Q&A with Bob Bauer

Bob Bauer is professor of practice and distinguished scholar in residence at the New York University School of Law and co-director of NYU Law’s Legislative and Regulatory Process Clinic. He served as White House counsel to President Obama from 2009 to 2011 and as general counsel for both of Obama's presidential campaigns. Obama later named him co-chair of the Presidential Commission on Election Administration. In 2021, President Biden named him co-chair of the Presidential Commission on the Supreme Court. Along with Harvard's Jack Goldsmith, he authored After Trump: Reconstructing the Presidency in 2020. As part of National Journal's "Trump 2.0: From Platform to Policy" webinar series, editor-in-chief Jeff Dufour spoke with Bauer about the biggest changes in the law so far in Trump's second term. This conversation has been edited for length and clarity.

I wanted to start with Trump v. CASA. Am I correct in assuming that this might be the most impactful case coming out of the recent term in the sense that it limits nationwide injunctions?

I would see it as probably an expected outcome. The conservative majority on the Court had made it very clear they were unhappy with the intensity, the increased volume of nationwide or universal injunctions. There's a lot of literature on it. There were a number of scholars who took the position that something had to be done to clarify when lower courts had the ability to take a case before them and apply it on a nationwide basis.

The decision was maybe a little more complicated than ruling out any and all universal injunctions in any and all cases, and certainly on the question of the birthright-citizenship matter, the actual merits of the executive order. The Court didn't address the merits of that at all, nor give a hint about what it thought, or what the majority thought the merits would be. But it also made it very clear that they had other tools they could use to step in at an early stage in litigation and rule that the order could not go into effect.

And so if someone wants to think that maybe this case against universal injunctions means that these individual cases are just going to drag on and on, they're going to multiply in number, and there won't be any decisive resolution of the constitutionality of an order like the birthright-citizenship order, I think the Supreme Court made it very clear that that wasn't the case, that there were other avenues for achieving early and emergency relief in these cases. So to be sure, I'm not denying it's important. But it's not unexpected.

Have you been able to identify any sort of a pattern emerging in all these federal cases, in terms of what rules are being permitted by the courts versus which are being rolled back even in terms of a policy area, or who the plaintiff is?

Yes, I'll make a generalization. But, like any generalization, it's somewhat fraught. The Trump administration has been able to plug into what I'll call, for want of a better term, a line of well-established conservative legal thought. An example would be the removal cases, where notwithstanding whatever Congress might specify as the grounds for removal, a president who's dissatisfied with the head of an independent agency could just simply fire him or her. That case hasn't been fully resolved yet, but it's on its way to being resolved. And there's every indication that the Court is going to expand the ability of executives through the removal authority at least.

All of this goes back to a complicated case decided many years ago, called Humphrey's Executor, in which the Court appeared to protect Congress's ability in certain circumstances where an agency was to be set up on an expert basis to apply the law in nonpartisan fashion. The president could be constrained from firing the head of those executive-branch agencies by congressional statute. The Court's taking a step back from that, very clearly. How far it's going to go is unclear.

Is the TikTok case the future, where if an administration doesn't like a decision, they can just choose not to enforce it?

So that falls in two categories. Of course there's disregarding a court decision. There's disregarding a congressional statute on one level. Administrations sometimes try to wiggle out of statutory restrictions they don't care for or court orders they don't care for. In the Trump administration, this wiggling out has been referred to by some critics as “legalistic noncompliance” where they claim they're complying, but they really aren't. We're in a completely different world here. We're in a world where the president's not pretending that he's enforcing the TikTok ban. He's saying, I'm not going to enforce the TikTok ban, and I'm going to have my attorney general immunize any of the companies adversely affected by the ban from any liability they might otherwise incur for disregarding the law. That's wholly different.

But the goal goes back to something fundamental. And I just want to stress this at the outset; I'm sure some disagree. Donald Trump has held public office now for four-and-a-half years. His entire life has been spent in a completely different line of work. And say what you will about his business career, but he once said “the country would be better off if I ran the country the way I ran the Trump Organization.” Now the Trump Organization was run entirely by Donald Trump and by the people he picked, who would do what he wanted them to do. He once said, “I have a PhD in litigation.” He’s now running this government the way he ran the Trump organization—total control.

If you were still in the White House and your client had come to you and said, “I'm thinking of filming a video from the West Wing to promote a new fragrance line with my name on it,” what would your considered legal opinion have been?

There's been a long-standing policy in the White House that neither the president nor anybody else in the office attempts to profit commercially off of government information, government facilities, government position. Obviously below the president, there are much stricter ethical and statutory restrictions that apply. But I don't really know what to say about that. I would feel the same way about having been approached and asked whether it would be okay if he turned the lawn of the White House into an informal Tesla showroom to promote the sale of Elon Musk's cars. I mean this is a numbing of our government's ethical sensibilities that Donald Trump has gone a long way toward achieving.

I don't think that's going to last. I don't think another Democrat coming into office, or even later Republicans coming into office, are going to proudly sustain that policy. I do think there are other claims of executive authority that are dangerous, because others in the opposing party might feel like it is a form of unilateral disarmament for them not to take the same direction, not to push executive authority as far in the same ways. I hope there is not going to be that race to the bottom, but it's always a risk.

We sometimes see the president taking questions, and the president and his aides or Cabinet members will be wearing MAGA hats. NBC reported that he has a whole closet of MAGA merch and memorabilia off the West Wing that he hands out to people coming in for official business. The Hatch Act and the rules against that are difficult to enforce unless Congress is willing to step in, right?

That's correct. There are going to be some things Congress can constitutionally do to draw lines, and there are others that Congress will struggle to draw lines on. But there's much more Congress could do to constitutionally regulate that space. There is no question about that. But they didn't do so in the four years that President Biden was president. There were steps that Congress could have taken. There were steps that the past administration could have taken to try to shore up these norms and to tighten up these restrictions. But events frankly overtook that period of time, and it didn't happen.