Cecily Zamora
During his four-year presidency, Donald Trump's unprecedented norm-breaking behaviour caused many to question the limits of presidential power. In response, acclaimed podcaster Roman Mars, in collaboration with constitutional law professor Elizabeth Joh, created the podcast What Trump Can Teach Us About Con Law. The podcast explores how Trump's actions tested the boundaries of constitutional law and the implications for US democracy. It covers topics such as presidential immunity, civil rights, and the regulation of election deepfakes.
| Characteristics | Values |
|---|---|
| Trump's role as a norm-breaking president | --- |
| The limits of presidential immunity | --- |
| When a president can be sued in civil court | --- |
| Whether the president can withhold federal funding from cities that refuse to cooperate with his immigration policies | --- |
| The US way of electing presidents | Strange |
| Election deepfakes and their potential impact on people's opinions | Harmful to democracy and the truth |
| The Constitution's take on regulating manipulated images | --- |
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What You'll Learn
Presidential immunity and civil lawsuits
Presidential immunity is a concept that grants a sitting US president civil and criminal immunity for their official acts. While civil and criminal immunity is not explicitly granted in the Constitution or federal statutes, the Supreme Court has ruled that presidents have absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority".
The Supreme Court's ruling in Trump v. United States (2024) affirmed that all presidents have absolute criminal immunity for official acts under core constitutional powers, presumptive immunity for other official acts, and no immunity for unofficial acts. This decision came after former President Trump claimed absolute immunity from being investigated for any crimes committed while in office.
The Nixon v. Fitzgerald case in 1982 also established that the president has absolute immunity from civil damages actions related to conduct within the "outer perimeter" of their duties. However, this precedent has been challenged by Smith attorneys, who argued that it does not apply to federal criminal prosecutions.
The Supreme Court's decision in Clinton v. Jones further clarified that presidential immunity generally does not extend to lawsuits over matters that predate the president taking office. This ruling allowed civil cases against a president to proceed after their presidency ends.
The ACLU has criticized the Supreme Court's broad immunity rulings in Trump-related cases, arguing that they place presidents above the law and obstruct accountability. They assert that the Constitution and Supreme Court precedent support the principle that nobody, including the president, is above the law.
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Withholding federal funding
The U.S. Constitution gives Congress the "power of the purse," meaning that it has the authority to decide how government money is spent and which programs receive funding. While the President can propose to withhold funds for 45 days while waiting for Congress to act, they must then spend the money as specified in the appropriations act. The President may also propose to defer spending to later in the same fiscal year, but this requires a special message to Congress and can only be done for specific purposes, not for policy disagreements.
Despite this, the Trump administration repeatedly withheld federal funding from various programs and communities, often citing policy disagreements as the reason. This included freezing at least $430 billion in federal funding that Congress had promised to communities across America, as well as blocking funds for programs run by the U.S. Agency for International Development (USAID). The administration also violated appropriations acts by disregarding limits on spending appropriated funds, such as by reducing payments to academic institutions for indirect research costs.
These actions led to widespread criticism and legal challenges, with many arguing that the administration was violating the Impoundment Control Act of 1974 (ICA) and the Constitution. Two federal courts issued temporary restraining orders prohibiting the administration from freezing funding, but the administration was found to be in violation of these orders.
The Trump administration's nominee to lead the Office of Management and Budget, Russ Vought, refused to commit to following the law and the Constitution regarding funding decisions, and even testified that he believed the ICA was unconstitutional. This stance was echoed by Vice President Vance, who questioned the courts' power to enforce their orders.
The withholding of federal funding by the Trump administration had significant impacts on families, businesses, and local governments, affecting investments and delaying critical projects. It also caused a rift within the Republican Party, with some lawmakers expressing concern over the administration's willingness to withhold congressionally approved cash.
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Election deepfakes and free speech
The use of AI-generated deepfakes in elections has become a significant concern for lawmakers and the public, with the potential to spread misinformation, confuse voters, and undermine election integrity. Deepfakes are AI-generated images, audio, or videos that depict a person saying or doing something they have not done. In the context of elections, deepfakes can be used to damage a candidate's reputation and deceive voters, potentially influencing the election outcome.
The issue of election deepfakes raises important questions about free speech and the role of regulation. While the First Amendment protects free speech, the spread of misinformation through deepfakes has prompted states to introduce legislation to combat election-related AI-generated misinformation. By the end of 2024, 20 states had implemented election-related deepfake laws, with two of those states outlawing such media material even if labelled as unauthentic. However, these laws have faced scrutiny for potentially limiting certain types of speech.
