Host Simone Leeper speaks with Douglas Brinkley, Rick Perlstein, Adav Noti and Juan Proaño to trace how presidential power has grown over time — and how that expansion impacts how our democracy works.
Presidential power has expanded far beyond what the framers of the Constitution envisioned. From Lincoln and Roosevelt to Nixon and Trump, presidents have pushed the limits of executive authority — often during moments of crisis. Understanding this history is key to understanding what comes next for American democracy
In this episode, host Simone Leeper speaks with American historians Douglas Brinkley and Rick Perlstein, CLC Executive Director Adav Noti and Juan Proaño, CEO of LULAC. In conversation, they trace how the presidency has gathered sweeping power over time; what happens when oversight of this executive power breaks down; and what legal, legislative and civic reforms could restore accountability, prevent presidential overreach and safeguard the constitutional separation of powers that defines the United States.
Timestamps:
(00:05) — Why were federal troops deployed in Los Angeles?
(05:11) — Can the president legally invoke emergency powers?
(07:31) — How did the Founders limit presidential authority?
(09:14) — When did executive orders begin to expand presidential power?
(10:25) — How did FDR and later presidents redefine the presidency?
(13:04) — What did Nixon’s “If the president does it, it’s not illegal” comment really mean?
(15:22) — What are the origins of the so-called unitary executive theory?
(18:21) — How are checks and balances failing?
(19:42) — Is America sliding toward authoritarianism?
(27:57) — How is Campaign Legal Center fighting unlawful presidential overreach through litigation?
(30:00) — Why does birthright citizenship matter for American democracy?
(33:13) — What can be done to stop abuses of presidential authority?
Host and Guests:
Simone Leeper litigates a wide range of redistricting-related cases at Campaign Legal Center, challenging gerrymanders and advocating for election systems that guarantee all voters an equal opportunity to influence our democracy. Prior to arriving at CLC, Simone was a law clerk in the office of Senator Ed Markey and at the Library of Congress, Office of General Counsel. She received her J.D. cum laude from Georgetown University Law Center in 2019 and a bachelor’s degree in political science from Columbia University in 2016.
Juan Proaño is an entrepreneur, technologist and business leader who is active in civic affairs, social impact, and politics He has served as the League of United Latin American Citizens (LULAC) Chief Executive Officer (CEO) since November 2023. As LULAC’s CEO, Juan oversees the day-to-day operations at LULAC; identifies strategic growth areas; and works to amplify the organization’s advocacy initiatives and action-oriented programs.
Rick Perlstein is an American historian, writer and journalist who has garnered recognition for his chronicles of the post-1960s American conservative movement. He is the author of five bestselling books. Perlstein received the 2001 Los Angeles Times Book Award for History for his first book, Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, and appeared on the best books of the year lists of The New York Times, The Washington Post and the Chicago Tribune. His essays and book reviews have been published in The New Yorker, The New York Times, The Washington Post, The Nation, The Village Voice and Slate, among others. A contributing editor and board member of In These Times magazine, he lives in Chicago.
Douglas Brinkley is the Katherine Tsanoff Brown Chair in Humanities and Professor of History at Rice University, CNN Presidential Historian and a contributing editor at Vanity Fair. He works in many capacities in the world of public history, including on boards, museums, colleges and historical societies. The Chicago Tribune dubbed him “America’s New Past Master.” The New York Historical has chosen Brinkley as their official U.S. Presidential Historian. His recent book Cronkite won the Sperber Prize, while The Great Deluge: Hurricane Katrina, New Orleans and the Mississippi Gulf Coast received the Robert F. Kennedy Book Award. He has received a Grammy Award for Presidential Suite and seven honorary doctorates in American Studies. His two-volume annotated The Nixon Tapes recently won the Arthur S. Link – Warren F. Kuehl Prize. He is a member of the Century Association, Council of Foreign Relations and the James Madison Council of the Library of Congress. He lives in Austin, Texas, with his wife and three children.
