HOSTS

PETER SHAMSHIRI

MICHAEL LIROFF

RHIANNON HAMAM

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are taking stock of Trump's first few weeks in office, with a special focus on his executive orders targeting trans rights, free speech on college campuses and birthright citizenship.

[NEWS CLIP: Welcome to the era of the power grab. Since President Donald Trump was sworn in, nearly every move he's made has been an attempt to consolidate authority under the executive branch.]

Leon: Some of Trump's executive orders are already being challenged in court, which means, in all likelihood, that 5-4 will not be running out of Supreme Court cases to dissect and analyze anytime soon. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have eliminated our civil rights like Donald Trump eliminating entire federal agencies. I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: Hey, everybody.

Peter: And Michael.

Michael Liroff: Hi.

Peter: This is sort of a special episode. We were going to do McCutcheon v. FEC—a case—but we're gonna hold off for now to update you on the various goings on in the Trump administration in its opening weeks. Historically, we've not exactly been a current events podcast, but with all that is happening right now, we wanted to help everyone get their arms around this moment. And we may continue to do episodes like this now and then. We don't want to be a breaking news podcast. We're not gonna do the weird thing where we have emergency episodes every two days during the Trump administration because there's, like, a new executive order or whatever.

Rhiannon: Right. Right

Peter: But we do want you, our beautiful listeners, to be able to rely on us to navigate the headlines. And also, there aren't that many Supreme Court cases left. We don't have another five years of this, right? So we're gonna have to do some of these.

Rhiannon: [laughs] But it's also so squarely legal, right? I mean, a lot of this stuff that we're about to talk about is going to the Supreme Court. So yeah, we're just talking about some, like, stage zero Supreme Court cases, basically.

Michael: Yeah.

Peter: Yeah. So we figure it's better to have us telling you about this stuff than, like, some MSNBC legal analyst. You know what I mean?

Rhiannon: Yeah.

Peter: That would be devastating for your psyche.

Rhiannon: [laughs] Check in on your parents. [laughs] Your lib, MSNBC-watching parents.

Michael: And before we get started, I want to note also that this episode is almost certainly gonna be out of date by the time you listen to it. There are 30-plus court cases ongoing right now and, like, half a dozen restraining orders. And some are expiring, and I'm sure there'll be some new ones. And then Trump is issuing new executive orders every day. We can try to keep this somewhat updated, but even then, like, you know, if you listen to it on Wednesday or Thursday, it'll already be out of date again. So just bear that in mind. We're gonna do our best.

Rhiannon: Yeah, bear that in mind. We're gonna give a rundown of some—you know, not even close to all of the executive orders here. But really, I think what we're wanting listeners to take away is sort of like this framework. Like, how can we think about what the Trump administration is doing right now legally? How do we understand this as an expansion of executive power, right? And maybe, you know, legally where some of this stuff might be headed.

Rhiannon: So let's jump in, maybe. Let's start with some nasty executive orders violating and infringing on the rights of trans people. First up, executive order titled "Prioritizing Military Excellence and Readiness." This is a trans ban from the military. Banning trans people from the military, effectively. It actually directs Defense Secretary Pete Hegseth to revise Pentagon policy to implement a trans ban in the military. Really sick language in this one. It claims that the US military has been, quote, "Afflicted with radical gender ideology," and that having trans people in the military is detrimental to the military because these, quote, "ideologies are harmful to unit cohesion." It also straight up calls trans people crazy and liars. Says trans people, quote, "Express a false gender identity," and that this falsehood, quote, "conflicts with a soldier's commitment to an honorable, truthful and disciplined lifestyle, even in one's personal life."

Peter: Yeah. Trans people too sneaky for the military.

Rhiannon: Right. Exactly. Yeah. Pretty sick shit. Just a note, Trump did ban trans people from serving in the military during his first term. Something like a little over 13,000 people lost their positions, lost their jobs in the military as a result of that ban. Now of course, President Biden implemented a policy allowing trans people to serve again, so here with this executive order, Trump is undoing that one and doing the transphobic violence again in the military.

