Randy Barnett: How Legal Is Trump's Agenda?

Georgetown constitutional law professor Randy Barnett discusses the legality of DOGE, Trump's executive orders, and birthright citizenship.

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Randy Barnett: How Legal Is Trump's Agenda?

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How legal is Trump's governing agenda? Just asking questions.

Today's guest is Randy Barnett, a Georgetown constitutional law professor who has argued before the Supreme Court, was part of a legal team that challenged the constitutionality of Obamacare, is a contributor to The Volokh Conspiracy blog hosted at Reason, and is the author of several books, most recently the memoir A Life for Liberty: The Making of an American Originalist. In this week's episode, Barnett discusses the legality of the Department of Government Efficiency (DOGE), the various federal injunctions and restraining orders issued against the Trump administration, and whether libertarians should celebrate or be concerned about President Donald Truamp and Elon Musk's methods for slashing government. He also explains why he thinks Trump's executive order rescinding birthright citizenship for the children of unauthorized immigrants might triumph before the Supreme Court. 

Sources Referenced:

• 1. A Life for Liberty: The Making of an American Originalist
  2. Appointments Clause of the U.S. Constitution
  3. Judge Paul Engelmayer's temporary restraining order against DOGE
  4. Executive Order: Establishing And Implementing The President's "Department Of Government Efficiency"
  5. Vice President J.D. Vance on X: "If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal."
  6. Trump on X: "He who saves his Country does not violate any Law."
  7. Barnett and Ilan Wurman: The New York Times| Trump Might Have a Case on Birthright Citizenship
  8. Just Asking Questions: John Cochrane: How Will DOGE 'Disrupt' the Government?
     

• Producer: John Osterhoudt

Comments

[JesseAz (mean girl ambassador)]

Hopefully sarc takes a listen instead of watching msnbc.

[MWAocdoc]

"How Legal Is Trump's Agenda?"

Let me stop you right there! It could not matter less how legal Trump's agenda is. This is a power struggle between two sides in a culture war. Nothing the other side in the power struggle has done in the last one hundred and ten years was legal either, yet here we are with ten Cabinet-level Federal Departments not authorized anywhere in the Constitution and well over four thousand unconstitutionally vague and broad Federal laws and regulations intended to perform functions not authorized for the Federal government by the Constitution on the Register. Although Trump's agenda probably doesn't represent my aspirations for a limited scope under the vision of the Founders, anything he does to reduce government staffing levels, cut agencies and stop regulations is okay with me and I don't care whether his methods are legal or not. A nation of laws was abandoned theoretically and pragmatically a very long time ago and I don't recognize your efforts as valid to assert the principle selectively only against Trump at this particular juncture.

[Mother's Lament - Buttplug = Neocons (same motive)]

This is a power struggle between two sides in a culture war

Not really a culture war. More the patricians fighting the Bothers Gracci.

One side has Ted Cruz, Glen Greenwald, Dr. Phil, Russell Brand, Matt Taibbi, Donald Trump and Elon Musk, J. K. Rowling, Tucker Carlson, RFK Jr., Tulsi Gabbard, and Newt Gingrich.

The other has David Frum and Bernie Sanders, Barack Obama and Dick Cheney, Alberto Gonzalez, Noam Chomsky, George and Alex Soros, Charles Koch, Mitt Romney, Al Sharpton, David Brooks and Jennifer Rubin.

[MasterThief]

That's a very weird line to someone from 10-15 years ago. Not saying it's wrong, but interesting how the left has abandoned so many and yet grows through establishment shills.

[Don’t get eliminated (all the sudden I have no idea where I am on the list)]

Left vs right is on hold. It's currently authoritarian globalists vs. everyone else.

[DesigNate]

I think you could argue that those two list represent very different cultural ideals.

[Don’t get eliminated (all the sudden I have no idea where I am on the list)]

Half the people in the first list were culturally aligned with the second list five minutes ago.

[DesigNate]

Oh absolutely. Politics makes strange bedfellows.

[Incunabulum]

Well, if I had to choose, I know which vision of my future that one group of plutarchs has is preferable to the vision the other group has.

[Don’t get eliminated (all the sudden I have no idea where I am on the list)]

Culture is a front in the "war", but this is not just a culture war.

[Gaear Grimsrud]

"Trump's executive order rescinding birthright citizenship for the children of unauthorized immigrants"
Point of order. How does one rescind something that doesn't exist?

[charliehall]

Birthright citizenship has always been the law in the US. The 14th Amendment merely extended it to people who weren't White.

[VULGAR MADMAN]

Shut the fuck up you goddamn liar!

[JesseAz (mean girl ambassador)]

An amendment isn't a law.