Adav Noti coordinates all of Campaign Legal Center's operations and programmatic activities, overseeing CLC's efforts to protect elections, advance voter freedom, fix the campaign finance system, ensure fair redistricting and promote government ethics. Adav has conducted dozens of constitutional cases in trial and appellate courts and the United States Supreme Court. He also advises members of Congress and other policymakers on advancing democracy through legislation. Prior to joining CLC, Adav served for more than 10 years in nonpartisan leadership capacities within the Office of General Counsel of the Federal Election Commission, and he served as a Special Assistant United States Attorney for the District of Columbia. Adav regularly provides expert analysis for television, radio and print journalism.
Links:
Voting Is an American Freedom. The President Can’t Change That – CLC
What Are Executive Orders and How Do They Work? – CLC
The Significance of Firing Inspectors General: Explained – CLC
CLC's Kedric Payne on Trump's Brazen Removal of Nation’s Top Ethics Official – CLC
The Justice Department Is In Danger Of Losing Its Way Under Trump – CLC
It’s almost Inauguration Day. Will there be any checks on Trump’s power? – Trevor Potter op-d in The Hill
Amidst the Noise and Confusion – Trevor Potter’s newsletter
Understanding Corruption and Conflicts of Interest in Government | Campaign Legal Center – CLC
CLC Sues to Stop Elon Musk and DOGE’s Lawless, Unconstitutional Power Grab | Campaign Legal Center – CLC
Trump’s Executive Orders 2025 – Federal Register
Preserving and Protecting the Integrity of American Elections (Trump’s EO on voting) – The White House
CLC Sues to Block Trump Administration’s Illegal Election Overreach – CLC
Victory! Anti-Voter Executive Order Halted in Court – CLC
Understanding the election tech implications in the Trump Administration’s executive order – Verified Voting
Independent Agencies Must Remain Independent – CLC
Can President Trump Do That? – CLC
Why Birthright Citizenship Is an Essential Part of Our Democracy – CLC
Authoritarianism, explained – Protect Democracy
The Authoritarian Playbook – Protect Democracy
U.S. Supreme Court Significantly Limits Restraints on Unconstitutional Presidential Actions – CLC
Reconciliation Bill Passes the Senate Without Two Dangerous Provisions: Campaign Legal Center Reacts – CLC
The “Self-Evident” Case for Opposing Tyranny – Trevor Potter’s Newsletter
White House Eyes Rarely Used Power to Override Congress on Spending – NY Times
About CLC:
Democracy Decoded is a production of Campaign Legal Center, a nonpartisan nonprofit organization dedicated to solving the wide range of challenges facing American democracy. Campaign Legal Center fights for every American’s freedom to vote and participate meaningfully in the democratic process. Learn more about us.
Democracy Decoded is part of The Democracy Group, a network of podcasts that examines what’s broken in our democracy and how we can work together to fix it.
Speaker 1: Well, Los Angeles issued a curfew in parts of the city as protests continue against ICE. It comes after President Trump deployed more than 4,000 National Guard troops.
Speaker 2: Buses presumably filled with Marines heading towards Los Angeles, ordered by the president to respond to the protests that are now entering a fifth day today.
Speaker 3: At least 30 officers wearing riot gear lined up against the protesters. It isn’t immediately clear which agency these officers work for.
Speaker 4: President Trump is vowing to continue immigration rates focusing on large cities including Los Angeles, and this comes as an appeals court is expected to rule on the administration’s use of the National Guard.
Juan Proaño: In Los Angeles, DHS and ICE effectively executed a raid targeting Latino workers. It escalated very, very quickly into protests. Those protests escalated into additional enforcement with the president calling in the National Guard and also then calling in the Marines as well.
Simone Leeper: This is Juan Proaño. He’s the CEO of LULAC, the League of United Latin American Citizens. It’s the country’s oldest, largest volunteer-based civil rights group dedicated to empowering Hispanic Americans and building strong Latino communities. He was in Los Angeles in June of 2025 when the Trump administration sent 7,000 federal troops ostensibly to quell protests against immigration enforcement.
