What To Make Of Trump's 'Dictator' Comment 51:22

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I believe in a powerful president. I think we have one and I think we need one, in particular in a moment of a sort of sclerotic Congress. But that doesn't mean a lawless or unconstrained president. Hello and welcome to the FiveThirtyEight Politics podcast. I'm Galen Druk. Former President Donald Trump got attention last week for his answer in a town hall with Sean Hannity, suggesting he would not abuse his power as president in a second term, quote, except for day one.

We talk plenty on this podcast about the candidates challenging Trump in the Republican primary. But the fact is that Trump remains far ahead in the polls, and if history is any indication, he is the likeliest person to be the Republican nominee. Just this morning, Monday morning, the Des Moines Register Iowa poll came out showing Trump with 51% support amongst likely caucus goers, a 32-point lead over second-place DeSantis.

And though we'd caution against putting much weight on general election polls this far out, Trump also leads President Biden in head-to-head polling by a point or two on average and by even more in the battleground states.

Given that context, a Trump second term is a real possibility, and so are the things he says he'd do during the second term. Recent reporting has painted a picture of what that might look like. Some of it is policy any Republican might pursue, like increasing domestic energy production. Some of it is an extension of Trump's more isolationist first term pursuits like tariffs. And some of it, also similar to his first term, gets at questions about our democratic norms and presidential authority.

Today, in light of Trump's comments last week, we're going to talk about mainly that last part. What aspects of Trump's proposals for a second term aren't just partisan policy, which any president has the right to pursue, but might actually pose challenges for our form of government.

Here with me to discuss are two friends of the podcast. First, Kate Shaw, constitutional law professor at Cardozo Law. She's also an ABC News contributor and host of the Strict Scrutiny podcast. Welcome to the podcast, Kate. Thanks for having me back, Galen. Also here with us is Brendan Nyhan, professor of government at Dartmouth. He's the co-director of Bright Line Watch, which is a group of political scientists that monitors democratic practices, their resilience, and potential threats. Welcome to the podcast, Brendan. Great to be back.

So to start off, I want to play a clip of Trump's town hall with Sean Hannity last week, since that's what everyone's been discussing. I want to go back to this one issue, though, because the media has been focused on this and attacking you under no circumstances. You are promising America tonight. You would never abuse power as retribution against anybody except for day one.

Except for? He's going crazy. Except for day one. Meaning? I want to close the border and I want to drill, drill, drill. That's not retribution. I'm going to be, I'm going to be, you know, he keeps, we love this guy. He says, you're not going to be a dictator, are you? I said, no, no, no, other than day one. We're closing the border and we're drilling, drilling, drilling. After that, I'm not a dictator.

So I think this clip might be a little tricky to make sense of because, first of all, I mean, it sounds like he's joking, you know, he's laughing and smiling. And second, the question was about retribution. And he talks about the border and energy production. So, Kate, let's start with you. How do you understand what he's saying here?

I don't think we should discount it because it's kind of packaged as humorous or a joke. I actually think we should take it quite seriously. You know, former president, current candidate Trump's rhetoric is regularly kind of traversing this pretty dark terrain right now. I think that, you know, essentially a concession of...

An intent to engage in dictator-like behavior on day one, even if only on day one, has to be understood in the context of references to political opponents as vermin, references to crushing critics.

statements like, I am your vengeance to his followers. So I think that all of this is sort of of a piece. And to my mind, it serves a couple of functions that I think we should take quite seriously. And I think these do connect up with some of the conversation I think that we'll then shift to about potential issues

policy initiatives in a second term. And so I think here are a couple of the reasons I think that this rhetoric is being deployed. I mean, one, it's just political rhetoric, right? So I don't want to discount that. But in terms of what significance it might have or what at least some of the other purposes might be, one, I think it's a little bit to desensitize the public to the possibility of some of this actually coming to pass. So

you know, if you actually do pursue your critics and you've said you're going to pursue your critics, I think there will be less shock among the public in a pursuit, a criminal pursuit, even potentially of political opponents or critics than one that comes out of the blue. So I think that's maybe one objective. And another one, I think,

has courts in mind. And maybe I'll explain that just briefly, which is that some of, I think, the things that Trump has suggested he might try to do in a second term if he has one involve open legal questions, right? Gray or murky areas. And if those questions

or initiatives end up challenged in court. I think courts are going to be answering questions of first impression and are going to have to try to decide what to make of genuinely unprecedented presidential moves. And when doing that, they might look to campaign rhetoric like this and say, well, the president or the candidate at the time promised to do X and now he has done X and

And the people selected him knowing that he would do X and was promising to do X. And for that reason, courts in a democracy, you know, need to play a limited role. And actually, it's more democratic for courts to get out of the way when the president is simply delivering on a set of campaign promises that aren't clearly illegal, but that are, you know, a little bit legally questionable. So that's a long answer. Sorry, I'll stop there. But I think that those are a lot of the reasons I do think it's important to take this kind of rhetoric very seriously. Yeah.

