Why conservative judges think Trump has gone too far

Several federal judges have issued opinions saying the Trump administration is flouting the rule of law and the principles of democracy. How effective has the bench been in checking executive power?

James Sample, professor of Law at Hofstra University Maurice A. Deane School of Law. He focuses on issues of Constitutional Law and Democracy.

Virgil Wiebe, professor of Law at the University of St. Thomas School of Law.

Michael McConnell, Former Circuit Judge on the United States Court of Appeals for the Tenth Circuit (2002-2009). Nominated to the bench by George W. Bush. Professor of Law and Faculty Director, Constitutional Law Center at Stanford Law School.

J. Michael Luttig, former U.S. circuit judge on the United States Court of Appeals for the Fourth Circuit (1991 to 2006).

The version of our broadcast available at the top of this page and via podcast apps is a condensed version of the full show. You can listen to the full, unedited broadcast here:

Part I

DEBORAH BECKER: Yesterday we spoke about the war of words between President Trump and the Pope. Today we want to talk about another presidential battle, one that could have constitutional consequences. Federal judges are inundated with lawsuits over the White House attempts to carry out its agenda.

Many judges, even some Trump appointees, have gone against the government. The lawsuits challenge various issues, ranging from tariffs to the president's national security powers, to immigration, to plans for a White House ballroom. The sheer number of these legal battles is not the only thing that's unusual.

The Trump administration has repeatedly blamed judges for rulings that he says are not based on law, but on politics. Here's White House Press Secretary Karoline Leavitt speaking last year in response to a ruling blocking the government from flying alleged Venezuelan gang members to a notorious prison in El Salvador.

KAROLINE LEAVITT: 60% of the injunctions by partisan activists in the judicial branch have come against President Donald Trump, and 92% of those have been from Democrat appointed judges. This is a clear, concerted effort by leftists who don't like this president and are trying to impose or slow down his agenda.

BECKER: But it's not only judges appointed under democratic administrations who are not aligning with the president when Trump a appointee, Judge Karen Immergut. Blocked the president from deploying the National Guard to Portland, Oregon last year, white House Deputy Chief of Staff, Stephen Miller, called it a legal insurrection.

We have seen over the last nine months a ongoing legal insurrection. In which district court judges as a class, in many cases, have issues why they've been overturned so much, have issued rulings that are flagrantly unlawful or unconstitutional, and it is an insurrection against the laws and constitution of the United States.

And we need to have district courts in this country that see themselves as being under the laws and constitution and not being able to take for themselves powers that are reserved solely for the president.

BECKER: Even Supreme Court Justices, some appointed by Trump, have not escaped criticism. After the high court ruling in February that said Trump's tariffs are illegal, the president called the Justices who ruled in the majority a disgrace.

DONALD TRUMP: The Supreme Court's ruling on tariffs is deeply disappointing, and I'm ashamed of certain members of the court, absolutely ashamed, for not having the courage to do what's right for our country.

BECKER: Supreme Court Chief Justice John Roberts has weighed in on this a few times.

At an event at Rice University last month, Roberts said he wasn't calling out any specific political party or politician, but he did say personal attacks against judges are unacceptable.

JOHN ROBERTS: Judges around the country work very hard to get it right. And if they don't, their opinions are subject to criticism.

But personally directed hostility is dangerous, and it's got to stop.

BECKER: Increasingly, we are seeing judge's rulings that are bold and contain some pointed language. In January, Judge Patrick Schiltz, the chief judge of the Federal District Court for Minnesota, took the unusual step of threatening criminal contempt charges against a White House immigration official.

And summoning that official to court. Schiltz, who was appointed by President George W. Bush said the court had lost its patience with the government not following his orders in an immigration case involving a man from Ecuador who was being held by ICE. So Schiltz summonsed the acting Director of Immigration and Customs Enforcement to appear.

Eventually the case was resolved, and the Ecuadorian man was released without an appearance from ICE. Graham Ojala-Barbour, the lawyer representing the man detained, said This case with Schiltz has broader implications.

The judge is using this case as an example to say that the court is no longer going to tolerate ICE not releasing people when the court orders it to do, and when the court has been ordering ICE not to move people to Texas, they're being moved anyway.  When the court orders people to bring people back, they're not brought back right away.

