In this episode of Talking About the Future, I talk with constitutional law professor Richard Primus about the threat the current administration poses to the rule of law and about his new book The Oldest Constitutional Question: Enumeration and Federal Power. Professor Primus is the Theodore J. St. Antoine Collegiate Professor of Law at the University of Michigan, a senior editorial advisor of the Journal of American Constitutional History, a founding member of the Academic Freedom Alliance, and a member of the Board of Advisors of Protect Democracy. You can follow Professor Primus on Substack here and on Bluesky here. You can listen to our full conversation using the audio player above or on most podcast platforms. Excerpts from our conversation, edited for clarity, are below.
Richard, in your opinion, is the Trump administration making a good faith effort to obey the law and to comply with court orders? Article II says that the president “shall take care that the Laws be faithfully executed.” Is Trump doing that?
RP: No. This is an easy question. The only reason to hesitate in giving the answer is that it's shocking for a president to be acting as he is, and so therefore it's difficult sometimes to accept what's plainly in front of you. But the Trump administration is not making a good faith effort to comply with the law. I don't mean to say that they're violating all laws all the time. That would be difficult, even if you were trying to do it. I mean that, in a systematic way, where the Trump administration has things that it wants to do, it is acting as if it doesn't matter whether what it does is legal or not. And that's both in how it acts in the first instance and in how it conducts itself in court.
How well can our system function if one branch of government is just sort of trying to see what it can get away with?
RP: Oh, not well at all. Not well at all. The system of government relies on a fair amount of good faith among officials in power to act for the most part in the public interest rather than simply to see what they can get away with. I'm not civics-book Pollyannaish about this. I'm not saying that most of the time the people who hold office are paragons of virtue and self-abnegation. That's not the case. And those of us who've studied American government, even at the good high school civics level, know that built into the plan of American government is the idea that people are imperfect and will have vices, and that what you need to have is a system that will accommodate the fact the people in office are going to exercise some amount of self-interest rather than being purely public-minded. And the idea of the extended republic, the idea of checks and balances, all these things are supposed to be mechanisms that can account for that fact and still produce a working government, right? The famous Madisonian observation that enlightened statesmen will not always be at the helm—you need a system that will work even when enlightened statesmen will not always be at the helm. But there's a difference between saying we have a system that will work even when we don't always have enlightened statesmen at the helm and saying we have a system that's proof against having people who are behaving destructively and in bad faith systematically and extensively....
There is a legal theory that the president's broad Article II powers allow him not to spend money that has been appropriated. Now, I'm not a lawyer, it doesn't sound like a good legal theory to me. But there are legal theories—maybe somebody invented them just for this purpose—justifying a lot of this extreme behavior. Is putting forth bad faith legal theories part of the problem?
RP: Well, there are two things going on here. The first is, constitutional lawyers, among other things, are paid to get creative. And it's a big country with a lot of people in it, and you can find someone to endorse many, many, many different ideas about how the Constitution ought to be understood. People have a strong impulse toward motivated reasoning. If I want a particular theory to be true, I can convince myself that it is true. If I have a strong interest in thinking that it's true, I can convince myself that it is true. So some of the legal theories that are going around to justify some of the things that the Trump administration are doing might have something to them, and others don't have anything to them, but that doesn't mean that I know that the people who are advancing them are all in bad faith. Some of them may sincerely believe what they're saying, whether they ought to or not, right? That I don't know. What I know is this, at the top of the pyramid for the president, it doesn't really matter whether the theory is in bad faith or not. The articulation of a theory that would justify something that he does is useful to the extent that it mutes opposition to that particular thing that he's trying to do, which therefore preserves capital for him to be able to do more other stuff because he has to invest less in overcoming resistance on that particular front. But in the absence of a good faith legal theory, he'd probably go ahead anyway. I think he's more or less indifferent to that.
Here's a really interesting example that was very prominent in the popular consciousness sometime about a month ago, but given the blinding speed at which new issues come up these days, we've long since forgotten. You may remember the weekend when the president talked about possible plans to run for a third term. The Constitution, in the 22nd Amendment, seeks to limit how long presidents can serve, and in the general understanding of well-socialized Americans what the 22nd Amendment establishes is a two-term limit. Technically speaking, that's not quite right. The rule that the 22nd Amendment establishes can be formally gamed in a way that would let someone serve more than two terms, because the prohibition is on being elected more than twice. It's not hard. You give a smart 11-year-old who's good at solving puzzles that rule and ask, how would you serve as president again after you have been elected twice? The smart 11-year-old can come up with the solution, which is you get elected twice and then you run for vice president, and everyone understands that after you're elected vice president, the president, who's a willing partner in the scheme, resigns, and you become president without having been elected a third time. And so without violating the letter of the law, you have become president again, right? The workaround is not hard to think of. If President Trump tries to stay in office past the present term, he will probably execute some maneuver like that because he knows that he will lose some portion of his support if it's obvious to everyone that he is violating the letter of the law. So he'll come up with this workaround.