Yeah, I'm alarmed as well. I think it's important to not appear as the humorless skulls that Trump wants us to be in reacting to this. But at the same time, when viewed in the context of the comments that Kate mentioned, it's hard not to be alarmed. Trump has repeatedly told us what he was going to do, and that has diminished the impact of it when he's done it. Journalism in particular is oriented around the discovery of

secret or unrevealed information. Trump does things right out in front of us. He tells us what he's going to do. And then when he does it, it doesn't seem like news or a scoop, even though these really are genuinely unprecedented statements.

And historically, when presidents are confronted with charges of being an authoritarian, the norm has been to disavow any such notion, right, that I'm constrained by the Constitution and so forth. Right. And Trump is leaping right over that. And he's doing it in a subtle way and in terrain that's favorable to him. He's being accused of being authoritarian.

an aspiring authoritarian, and he's reframing around, well, it's only for a day, and it's only for these policies that you like. And the policies he's pointing to are ones where the scope of executive authority is often quite broad. And there are things he could legitimately do under our current understanding of presidential power. I'm fundamentally worried about the idea of him trying to take the sting out of terms like dictator and turning them into applause lines.

You brought up media criticism there of turning ourselves into the scolds that Trump wants us to turn ourselves into. And then in comparison to Trump's like humor and charisma, the media just seems dreary and annoying and whatever. Um,

So how do we cover something like this, especially because you said the president has authority on issues like the border and energy production or potential authority or ways of using his authority? So how do we cover this like responsibly? What's the focus here? What's the story here?

For years now, I've been saying, what would you say if you saw it in another country? And I wish we had more coverage along those lines. We know that journalistic script when we see other countries descending into authoritarianism, but we really struggle to apply that same prism here to tell this story in a compelling fashion that signals all of the alarms that should be sounding. At the same time, we should be realistic about the effects this kind of journalism is likely to have, right? People have heard

These kinds of stories about Trump for years and years now, and the kinds of people who are hearing them, are often not the people for whom they might have the greatest impact. There's an element of preaching to the choir that I think is disheartening.

It can feel like this journalism has no purpose. I don't think that's the case. But I do worry, and let me just add one last thing. I worry in particular that the kinds of excellent stories we've seen in the last couple of weeks by the New York Times and The Atlantic, for instance, describing the potential threats to democracy in a second Trump term will again seem like old news by the time regular people are tuning into this campaign.

We've talked about that. There's nothing new here. Those kinds of stories don't often generate the kinds of day-to-day developments that the horse race does and Trump's latest outrage does. And as a result, it's easy to lose sight of the big picture. All right. Well, hopefully we're not just pre-tribalizing.

preaching to the choir here. But since you mentioned all of that reporting that's happened over the past month or so, I want to get into it. And there's several different buckets of policy proposals that we can get into addressing executive branch authority, the military and foreign affairs. I also want to talk about immigration, the economy, crime. But before I sort of guide the conversation in that direction, I'm curious from the two of you having

read and having talked to you before this interview and knowing that you've looked at a lot of this reporting, what sticks out most to you? Like, what would you like to highlight first and foremost, in case listeners don't make it beyond 15 minutes of this podcast? Kate, what really sticks out to you as the crux of the matter if we're talking about threats to democracy or breaking democratic norms?

I think I would say I am the most actively concerned right now about promises to prosecute political opponents, to turn the apparatus of law enforcement and criminal law enforcement in particular on the Biden family and sort of other detractors and critics.

potentially alienated former staffers from the first Trump term. So all of those names have been floated as potential prosecutorial targets. And the reason that I'm nervous about this, it seems as though these are efforts that even in a first Trump term, Trump did set in motion. And I do think that many of the guardrails, such as they were in the first term, would be off in a second term, as much of this recent reporting that Brendan just alluded to makes, I think, a

quite clear in that, you know, a lot of the staff members who surrounded Trump in the first term were at least individuals who had done some, you know, government service in the past and so were

into or had been enmeshed in a culture and an ethos of public service and public mindedness. And that, I think, meant that they resisted some of Trump's sort of most egregious overreaches. And I think that individuals like that would be almost entirely absent from a second Trump term and cabinet and White House leadership roles. So I think a lot of that pushback would be absent.

And I think that's particularly true about the Department of Justice. And so I think it's very plausible that Trump would pursue this and pursue it aggressively if given a second term. The guardrails against it, there are the personnel guardrails, which, as I just said, I think are likely to be largely absent at the leadership levels anyway. But there's also the fact that the practice of not pursuing political opponents in the United States is

is one that resides more in customs and practices and norms and some law, but pretty soft law, things like Department of Justice regulations that can be easily undone. So all those constraints are ones that the president could easily try and I think very likely could succeed in eroding and potentially destroying entirely. And I think that the civil service inside DOJ and other government agencies will remain something of a bulwark against those kinds of efforts.