Juan Proaño: The hotel that I was in was in that zone. The access to it was shut down. The cab that I was in basically dropped me off a few blocks away. And it just so happened that he put me on a street where the National Guard was. Literally within a minute of exiting the car with a suitcase, briefcase, in a suit and tie orders were being screamed at me to leave the area. Flash bangs were set off. Tear gas was set off. I was on the same side of the street that there were some agitators, so they were shooting rubber bullets at them and literally zinging right by me. Obviously I had to evacuate the area very, very quickly and then a couple blocks away when I encountered the LAPD, it was very different.
Simone Leeper: The city of Los Angeles employs nearly 9,000 law enforcement officers. Unlike the National Guard or Marines, the local police are used to handling protesters on LA streets.
Juan Proaño: They were very focused on the safety of the residents and citizens of the community. This is the first case since 1965 in Alabama when the president has actually called in the National Guard without counseling or considering the want or needs of the governor. And in Alabama, when they called out the National Guard, it was actually to protect the civil rights of African Americans. And in this particular case, it was the president calling in the National Guard to effectively take down a lot of the civil rights of immigrants that were there and that were being detained in this process.
Simone Leeper: Trump’s decision to send the National Guard into Los Angeles was a move guaranteed to provoke strong reactions. California Governor Gavin Newsom called it theater. The state sued the Trump administration and a US district court judge ruled that Trump’s move likely violated the Posse Comitatus Act, a long-standing statute that prohibits the use of the military to enforce domestic law. Judge Charles Breyer said deploying troops to California exceeded the scope of Trump’s statutory authority. After a few weeks mostly guarding federal buildings, most of the troops were recalled and went home. But the battle over this move of Trump’s like so many others this year has long-term implications for American democracy. Protesting is protected speech under the First Amendment, but Trump declared that these protests constituted “danger of rebellion” and responded with soldiers. In effect, he declared that a situation he claimed was an emergency granted him extraordinary powers. And in the months following this flashpoint in LA, we’ve seen a troubling trend of the Trump administration deploying the military for domestic affairs, including most notably in Washington DC.
Juan Proaño: For us, there’s a real concern that democracy is at stake, that there’s a rise of authoritarianism in this country and that without the legal protections we will really be at a significant disadvantage. The fact that this administration also has the benefit of a Supreme Court where Trump has really been able to remake it essentially in his own image or to his likeness is a serious concern.
Simone Leeper: The question keeps arising, can the Trump administration do that? Can the president allow Elon Musk unrestricted access to hundreds of millions of Americans’ most sensitive government data? Can he fire the leaders of independent government agencies at whim? Can he revoke FEMA aid from American communities hit by natural disasters? Can he unilaterally impose tariffs? Can he cancel scientific research grants and student loan programs? Can he dismantle the Department of Education? Can he end birthright citizenship with a stroke of a pen? Can Trump use the Department of Justice to silence his political enemies and quash dissent? Amid all of these questions, one thing is clear. The Trump administration is testing the legal constraints of the presidency with an array of actions that the courts, Congress, and the public have never seen before. I’m Simone Leeper and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that can lead to a stronger, more transparent, accountable, and inclusive democracy. I work for Campaign Legal Center, a nonpartisan organization dedicated to solving the wide range of challenges facing American democracy. This season on Democracy Decoded we’re focusing on acute threats to our system of government. Safeguards at the core of our democracy are being challenged or ignored, threatening our very form of governance. In today’s episode, we’re zooming out to look at the concept of executive overreach. Trump is trying to redraw the boundaries of the presidency in real time, largely by issuing a flurry of executive orders, a rate of nearly one per day in his first 200 days in office. But it’s not clear how successful he’ll be. And while the situation is extraordinary, he’s far from the first president to test the limits of the office.
