Kara Sears
During his four-year presidency, Donald Trump's unprecedented norm-breaking behaviour caused many to question how his actions aligned with 200 years of constitutional rulings. In response, acclaimed podcaster Roman Mars teamed up with Constitutional Law Professor Elizabeth Joh to create the podcast 'What Trump Can Teach Us About Con Law'. The podcast provides a fun, casual Con Law 101 class that uses the tumultuous activities of the executive, legislative, and judicial branches under Trump to teach listeners about the US Constitution.
| 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 | --- |
| How to regulate election deepfakes that can be harmful to democracy and the truth | --- |
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What You'll Learn
Presidential immunity and civil lawsuits
Presidential immunity is the concept that a sitting US president has civil and criminal immunity for their official acts. This immunity is not explicitly granted in the Constitution or any federal statute. However, the Supreme Court has ruled on the matter, and there is a precedent set by Nixon v. Fitzgerald in 1982, which found that the president has absolute immunity from civil damages actions regarding conduct within the "outer perimeter" of their duties.
In 2024, the Supreme Court ruled in Trump v. United States 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 was made after former President Trump claimed absolute immunity from being investigated for any crimes committed while in office. The court granted Trump absolute immunity for his use of the Justice Department for fraudulent purposes, but rejected his claim of absolute immunity for all acts.
The Supreme Court's ruling has been criticised by the American Civil Liberties Union (ACLU) and others for placing the president above the law and setting a dangerous precedent. The ACLU argues that the ruling gives legal cover for presidents to break the law when using their formal powers, obstructing accountability and granting future presidents the ability to act with impunity when using their official powers.
The concept of presidential immunity has been tested in other cases, such as Clinton v. Jones, where the Supreme Court affirmed that presidential immunity generally does not extend to lawsuits over matters that predate the president taking office. Several civil cases against Trump for his role in the violence of January 6, 2021, are pending, and the court has ruled that Trump's broad immunity claims are incorrect, though he may argue he was acting in an official capacity.
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Withholding federal funding
The podcast "What Trump Can Teach Us About Con Law" explores how the Trump administration pushed constitutional boundaries and raised new and challenging issues. One of the questions it seeks to answer is whether the president can withhold federal funding from cities that refuse to cooperate with his immigration policies.
The power to withhold funding can be a significant lever of influence for the president, as federal funding is crucial for many state and local programs. By threatening to withhold funds, the president can pressure states and localities to fall in line with federal policies. In the case of Trump's immigration policies, he argued that so-called "sanctuary cities" that refused to cooperate with federal immigration enforcement were hindering public safety and the rule of law.
However, the use of this tactic has also been criticized as a form of coercion that undermines the autonomy of state and local governments. It raises questions about the balance of power between the federal government and the states, as well as the rights of cities and localities to make their own policy decisions.
The legality of withholding federal funding is a complex issue and depends on various factors, including the specific circumstances, the nature of the funding, and the legal authority of the president in that area. While the president does have some discretion in allocating funds, there are also legal and constitutional constraints that limit this power.
The podcast "What Trump Can Teach Us About Con Law" provides an insightful perspective on this issue by examining the actions of the Trump administration and their implications for constitutional law. It highlights the ongoing debate surrounding the limits of presidential power and the role of the federal government in relation to states' rights and local autonomy.
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Executive branch powers
The executive branch of the US government is headed by the President, who is the commander-in-chief of the armed forces and is responsible for executing and enforcing federal laws. During his four years in office, former President Donald Trump's unprecedented use of executive power and his unconventional policy decisions raised several questions about the limits of executive authority.
One of the most significant ways in which Trump tested the boundaries of executive power was through his aggressive use of executive orders. Executive orders are official directives issued by the President to manage the operations of the federal government and have the force of law. Trump issued numerous executive orders on controversial topics, such as immigration and border security, that were often challenged in court. For example, Trump's executive order banning travel from several Muslim-majority countries was blocked by federal courts and sparked widespread protests. This episode highlighted the delicate balance between the executive branch's authority to implement policies and the judicial branch's power of review.
Trump's presidency also brought attention to the issue of presidential immunity and the extent to which a President can be held legally accountable for their actions. The President generally enjoys immunity from civil lawsuits while in office, but Trump faced several lawsuits during his term, including challenges to his business dealings and the use of executive power. One notable case was the Supreme Court ruling that rejected Trump's claim of absolute immunity and allowed a New York prosecutor to subpoena his financial records. This ruling underscored that while the President has broad powers, they are not above the law and can be subject to legal scrutiny.
Furthermore, Trump's approach to foreign policy and national security raised questions about the appropriate role of the executive branch in conducting foreign affairs. Trump often bypassed traditional diplomatic channels and relied heavily on personal relationships with foreign leaders. He utilised tools such as tariffs and sanctions unilaterally, sometimes catching Congress and US allies off guard. This style of decision-making highlighted the considerable discretion the executive branch has in foreign policy and the limited ability of other institutions to constrain the President's actions.
