Rick Esenberg on Trump's Orders, Musk's Cuts and Rule of Law

Frederica Freyberg:
As to the NIH funding cuts, the Universities of Wisconsin president said taking a meat cleaver to funding is wrong. Well, it’s happening throughout U.S. agencies at the hands of Elon Musk and President Trump. And now there are calls to impeach judges who are temporarily blocking some of the cost cutting moves. Is any of this constitutional, given the separation of powers? We turn to conservative attorney Rick Esenberg, president of the Wisconsin Institute for Law and Liberty. And thanks very much for being here.

Rick Esenberg:
Thank you for having me on.

Frederica Freyberg:
So how do these moves to eliminate agencies and spending square with the separation of powers under the Constitution?

Rick Esenberg:
Yeah, I think it’s fair to say that the answer is mixed. There are some things that the president clearly has, or a reasonable argument can be made that he ought to have the power to do. And there are some things that are more problematic. You mentioned the unilateral reduction in overhead costs for NIH grants. That probably violates a statute and that Congress can constitutionally impose on the president. There’s other instances where the president is pausing funding to review the way that a congressional mandate is being carried out, which are defensible. There are yet other areas where we don’t know what’s going to happen. I mean, there are tweets in which, you know, claims are made that USAID can be, is going to be abolished. You probably can’t do that. But can you redirect its funding consistent with congressional appropriations? Yeah, you probably can do that. So this is why I say that all of this stuff is dependent upon the particular context in which it arises, and precisely what’s being done. And in some instances, we don’t really know yet. And the criticism that we’re hearing is premature. And yet other instances, the criticism is well taken.

Frederica Freyberg:
What’s your response to people like Musk saying that judges are abusing their power and calling to impeach them for making decisions, like around temporary injunctions?

Rick Esenberg:
Well, I think that’s ridiculous. I mean, I think that there are always going to be disputes about the extent of executive authority. There were all sorts of disputes during the Biden administration where the president, you know, claimed the right to be able to unilaterally do a bunch of things and litigation ensued and the courts ruled. And oftentimes the Biden administration lost. Sometimes it won. And I think the same thing is, is going to happen here. And I think to say that judges who disagree or have a different view of what the law requires ought to be impeached for their, you know, for trying to do their jobs is something that I, I can’t endorse. And I’m not, I’m not on board with.

Frederica Freyberg:
So there is reporting that the Trump administration has been flouting judges’ orders. How perilous is that or is it?

Rick Esenberg:
Well, I don’t know that they have been flouting judges’ orders. I mean, I think you had a tweet, I think it was a tweet by JD Vance, which, you know, people have interpreted as expressing an intent to flout judicial orders. That would be wrong. On the other hand, you have comments by, you know, President Trump and the Oval Office that he always abides by judicial orders. And so, you know, there can sometimes be and have sometimes in American history been conflicts between the executive and the judicial branch about, you know, the extent of judicial authority. But as a general rule, I think that the executive, the president of the United States controls the executive branch. The president `of the United States does not control the government. There are going to be disputes about where the boundaries between these things lie and those disputes, when there’s a dispute, those disputes are ultimately to be resolved by the judiciary. That’s our separation of powers. And I think that that’s what we ought to have guide us as we go forward in the argument about all of this stuff.

Frederica Freyberg:
Indeed. Rick Esenberg, thanks very much.

Rick Esenberg:
Thank you.