | Professor of Constitutional Law at the University of California, Davis, School of Law |
| Roman Mars' other podcasts | 99% Invisible |
| Topics | Shady deals, weird law quirks, past President policy, etc. |
| Episode topics | The 14th Amendment |
| Episode availability | Available on PocketCasts and Apple Podcasts |
| Episode frequency | Weekly |
| Episode tone | Fun, casual |
| Episode format | Con Law 101 class |
| Episode content | Tumultuous activities of the executive, legislative, and judicial branches |
| Episode objective | To teach about the US Constitution |
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What You'll Learn
Presidential immunity and civil lawsuits
The concept of presidential immunity and civil lawsuits has been a topic of interest and debate, especially during the Trump administration. Professor Elizabeth Joh's podcast "What Trump Can Teach Us About Con Law" explores how the Trump administration has pushed constitutional limits and raises questions about the limits of presidential immunity.
Presidential immunity refers to the idea that a sitting US president has both civil and criminal immunity for their official acts. This immunity is not explicitly granted in the Constitution or any federal statute, but it has been interpreted and defined through court cases and precedents. One key case is Nixon v. Fitzgerald (1982), where the Supreme Court ruled that the president has absolute immunity from civil damages actions regarding conduct within the \"outer perimeter\" of their duties. This precedent was later challenged by Smith attorneys, who argued that it does not apply to federal criminal prosecutions.
The Trump administration and the former president's legal battles have further highlighted the complexities of presidential immunity. In Trump v. United States (2024), the Supreme Court ruled that presidents have absolute immunity from criminal prosecution for official acts within their \"exclusive sphere of constitutional authority\". However, this immunity does not extend to unofficial acts. This ruling has significant implications for the multiple civil cases against Trump for his role in the January 6, 2021, attacks on the US Capitol.
The courts have generally held that presidential immunity does not apply to lawsuits over matters that predate the president taking office or arise from unofficial conduct while in office. For example, in Clinton v. Jones (1997), the Supreme Court ruled that President Bill Clinton could not claim immunity from a sexual harassment lawsuit based on conduct before he became president. This distinction between official and unofficial acts is crucial in determining whether a president can be held personally liable for their actions.
While presidential immunity provides protection from litigation, it is not without limits. Congressional oversight and the impeachment process act as checks on the executive branch, ensuring accountability. The argument for immunity also considers the public interest, as it allows the president to carry out their official duties without the constant fear of litigation. However, the line between official and unofficial acts can be blurry, and each case must be carefully evaluated to determine the extent of immunity applicable.
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Immigration policy and federal funding
Immigration has been a key focus for Donald Trump, with his administration taking a hard line on border security and deportation. Trump's stance on immigration has been controversial, with his policies facing legal challenges and accusations of unconstitutionality.
One of the main issues surrounding Trump's immigration policies is the question of federal funding. Trump has threatened to withhold federal funding from so-called "sanctuary jurisdictions", which are states or cities that refuse to cooperate with his immigration policies or interfere with federal law enforcement operations. This has raised questions about the limits of presidential power and the legality of such actions.
In one example, Trump's administration issued an order to review and audit all contracts, grants, or agreements providing federal funding to organisations supporting or providing services to illegal aliens. The order also instructed a pause in the distribution of funds until the review was complete, with any agreements found to be in violation of the law or sources of waste, fraud, or abuse to be terminated. This has been criticised as an unconstitutionally coercive spending condition and an overreach of presidential power.
Trump's stance on immigration and federal funding ties into his broader approach to governance, which has been characterised as an "extra-constitutional theory". This involves an invigorated and vigorous presidency with a focus on efficient and quick legislative processes. It also reflects the conflict between the executive and legislative branches of government, with Trump's actions on immigration being seen as a challenge to Congress's power over the federal purse.
The Supreme Court's rulings on Trump's immigration policies will be significant, with some predicting that the Court will uphold the principle that the President is in charge of the lawful operations of the executive branch, including the ability to hire and fire policy-making employees. However, others argue that the Court may place limits on Trump's power, particularly regarding the firing of merit system-protected employees.
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The Supreme Court and the Trump administration
The relationship between the Roberts Court and the Trump administration has been a topic of interest and discussion, with the National Constitution Center's podcast episode "The Supreme Court and the Trump Administration" delving into this dynamic. The episode features insights from Jamelle Bouie and David French of The New York Times, Sarah Isgur of The Dispatch, and Melissa Murray, a leading expert in constitutional law from NYU School of Law.
The discussion revolves around how the Supreme Court might resolve open legal questions, such as impoundment and the unitary executive theory. The unitary executive theory proposes that the President has the authority to oversee the executive branch's lawful operations, including the hiring and firing of policymakers and agency heads. The Supreme Court's role in maintaining the separation of powers is also examined, with the potential outcomes of various cases signalling their stance on the Trump administration's actions.