BECKER: Also of note, Judge Schiltz wrote in his order that the government decided to send thousands of agents to Minnesota earlier this year, without making any provision for dealing with the hundreds of habeas petitions and other lawsuits that were sure to result.

Today, On Point, we're talking about this battle over the judiciary and what it means for checks and balances and for our democracy. I want to start by talking, start the conversation by talking with Virgil Wiebe, a professor of law at the University of St. Thomas in St. Paul, Minnesota. Virgil, we just heard a little bit about the order earlier this year from Chief Judge Schiltz.

I wonder what was your impression there of that order?

VIRGIL WIEBE: I, along with other immigration attorneys here in the Twin Cities rejoiced, there were, I'm on a listserv with other immigration attorneys and there must have been two dozen congratulatory emails to Graham and his colleague Morgan about that case.

One attorney said this is a Whitman sampler of contempt.

BECKER: But I wonder what really, were you so excited that a judge was standing up to the administration? What was the main reason for the rejoicing?

WIEBE: The rejoicing was at the time, as you recalled it was the heart of Metro Surge.

In hindsight, we know that it went on for another three or four weeks.

BECKER: And so we should say this was when the federal government put thousands of agents or sent thousands of agents to Minneapolis, and that was what Metro Surge was at that time.

WIEBE: That's right. And they were unlawfully detaining hundreds of people, hundreds and hundreds of people.

And because the Supreme Court in its wisdom had done away with universal injunctions. And because class actions are difficult when you're trying to do habeas petitions. So that was the way to fight back, was the local bar really came together and began filing individual Habeaus corpus petitions on behalf of people being detained.

And so that was the method of fighting back in that context.

BECKER: And so Schiltz issues this ruling, saying, I want the head of ICE to come in here and tell me why the government's not following my orders. And that was something that was eventually resolved when ICE released the man in custody.

But do you think it had a long standing message here?

WIEBE: It took a while for the message to sink in. The response of the government. So as part of his January order there, Judge Schiltz had his clerks review other court orders in the District of Minnesota, and he found that something like 96 violations of court orders in over 70 cases.

And in response to that, the U.S. attorney for Minnesota responded that he had his numbers wrong and his clerks had looked at the numbers and they weren't anything like that. Judge Schiltz is not one to take kindly to essentially being called either incompetent or dishonest. And he went back and he said, yeah, we made a few mistakes.

But then he found over 113 violations of court order. And then he said the government would be brought into line one way or another. We'll start issuing contempt orders and we'll consider criminal contempt which can lead to jail time for government attorneys or government officials.

So he was very frustrated. There wasn't quick response to his concerns. And this has bled over into other parts of the government. The other parts of the country, excuse me. So the Lawfare website has created a government contempt and non-compliance tracker in which they're tracking violations of court orders by the government.

And when they first published this about three weeks ago, they had found 300 violations of court orders around the country. And just in the week since then, that number's gone up to 415 and 248 of those are in the District of Minnesota. So most of it has happened in Minnesota, but it's being copycatted around the country by other U.S. attorney's offices.

BECKER: I wanna ask you briefly, there's a Trump appointee who's a sitting judge in Minnesota, eric Tostrud. And he ruled against the White House plans to expand the use of detention for immigrants facing deportation. Invoking civil contempt charges, ordering immigration officials to personally pay for the plane ticket of a detainee who had been transferred to Texas in violation of his judicial order, which said that couldn't be done.

Was this unusual? Are you familiar with this case?

WIEBE: I'm not, because frankly, there have been over a thousand Habeas petitions filed in Minnesota, and it's hard to keep track of them all, but it doesn't surprise me. In another case, I believe Judge Provinzino said that the government attorney would be fined $500 a day until the government came into compliance in that case.

This level of frustration is not just one or two judges, it's almost across the board.

BECKER: Yeah. And so basically in the minute we have here for you to be able to explain, this is having longstanding issues throughout the legal system, the judiciary in Minnesota.

WIEBE: It certainly is. There is a presumption that the government, what the government says is the truth.