So you could see things like mass pushback and potentially mass resignations on the part of the career officials inside the Department of Justice. But I do think that using the apparatus of state not only to reward your friends but to punish your enemies would involve –

Rewarding friends, I think, is something we have seen some of before. Really punishing enemies is something that we really haven't in the last, I would say, 150 years. And, you know, essentially since the advent of the civil service in the 1880s and the sort of beginning of entrenchment of norms of nonpartisanship and government service, which has, you know, sort of been an imperfect but pretty consistent trajectory over, you know, at least a century. Unwinding all of that is very much a possibility. And that is what most keeps me up at night right now.

Can we get really specific for a second? You said there's limited roadblocks outside of norms and regulations. What's an example of something that a second-term Trump could decide to do where he would likely be able to accomplish his goals of retribution if he wanted to? Well, you know, so there are norms against the president calling up the attorney general or the head of the criminal division in the Department of Justice and saying, okay,

Go after this guy, right? Like, those are very, very settled norms. And I think it matters a lot both what the internal guidelines, sometimes reduced to memos, sometimes more informal guidelines inside DOJ look like, and what the White House and OMB, the Office of Management and Budget, will often be involved in setting forth the policies that govern contacts between the White House and DOJ.

federal agencies. And so Trump could very much, could easily come into a second term and basically say, all of these constraints on political interference with things like criminal investigations are gone. DOJ, withdraw any regulations you have that seem to constrain my ability to tell you who to prosecute and when and for what and how. And, you know, none of that is

in statute. Some of it, again, is in DOJ regulations and even less formal guidelines, but all of those the president could easily direct the rescission of. And the only constraint there would be, you know, pushback and potential resignation from inside the Department of Justice. So there, I think, the path is, you know, there are obstacles, but they are quite surmountable ones.

In fact, there are legal theorists aligned with Trump who have made the argument that the Department of Justice is not, in fact, independent, right, as part of the executive branch, that this independence that we have bestowed on the Department of Justice is

is not actually, as you mentioned, well, part of law. And they would argue maybe should not even be independent. Yeah, so I would say that DOJ independence at this point is constitutionally settled at the very least. I would say it's actually...

constitutionally required a degree of independence from the president and political leadership that our law enforcement agency enjoys. But I think it's right that either I think they would say these sort of, you know, legal defenders of this vision, they would either say, fine, it's a settlement. Settlements can be unsettled. Or if they were to go further, they would say,

It's not constitutionally required. It's not even constitutionally settled. In fact, it is constitutionally impermissible to constrain the president in his ability to control absolutely the enforcement of the laws, the criminal laws included. And so actually, because of Article 2 in the Constitution and the power that Article 2 gives to the president, the president must have the authority to direct law.

the activities of the Department of Justice, big and small, up to and including whom to investigate and to prosecute. So there is such a theory. I think it's really, really wrong, but it is out there. And so there's already kind of a legal architecture to support this kind of effort should Trump decide to embark on it. And let me just say one more thing, which is by suggesting that these internal obstacles are surmountable, I'm not in any way saying that a court reviewing this kind of conduct would absolutely bless it. I think there are

all kinds of due process grounded and structural constitutional arguments against the permissibility of the president doing what we are discussing. But that would, of course, come at the back end and potentially after a prosecution has been initiated. So I'm really concerned about the lack of front end guardrails. I haven't totally given up hope that the courts would be able to work on the back end. Okay, so Kate's talked about retribution. Brendan, what are some of the things in this reporting that stick out to you?

It seems like Trump could not only direct the Department of Justice to target his political enemies, but he could use it to at least shut down all of the cases against him at the federal level as well. That won't, of course, protect him from the Georgia case or the New York case, but it

At the federal level, it could create a kind of impunity. And I would just note on that point, I worry especially about the Department of Justice, not just for the reasons Kate described, but because the legal peril Trump himself faces will motivate him to follow through on bringing the Department of Justice to heel in a way that he might not otherwise. We saw in his first term he could be kind of distracted by shiny objects.

Some of that was about staffing, but some of that was about his own limited attention span. But when he faces the prospect of spending the rest of his life in jail, one would assume he will follow through. And in the process of following through and bringing DOJ to heel on his own cases, that may open the door to further imposing further dictates on the Department of Justice. I'm also very worried about the potential for the deployment of federal troops domestically. This is something he's talked about. Again, it was

largely blocked by staff and the uniformed military in his first term. But again, there's lots of reason to think those kinds of lines could be crossed. Right. So what we're talking about here is the Insurrection Act, I think. And he mentioned at a rally in Iowa that he would at least consider sending the military into democratically controlled cities to fight crime.

