The following is a lightly edited transcript of the May 19 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
President Donald Trump is very unhappy with how things went at the Supreme Court when it comes to his effort to end birthright citizenship. He uncorked two angry epic tirades about the High Court, essentially putting it on notice that it had better rule his way on this and other matters coming before it or else. This may look like typical Trumpian bullying and threats, but we think there’s a game going on here that people are missing. It’s that Trump is, in a very real sense, playing chicken with the Supreme Court. He’s trying to bluff the justices into constraining themselves from putting limits on Trump’s power. We’re going to explore how this really works today with one of our favorite legal commentators, Matthew Seligman, a fellow at Stanford Law School. Matt, thanks for coming back on, man.
Matthew Seligman: Thanks for having me.
Sargent: So Trump erupted twice at the Supreme Court on Truth Social. In one of his tweets, he said, “The Radical Left SleazeBags” are “PLAYING THE REF” at the Supreme Court. “They lost the Election in a landslide.... I hope the Supreme Court doesn’t fall for the games they play. The people are with us in bigger numbers than ever before.” Matt, it’s a complete lie that Trump won in a landslide. It was one of the most narrow victories in memory in an environment that took down incumbent parties all over the world. But the key thing there is that he’s putting the Supreme Court on notice that the people are with him, so the court had better not stop him. What’s he trying to do with that?
Seligman: What he’s trying to do is to invoke this false idea of a popular mandate. He did win, but as you know, it was a very narrow victory. And he’s trying to invoke that idea of a massive popular mandate to intimidate the Supreme Court into ruling in his favor. And this is part of a long history of Trump’s attitude toward the courts. Even going back to his first term, he attacked the courts on regular basis in a way that was far outside the bounds of what presidents normally do. And it prompted the chief justice to release a really unprecedented statement saying that there were no Trump judges, there were no Obama judges, there are just judges. And that was really an extraordinary moment for the judiciary that almost never—almost never—steps outside of judicial opinions to defend itself against the political branches. And now Donald Trump is doing it again. And he’s raising the temperature on this even higher.
Sargent: In fact, his second tweet was even more direct along these lines. He said, “THE SUPREME COURT IS BEING PLAYED BY THE RADICAL LEFT LOSERS ... THE PUBLIC HATES THEM, AND THEIR ONLY HOPE IS THE INTIMIDATION OF THE COURT, ITSELF.” I think this is actually designed to put the court on notice in another way saying if it rules against him in any of these cases, Trump will attack the court by saying it caved to left-wing pressure. I think what set him off though was the Supreme Court’s proceedings on birthright citizenship. Can you give us a quick overview of what happened there?
Seligman: Yeah, and obviously this is one of the issues that is central to Donald Trump’s political identity and political movement. The question with birthright citizenship is right upon taking office, Trump issued an executive order that purported to say that the children of undocumented immigrants, even if the children were born in the territory of the United States, aren’t citizens. Now, the problem with that is that the Fourteenth Amendment says that anybody born in the U.S. and subject to the jurisdiction thereof is a citizen of the U.S. So it’s been settled law for almost 150 years that that means that anybody who was born in the territory of the U.S. except the children of ambassadors and a couple of other minor cases are citizens of the U.S. And he’s trying to reverse that constitutional principle by executive order.
Now, the issue before the Supreme Court actually wasn’t that. The issue was a procedural issue. This issue has come before several trial courts around the country and he’s lost everything. And these trial courts have issued what are called “nationwide injunctions.” Those injunctions say, Hey, not only can you not strip the particular plaintiffs in this case of their citizenship, you can’t do it to anyone. And that makes a lot of sense because otherwise we’d have to have 20 million different lawsuits for each individual kid. Now, the issue before the court is the Trump administration wants to say that you can’t do those nationwide injunctions. And in the process, it wants to make it impossible for people to challenge his underlying attack on their constitutional rights.