That presumption, that trust has been completely eroded. There's just not that same level of confidence, that notion of regularity that there once was. And that is, that has consequences not just for this immediate moment, but for the long term.

Part II

BECKER: Today we're talking about orders issued by federal judges that are challenging the Trump administration, and I'd like to bring into the conversation, James Sample, a professor of law at Hofstra University. Welcome to On Point.

JAMES SAMPLE: Thank you Deborah, and great to be with you.

So you've been tracking a lot of these cases and we just heard about Minnesota, the court system there attorney Wiebe telling us that the cases there where judges have ruled against the White House are really having some wide-ranging legal implications and other implications throughout the system there.

What's your take on this big take, we'll start with, on this fight over the federal judiciary.

SAMPLE: I think Deborah, the way to think about this is as a dialogue between the branches, Article 1 vests power in Congress, Article 2 vests power in the Executive Branch, and Article 3 in the courts.

Every president throughout American history, regardless of partisan valence, has tested the limits of executive power and has had the incentive to do. But no president has ever simultaneously pressed executive authority so aggressively across the board, in terms so broadly across the board in terms of scope and has had such a contempt for the corrective process itself.

The judicial response to those efforts by the executive has been also sharp and broad, and in many cases, as you've already noted, the judges who have been stepping in and acting as a check have been appointed by presidents of both parties. We're talking, not just recent ones, we're talking judges appointed by Ronald Reagan, by both Bushes, and yes, by Clinton, Obama, and Biden, and yes, by Donald Trump.

And the language that they're using is not just language that speaks to the executive going beyond the limits, but the executive having a contempt for the limits themselves.

BECKER: You actually have written about this, and you say that there's a pattern, right, to the Trump administration's approach in the federal courts. Can you explain that?

SAMPLE: I think the pattern is that the administration in its 2.0 version as opposed to its 1.0 version has figured out that the single most difficult challenge for the judiciary is to keep pace with an aggressive executive, which is to say it takes time for aggressive actions by an executive to be checked by the courts. Because it takes time to challenge those efforts and it takes time to rule on those efforts.

And what has happened, particularly in terms of the administration, is that they have plowed ahead in many instances, in direct contravention of orders from district court judges waiting in a sense for what the administration at least perceives as a friendly forum in the Supreme Court. They've just continued to go on and on and to ignore, in many instances, those trial court judges and you played a couple of clips.

The Stephen Miller insurrection clip is a powerful clip, but he's not alone. Now the acting Attorney General, the former Deputy Todd Blanche has said, We are at war with judges. That's a remarkable and an astounding statement for an attorney general to make. Tom Homan says, I don't care.

Literally said, quote, I don't care what judges think. That's a problem separate and apart from the merits of any individual decision. And that pattern that you reference is one in which I refer to it as the imperial presidency, not because the presidency or the nation is trying to take over other nations necessarily, in that sense of empire, but because the executive branch is trying to take over the other branches in an empire-like fashion.

BECKER: So it's all strategy to expand power.

SAMPLE: Absolutely.

BECKER: Let's look at a couple of specific cases. Because they, to me anyway, they were surprising in how bold the language was from the judges. One that's been a real flashpoint here for the Trump administration involves Washington, D.C. Federal Judge James Boasberg, appointed by former President Obama.

He was a White House target after he issued a temporary restraining order, barring the administration from transferring Venezuelan migrants to El Salvador. And despite that order, the government sent groups of migrants to El Salvador anyway. And as part of his ruling Judge Boasberg wrote the Constitution does not tolerate willful disobedience.

Of judicial orders, especially by officials of a coordinate branch who have sworn an oath to uphold it. Some of the things that we're reading from judges like this seem very stunning. Are they surprising to you?

SAMPLE: I think they're surprising, but I think that we should perceive them as surprising because they are responsive to an even more surprising trend, which is to say that the president has an obligation to uphold the Constitution as well.

The administration has the obligation to uphold the Constitution and where some of the most sharp, toned rhetoric from the judges is sourced, is not just in the aggressive attempts to interpret laws or to reinterpret authority, but in the administration's sort of disdain for the idea that there's a check itself.