Rick Perlstein: The people who founded the country and especially the people who devised and marketed the Constitution were impassioned about the idea that the executive should not be too strong.
Simone Leeper: This is Rick Perlstein, a journalist and political historian. His books include Nixonland and Reaganland.
Rick Perlstein: Not only was the nation founded in overthrowing a king, but even the word they chose for the chief executive of the government, president, just means someone who presides over a meeting. So even in the language they chose, they demonstrated their allergy to concentrated authority and their terror that one person will be able to make the decisions without review that affected the population.
Douglas Brinkley: We really were trying to create a non-monarchy, an executive branch who did have a lot of leeway on what will become foreign affairs, but then a Congress and of course the judiciary.
Simone Leeper: This is Douglas Brinkley. He’s a professor at Rice University, a historian, and a prolific author on the subject of American presidents.
Douglas Brinkley: And if you look at 1800 onwards, you will see that there isn’t a lot of executive orders. It’s not in the Constitution. And what you get is really Abraham Lincoln. During wartime Lincoln not only declared habeas corpus, but Lincoln also did the Emancipation Proclamation, which you can informally call executive order number one, but boy is it a big one as an example of presidential power.
Simone Leeper: So that is a very abridged run through the first 90 years or so of American history. The earliest major action we could think of that took the form of an executive order is the Emancipation Proclamation. Lincoln issued it to help hold the country in one piece. The bar for that kind of exercise of executive power used to be high.
Douglas Brinkley: Cut to Theodore Roosevelt, who was our president from 1901 to 1909, and it’s TR that starts giving the birth of the modern presidency and this idea of more accelerated presidential power. He believed in it strongly. His hero was Abraham Lincoln. He used to say, “If Lincoln can do an Emancipation Proclamation, I can use executive power to save the Grand Canyon. Because Congress doesn’t want it as a national park, I’ll sign an executive order and declare it.” TR is the great exemplar of the upgrading of presidential power. But the problem we get into—Theodore Roosevelt would say, “If Senate and Congress isn’t going to green-light me, I’ll circumvent them. I want to get my policy done.”
Simone Leeper: A generation later, Teddy’s cousin Franklin Delano Roosevelt assumed the presidency. The country again faced historic crises during his time in office. America eventually would emerge from the Great Depression and World War II as a global superpower. But along the way, FDR redefined the presidency and set a new standard for presidential power.
Douglas Brinkley: FDR started doing executive power one after the other, over 3,000 executive orders pouring out of FDR’s unprecedented four-term presidency, and he’s also shattering George Washington’s notion of two terms. And Roosevelt does it out of raw hubris. He does it because he has the votes. When he’s inaugurated in March of 1933 with the famous “we have nothing to fear but fear itself” oration, he just started signing and ginning these up. And in fact he did so many of these executive orders the Supreme Court stepped in and the Democratic Party had to rein FDR in after he won his second term in 1936, ‘cause in early ‘37 Roosevelt just got reelected second term and he tried to add seven Supreme Court justices. When Roosevelt tried that, Democrats in the South shot them down. They said, “We love that you’re winning, that the people love you, but this is executive overreach.” That quelled some of Roosevelt’s belief in executive power. He did the Manhattan Project, the nuclear program that won World War II, but he also did the Japanese internment camps in World War II with an executive order. And then you start seeing executive orders depend on whether you like the policy or not. If you love a certain president and believe in his policy and they do the executive order, you applaud them, and if you don’t like it, you say it’s too much presidential power.
Simone Leeper: After FDR, presidents used executive orders more selectively. Harry Truman racially integrated the US military with an executive order. John F. Kennedy created the Peace Corps with an executive order. The power of the presidency had expanded informally, but presidents were generally judicious with that power. Then one president took things to a whole new level.
Rick Perlstein: Richard Nixon is obviously a very important figure in what we see as kind of a ratchet towards authoritarianism.
Simone Leeper: This is Rick Perlstein again.