Rhiannon: It's not the only executive order about trans people, affecting the lives of trans people. There's also one that basically bans or seeks to ban gender-affirming care for minors. So actually, two quick, relevant executive orders here. There is one that orders the federal government to define sex as biological, and then there's this other one that prohibits federal funding of gender-affirming medical care for anyone under the age of 19. This executive order is called "Protecting Children from Chemical and Surgical Mutilation." And it defines, like, gender-affirming medical care, the kind of medical care that the executive order seeks to restrict, seeks to block, that includes not just, you know, gender-affirming surgery, but also puberty blockers, also hormone therapy. And this executive order prohibits federal funding of this kind of medical care.

Rhiannon: Which means, like, how does that work in real life? Well, that means that medical schools, hospitals that receive federal funding cannot offer this kind of care, or they risk that federal funding being revoked or taken back. And then, you know, something like insurance coverage through Medicaid. Obviously that's federally funded, and so if you have Medicaid, your insurance doesn't cover you getting that kind of care, if you can even find a provider. So yeah, real sick shit in those executive orders.

Peter: Yeah, if you're going to, quote-unquote, "mutilate yourself" as a minor, it better be to make your boobs bigger.

Rhiannon: [laughs] Right! Yeah. Yeah. Uh-huh.

Peter: I think we should note Trump has, as commander in chief, a lot of authority over the military, so his ability to impose the trans ban on the military is a lot less likely to be found unconstitutional than the stuff about, like, federal funds for care for minors. Because a lot of those federal funds for care for minors, that stuff is really coming out of legislation.

Rhiannon: Right. That's in laws.

Peter: That's the will of Congress. So if that ends up in a court that's worth shit, that'll be overturned. Whereas the military ban, not so clear.

Rhiannon: And at least one lawsuit has already been filed. Parents on behalf of their child who could not get gender-affirming care, I believe in West Virginia, after this executive order came down, their child is covered by Medicaid, and all of a sudden that gender-affirming care was not covered by their insurance. So there is already at least one lawsuit opposing this executive order.

Michael: Mm-hmm. And it's worth noting that some hospitals have already begun complying with this executive order regardless of its ultimate legality. I know Children's National in the DC area, and I've seen reports of others. And so that's—already there are going to be a bunch of people not getting care.

Peter: While we're on the topic of minors, related point: There have been orders requiring schools that receive federal funding to cease efforts to assist and accommodate trans students and LGBT students, to get rid of diversity measures. It also required schools that receive federal funds to advance what they call "patriotic education," which requires, among other things, curricula, including an examination of how America has, quote, "admirably grown closer to its founding principles over time."

Rhiannon: America the Admirable. That's what I'm thinking to myself as I fall asleep every night, you know?

Peter: Yeah.

Michael: They're also, of course, rolling back any sort of tolerant or inclusive policies on government-issued documents—federal IDs. So, like, non-binary gender markers on government IDs, like an X instead of an M or an F is done, gone. You can't get that anymore. And if you have it on your current passport, you won't be able to renew it like that. They're also requiring the selected gender marker to be the same as your biological sex assigned at birth. So doesn't matter if you are fully transitioned, they are gonna make you identify on your ID as your earlier gender.

Peter: Right. Another LGBT-related item, the EEOC, the Equal Employment Opportunity Commission, the agency that processes employment discrimination claims, has ordered employees not to process claims of discrimination against LGBT people. Which is notable because just a few years ago in Bostock v. Clayton County, the Supreme Court held that Title VII, the federal employment discrimination law, covers LGBT people. So what the Trump administration is doing is directing its employees to ignore the law, which is, of course, illegal. Executive branch agencies like the EEOC are tasked with, like, interpreting and implementing the law. Different administrations can and do have different interpretations of the law, but you can't just ignore the very clear ruling of the Supreme Court.

Rhiannon: That's right.

Michael: Mm-hmm. So shifting gears to another extremely targeted population: Immigrants. I want to start by talking about the use of the military in immigration. I think your classic image in your mind, if you ask someone to picture an authoritarian state, is the military in the streets domestically, right? Like, tanks rolling through streets.

Peter: Right.