You think about the notion of the tariffs case that you referenced with the Supreme Court deciding in February. When that case came down, the president described the justices in the majority as unpatriotic. Vice President Vance described it as lawlessness. Lawlessness is not a court stepping in and saying that an executive branch can't impose tariffs without congressional authorization in a manner that has never ever in the United States history been imposed in the way that it was. That's not lawlessness, that's checks and balances. That is the Madisonian separation of powers in action.

BECKER: But we should say, just so we wrap this up with the Boasberg case. The president called for Boasberg's impeachment because of that ruling. And Chief Justice Roberts, I know we heard from him earlier in the program, but he also weighed in specifically on this case, and he said for more than two centuries it's been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.

So there's a strong message here to judges and the Supreme Court is weighing in.

SAMPLE: Absolutely right. Judge Boasberg has been, I think much to his chagrin, one of the things that I think it's important for listeners and citizens, frankly, to remember about federal judges, especially at the district court level, at the district court level, they are assigned randomly the cases that they get.

Now, there's forum shopping in certain instances, et cetera, but when you are a district court judge in D.C. you are without a doubt going to get high profile cases. And Judge Boasberg certainly did not ask for the extraordinary circumstances of a dark of night airplane full of individuals who the government had not given due process to, who the government was flying to a foreign country where many of them faced horrific conditions and even torture, in a well-known facility for its lack of humanitarian standards abroad. And the claim, the naked claim made on a wholesale basis that Judge Boasberg was faced with was that all of these men were subject to the Alien Enemies Act, which is a rarely invoked, basically only in a couple of times in American history.

The War of 1812 and the two World Wars, that these men were enemies of the United States, that they were members of Tren de Aragua. And it turned out that those claims were utterly false. All Judge Boasberg did in that ruling was to say, can we slow down? Can we pause? Can we exercise the due process that is guaranteed in the Constitution?

And for that, he was vilified and he was ignored by the administration when he tried to slow down that process.

BECKER: Yeah. And so in that case, you have completely false claims being made by the government in an immigration case. There's another case in New York where federal Judge Sanket Bulsara, Biden appointee, issued a really scathing ruling saying that immigration officials were illegally detaining people. And not only that, they were making up false arrest warrants after arrests were being made. And this is another case that's being fought and it really talks about how ICE is carrying out its operations, but also about what power officials can and can't have.

Even when that power is shown to have been abused, and I'm wondering when I read these, why is it up to the federal judges to make sure to keep this power in check?

SAMPLE: I think that the answer to, that's a very good question, Deborah. And I think that the answer to it, the question, or the best available answer, which is not to say that it's a great answer, just merely to say that it is.

If they don't, who will? And I think that is the position that these judges are finding themselves in, the sense that where the federal officers who are also sworn to uphold the Constitution, including in the instance you reference in New York. And frankly, that instance is emblematic of numerous cases around the country. Where ICE has, for example, decided that they don't need to comply with the Fourth Amendment.

And the protection against unreasonable search and seizure, they don't need to comply with warrant requirements. They absolutely do. That doesn't mean that they are going to comply of their own accord. And so when the federal government, as in that case that you referenced in New York, is going so far, acting so far beyond the pale as to write warrants according to the court order.

The facts there are that ICE and the Federal Department of Homeland Security, they were filling out warrants after individuals had already been detained for the detaining of those individuals, that is as backwards and upside down an approach to constitutional rights as one can get.

And I think it warrants saying that there is nothing. One of the reasons we're hearing from Republicans as well as Democrats or judges who are classically conservative, as well as liberal, more liberal judges. There is nothing conservative or small government about ignoring the rights granted in the Bill of Rights.

BECKER: So I wonder, what about then, what is the legal strategy here? I know you said it's expanding power, but in terms of the moves that they're making, is it we're going to do X, Y, and Z in these jurisdictions, assuming they're going to go to an appeals court, where then we might get the ruling we want, or we might get it to the Supreme Court where we then might get the ruling we want?

Like how would you think that the administration is considering a legal strategy to affect some of these policy changes?

SAMPLE: I think it's all, the answer there is all of the above. Every one of those strategies that you mentioned, all at the same time, the metaphor would be to throw spaghetti at the wall and see what sticks.