The enforcement of deepfake laws is challenging, as it may be difficult to distinguish between AI-generated content and real media. Social media companies play a crucial role in limiting the spread of deepfakes by detecting and removing such content from their platforms. Some platforms, like Facebook, YouTube, and TikTok, plan to label all AI-generated content, while Twitter will focus on content identified as "misleading media." However, these labels may not be effective if users do not recognize or understand them, and AI-generated content could still evade detection.
While some argue that extreme limitations on free speech are necessary to counter the potential harm of deepfakes, others, like attorney Frank Bednarz, assert that "the best remedy for false speech remains true speech, not censorship." As AI technology continues to advance, legislation and court interventions around election deepfakes are likely to increase to address the concerns about election misinformation and protect the integrity of democratic processes.
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Executive power and the Constitution
The Trump presidency raised many questions about the limits of executive power and the US Constitution. One notable example is the debate around the limits of presidential immunity and whether a president can be sued in civil court. Another issue is whether the president can withhold federal funding from cities that refuse to cooperate with his immigration policies.
During his time in office, Trump made numerous decisions that tested the boundaries of executive power. For instance, he threatened mass deportations under the broad powers of the Alien Enemies Act, claiming there was a wave of violence perpetrated by migrants. This raised questions about the balance between national security and civil liberties, and the extent to which the executive branch can act without judicial oversight.
Additionally, the Trump administration's actions regarding election deepfakes and the regulation of manipulated images also came under scrutiny. While the Constitution protects free speech, the spread of misleading or false information can harm democracy and public trust in elections. This has prompted discussions on the role of the government in regulating online content and the limits of executive power in this context.
The Trump era also highlighted the importance of understanding the checks and balances between the executive, legislative, and judicial branches. The judicial branch, in particular, played a crucial role in interpreting and ruling on the Constitution, often in response to actions taken by the executive branch. This dynamic underscores the significance of an independent judiciary in maintaining a system of checks and balances and upholding the rule of law.
In conclusion, the Trump presidency served as a catalyst for exploring and re-examining various aspects of executive power and the US Constitution. It prompted discussions on presidential immunity, civil liberties, the role of the government in regulating online content, and the importance of checks and balances between the different branches of government. These discussions continue to shape our understanding of constitutional law and the limits of executive authority.
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Presidential threats and the Alien Enemies Act
The Alien Enemies Act, enacted in 1798, is a wartime authority that allows the US president to detain or deport the citizens of an enemy nation. The law permits the president to target immigrants without a hearing and based solely on their country of birth or citizenship. While the act was established to prevent foreign espionage and sabotage during wartime, it has been wielded against immigrants who are lawfully present in the United States and have shown no signs of disloyalty.
In March 2025, President Donald Trump invoked the Alien Enemies Act to deport Venezuelans who were alleged members of the Tren de Aragua (TdA) gang. Trump accused TdA of threatening an "invasion" against the US and declared its members liable to be apprehended, restrained, secured, and removed as alien enemies. This was based on evidence that TdA had invaded the US, engaged in irregular warfare, and used drug trafficking to harm US citizens.
On May 1, 2025, a Trump-appointed federal judge, Fernando Rodriguez, ruled that the US president could not use the Alien Enemies Act to deport Venezuelan migrants, deeming it "`unlawful". However, on May 13, another federal judge in Pennsylvania, Stephanie Haines, stated that Trump could use the act to remove accused gang members from the state, provided they were given at least 21 days' notice and an opportunity to challenge their deportations.
The use of the Alien Enemies Act by President Trump has been controversial. Some civil rights groups and counsel at the Brennan Center for Justice have argued that it is illegal, discriminates against immigrants based on their ancestry, and poses an alarming risk of rights violations. Venezuela also criticised Trump's use of the act, stating that it "unjustly criminalises Venezuelan migration". On the other hand, anti-immigration politicians and groups view the act as a powerful tool to combat unlawful migration and cross-border narcotics trafficking.
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Frequently asked questions
The Trump presidency brought to light questions about the limits of presidential immunity and whether a president can be sued in civil court.
The podcast was inspired by a tweet from Elizabeth Joh, a law professor at the University of California, Davis, School of Law, who teaches constitutional law. The tweet read: "Teaching Constitutional Law in 2017 means glancing at Twitter every five minutes before class."
Trump has threatened mass deportations under the broad and terrifying powers of the Alien Enemies Act.
The podcast is a weekly, fun, casual Con Law 101 class that uses the tumultuous activities of the executive, legislative, and judicial branches to teach listeners about the US Constitution.