Finally, Trump's tenure shed light on the President's emergency powers and the potential for their abuse. The National Emergencies Act grants the President broad authority to declare a national emergency and unlock additional powers. While Trump did not invoke this specific statute, he frequently invoked emergency powers granted by other statutes, such as to divert military funding for border wall construction. These actions prompted discussions about the scope and appropriateness of emergency powers and whether legislative checks are needed to prevent their misuse.
In conclusion, the Trump presidency presented a unique set of challenges and opportunities for understanding the executive branch's powers. It underscored the importance of constitutional checks and balances, judicial review, and the separation of powers in holding the executive accountable and preserving the rule of law.
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Election deepfakes
Deepfakes are a growing concern in modern elections, with the potential to mislead voters and spread disinformation. AI-generated deepfakes can be used to create false images, videos, or audio of political candidates, spreading false information about the time, place, or manner of voting, or even impersonating aides to swing votes. These deepfakes are often shared online, and those who share them may not be aware of their inauthenticity.
To combat this, various measures have been proposed and implemented. At the federal level, the DEEPFAKES Accountability Act (H.R.5586) has been proposed, which would impose a disclosure requirement for political ads featuring manipulated media, as well as increase penalties for producing false election media. The Federal Election Commission (FEC) has also issued an advisory opinion limiting the use of falsified media in political ads, while the Federal Trade Commission (FTC) and Department of Justice (DOJ) have indicated that commercial deepfakes could violate consumer protection or election laws.
At the state level, over 20 states have passed deepfake laws specifically for elections, with some states like Texas allowing candidates to sue or revoke the candidacies of violators. However, these laws have faced legal challenges, with Texas and Virginia statutes currently under review due to potential First Amendment violations. Additionally, Elon Musk's company has sued California over its law requiring platforms to label or block deepfakes, arguing it is unconstitutional.
To address the issue of election deepfakes, experts recommend improving media literacy and fact-checking skills among voters, as well as encouraging voters to validate voting information with official government authorities. International cooperation is also important, with organizations like the G7 and APEC committing to fight election interference via AI. Ultimately, a well-informed public is seen as the strongest defense against deepfakes, along with a robust independent press to quickly debunk falsehoods.
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Presidential norm-breaking
The Trump presidency was a unique one, and it can be argued that it changed the way the world viewed the US presidency. Professor Elizabeth Joh, a law professor at the University of California, Davis, School of Law, teaches Intro to Constitutional Law. She noted that during the four years of the Trump presidency, she would check Twitter five minutes before each class to see what the President had tweeted and how it compared to or challenged 200 years of the judicial branch interpreting and ruling on the Constitution.
Acclaimed podcaster Roman Mars was anxious about the norms and laws being tested during Trump's tenure and asked Professor Joh to explain the situation from a Constitutional law perspective. This resulted in the podcast 'What Trump Can Teach Us About Con Law', which discusses the ways in which the Trump administration pushed constitutional boundaries and raised challenging questions.
One of the defining features of Trump's presidency was his norm-breaking approach. This norm-breaking extended to the legal and constitutional realm, as evidenced by his administration's challenges to constitutional limits. For example, Trump threatened mass deportations under the broad powers of the Alien Enemies Act, claiming there was a wave of violence perpetrated by migrants. This claim was not supported by evidence and was a clear attempt to use executive power to target a specific group.
Another example of Trump's norm-breaking is his stance on election deepfakes. Deepfakes have the potential to significantly impact people's opinions about an election, and thus, they can be harmful to democracy and the truth. However, Trump's administration did not prioritise regulating these manipulated images, which goes against the norms of ensuring fair and transparent elections.
Trump's norm-breaking extended to his views on protests as well. During his presidency, there were protests against the Israel-Hamas war, and counter-protests claiming that the initial protests were violating their civil rights. Trump's response to these competing protests is not mentioned, but his history of norm-breaking suggests he may have taken a unique approach.
In conclusion, the Trump presidency was a period of intense political fervour, largely due to his norm-breaking approach to the role. This norm-breaking extended to the legal and constitutional realm, as he challenged established interpretations of the Constitution and tested the limits of presidential power. While some of his actions may have been within legal boundaries, they certainly went against established norms and expectations of the US presidency.
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Frequently asked questions
The podcast is hosted by acclaimed podcaster Roman Mars and Professor Elizabeth Joh, who teaches Constitutional Law. The podcast is a fun, casual Con Law 101 class that uses the tumultuous activities of the executive, legislative, and judicial branches during the Trump presidency to teach listeners about the US Constitution.
The podcast was inspired by one of Professor Joh's tweets: "Teaching Constitutional Law in 2017 means glancing at Twitter every five minutes before class". During the four years of the Trump presidency, Professor Joh would check Twitter five minutes before each class to see what the President had said and how it compared to 200 years of the judicial branch interpreting and ruling on the Constitution.
Some of the topics covered in the podcast include the limits of presidential immunity, the potential of election deepfakes to harm democracy, and the use of the Alien Enemies Act to threaten mass deportations.
Professor Elizabeth Joh is a law professor at the University of California, Davis, School of Law, where she teaches Constitutional Law and criminal procedure. She has written widely on law and emerging technologies and has provided commentary for publications such as the New York Times and the Los Angeles Times.
The podcast 'What Trump Can Teach Us About Con Law' is available on Spotify and Apple Podcasts.