Sargent: Well, there are two things at issue in the birthright citizenship case, right? There’s that—whether the nationwide injunctions against the administration’s effort to revoke it will stand—and whether Trump can actually succeed in ending birthright citizenship permanently. That may get litigated a little later. Where do you see the court going on both of these?
Seligman: On the substantive constitutional issue, I think it is absolutely clear that the Trump administration is wrong. Just on basic principles, an executive order cannot overturn the Constitution. And the meaning of the Constitution here is very clear: that anybody born in the physical territory of the U.S.—again, except for these really specific exceptions like the children of ambassadors—are citizens of the United States. The historical evidence, the originalist evidence that conservative justices tend to look to is absolutely overwhelming on this point. I can’t say that it would be 9–0 because we live in an era where even the most seemingly obvious constitutional principles end up getting decided 7–2. I do think that there is essentially no chance that the Trump administration would win on the merits here.
Sargent: That’s good to hear. What about on the injunctions?
Seligman: That’s a more complicated issue. Part of the reason why the Trump administration is fighting hard on this procedural injunction issue is because it, I think, recognizes it is probably going to lose on the substantive issue. So if you play out the game theory here, if they win on the nationwide injunction issue, it becomes virtually impossible for people to actually have their constitutional rights vindicated. Because again, you would have to have 20 million different lawsuits for each individual child. And lawyers are expensive, and something else we’ve seen is there are attacks on law firms. And so now big law firms are refusing to do pro bono work on immigration issues. That’s a way to de facto strip people of their constitutional rights, even if in substance or in theory, those constitutional rights are still there.
Now, the actual procedural issue here is a little bit more complicated though. The reason is because both conservatives and liberals have used these nationwide injunctions. What we saw in the oral argument yesterday is that the justices are really frustrated with the frequency of the use of nationwide injunctions, but they do recognize that at least in certain types of circumstances ... and I think even some of the conservative justices like Justice Gorsuch recognize that this is one of those circumstances where nationwide injunctions really have to be appropriate.
Sargent: Matt, let me ask you this. So what happens if the court rules with Trump on the nationwide injunctions, essentially suspends the nationwide—or reverses—the nationwide injunctions on birthright citizenship, but then later rules against the administration on the substance? It seems like they’re trying to buy some time to do some damage in that interim, revoking a whole bunch of citizenship rights from people in the hopes that maybe those people don’t try to reclaim them. It’s hard for me to really fathom what the game is, but can you explain it?
Seligman: Well, I think it’s even worse than what you just said, because what would happen in that case ... If the court rules that, No, the nationwide injunctions, even in this situation, are not OK, then what we’re left with is that there’s a handful of plaintiffs who have sued in court, their citizenship isn’t going to get stripped. But the other millions of people, their citizenship will be stripped until they bring a suit in court. And that means that there are going to have to be millions of lawsuits. And that means there are going to have to be millions of lawyers who are defending the constitutional rights of all of these American citizens who were born in the U.S.
And if the legal profession can’t muster those resources—even under the best of circumstances, that’s just not possible—then you’re going to have a situation where you’re going to have American citizens deported to countries to which they have never been because they’ve lived in the U.S. their entire lives, they were born [here], because they can’t get legal help. And because the court orders don’t extend to anyone other than the specific plaintiffs who filed a lawsuit, then you would get a situation where potentially millions of American citizens would be deported to countries where they have never set foot. That is the humanitarian disaster and assault on the rule of law and the basic decency of the American constitutional system that it’s really hard to imagine.
Sargent: Well, we should clarify that the people who would lose their citizenship are the ones who don’t have a parent who’s a legal permanent resident or a citizen. But Matt, let’s say the court rules substantively at the end of the day against the administration. What happens to those millions of people? Do they still have to go to court to recoup that citizenship or does it revert to them automatically? This is what I don’t get.