Rick Perlstein: He spent a lot of time in his first term doing all sorts of things to make sure that he had more power than the other branches, whether it was the kind of judges he nominated or whether it was his attempts to not spend money that had been appropriated by Congress. We’ve all heard about rescission and impoundment. We also see him basically organizing and ordering at arm’s length—because he was a very shrewd guy—spying on the opposition. He had this madness and rage and paranoia in which he saw the nation’s interests as coterminous with his will. And the most famous example of him articulating this was in a network interview he did in 1977 with David Frost, a British interviewer, in which he was asked about a series of things that he approved that were illegal and he knew were illegal, and he said, “If the president does it, it’s not illegal.”
David Frost: So what in a sense you’re saying is that there are certain situations where the president can decide that it’s in the best interest of the nation or something and do something illegal?
Richard Nixon: Well, when the president does it, that means that it is not illegal by definition. Exactly. Exactly.
Simone Leeper: That line by Nixon reverberated across the country offering a glimpse into the rationale of a former president seemingly warped by the office. The logic underlying that statement continued to work in the background of American power for years.
Simone Leeper: The logic underlying that statement continued to work in the background of American power for years. In the Iran-Contra affair, members of the Reagan administration were caught selling weapons to Iran in order to fund armed rebels in Nicaragua, an explicit defiance of Congress. Eventually 11 people were convicted in the scandal. But one member of Congress wrote a report arguing that the president hadn’t overstepped his authority. That was Dick Cheney, George W. Bush’s future Vice President.
Rick Perlstein: So the guy who actually drafted it on Cheney’s behalf was a man named David Addington, who became known as Cheney’s Cheney in the Bush administration. And among assertions that I’m quoting is that chief executives are given the responsibility for acting to respond to crises and emergencies to the extent that the Constitution and laws are read narrowly as Jefferson wished. It’s a bad-faith argument. The chief executive will on occasion feel duty-bound to assert monarchical notions or prerogative that will permit him to exceed the law. So Nixon says it in 1977 in an offhand moment; Dick Cheney says it in 1987 as quite a deliberate moment. And then all through the years that led up to 9/11 people like David Addington and also a Berkeley law professor named John Yoo turn this into doctrine. They said, “We’re not ashamed of this. This is what the founders meant, that this is the American way — that presidents can act like kings when they call emergencies.” Now of course, who claims emergencies — that’s where the rub is. The president gets to declare whether it’s an emergency or not. So when Donald Trump constantly officially uses laws that are on the books to say you can do these sorts of things once you declare an emergency, he’ll declare things like our trade deficit an emergency. The fact that hungry people are coming from Third World countries in order to feed their families is an emergency. And lo and behold, they can claim according to this now-legal doctrine — obviously one backed by Supreme Court warrant — they can claim that they’re acting constitutionally.
Adav Noti: The founders of our country anticipated that there would come times when there might be people in charge of the Congress or people who are elected President of the United States who would want to take on more power and more control over the country than the Constitution gives them.
Simone Leeper: This is my colleague, Adav Noti. He’s the Executive Director of Campaign Legal Center.
Adav Noti: And so the design from the beginning was to have this system of what we call checks and balances so that no one person or one entity in the government can take on more power than what the Constitution allots them. For example, if a president tries to take over the role of making laws for the country — which is a role given to Congress — both Congress and the courts have the power and the ability to stop the president from doing that, and the same is true if one of the other branches tries to exceed its constitutional authority. So each branch has the power and the ability through the constitutional process to keep the other branch in its correct place, so to speak.
Simone Leeper: The concept of checks and balances will be familiar to most Americans and certainly to listeners of this podcast, and it’s key to why experts and historians are so concerned with what they’re seeing in 2025. Because as Douglas Brinkley points out, Trump’s first maneuver on the first day of his second term was to sign a stack of executive orders trying to leapfrog Congress immediately.
