MICHEL MARTIN, HOST:
Back here in the U.S., courts plan multiple hearings this week on challenges to President Trump's bid to reshape the federal government. The hearings follow up on temporary court orders.
A MARTÍNEZ, HOST:
Yeah, judges blocked the laying off of staff of the Foreign Aid Agency and from offering long-term leave as an enticement for workers to quit. Another judge told Elon Musk to stop rooting around in sensitive Treasury Department records. And in response, though, Republicans have attacked some of the court orders as unfair.
MARTIN: The cases share some common themes. They accuse the president of failing to execute the laws or overstepping his power. So what are the laws that keep landing the White House in court? Our colleague Steve Inskeep got one critical assessment.
STEVE INSKEEP, BYLINE: That assessment comes from David Super, who teaches at Georgetown Law School here in Washington. When we talked, we kept having exchanges like this.
Is that legal?
DAVID SUPER: Not at all.
INSKEEP: That's what he said about the offer for workers to quit, and this is what he said of making it easier to fire civil servants.
Was that legal?
SUPER: No, it wasn't.
INSKEEP: In fact, Super has a view of almost all the administration's early moves to reorganize the government.
Are any of them strictly within the confines of the law?
SUPER: None of the high-profile ones.
INSKEEP: He says, some actions could've been done within the law, but the administration didn't follow the process. Some lawsuits contend the president violated the Administrative Procedure Act of 1946. It passed soon after the death of President Franklin D. Roosevelt. His administration had expanded the government's reach into people's lives, which led to demands that when the government changes the rules, it should act carefully and fairly and transparently.
SUPER: So we came together on a bipartisan basis and passed the Administrative Procedure Act, which is designed to make agencies use their powers in public and to seek public comment on them.
INSKEEP: There's a phrase in this law, as I understand it, that gets quoted a lot these days - arbitrary and capricious. The government cannot do things in a way that is arbitrary and capricious. What does that mean?
SUPER: There have to be reasons for things that are done - permissible reasons. It's fine if I decide that your business should be suspended because you're selling dangerous foods, but it's not fine if I say your business should be suspended because I don't like you.
INSKEEP: In President Trump's first term, he ended DACA, the legal status for people brought to the U.S. as children. Chief Justice John Roberts said Trump failed to give proper reasons.
SUPER: If your reason makes no sense or makes no effort to figure out what the facts of the situation are, then that may be found arbitrary and capricious.
INSKEEP: Isn't it true that President Biden also ran afoul of this during his term?
SUPER: Yes. Every president who has served since 1946, at one point or another has run up against the arbitrary and capricious standard.
INSKEEP: Now this standard is part of a lawsuit objecting to the sudden, virtual shutdown of the U.S. Agency for International Development.
SUPER: The very essence of it is that the administration has declared that they don't like AID and hasn't given good reasons.
INSKEEP: I'm thinking about things that various figures of the administration have said, and they're contradictory. Elon Musk, who is a leading figure here, has shared conspiracy theories about USAID. Marco Rubio, the secretary of state, says, in fact, he's in favor of a lot of foreign aid, but a lot of it is not in U.S. interests.
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MARCO RUBIO: There are a lot of functions of USAID that are going to continue. They are going to be part of American foreign policy, but it has to be aligned with American foreign policy.
SUPER: Inconsistent statements are another mark of being arbitrary and capricious. In the first Trump administration, Chief Justice Robert struck down another action of the administration because they kept changing their rationales. And ultimately, he felt that they were being disingenuous.
INSKEEP: David Super also finds a problem in the proposal for federal workers that a court considers today. The administration claims people could quit now and get months of paid administrative leave.
SUPER: Federal law limits paid administrative leave to two weeks in any calendar year, so that will run out long before September.
INSKEEP: Another question is whether the president can shut down federal functions or whole agencies mandated by law. Doing that is called impoundment and it's governed by the Impoundment Control Act of 1974.
SUPER: The impoundment Control Act was enacted after President Nixon withheld money from a great many domestic programs that he didn't agree with. He was sued for violating the laws setting up those programs. He lost every single one of those cases that the courts decided on the merits, including nine, nothing in the Supreme Court.
INSKEEP: During the same era as those court cases, Congress set up a process for the president to ask Congress not to spend money. That is the Impoundment Control Act. But in a confirmation hearing this year, the president's budget director, Russ Vought, told Senator Patty Murray that Trump doesn't believe in that law.
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RUSS VOUGHT: The president ran on the notion that the Impoundment Control Act is unconstitutional. I agree with that. I would, in response to both questions, say that what the president has unveiled already are not impoundments. They are programatic delays.
PATTY MURRAY: Has the impoundment law ever been said to be unconstitutional by a court of law? No...
VOUGHT: Not to my knowlege, Senator, no.
MURRAY: ...It has not. So it is the law of the land. I don't care what the president said when he was running. It is the law of the land.
INSKEEP: David Super, the law professor, heard that exchange and notes an irony.
SUPER: If the Impoundment Control Act was struck down, the president would have even less power.
INSKEEP: Take away that law, and you still have a unanimous Supreme Court ruling that the president must spend as Congress directs, according to the Constitution. David Super offered assessments of other administration moves. He questions the move to dismiss workers because of their perceived political views.
SUPER: Federal law says that for most government employees - those in the so-called competitive civil service who were hired on their merits - they cannot be discriminated against because of perceptions about their politics.
INSKEEP: When presidential aid Stephen Miller claimed - I don't know from what evidence - that 98% of USAID workers were leftists.
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STEPHEN MILLER: Overwhelmingly, the career federal service in this country is far-left - left-wing.
INSKEEP: Is that evidence of an illegal purpose?
SUPER: It absolutely is.
INSKEEP: Some people may be listening to all of these details and find them rather complicated and boring. Like, who cares if there's a public comment period, or if there's a proper waiting period before you fire your inspectors general. Or who cares if you give the reasons? We like Trump, we know what the reasons are. Or we're just not that interested. Is this stuff interesting to you?
SUPER: It is, because this goes to the basic question about whether we have laws in our country that mean anything. If this goes forward, then this president and any president in the future can largely do whatever they want, and we cease to be a country of laws.
INSKEEP: David Super, thanks for your time. Really appreciate it.
SUPER: My pleasure.
INSKEEP: He is at Georgetown Law School and has one assessment of the laws governing the administration's early actions. We can expect to hear the administration's response in court hearings this week.
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MARTIN: And just to note, the earlier clip of Stephen Miller was from CNN.
(SOUNDBITE OF NINTH MOON BLACK SONG, "THE END OF ALL") Transcript provided by NPR, Copyright NPR.
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