Seligman: Well, that’s the point. And that’s why the administration is fighting this procedural issue so hard. You can have a constitutional right—but unless a court issues an order that applies to you, there’s no enforceable constitutional right. So you could have a situation where somebody’s getting deported. Now, they can challenge their deportation, but you’re going to have millions of deportation proceedings. And then without a lawyer, people are going to have to fight those deportation proceedings and they may not be able to successfully fight those deportation proceedings even though they’re American citizens. And that’s where the humanitarian catastrophe unfolds.
Sargent: In other words, the citizenship does not revert to them. Matt, I think it’s worth digging deeper into what Trump is trying to do here. He’s not just trying to bully the Supreme Court into ruling his way. I think the game is more subtle if that’s the right word for something Trump does. He and his people are deliberately creating this drumbeat around the idea that maybe, just maybe, Trump will defy a high court ruling soon enough. The intent is to maybe bluff the high court into thinking that if it rules against Trump, he might actually go through with defying them, take the plunge into the abyss, which would then render them powerless, right? The idea is to give the justices an incentive to take a refuge in middle-ground rulings that give Trump more wiggle room than he otherwise might have. Is that right? What do you think?
Seligman: I think that’s exactly what he’s doing. I think that he’s issuing not so veiled threats that he will defy the Supreme Court. And it’s not just him. It’s people around him as well. So I don’t think we can dismiss this as just sometimes Trump says crazy stuff, [like] about Canada being the fifty-first state. You have JD Vance saying that, Well, the Supreme Court isn’t always the final word on the law, and he’s a highly educated credentialed lawyer. So I think that there’s a real, if you can call it intellectual, surrounding support for Trump in his continuing and escalating push to potentially defy the Supreme Court.
Now we’ve already seen from the administration an unprecedented level of, if not outright defiance, just bad faith evasion of lower court orders. It hasn’t quite come to the point where the administration has said, We recognize that you court have ordered us to do something and that it’s a lawful order, but we’re just not going to do it. We haven’t had that confrontation yet. And it hasn’t come from the Supreme Court yet either. But that’s where this looks like it’s going. If the Supreme Court ends up issuing an order that is crystal clear and there’s not enough wiggle room for Trump and the administration to evade it without outright explicitly defying it, then we’re going to come to this real Rubicon moment—the end of the many, many Rubicons—where the administration is going to have to make a choice. Do they want to say we are not bound by a crystal clear order of the Supreme Court? And that’s the moment where the rule of law in America is really, really at stake.
Sargent: Right. So what Trump and I think some of the others around him are trying to do is bluff the court into not issuing a crystal clear order. In this scenario, the court maybe offers more vague rulings. Let’s take, for example, the wrongfully deported Kilmar Abrego Garcia. Maybe the court rules in a way that splits the difference and says, OK, the administration did act unlawfully in removing him, but we can’t really intrude on Trump’s foreign policy negotiations with El Salvador, which could let him get away with leaving Abrego Garcia there, right? What does it look like if the court does get bluffed into constraining itself, issuing these middle-ground rulings to avoid that eventuality you’re talking about?
Seligman: Well, I think the history of people who have tried to come to peace with Donald Trump shows pretty clearly that he’s always going to come back for more. We see this in the way that law firms folded to his threats, universities folded to his threats, politicians ... There’s just a long line of fallen political careers from people who tried to make a deal with Donald Trump. And I think the exact same thing would happen here. If the Supreme Court tries to come to some middle-ground understanding, he’s just going to push further. I don’t think that we’re going to end up at a place where that confrontation isn’t going to happen.
The reason why that confrontation is one that Trump or some people around him think it can win is because the Supreme Court doesn’t have an army. The only way that its rulings and its orders have force is when the rest of the government voluntarily complies with it. And Trump is threatening not to do that in exactly, as you said, an attempt to get anticipatory obedience out of the Supreme Court. That’s a classic move from the authoritarian playbook, where authoritarians deride so much of their power by intimidating people, other aspects of government, the courts, the institutions of civil society, into obeying in advance. And that’s exactly what he’s trying to do with the Supreme Court right now.