Douglas Brinkley: Donald Trump invented the executive power in a very innovative and, in my mind, destructive way in his second term. It is true, Biden did like 19 executive orders undoing Trumpism when he first got sworn in as president, but Trump started at his inaugural. He did his one inaugural address, fairly traditional all things considered — it wasn’t shocking. But then cut to the second half of Inaugural Day: he shows up at the Capitol Arena on a stage with world-federation lights going and he’s signing executive orders. His first one on day one was the pardoning of January 6 insurrectionists, and he’s signing one after the other after the other. They’ve got them queued up in stacks and turning them into media moments in the White House.
Simone Leeper: As we have heard, past presidents have used executive orders to initiate policy, but few presidents have used them as aggressively and on day one. No matter your policy goals, the danger here is obvious. The framers envisioned a government of three co-equal branches, but if the executive overreaches and comes to dominate two of those branches — and if the other branches just let that overreach happen — our democracy instead begins to resemble an authoritarian system. For most Americans that arrives as a foreign concept. Douglas Brinkley again.
Douglas Brinkley: Authoritarianism is to me connected to a Soviet-style totalitarianism. It’s when a power elite think that they don’t have to check in with the American people, that they’ll be able to intuit and do what’s right when they’re really just protecting a certain class or a certain group of people and cronies.
Rick Perlstein: I think that it’s lawlessness masquerading as law.
Simone Leeper: Once again, historian Rick Perlstein.
Rick Perlstein: Whether it’s a future vice president saying presidents are allowed to act like kings and that’s the way the Constitution was meant to be written, or it’s a president saying if the president does it it’s not illegal, or it’s a Supreme Court saying there’s the written law and there’s what the president wants and he decides which to follow — what we’re talking about is lawlessness wrapped up in a logic of legality. To me, that’s authoritarianism. Because what’s your way outside that? What’s your way outside that when you have a dictator saying, “I am the law”? There’s no recourse to a higher court, as it were, except for our own wills and our courage and our ability to refuse and say no.
Adav Noti: We really couldn’t think of anything more contrary to our national principles, to our ideals, to the very founding of our country than that.
Simone Leeper: Once again, Campaign Legal Center Executive Director, Adav Noti.
Adav Noti: The whole reason we exist is because we rebelled against this idea of authoritarian rule. And so when we see a presidential administration that seems in many ways determined to just rule by fiat and not particularly care whether its actions are consistent with law and consistent with the Constitution, it causes us to have to reassert those founding ideals — the bedrock principles of what it means to be American, what it means to have an American system of government. So far the fight against this attempted authoritarianism is succeeding. There are at least two main tracks in the fight against authoritarianism that Campaign Legal Center and our allies are engaged in. One is to directly confront the illegal activity by the administration, primarily through litigation, which we have done by suing to block the president’s executive order on elections, through blocking in part his order on birthright citizenship, by challenging the illegal actions of DOJ when it comes to changing how the whole federal government works, and I think that sort of litigation is a key prong in the strategy to ensure that there is oversight from the judiciary of the administration’s actions. The other aspect of preventing this authoritarianism from taking root is through the legal framework around how our government operates and how our elections operate. We need to lay the groundwork for strengthening those processes — strengthening the election process, strengthening the ethics process, strengthening the appointments process — so that it becomes much harder in the future for people to be appointed into positions of power and to abuse those positions to try to ensconce themselves and their allies into government. That is a longer-term project. It’s very much underway and I think there are many folks all around the nation who recognize that once we get out of this particular moment, we need to take steps to ensure that it never happens again — that future would-be authoritarians don’t have the opportunity to try to seize power like we’re seeing now.
Simone Leeper: As part of Trump’s accumulation of power, he has mused that he might run for a third term. Adav has thoughts on that prospect.
Adav Noti: The president is fond of dropping hints that he’s going to try to run for a third term or somehow get a third term in office. The Constitution explicitly prohibits it. The Constitution was amended not that long ago to explicitly prohibit it.