And I think that is, it's not just some spaghetti. I think the goal here of the administration from a legal perspective is to throw all of the pasta one could imagine at the wall and see what sticks, because they know that the courts can't possibly keep up. And that even a few wins for the administration will result in an expansion of executive power.

And even some of the losses have the net effect of expanding executive power by shifting our conversation, by shifting the frame of what is deemed acceptable. And there, I would cite as an example an executive order to do away with birthright citizenship. The 14th Amendment has been around since 1868.

The precedent from the Supreme Court on birthright citizenship has existed uninterrupted since 1898. It's a 126, 128 years, when the executive tries to do away with a precedent like that, they are not complying voluntarily. They are not self-checking, and even if they lose that case, which I, by the way, think they will, they have managed to shift what is often referred to as the Overton window, right?

The fact that we are discussing birthright citizenship as though it's an open question when it has never been an open question since the adoption of the 14th Amendment, and certainly not since 1898. That is from their perspective a win, even if they lose.

BECKER: Let's explain a little bit how judges are typically chosen.

And I wonder what you think about is how different this might be from past selection processes. Isn't a president supposed to choose folks who are aligned with the presidential philosophy of what they like the courts to accomplish? And if so, then what's the difference here?

How different is it?

SAMPLE: Another good question. I think it's absolutely correct that presidents are empowered to nominate judges who then face Senate confirmation, the advice and consent clause that gives the Senate the power to confirm or not confirm those judges. And I think that it is certainly true that presidents of both parties have tried to put their stamp on the federal judiciary, and there's nothing wrong with that. In fact, there may be a lot that's right about that, but to a certain extent, I think what we are dealing with here is orders of magnitude, matters of degree being just so far beyond anything that we've seen before.

There are nomination processes going on for federal judges in the Senate right now. And over just the last couple of weeks, nominee after nominee has refused to answer the simple binary question, who won the 2020 election? That's an objective fact at this point.

That's not a question of law. And when you get that kind of fealty to a particular. Not just individual, but a particular vision. The notion that fealty won't then bleed into the decisions is hard to reconcile. Now, I say that cognizant of the critique that many on the right, and you played that clip of Karoline Leavitt have about judges from the perceived left. I think that it is important to recognize that judging is a political act, especially when we're dealing with constitutional issues. It is not clear what the constitution means in every instance. There is interpretation. But what we're seeing here is a different scope altogether.

Part III

BECKER: We've been talking with James Sample, who's a professor of law at Hofstra University about the constitutional battle involving the federal judiciary. And we also want to remind folks of exactly what we're saying here and why we feel that the White House is in fact involved in this battle.

Here's an example. When President Trump lost a court battle related to the deportation of migrants last May, he spoke about how he viewed the judiciary. Let's listen.

DONALD TRUMP: And also, we cannot allow a handful of communist radical left judges to obstruct the enforcement of our laws and assume the duties that belong solely to the president of the United States.

BECKER: And then in February of last year, white House Press Secretary Karoline Leavitt said any assertion that the Trump administration was creating a constitutional crisis was inaccurate. Instead, she says the real crisis is with judges who rule against the president's policies or issue injunctions to try to stop them.

Each injunction is an abuse of the rule of law and an attempt to thwart the will of the people. As the president clearly stated in the Oval Office yesterday, we will comply with the law in the courts, but we will also continue to seek every legal remedy to ultimately overturn these radical injunctions and ensure President Trump's policies can be enacted.

BECKER: I wanna bring into the conversation former federal Judge Michael McConnell. He was a judge for the 10th circuit from 2002 to 2009, nominated to the bench by George W. Bush. Now a professor of law at Stanford Law School. Mr. McConnell is a former judge. What do you make of this conflict?

MICHAEL McCONNELL: I would love to provide a little conflict here.

I don't like listening to NPR programs where everybody says the same thing, but in this case, I have to say the same thing. This situation is really intolerable. And evidence for this is the fact that these decisions are being handed down by federal judges of both parties, including nominees by President Trump himself.

And that ought to be a clue to everyone that this is in fact not an effort by a one-sided left-wing judiciary to thwart President Trump, but rather that the Trump administration, especially in the area of immigration enforcement, is disregarding the law.