And then the other example you're talking about is dismissing his criminal cases. Are both of those things that, I mean, the Insurrection Act, it sounds like there's presidential authority to use the military domestically, even if it violates all kinds of norms. What are the constraints there? And when it comes to dismissing his own criminal cases, is that a pretty straightforward process?

So I'll take the second one first. You know, it hasn't been done before. So I think there probably are questions in the same way there are questions about a self-pardon, right? There is a principle in the law that, you know, no man should be a judge in his own case. And so that's the argument against a self-pardon. And I imagine the same logic applies to a directive to dismiss a case against oneself. But again,

It's hard for me to see a court ever second-guessing a determination that the president made that a particular case should be dismissed. So he could instruct his attorney general or even subordinate officials within DOJ to dismiss the cases against him. He absolutely could do that. And I think the only recourse they would have would be noisy resignations and potentially the use of the press and the public.

you know, sort of communications apparatus of Department of Justice to resist. But actually, any formal disobedience, I don't think there's much of a legal basis to resist apart from this kind of broad principle of not, you know, giving an individual too much power to control mechanisms of justice against them. But it's hard for me to see a court ever shutting that down. So long answer, yes, he could definitely do that.

With the Insurrection Act, I mean, I think that's also with the 1792 statute. It's been revised a few times since then, but I think it's pretty broadly understood that that is a badly worded and...

quite sweeping grant of authority to the president. So there too, there could be questions both about resistance inside the Department of Defense as there was to, you know, initial efforts to potentially invoke the Insurrection Act in the period between the election and the inauguration of Joe Biden.

So certainly pushback internally is possible. And it is not inconceivable that a legal challenge could be brought. But courts are deferential to the president as a general matter. Courts are extraordinarily deferential to the president on military matters. So there it's almost impossible for me to see a court second-guessing the military judgment of the president, even if it is pretty facially about political advantage and progress.

delivering on a campaign promise to punish blue cities. So yeah, I think that's also justifiably, I think, a cause of real concern for many people is the potential abuse of the Insurrection Act.

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One of the areas of pushback that you mentioned to any sort of anti-democratic instincts or attempts or

or what have you, are federal employees. And I think this is what Trump refers to as the deep state, which are nonpartisan, unappointed employees who sort of run the government and can, in some ways, pursue and enact policy on their own. And maybe we can talk about the democratic norms of that and whether or not there are democratic critiques to be made of this quote-unquote administrative state, as it's called,

But Donald Trump has talked about going after the deep state in particular, the sort of bulwark that you've described. So first of all, to a layperson, it might sound kind of weird that there are a bunch of federal employees who can in some ways enact policy that fall outside of Congress or the president's purview. Is that normal? Is that normal in a democracy? Yeah.

Well, I would equival a little bit with the premise of the question, which is that they carry out policy, but civil servants, right, career officials inside the federal government, of which there are actually like millions, it's an enormous number. The idea is that they are meant to carry out, but not really develop. They can participate in the development of, but they are not unilaterally developing any kind of policy, right? They are bringing to bear considerable subject matter expertise and experience from multiple administrations, right?

on whatever policy initiatives or policy questions the political leadership of the White House and the agencies actually provide. So they are very, very critical players in our federal government, but they're not policymakers. And so I think that there's something misleading about the suggestion that Trump makes when he talks about the deep state, that they're somehow usurping the prerogative of the political leadership to make policy. That said...

you know, there is a degree to which they are intimately involved in the actual execution of sometimes the crafting and its details and certainly the execution of policy. And there are tensions that the existence of the civil service has always created. And I think every president of every party has always experienced a degree of frustration with the kind of friction that

a large, sprawling, sometimes fractious federal bureaucracy creates. And yet it's baked in to our system. And at this point, with a government and a world as complex as ours, there really isn't an alternative. So that's a kind of high-level answer. But maybe I'll just say, I think one way to sort of drive home, I think, why the

threats to not just the criticisms of again because other presidents have criticized the civil service but the threats to really undermine the civil service are so concerning is that we have made a decision across again over a century presidents of both parties you know many different moments in american political life

Um, that a distribution of kind of labor and also authority in which the very top echelons of the whole White House and, you know, everybody at the top of the federal agencies turns over from one administration to the next, but that the vast majority of the federal workforce stays in place and develop subject matter expertise and, you know, uses it to advance the objectives of whatever president the American people choose. Um,

That's an institutional arrangement that has obtained and has served us well. And seeking to fundamentally unsettle that, presidents have on the margins changed things a lot. Jimmy Carter spearheaded a pretty significant civil service reform in the late 1970s that made it a little bit easier to do both merit hiring and merit promotions of civil servants. So

Certainly on the margins, there are improvements that could be made to the civil service. But to threaten, as Trump has, essentially to clear out federal agencies, to fire every member of the civil service, as he has suggested that he believes he has the power to do, does raise the specter of removing qualified individuals and replacing...