But the fundamental problem is that he's trying to game the purpose of the constitutional provision. The constitutional provision is there for a reasonable reason: to prevent the kind of corruption that can come about when one person is chief executive for too long. Attempting to game that rule is a way of subverting the purpose of it, and he's fine to subvert the purpose of it because he doesn't believe in the system. He just treats the rules as a thing to be gamed when it is necessary to game them in order to go where he is going. This violates the thing that I always tell my students is the first rule of constitutional government. It's the same as the first rule of playground basketball. No one can get bigger than the game. If you treat your own interest in winning as always superior to respecting your opponents and the spirit of the game, the game will break down. That's what this is....
A couple of weeks ago, the Supreme Court granted an emergency ACLU request for a temporary restraining order preventing the removal of some detainees. And they granted the request at 1:00 am on a Saturday morning in a brief unsigned opinion. Alito dissented, but they issued the order before he had time to write his dissent. And a lot of people thought that was significant. What did you make of that?
RP: I think it was significant. I think it was significant because it was one of the first meaningful indications that the court is willing, at least sometimes, to behave as if we are not in normal circumstances. The court's strategy through the first Trump administration was to pretend that everything was normal. I didn't agree with that strategy, but it was relatively clear to me that that's what the strategy was. I think they thought—and I mean, I'm reducing nine people to a thought, right?—but I think it was the chief justice's thought and probably not only his—and he sat pretty much at the center of the court—we need to wait this guy out. We need not to provoke an all-out confrontation. The system is pretty strong and he's unlikely to stay around forever, and we are going to pretend that everything is normal and wait him out.
And though I think it was not a good strategy—it's not what I hope I would have done if I were making the decisions—I want to give it its due. There's a way in which it almost worked, right? I mean, we came relatively close to having waited him out. Though there was a lot of damage done in the first administration, we still recognize that we had the rule of law when it was over and we could have moved forward. And if Donald Trump had disappeared from the American political scene after that point, John Roberts could be giving an interview or writing his memoirs many years later and congratulating himself for having kept a cool head and waited things out. And when the second administration began, I think the question was, are they going to have the same strategy? And in the very first moments—very first moments means a period of weeks—it looked like maybe they did. But I think that order and maybe not only that order indicate that they are now willing, at least sometimes, to show through their actions that they understand that the situation is not entirely normal. I think that's the beginning of something....
You're coming out with a book. What is “the oldest constitutional question?”
RP: So the oldest constitutional question is, what is the appropriate division of authority and responsibility between the federal government and the state governments? And the traditional answer to that question in constitutional law begins with the proposition that the federal government is a government of enumerated powers. There's a list in the constitution of things that the federal government can do, and the federal government is authorized to do those things and everything else residually is left to the states....
This is all Con Law 101. And over the course of twenty-some years teaching constitutional law, I've come to think that this piece of constitutional orthodoxy is wrong. It's wrong about how the Constitution is designed. It's wrong about why the Constitution lists things that the federal government can do. It's wrong about how federalism works. Federalism is enormously important, but the enumeration in the Constitution of federal powers, by which we really mean congressional powers, is not in the Constitution principally a mechanism for limiting the federal footprint. It's principally a mechanism for empowering Congress, not limiting it, and for empowering it in two directions, one against the states and two against the president. That is to say, the principal reason for listing the powers of Congress, I think, is not to create the negative implication things not on this list, Congress may not do, but to create clearer and therefore stronger authority for Congress to be able to do a bunch of things that otherwise would be called into question. I think that better explains the process by which the Constitution was written, and I think that better explains how the enumerated powers have actually functioned through the course of American history....
How does this understanding change our view of the Constitution and how we do things in the future?
RP: .... I think that the way that Americans have traditionally thought about the enumerated powers is part of a story about the point of the Constitution and what we're supposed to learn from it. It's a story that teaches us to be skeptical of governance. It presents the framers as having been, above all else, concerned with mechanisms for the limitation of governance, especially federal governance. It teaches us to be suspicious of federal governance. I think that's a distorting story. I think the better way to tell the story is, the formation of the Constitution was a triumph of people who had optimistic confidence in the potential for national governance. The problem they were trying to solve, the problem of the Articles of Confederation, wasn't that they had a national government that was too strong and had to be reined in. They had one that was too weak. It couldn't provide the governance of the country needed. I think that we should understand the framers more in the register of people who have confidence that government done right at the national scale is a very good thing.
Right now, we have a problem of national governance acting quite destructively. That's a problem, first of all, because it's destructive, and, second, because we actually need a national government that functions well and productively. We have a planet not to boil and all sorts of other things that need to get done that need large scale action that I think we as a society are capable of if we have people in government who are acting in good faith and believe in the capacity of government to get things done. The present national government is destructive, but it's not a government that believes in the capacity to get things done and is acting destructively. It's a government that's actually trying to destroy the capacity of government to get things done, except in the narrow and vindictive interests of the people pulling the strings. There's no substitute for getting people of good faith into government, but it is the orientation of my book that if you have people of good faith, which is what we've mostly had through the course of our history most of the time, we should understand the Constitution as a mechanism for empowering the government to deliver the governance that is necessary.
Pre-order Professor Primus’ book The Oldest Constitutional Question: Enumeration and Federal Power. If you haven’t already, I also recommend you listen to my discussion of the rise of authoritarianism in the US with political scientist Lucan Way. If you enjoyed this discussion, please rate Talking About the Future on whatever podcast platform you use and share this post widely with others. You can also help me make more podcasts like this—and earn my sincere gratitude—by becoming a paid subscriber of Telling the Future.
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