BECKER: Is there a ruling that really stands out to you?

McCONNELL: May I just put it in slightly different frame because a lot of this is, we're very distressed at what's happening. But I think there's a lot for Americans to be proud of in our system. That what we see here is judges who have been in fact appointed through a political process.

But once they're on the bench, we see the judiciary acting the way it should. That is case by case. Looking at who's right and who's wrong. And the administration is not wrong all the time. They win some and they actually should be winning some of those. But we see judges deciding according to the law rather than according to politics.

I think they need more credit. Because it seems to me that the courts are under attack, not just from President Trump and the various spokesmen in his administration, but they've also been attacked, under attack from the left as well. There was talk of court packing not very long ago.

And I just think that Americans need to give the courts more credit, that whether it's striking down various actions by the Biden administration or whether it's upholding the rule of law under the Trump administration. The courts don't get it right every time, but I think it's really been a remarkable performance over very difficult times in the last, say, 10 or 15 years.

BECKER: Professor Sample did say to us that this was really an unprecedented time, though. That's putting an awful lot of strain on the court. Constitutional interpretation is one thing, but this is difficult for the courts to be the sort of main check of this administration, which he says is trying to expand executive power.

Do you agree with that take on it?

McCONNELL: I do. As I believe the previous speakers also said, every president tries to expand executive power. What's really different here is the way in which president Trump himself and his spokesman do it in a more aggressive, hostile, blatant fashion.

Every president tries to expand executive power. What's really different here is the way in which president Trump himself and his spokesman do it in a more aggressive, hostile, blatant fashion.

Michael McConnell

Most presidents try to expand power in a kind of sneaky way and quietly and try to get things through and President Trump instead shouts his defiance of the courts and his contempt for legal rulings from the rooftops, and that's really very different. He's also so much more active now.

His supporters, people who voted for him, wanted him to be active, and he is the extent of innovation and attempts to change the way things are being done for better or worse is extraordinary. But much of that does involve a legal challenge and a number of different areas, not just immigration.

The tariff case in which I was involved with the challengers is another example of that, the attack on law firms is another example of this. So many different fronts and not all of them, but a very, a goodly number of them, the administration has been stymied because the courts have been standing up to him.

BECKER: Yeah. I wonder do you think though that the Trump administration, yes, it certainly has been more blatant in its fight and very pointed in its arguments but is the president doing something that's unconstitutional?

McCONNELL: He is doing lots of things that are unconstitutional. So did his predecessor and his predecessor before that.

And the courts are saying so. The real constitutional crisis will come if there is open defiance coming from the top of a decision that's been fully litigated. That has not yet happened. Although the large scale frequent violation of low-level orders such as the ones we've been talking about in this program today is very close to that.

And when Judge Schiltz in Minnesota was challenged, that the U.S. attorney said that he was inaccurate and he produced a factual appendix with evidence of violations of a very large number of orders. I believe it was 133 orders in 77 different cases as of February of this year.

That is, I think that is completely unprecedented and is deeply disturbing and this means this is not just one person at the top. This means that there are officials in the executive branch who are falling down on their primary duty which is to enforce the law and the Constitution in the name of the people of the United States.

Their primary duty is not to do whatever the president says, but to do what their job demands.

BECKER: I want to get professor Sample to weigh in on this. I wonder, what do you think, professor, is the real constitutional crisis here still pending? We have to wait until something is fully litigated and see if there is real opposition there.

What would you say?

McCONNELL: I don't disagree. Judge McConnell and I disagree on many things, but on this I'm with him. For the most part, which is to say, I think that he's right that we haven't had the cataclysmic constitutional crisis that would follow from, for example, an administration refusing to comply with orders from the Supreme Court.

But I do think, and I think his comments reflect this, that there is a kind of asymmetry in the way executive power is wielded, in the way judicial power is wielded. In the sense that courts are reactive, not proactive, and they cannot possibly keep pace with the speed and volume of an executive that is not particularly self-motivated to comply with lower court orders.

And I think so far one of the areas where we have clearly, and where Judge McConnell himself just said it has at least neared a crisis level, is in the context of immigration, where the only remedy left for many of these individuals who have been detained by ICE, by Department of Homeland Security, is to file habeas corpus petitions.