Michael: And there's a path from where we were a few weeks ago to that within the year, and it runs through immigration. So there's a law in the books that says the military can't be used domestically on US soil. And it can't for civil law enforcement, for whatever. They're not cops, right? They're not federal cops. But you can imagine how Trump would want to use them domestically in the area of immigration, right? He'd want to use them to deport aliens, to patrol the border, to man detention centers, and even possibly to round people up.

Michael: Now even though the troops are not to be used in this way, he already is blurring the border between what's legal and not legal. We already see deportation flights. This has led to diplomatic incidents, international incidents with Brazil and Colombia, the use of military planes and military personnel to deport immigrants. We are already seeing the military manning a detention camp in Guantanamo Bay, and we'll talk more about that. There are 1,500 troops at the border. They are currently milling around; they don't seem to be doing anything, probably because Trump is waiting on his review. He ordered the generals to do a review of the border. He gave them 90 days to give him a recommendation as to whether to invoke the Insurrection Act, which would allow him to deploy the military on US soil. That would probably take us to patrolling the border, engaged in rounding up migrants, probably engaged in rounding up other people. And if there are protests, almost certainly eventually in controlling or putting down protests.

Michael: So on to what ICE is doing now. So they have begun their mass deportation program. It is just getting underway. They have made some changes to existing policy. There was something called "collateral arrests" that were banned under Biden, and Trump has brought them back, and ICE is already using them. A collateral arrest is basically when ICE is going to arrest someone, say, that they believe or know committed a crime and is here without documentation. And when they show up at that person's house or place of work, there are three other people there who maybe all look Hispanic or something. ICE can ask them for proof that they're citizens, and if they cannot provide it, ICE can detain them, bring them to a holding center where, you know, in theory, they'll have a chance to prove their citizenship. This inevitably gets lawful permanent residents and even US citizens. There have been reports of that happening already.

Rhiannon: A hundred percent.

Michael: There are some Puerto Rican citizens who are, of course, US citizens, who have been detained and were detained for, I think, a while before they were able to prove their citizenship. Proving your citizenship, by the way, is not easy. None of your documents say "US citizen" on it. You know, I think the most clean one is a birth certificate, but even that doesn't say it. And who ...

Peter: I would say I have a podcast.

Michael: Who the fuck—yeah, carries around their birth certificate? They also, as mentioned before, have opened a concentration camp in Guantanamo Bay. At the time of this recording, the first batch of detainees have already been flown there. They expect it to hold 30,000 people in what the New York Times has colorfully called a "tent city."

Peter: Remember when Obama was gonna shut that down?

Michael: Yeah. Yeah.

Rhiannon: Yeah.

Peter: A lot of our listeners are too young to remember ...

Michael: Obama.

Peter: 2008 ruled, dude.

Michael: Yeah.

Peter: That felt so good.

Michael: [laughs]

Rhiannon: It was change we could believe in.

Peter: Yeah, it was.

Rhiannon: And then we did, and we got fucked.

Peter: It was change we could believe in because we're stupid.

Rhiannon: Yeah, because we were fucking idiots back then. [laughs]

Michael: So this will nearly double current detention capabilities for ICE from about 45K to 75K. Homan, the border czar, last I checked, said he thinks they need to be able to detain 100,000 people in order to enact Trump's big mass deportation plan, which would mean, you know, contracting with private prisons.

Peter: Yeah, let's get Blackwater in there. Fuck it.

Michael: Yeah.

Rhiannon: Absolutely that's what they're thinking.

Michael: Taking up El Salvador on their offer to hold people in their mega prison, or setting up another concentration camp. That being said, I am very suspicious of that number.

Rhiannon: The hundred thousand?

Michael: Yeah.

Rhiannon: Yeah.

Michael: I somehow doubt you can affect between 11 and 20 million deportations in four years while only having maximum detention capacity of 100,000 people. Like, the hearings take a while, deportation flights take a while. Like, the whole thing, it just takes too much time. And I think once you're at two concentration camps, they're probably just gonna make some more concentration camps, you know? I think that's how that's gonna go.

Rhiannon: Right. 100K is probably step one, right?

Michael: Yes.