Simone Leeper: Less certain is whether Trump will successfully convince Americans that the president’s powers supersede those of the courts and Congress. Rick Perlstein says that argument likewise does not stand up to constitutional scrutiny.
Rick Perlstein: This idea that the executive branch run by a single individual and all power flowing through this individual is belied by the fact that the first article of the Constitution describes Congress. They’re called the first branch. They’re supposed to be co-equal branches, so it’s really a certain kind of nonsense. It was carried out in spirit by all these things we talk about with Richard Nixon, and then a big part of the investigations into what he was doing and the reforms that came afterwards represented Congress with a lot of courage and valor and forthrightness and foresight — taking back their power from the executive. Whether it was a law reaffirming the fact that the Constitution originates spending in Congress, or whether it comes to the Presidential Records Act — that the president’s records belong to the country and not to himself as an individual — or whether it was the rules trying to make the Justice Department politically independent of the presidency, which really worked very well up until Trump showed his theoretical inclinations in that regard.
Adav Noti: There are two things that Congress needs to do to really fulfill its role in the system of checks and balances.
Simone Leeper: Adav Noti once again.
Adav Noti: One is now, Congress needs to reassert its authority as a co-equal independent branch of government, which was really unquestioned for a couple hundred years, and say, “We’re elected separately. We have our own powers that do not derive from and are completely separate from the president’s, and we’re going to assert those powers,” and not just be secondary in government to the presidency. There have been little flashes of that potentially happening here and there. I suspect as we get closer to the end of the president’s term and he can’t run again, we’ll see a little bit more bravery, for lack of a better word, from Congress in that area — but that needs to start happening now. The other thing that Congress needs to do is to change the laws and the legal framework around our government and our elections to try to make sure we never get into this situation again, to make it harder for authoritarians to exert the sort of power that we’re seeing the current administration try to wield. There is pushback happening through the courts, through lawsuits that Campaign Legal Center and others are bringing, but it’s really incumbent on Congress to pass laws to make it so that we don’t get into this position again and we don’t need to go to court because the actions don’t happen in the first place because Congress has spoken to them. So both of those are really key actions that Congress needs to take.
Juan Proaño: Clearly we are moving in the wrong direction, but there absolutely, positively is a way to correct the current state of our democracy.
Simone Leeper: Once again, Juan Proaño, the CEO of LULAC. In March, Trump signed an executive order that tried to change the rules for federal elections. On behalf of LULAC, Secure Families Initiative, and Arizona Students Association, Campaign Legal Center and co-counsel sued the Executive Office of the President over this unlawful presidential overreach, arguing that Trump’s order was illegal because the Constitution does not give the president any role in setting election rules. The executive order threatened yet another independent agency, the Election Assistance Commission, or EAC. Designed by Congress to be independent and bipartisan with two Republicans and two Democrats, the EAC is responsible for creating and maintaining the federal voter registration form. Its decisions, including any decision to change the requirements of the federal form, must have a majority vote within the commission. The EAC is an independent agency and does not fall under the authority of the president. It is illegal for the president to direct the EAC to change federal election rules.
Juan Proaño: The lawsuit that LULAC filed with CLC was really one around the Election Advisory Committee. This is an independent bipartisan committee of Democrats and Republicans that basically define what the voting procedure will be. And what Trump has been trying to do is essentially change that EAC and have his appointees take over. That is an overreach — an executive overreach. It should not be political; it should not be partisan, if you will. So we felt really, really strongly that we needed to step in because EAC could basically redefine what voting procedure would be, impacting every single voter in this country.
Simone Leeper: The other issue where Juan sees a crucial bright-line test for democracy: birthright citizenship. The 14th Amendment clearly states all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. And the Supreme Court affirmed that right in 1898 with its decision in a case called United States v. Wong Kim Ark. The Court held that the Constitution guarantees citizenship to everyone born in the United States, no matter where their parents were born. Yet among Trump’s Inauguration Day activities was an executive order that purported to deny citizenship to U.S.-born children whose parents are not citizens. Trump is seeking to redefine citizenship without input from Congress or the states by trying to override a constitutional amendment passed in 1866.