manifestly unqualified political cronies put there because of loyalty and not for any, you know, genuine expertise-driven reason, in charge of things like intelligence collection and nuclear waste storage and disposal and food safety. I mean, you know, in a very perilous moment geopolitically and, you know, in a country with an enormous arsenal of nuclear weapons, I mean, all of this, I think, is much, much scarier than anything

the prospect of a degree of friction and pushback from subject matter experts who want to fully vet any policy proposal that is brought to them by political leadership. Those are essentially the alternatives we have before us. Yeah, Brendan, you look at comparative politics, I think, to some extent in terms of, you know, how our democracy functions, how other democracies function, what is normal, what is not normal. How do you process both Trump's quibbles with the civil service and what he has said he could do? And here I'll just

flesh out the suggestions a little bit. One, he would appoint loyalists as I think any president does. But two, he's talked about Schedule F, which would essentially allow him to fire people and make vastly more appointable positions. And then just generally sort of create a legal framework where he might not necessarily have to go through the normal avenues to

try to enact a further policy. How do you process that? Well, I think it's important to separate the kind of good faith critiques one might offer of our system. There are ways to improve

federal hiring and promotion. There are ways to help agencies function more effectively. There are difficult trade-offs between nonpartisan expertise and democratic responsiveness that we need to think about with the modern administrative state. But what we're talking about here is really, I think, something much more radical, which is returning us to a kind of patronage state and in a context where the purpose is to allow the president to circumvent the limitations on his

power. It's not just the administrative state, right? It's like there may be things he can't get Congress to approve that he would like the agencies to undertake under nebulous claims of his authority under the Constitution, right? And the staff in those agencies, it may not just be that they have a policy disagreement. They may say, we don't believe we have the power to do this. And the

the president may say, yes, I do. And in that circumstance, there's a kind of standoff under the current system. But under this new system, the president could simply find people who would carry out these kinds of orders and put us into unprecedented constitutional territory in a whole series of areas. There

There's the standard issue things that the federal government does, many of which are quite important, as Kate said, and actually not even things that people think of as being affected by this. But of course, they they are. But then there are the areas where we might worry about how far Trump would go, where it's not just a kind of policy disagreement between the parties, but it's really something fundamental about our identity as a supposedly stable democracy. Trump was asking if we could shoot people as they tried to cross the border.

Imagine a world where he's exercising even more direct control over border policy than he did in his last administration. The list goes on. And I'll say this extends to the military, which we haven't talked about, but many of the same issues apply. We've been very successful in this country of achieving a kind of acceptable understanding of the constitutional role of the military and of civil-military relations where the military or the uniformed services defer to the civilian commander-in-chief.

That, again, functions as a kind of check on the president. You can say, well, the president is the commander-in-chief and the military should do what they say. In past administrations, we can think of moments when the constraints imposed by the uniformed branches might make us uncomfortable in a democracy. They shouldn't have slow-rolled the president in some circumstance. But we're talking about something completely different here, and they could be asked to do things that would be dangerous, that would get people killed, that would get us into wars. Imagine a world where he's rebellious.

replaced as many of the top generals as he can, and the civilian defense department leadership, not just at the top, but moving now. You can get into some pretty dire scenarios pretty quickly. It doesn't mean all of them are going to take place, but it means we should be very worried about what this suggests about his ability to carry out these kinds of plans. So this brings up two questions for me. One, Trump has already been president. And so I think to some extent when people think about a second term, it's

They think about him maybe more as an incumbent, and they think, well, what were things like when he was a first-term president? And, you know, do we want more of that? And there are things that people look at and say, yes, we do want more of that. And, of course, for, I think, largely Democrats, people look at it and say there are absolutely things we don't want more of. But ultimately, a lot of the things we're describing here did not come directly.

to pass. And before he became, I mean, of course, January 6th happened and there's a whole lot of democratic norm breaking that did happen, but these severe examples did not come to pass. Before Donald Trump was elected the first time, there was a lot of like, if he's elected, the economy will crash, we'll go to war, North Korea will do this, et cetera, et cetera. And so I wonder if we're kind of doing the same thing a second time around where we're telling people all of these wild things are going to happen. You better be afraid of,

And people just become inured to it and think, well, I mean, the first term, I don't know how people process January 6th person to person to person. But like maybe a lot of people look at the first term and say the stuff that you're talking about didn't happen. So why should I expect it to happen in a second term?

Yeah. And it's true. I mean, you know, a lot of what he says he will do, he will not be able to carry out. But it doesn't mean it's not wildly risky to take on the possibility. The metaphor I often use is you're at the airport waiting to get on the plane and they announce over the loudspeaker, well, the captain's going to try to crash the plane.