The Supreme Court's decisions are anticipated to set clear precedents regarding the extent of presidential power. For instance, if the Court takes on a case involving Donald Trump's attempt to remove the head of an independent agency, it may indicate support for the Trump administration's actions. On the other hand, if the Court takes up a case concerning the firing of merit system-protected employees, it could suggest a limitation on the unitary executive theory.
The podcast episode also explores the potential for resistance or challenges to the Trump administration's actions. While the Supreme Court plays a crucial role in interpreting and upholding the Constitution, Congress is the governmental body with the most significant ability to counter or impede the executive branch's actions, particularly through its control over funding.
The conversation, recorded in February 2025, offers a timely and insightful analysis of the complex interplay between the Supreme Court and the Trump administration, shedding light on the potential implications for the future of American constitutional law and the separation of powers.
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Presidential attacks on the judicial system
The podcast "What Trump Can Teach Us About Con Law" explores the ways in which the Trump administration pushed constitutional limits and raised new and challenging issues. One such issue is the former president's attacks on the judicial system.
Donald Trump has displayed a pattern of attacking judges and the courts for rulings he disagrees with. This pattern began during his presidential campaign and continued into his presidency. Trump has made a series of tweets and public statements attacking individual judges, questioning the authority of federal courts to review his orders, and suggesting that the court system would be to blame for future terrorist attacks.
For example, in response to U.S. District Court Judge Gonzalo O. Curiel’s orders in a class-action lawsuit against Trump University, then-presidential candidate Trump made a number of statements attacking Judge Curiel as biased because of his "Mexican heritage" and his appointment by a Democratic president. On CNN, Trump said, "I've been treated very unfairly by this judge. Now, this judge is of Mexican heritage; I'm building a wall!" Trump also said, "He's a member of a society where—you know—very pro-Mexico, and that's fine. It's all fine, but I think—I think—he should recuse himself."
In another instance, in November 2018, Trump announced new rules that would bar anyone crossing the U.S.-Mexico border without going through an official port of entry from receiving asylum. Judge Jon Tigar of the U.S. Court of Appeals for the Ninth Circuit ordered the administration to accept asylum claims regardless of where migrants entered the country. Trump called the decision "a disgrace," attacked Judge Tigar as "an Obama judge," and critiqued the Ninth Circuit as "really something we have to take a look at because it's not fair."
Trump's attacks on the judiciary are considered uniquely dangerous compared to other democracies. The weakness of the U.S. establishment and the strength of the U.S. judiciary have led to a forceful challenge to the courts. Judges in the U.S. are in a vulnerable position, lacking a clear protector for themselves and the constitution. Trump's key allies, such as advisors Elon Musk and Stephen Miller, have amplified the president's calls to impeach judges and circumvent judicial decisions.
Trump's attacks on the judicial system have also led to threats and harassment against the families of at least 11 judges who ruled against his administration. These threats include menacing messages sent directly to the courts, the homes of judges, and their relatives.
The podcast "The Trump Verdict and the Rule of Law" also explores presidential attacks on the judicial system in the wake of the Trump criminal verdict. It features historians Stephen Knott and David O. Stewart, who discuss the history of presidential attacks on the judiciary and the rule of law.
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The Electoral College's origins
The Electoral College has long been a topic of controversy, with its origins dating back to the Constitution Convention. The Electoral College is a process in which the President and Vice President of the United States are elected by a group of representatives, known as electors, instead of by direct vote of citizens. This system was established by the founding fathers as a compromise between those who favoured a popular vote and those who wanted Congress to decide.
The founding fathers were concerned about the potential for tyranny by the majority and sought to protect the interests of smaller states. They believed that the Electoral College would ensure that only qualified individuals became president and that it would prevent the election from being influenced by public passion or foreign interference.
However, the Electoral College has been criticised for being undemocratic and favouring smaller states. It has also been criticised for not always reflecting the popular vote, as seen in the 2016 and 2000 elections where the winner of the popular vote did not become president due to the Electoral College system.
The podcast "What Trump Can Teach Us About Con Law" by Professor Elizabeth Joh and Roman Mars discusses how the Trump administration has pushed constitutional limits and raised new legal questions. One of the topics they cover is the 14th amendment, which may include a discussion of the Electoral College and its role in the US political system.
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Frequently asked questions
The podcast is co-hosted by Professor Elizabeth Joh and Roman Mars, and it explores how the Trump administration has pushed constitutional limits and how this relates to 200 years of the US judicial branch interpreting and ruling on the Constitution.
Some of the topics include presidential immunity, the 14th Amendment, and the Supreme Court's role in maintaining the separation of powers.
Elizabeth Joh is a law professor at the University of California, Davis, School of Law. She teaches constitutional law and criminal procedure, and has provided commentary for publications including the New York Times and Los Angeles Times.