And no it has not always been. Even FDR removed children born here when he deported Mexicans.

https://www.history.com/news/great-depression-repatriation-drives-mexico-deportation

Indians were not inclined either leading to a future change.

Oh and the writers of the amendment disagree.

[gnome]

The Constitution isn't a law? Here was me thinking it is the supreme law, but now I have to rethink?

[But SkyNet is a Private Company]

Wait a minute, so you are telling us that the children of diplomats and British soldiers who invaded during the 1812 War were citizens, until 14A took it away?!

[Don’t get eliminated (all the sudden I have no idea where I am on the list)]

Define law.

[gnome]

Look it up and take your choice. What is your point?

[Minadin]

The 14th amendment is widely misinterpreted by the same legal geniuses that think the 2nd amendment is only for militias, but if you want to go on a deep dive, you could check out the actual arguments for and against it, made on the floor of Congress, while it was being debated.

The proponents of the measure were very keen to discern that it wouldn't cover foreigners who weren't otherwise American: Children of diplomats, tourists, or people who weren't legally here. They were trying to establish citizen rights for former slaves, not open us up to birthright tourism.

[sarcasmic]

Who cares if his agenda is legal or not. He's going to do it regardless, and by the time the courts sort it out he won't care because he'll be out of office.

[VULGAR MADMAN]

Hopefully he gives you a free helicopter ride.

[JesseAz (mean girl ambassador)]

Look at the sad and pathetic cope.

All your MSNBC talking points getting refuted. Lol.

[Mother's Lament - Buttplug = Neocons (same motive)]

That'll teach him to parrot Jeff and Shrike narratives just to troll the MAGAts.

[But SkyNet is a Private Company]

Cry more, you leftist simp

[sarcasmic]

Look at the retarded Trump worshipers who reflexively attack anyone critical of their Messiah.

[Don't look at me! (No longer muted!)]

Poor sarc.

[Eeyore]

If Pocahontas hates it, it has to be good.

[Don’t get eliminated (all the sudden I have no idea where I am on the list)]

Just gonna leave this here:

"Honestly one of the most beautiful things about America is that these Hamilton-loving fuckers can do whatever cringe shit they want and I can tweet "eat shit, IRS" or "come and take it, baybee" w a gun range pic as much as I want. Free expression for all, forever."

https://x.com/LizWolfeReason/status/1892585753332314549

[DesigNate]

That is why she is Good Liz.

So fucking based.

[TJJ2000]

Where was the ... How legal is Joe Biden's agenda weeks long list of articles????

[Don’t get eliminated (all the sudden I have no idea where I am on the list)]

50:33

[Don’t get eliminated (all the sudden I have no idea where I am on the list)]

lol at the smackdown of "warning signs"

[5.56]

Trump and Musk are of course about freedom - their freedom to do whatever they want with their power. The constitution is in their way. I'd say be concerned.

[5.56]

Won't talk about loser dems right now, but someone has to be the party pooper: Trump and Musk are NOT your friends. They are playing the game called "USA" in multiplayer mode right now and they're trying to switch on god mode.

This is NOT about you. This is NOT about the people, NOT about freedom, and NOT about the constitution. This is NOT about politics either. This is about THEM. Absolutely and entirely about THEM. They DO NOT want to reduce government for the same reasons you, a libertarian, would want to.

Therefore, yes, in the long run, I'd say be concerned.

[JesseAz (mean girl ambassador)]

Lolwut?

[Brandybuck]

The great shame of our era is that Randy Barnett is not on the Supreme Court.

If Trump wants to show he is serious about draining the swamp and shrinking government, he needs to put Randy at the top of his short list of SCOTUS picks. Period.

[Uomo Del Ghiaccio]

Regarding birthright citizenship, even foreign diplomats and foreign military are subject to the jurisdiction of the country and can be expelled.

Not sure why a person born to someone who is not lawfully in the country would be granted birthright citizenship.

I would say that if the parents were lawfully in the country, then yes regardless of if they are citizens and perhaps even if only one of the parents were lawfully in the country.

[dc5add4]

Birthright: Prof Richard Epstein in WSJ letter 2/6/25 worth a read. Missing from discussion is the lack of Federal or state immigration laws that existed at time of 14th amendment in a time of de facto open immigration. If you manage to get here at that time, then you are "subject to the jurisdiction" e.g. the laws of the US and state where you reside (with the exceptions as defined (and understood) in 14th amendment). After the 1870s and until now modern times a number of laws have been enacted with respect to immigration including legal immigrant visas et al such that any person here or born here under legal immigration or visa would have citizenship, but any person here illegally including the children born in the US of persons here illegally are not citizens until the parents (being subject to the jurisdiction) complete the legal process.