The crew usually is able to stop him, so we'll probably be fine, right? Like, would you get on the plane? Probably not, right? You know, the fact that the co-pilot stopped him from crashing the plane on the last flight is not exactly reassuring because we know that the kinds of harms that can be inflicted

are quite tremendous, not just on the people directly affected, but on the stability of the democracy itself, right? We've seen countries that have tipped over into authoritarianism and how they've struggled to rebuild the stability of their political system and to rebuild the protections and frameworks that they previously had in place.

I also think one reason not to assume that the same constraints will apply in a potential second term, there's the personnel issue that we've already talked about. But, you know, courts really were a constraint in the first Trump term. So think about immigration policy. The travel ban executive order right first issued like a week after inauguration ultimately was upheld in its third iteration by the Supreme Court. But lower courts struck down and

pretty unanimously the two earlier iterations of the travel ban and forced the Trump administration essentially to go back to the drawing board and redraft a travel ban. Initially, it encompassed only Muslim-majority countries. There was not any kind of interagency process that supported it before it was issued. So the government was

sort of forced by courts to start from scratch and actually devise a more legally defensible version of the travel ban executive order. I think still one that the courts should have struck down. The court ultimately disagreed with me and upheld the ban 5-4. But

forced a lot of important changes along the way. So I'm not sure that's a vindication of presidential authority in as uncomplicated a way as saying, well, the travel ban was upheld, might suggest. And then two other initiatives, one really explicitly about immigration, the effort to rescind DACA, right, the Deferred Action for Childhood Arrivals program, and then the effort to add citizenship as a question to the 2020 census about immigration, but kind of more, you

Both of those were struck down by the Supreme Court. So I don't want to underestimate the significance of both of those.

in, you know, both actually placing limits on the authority of the executive branch to make these administratively immigration changes. Again, the census is about a question, but of course, a question about immigration. And so I think that both mattered as to the particular initiatives at issue in each of those cases, but also more broadly in making clear to the administration that there were limits in what they would be permitted to do, even in immigration, which is

a realm in which the president does have pretty significant authority. And I'm not confident, because the court looks different right now, that this court would constrain a second-term President Trump in quite the same way the first-term court did. Not that it definitely would bless everything he wanted to do. I don't want to say that. But I don't think the fact that the court was one bulwark in the first term should necessarily give us any comfort that it will do the same in a second.

I would add that the Senate is likely to play much less of a constraining role, in particular the Senate Republicans, who were often holding back the president in various ways. We've seen a number of those folks retire. They've been replaced with more pro-Trump figures. The people who are on the rise are the J.D. Vances and Josh Hawleys of the world. Mitch McConnell is having health problems, and who knows how much longer he'll be able to

stay as leader or maintain control of his caucus. And those folks in part got their leverage by their control over confirmations. But Trump has become, and his acolytes among his staff, have become much more skilled at circumventing that process with acting officials. They're already looking for people who are in positions that they could be moved into acting roles immediately without any role for the

Senate. So it's possible we could see a second Trump term in which those Senate Republicans whose votes were necessary to get his people confirmed have very little leverage because Trump can just shuffle people into these acting positions. And instead of having his hand forced, the story of the first term in many respects is they said, well, to get someone confirmed as a

secretary of X, you know, you have to pick somebody like this. And the kinds of people who are being described to him as confirmable were the folks who are often holding the line against the worst sorts of abuses that he was inclined to undertake. When there are confirmations, we should expect that check to be weaker, and we should expect much more aggressive use of acting officials to circumvent it entirely.

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I said I had two questions. The one question was, why should voters believe the worst case scenario situations? Now, the other question is, for plenty of folks, don't they hear this and think, well, that's a good thing. You know, this is a president who is going to enact the policy he says he's going to enact. He is going to shut down the border. He is going to sort of end

and pathways to asylum at the U.S.-Mexico border. He is going to, you know, enact mass deportations, whatever. And some of this is not necessarily a question about democracy. I mean, some of this is relatively straightforward. Like, lots of different presidents use executive actions to try to achieve things. Sometimes they're successful, sometimes they're not. But it's largely the things that they want to do that they can't get Congress behind them to do.

So when it comes to an issue like immigration, where the president has a lot of authority, or an issue like tariffs, where the president again has a lot of authority, is this really a question of democracy? Or is this a question of governance style?