Juan Proaño: Birthright citizenship was the starting point for this administration. And what they’ve done is they’ve created a very, very slippery slope where all of a sudden they can effectively reinterpret anything, including due process, for example. Birthright citizenship is written into the Constitution, and so I don’t think there’s ever been any question that any person that’s actually born in the United States is not a U.S. citizen. And so our view of it is that he’s trying to reinterpret the Constitution as opposed to actually maybe proposing legislation that’s taken on by Congress and a constitutional amendment made that would effectively strip away that right. The Supreme Court itself in a case — the Ark case — had already confirmed it a second time after it was challenged early on. And so you’re talking about a Supreme Court case with a final ruling that any person, any resident in the United States who’s born in the United States has birthright citizenship. This isn’t something that affects Latinos. It affects any immigrant. Whether you’re from Africa or Europe or South America or Central America, it literally affects everyone in the United States.
Adav Noti: There’s been quite a bit of success in the courts in terms of maintaining checks and balances around what the president does.
Simone Leeper: Once again, Adav Noti, the Executive Director of Campaign Legal Center.
Adav Noti: But it’s too soon to say that we’re out of the woods by quite a ways. Ultimately, the Supreme Court and hopefully Congress are going to need to reassert themselves and reassure the entire country and all Americans that we still live in a democracy and not in a country where any one person gets to just tell everybody else what to do whenever they want.
Simone Leeper: Campaign Legal Center has filed amicus briefs on the matter of birthright citizenship, affirming that the president does not have unilateral power to end it. The framers of the Constitution could not have been more clear that they did not want a monarch to unilaterally run the United States. Yet they did vest a great deal of power in the presidency, and across the centuries — especially during times of war or economic shocks — several presidents have clearly stretched the bounds of this authority. As Trump attempts to rewrite the rules at a breakneck speed, it’s worth remembering our country’s history. The American people always get the final say, but having a say requires us to use our voice. If Americans do not participate in their democracy right now, they could look up to find it working very differently very soon. All of us must reject presidential abuses of power and executive overreach in all its forms and reaffirm our commitment to a government that is truly for the people.
This is why Campaign Legal Center has been doubling down on its effort to promote solutions that strengthen our institutions and our very system of government. We’re also working to preserve the separation of powers, checks and balances, the rule of law, and free political expression, including political dissent, and actively fighting efforts to undermine them. We are steadfast in our work to create a better democracy in the future — one where our government is representative, responsive, and accountable to the needs of all Americans.
Next time on Democracy Decoded we’ll cover gerrymandering — why it’s a problem and what we can do to combat it — and we’ll meet some ordinary Americans who are pushing against this practice to ensure fair voting maps.
This season of Democracy Decoded is produced by JAR Podcast Solutions for Campaign Legal Center. We are a nonpartisan legal organization dedicated to solving the wide range of challenges facing American democracy. We fight for every American’s freedom to vote and participate meaningfully in the democratic process, particularly Americans who have faced political barriers because of race, ethnicity, or economic status.
During this pivotal moment for our country, it is critical that Campaign Legal Center has the support it needs to continue to fight on behalf of the American people. Your tax-deductible donation can directly fund our efforts to do just that. If you would like to support our work, just go to campaignlegal.org and click on the donate button.
Special thanks to our guests, Juan Proaño, Rick Perlstein, Douglas Brinkley, and Adav Noti. I’m your host, Simone Leeper. Thanks so much for listening. If you learned something new today, you can find us on your podcast platform of choice and hit subscribe to get updates as we release new episodes.
Leading the production for Campaign Legal Center are Casey Atkins, Multimedia Manager, and Madeline Greenberg, Communications Associate. This podcast was produced by Sam Eifling and Ebyan Abdigir, edited and mixed by Luke Batiot.
Democracy Decoded is a member of the Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.