Sargent: This concept of anticipatory obedience on the part of the Supreme Court is really interesting. We should talk a little more about it. If I understand you correctly, you’re basically saying that, OK, Trump is going to try to bluff, or is already trying to, bluff the court into constraining itself with these fuzzy middle-ground rulings. But even if they do that, it’s not going to satisfy Donald Trump and especially the people around him like Stephen Miller, the full-blown fascist, who want a full confrontation. This is the thing, right? So the court—maybe if they were to give Trump this wiggle room, the people around Trump who want a grandly decisive and final confrontation with the court will keep pushing him toward that. Do you think we’re going to get that? And what happens then?
Seligman: I think that’s the big question. It’s hard to say—and the reason is because Donald Trump is an authoritarian bully but he’s also a coward. We see this in other aspects of his “art of the deal” negotiating style, where just this week he completely folded on tariffs with China. He talks really big, and then when there are actual consequences, when someone actually stands up to him, he ends up folding. So there’s some reason to believe that, well, this is just like the terrorist situation. Yeah, he’s going to issue these really scary-sounding Truth Social messages suggesting that he may defy the courts, but when push comes to shove, he’s a coward and so he’ll back down.
Now, there’s also reason to fear that that’s not going to happen. And the reason is because with tariffs, it seems like he’s the one ... and Peter Navarro is the one guy in the administration who really believes in tariffs along with him. Everybody else around him, all of the business community, all Republicans really—they don’t believe in tariffs. So there’s really no support around him from within his own world to support that position. But with immigration and defying the courts, there is that robust support system pushing him to go even further than maybe his instincts would be. And the primary mover there is Stephen Miller, who is, I think, ruthless, intelligent. And I don’t mean those as compliments; I mean that as a way of saying he’s extraordinarily dangerous. He might be the most dangerous man in the administration. And with Miller and so many other people around Trump pushing him toward that confrontation, pushing him not to back down in a confrontation [with] the courts, I think that we may be headed toward a much more dangerous outcome in this confrontation than in the trade context.
Sargent: Right. At risk of seeming maybe a little soft on Trump for a passing second, you can see the possibility, at least, that Trump doesn’t want the ultimate defiance of the court. He doesn’t really crave that confrontation. He certainly doesn’t seem to crave it the way Stephen Miller and, I think, JD Vance do, which is the key, right? If you look at someone like JD Vance, in addition to Stephen Miller, it’s plainly clear that they want this confrontation because they want to break the Supreme Court completely, right? The whole point is to break the court’s opposition to Trump to create a situation in which the authoritarian ruler is carrying out the “pure will of the people,” the voice of the people—the people being of course only MAGA America—unfettered by silly little bureaucratic obstacles that are holding back the greatness of MAGA, right?
Seligman: I think this implicates an important distinction between Trump as an optical authoritarian versus Vance and Miller as substantive authoritarians. Trump wants the trappings of authoritarianism. He wants everybody to talk about how he’s the most powerful person, and he wants it to look like he’s in charge.
Sargent: The parade.
Seligman: Exactly. He wants the big parade. He wants the tanks rolling down Pennsylvania Avenue, but he actually doesn’t care as much about the substance. Which is why he’s happy to get into these trade confrontations with other countries and then get some minimal or nonexistent concession from Mexico or Canada and then declare victory. He wants the optics of authoritarianism power, but he doesn’t actually really care about exercising power all that much outside of a few small contexts. Whereas Miller and Vance, I think, are much more committed to substantive authoritarianism. They actually want to exercise the power. They actually want to degrade the rule of law because they actually want to impose this particular vision—very dark vision—of America’s future on the country. And so for them, the optics aren’t enough. It’s not enough for them that it looks like the Trump administration has prevailed over the Supreme Court. They actually have to break the power of the Supreme Court to put any substantive constraints on their will.
Sargent: Matt Seligman, it’s always great to talk to you, man. Thanks so much for coming on.
Seligman: Thanks for having me.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.
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