I believe in a powerful president. I think we have one and I think we need one in particular in a moment of a sort of sclerotic Congress. But I think that actually is consistent with constitutional design. But that doesn't mean a lawless or unconstrained president. So I think you can hold those two ideas in your mind. We do want a president who has significant authority and can use it. But that also comes with constraints. And so, you know, I'm an academic and so I'm not going to make a policy pitch. I think the idea that the sort of policy initiatives that you just listed, Galen, are bad ideas. But that's not a reason that

they're not permitted. I mean, I think a president does have broad and also cabined authority. And I think that

much of the rhetoric emanating from candidate Trump this time around suggests an interest in obliterating the existing limits on that authority. And I think that should concern everyone because you're not always going to support the policy initiatives of the president who holds the office and the constraints need to apply regardless. This is part of living in a liberal democracy, not in the American political sense, but in the sense of a modern government that has constraints on the power of the people that

in government, right, in addition to mechanisms of democratic accountability and representation, right? We combine those two, and the result is a system that is both responsive to public demands, but also operates within constraints that

maintain the rule of law and the protections against abuses directed to people who live in the country. And that's a combination that, while highly imperfect, has worked very well, if we simply made it a matter of, well, what everyone wants, right, many illiberal things could happen. I'm not sure this argument will sell. I mean, I would really separate the question of how important is this substantively from is this a convincing argument politically? The political science on this suggests that

Arguments phrased in terms of violations of democratic norms have quite limited effects. This is not likely to be decisive in the election. On the margin, people will punish voters.

candidates who violate democratic norms, but far less than we might hope. Factors like the economy tend to matter a lot more. To me, as a social scientist, that's neither here nor there. I'm not a campaign strategist. I'm here to speak on behalf of the folks in my field who are alarmed at what they're seeing in U.S. democracy and want to bring attention to those issues, even if it is not the most persuasive campaign appeal. I am curious, within this realm of the ways that the president is restrained,

On immigration, I'll just mention some of the things that have been reported on or that he said explicitly. So he said in the clip that we already listened to, he would close the border. I don't know if he has something different in mind, but reenacting the restrictions he had before, like remain in Mexico. He's talked about invoking the Insurrection Act so that the U.S. could use troops at the border to address migrant crossings.

limiting access to asylum at the U.S.-Mexico border—I'm not sure, again, if this is through executive action or asking Congress—mass deportations to the tune of millions of people a year, ending birthright citizenship—that has a pretty clear constitutional challenge—alongside asking Congress to ensure that drug smugglers and human traffickers can receive the death penalty, and reinstating a travel ban that included mostly majority Muslim countries but not exclusively.

In that list of things, what are the things that are just allowed that he could do? Look, I mean, the president has significant control over immigration policy, including sort of deportation priorities and volume and, you know, is limited by the staff and the size of the Department of Homeland Security, which is set by Congress. But how to allocate those resources

individuals and resources, the president does have significant control over. So some of that could happen within the confines of existing law, fundamentally changing our approach to asylum. I think, you know, depending on how should happen through an act of Congress, as opposed to as a matter of executive branch policy. Certainly, as you alluded to, Galen, you know, ending birthright citizenship is not something the president or Congress could do consistent with the Constitution. I think that's quite clear. There are defectors from that position, but I don't think there are

you know, that there's much support for that view. You know, the other things I think are very dependent on what he has in mind specifically. So, right, so he's speaking in general terms. And again, if we're talking about reallocating or rethinking, you know, immigration enforcement,

The president has a lot of power there. If we're talking about fundamentally changing the law, that is supposed to be left to Congress and not to the president. And sometimes, of course, where that line falls is somewhat unclear. And so I wouldn't be surprised to see things that I think probably do require an act of Congress changed.

you know, tried as a matter of executive action. And, you know, just the administration maybe would gamble that the course would be sympathetic to those kinds of efforts. You're right to highlight immigration because it is a highly both deferential from the court perspective, but kind of by design, a domain in which Congress has passed a lot of laws. And a lot of those laws do very explicitly give significant discretionary authority to the president. So the president has a lot

of room to maneuver and I imagine would use it. There's another bucket that's gotten a lot of attention in recent reporting, which is foreign policy. Sort of, could the president leave NATO? What could the president do in terms of enacting further tariffs? Again, I don't know that that's a, is that a question of democracy? Are there constitutional constraints involved in those questions or is that a question of policy?

I mean, broadly speaking, as far as the Constitution is concerned, we've always understood this is kind of moralized.

more settled understandings than explicit constitutional text, but that the president has pretty broad authority as the diplomat-in-chief, that the president gets to be the chief both spokesman in terms of communication, but also substantive policymaker in the realm of foreign affairs. There are a couple of famous Supreme Court cases that make clear just how broad the president's kind of diplomatic and foreign affairs powers are. But again, they're not unlimited. It

So I think that because the constitutional sort of conferral of authority is so broad, much of the debate will happen more on the terrain of politics and policy than constitutional constraint.

The specific constitutional element that seems like it could come into dispute is whether the president can leave NATO, given that the approval of the Senate with a two-thirds majority is required to enter a treaty, but the Constitution doesn't speak on withdrawal from a treaty. There's legislation that would try to require the president to have to get two-thirds approval to leave NATO. I don't know if that would pass constitutional muster. This is all

unsettled territory. But that's certainly the act in foreign policy, which Trump could take potentially most easily and would be the most potentially destabilizing.