The volume of those petitions has expanded exponentially because of the enforcement actions of the executive, while the judicial capacity has not expanded remotely commensurably. And so there you have basically a traffic jam in the lower courts and an administration that isn't honoring those court orders, that is a problem.

BECKER: I wonder, Judge McConnell you were an appeals court judge from 2002 to 2009 nominated by President George W. Bush. I wonder, what you would've done as a judge if you were facing some of the things that professor sample has talked about here in terms of the flood of cases, especially dealing with immigration and both sides fighting.

Would there have been, is there a way for judges to create a clear path to be able to handle all of this. Has anyone thought of that?

McCONNELL: I have a lot of respect for judge Patrick Schiltz in Minnesota, and I like to think I probably would've done pretty much what he has.

And I want to say something about the effectiveness here. It's not, there may be a picture being painted that the executive wins these battles just by fighting them. But I think that's not really quite true. So there was this surge as it's called in Minnesota, creating all these cases and many defeats in court.

But also defeats in the court of public opinion leading to firing the head of the department, replacing the person in charge, withdrawing agents and not repeating this episode elsewhere. I at least, I don't know, but I expected when the surge first happened that you'd have Minnesota first and then they would go after somewhere else, and then they'd go after somewhere else, but they haven't done it again because it wasn't a success.

And I think the courts have been not the only player in that, but they were a big player in that. And I think the same thing is going to be true in a number of other areas. Birthright citizenship is going to be upheld and that will be over, the tariff power is going to be back in the hands of Congress.

Their fights, there are new attempts right now, but I believe the administration will be handed its hat and they're being forced to pay refunds of, what, over $130 billion, case after case they're being stymied and then they move on to something else. But these are actually we shouldn't despair because most of these have been victories for the rule of law.

We shouldn't despair because most of these have been victories for the rule of law.

Michael McConnell

BECKER: But I would not necessarily despair, but it seems like it's an incredible strain on the judiciary to be what appears to be perhaps the sole check on an executive branch that wants more power.

McCONNELL: This is not the world that the framers expected but what we are now, where we are now is that when Congress is held by the same party as the president, and this is whether it's a Democrat or a Republican, Congress ceases to do serious oversight.

And is not a check. And then that leaves, there are only three branches. So when the other two branches are aligned, the duty falls to the courts to be the principal check and balance.

BECKER: I wanna get both of you to weigh in on proposal from President Trump. That was reported last month where the president said Congress should pass a law to, quote, crack down on rogue judges.

He said Republicans should pass a new crime bill that would impose penalties on judges. And he thinks that's how he could get his agenda through more quickly. I wonder, Professor Sample have you heard about that and what's your take on that?

SAMPLE: Yes. I think it's unconstitutional on its face to turn criminal cases into potential disciplinary and even worse matters for the judges who rule in those cases because the criminal defendants, as Judge McConnell knows better than anyone, have constitutional rights. And so the idea that you want to put a thumb on the scale beyond all of the structural advantages that prosecutors already have, would be and it's just wholly untenable.

BECKER: Unlikely would you say as well?

SAMPLE: Yes.

BECKER: Okay. And what about you, Judge McConnell? What would you say?

McCONNELL: I have to say, I think it's hilarious. He's trolling us and what makes it hilarious is that the courts have recently ruled that the president is immune for punishment for his official acts.

Judges have been held to be immune for their official acts for a very long time, and he loves his immunity. But judges love their immunity. Both are there, and for him to think I'm immune, but the judges aren't, is ridiculous.

BECKER: What do you think has been the biggest effect on the judiciary, speaking as a former judge?

McCONNELL: There's been a lot of talk on the program about strategy, but I think the administration is not actually behaving very strategically. This is not the way to win. So I've been a federal lawyer. I've been a lawyer for the federal government, and I've been a judge on the other side, and practice tip.

This is free advice to the Department of Justice. Don't insult the judge that you are trying to decide on your case. It doesn't work. And so I have to think that rather than being a legal strategy with much of this rhetoric, it's got to be a performative political strategy. They must think that there's somebody out there among the electorate who likes this sort of thing.

I think they're wrong.

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