You mentioned, Brendan, a little bit earlier, public opinion on democratic norms and how thinking about democratic norms might affect a presidential election. You know, we've seen increasingly over the past decade or so polling on how Americans feel about democracy, how Americans feel about political violence. We often do a segment on the show called Good Use of Polling or Bad Use of Polling, where we try to get a sense of how well a poll has been dissected or how well a question has been asked.

And we've seen a lot of headlines, you know, over that past decade or so sort of highlighting that Americans are more open to alternatives to democracy, that Americans are, you know, maybe even open to political violence. I'll highlight one from the University of Virginia Center for Politics that was released recently that suggested in an answer to this question that.

People who support blank party and its ideologies have become so extreme in what they want that it is acceptable to use violence to stop them from achieving their goals. So you ask a Democrat about the Republican Party or you ask a Republican about the Democratic Party. 41% of Biden supporters said no.

Yes, they agree. 38% of Trump supporters said yes, they agree that it's acceptable to use violence to stop the other party from trying to achieve their goals. And then when it comes to the question of whether democracy is no longer a viable system of government.

31% of Trump supporters said America should explore alternative forms of government to ensure stability and progress compared to 24% of Biden supporters. That's obviously tens of millions of people. Should we be taking those polls seriously?

literally or seriously or what have you, but are those good or bad uses of polling? Because by the same token, I've heard arguments. In fact, I'm looking at a paper right now that suggests that, quote, after accounting for survey-based measurement errors, support for partisan violence is far more limited. Prior estimates overstate support for political violence because of random responding by disengaged respondents and because of a reliance on hypothetical questions about violence in general instead of questions on specific aspects

So we have a couple camps here. And I'm curious how, since we're talking about threats to democracy and what's painted in that Center for Politics poll is really maybe the most extreme threats to democracy is perhaps a public that doesn't care anymore or a public, a significant part of which doesn't care anymore. What should we make of it all?

There's a lot there. Let me make a few points. The first is the UVA poll is a bad use of polling, unfortunately. I've warned people against relying on it. The firm is unknown. The description of the sample is inadequate. And the question wording is non-standard. I wouldn't put any credence in those specific findings. The broader polling on this point is mixed. On the one hand, Americans do largely say they believe in and support democracy. And

They're often surprised to learn the extent to which other Americans, particularly other Americans from the other side, support and affirm democracy as well. And when they're told of that, they seem to be, in turn, less supportive of the kinds of norm violations or political violence that you might worry about. So there's at least quite broad, still a quite broad consensus on the value of democracy. But it's a relatively thin one in the sense that people are more willing to tolerate the

violations of democratic norms than we might hope. In particular, you know, as I mentioned, the findings that are out there suggest that the penalties for violating democratic norms are relatively small when we do controlled experiments. The effect of

Partisanship is generally larger. So it's not the case. And I literally just returned from Europe where an outstanding graduate student defended their dissertation on this exact topic, showing that across, it's not even specific to the US, across countries we see these relatively small penalties for violating democratic norms. So the public is

in the main, supportive of democracy, but unwilling to fully jettison their partisan and policy commitments when making a choice between candidates. And that creates a real vulnerability in our system, particularly a two-party system like ours, where you're faced with these zero-sum choices between candidates.

When it comes to political violence, we've done polling in Bright Line Watch finding exactly what you described, Galen, that when you take into account inattentive survey respondents and you give people more specific definitions, the level of support for political violence drops dramatically into the low single digits, typically. So it's not something that

when measured carefully, a lot of Americans endorse. But as we saw on January 6th, we don't need a lot of Americans to endorse political violence for it to be tremendously damaging and destabilizing. So I'm only partly reassured by that finding. I'm sure that all of these are topics that we're going to come back to in the coming year or so. But any final thoughts before I leave you, Kate and Brendan?

I'm just reflecting on something you said at the beginning, Galen, which is thinking about the timing of sort of how to communicate all of this right now when, you know, Brendan's a social scientist here, but my general understanding is that people really do pay attention in the 30, 60, 90 days right before an election. If we're talking about a primary, we're talking about a general. And so I do think there's a very tough challenge in communicating about what I think are really critical issues now and risking the

both, you know, the kind of tune-out factor or people's discounting of those issues. And I'm not quite sure what the right balance is, but I do think it's valuable to talk at a very high level about some of these, you know, potential efforts and what kinds of limitations they might encounter, and then to get more specific sort of down the road. So I guess I'll just end there. I'm grateful that, you know, we could sort of spend an hour talking at a pretty high level about all of this,

And I do think that it's important to figure out ways to continue to bring these conversations to people as the rest of the election cycle unfolds. All right. Well, thank you so much, Kate and Brendan, for joining me today. I really appreciate it.

My name is Galen Drew. Tony Chow is in the control room. Our producers are Shane McKeon and Cameron Tretavian, and our intern is Jayla Everett. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we will see you soon. Bye.