Rhiannon: Like, they're certainly not gonna cap their detention capacity at 100K once they get there. Yeah.

Michael: "We hit 100K. I guess we just have to stop there."

Rhiannon: "This is max. That's all—that's all that's in the budget."

Michael: I just want to add, like, again, Trump has promised 20 million deported. There are only 11 million people here without documentation, so that inevitably will mean lawful permanent residents and citizens. Even if they just went for the 11 million, they would probably get lots of lawful permanent residents and citizens anyway, but 20 million?

Rhiannon: And they do. They do. You know, like, US citizens have been deported, right? Like, yeah, it happens.

Michael: Oh, yeah. It happens. Yeah, so have fun trying to sneak back into the country and sue for money damages if that happens to you while the military is patrolling the border and shooting people.

Peter: Yeah, it's called qualified immunity, buddy. I don't think so.

Rhiannon: [laughs] Yeah. We got many procedural stops on that shit. Yeah. Don't even think about it.

Peter: When you're swimming over the Rio Grande, you might want to read up on Bivens, all right?

Rhiannon: [laughs] Or listen to the 5-4 episode on Hernandez v. Mesa. All right, y'all. Another executive order that came down regarding immigrants. This one is an attack on student visas. Not all student visas, just some specific, real annoying students who are here on visas. This is an executive order pledging to revoke student visas for pro-Palestine student protesters.

Peter: Well, pro-Hamas.

Rhiannon: Right. There's a fact sheet that's attached to this executive order, and it literally, like, quotes Trump in the fact sheet, and it says, "I will quickly cancel the student visas of all Hamas sympathizers on college campuses which have been infested with radicalism like never before. To all the resident aliens who joined in the pro-jihadist protests, we put you on notice. Come 2025, we will find you and we will deport you." Okay, so ...

Peter: That's the kind of quote that's so good that you gotta put it in the fact sheet.

Rhiannon: [laughs] It's absurd. I'm laughing. It's absolutely absurd. It's deeply racist. I hope that's like, fucking obvious, right, to everybody listening. Another pesky legal problem, obviously, with the past year and a half of Palestine protests on campus, a lot of people wondering about the First Amendment protections for protesters. Doesn't seem totally clear. Like maybe it would have in the past, but we gotta say in this instance too, the First Amendment protects everyone in the United States, including non citizens. So this executive order, if you are deporting people, revoking their student visas based on their political speech, that is pretty clearly squarely a violation of the First Amendment. We'll see how courts handle it, but this one's fucked up.

Peter: I think it's worth adding that that's probably more of a 5-4 view than a federal court view, just because it's true that courts have held that aliens in the United States have First Amendment rights. But the right of the government to control immigration is something that courts weigh very heavily, to the point where it has pretty consistently in various ways in the past allowed the government to seemingly infringe on the constitutional rights of aliens in the United States, immigrants in the United States in deportation proceedings. So I would not say that this is a slam dunk.

Rhiannon: No, certainly not. And it comes down to, like, what they say the reason is.

Peter: Yeah.

Rhiannon: They're not gonna be so cute to be like, "The reason we're deporting them is because they express themselves politically," you know?

Peter: Right. Right. They're gonna say that this is because these are Hamas sympathizers. There's a national security threat, right? Which gives the court a very clear out. So I'm not confident about this one.

Rhiannon: Yeah. No, no. God, no. All right, another shitty one. But certainly, like, top of headlines. I'm sure all of our listeners have heard about this executive order. This is the one purporting to revoke birthright citizenship. So this executive order is called "Protecting the Meaning and Value of American Citizenship," and it doesn't take away birthright citizenship for everybody. This would exclude two categories of US-born babies from the right to US citizenship. First, it would be babies born to a mother who is undocumented unlawfully in the country and a father who is not a citizen or a permanent resident. And the second category is babies born to a mother who are authorized to be in the country for a temporary period of time, but the father is not a US citizen or a permanent resident.

Rhiannon: Now birthright citizenship, established pretty clearly by the 14th damn Amendment. Look it up. It literally starts—we talk about the 14th Amendment. Equal protection clause, due process clause. That's fucking later in the amendment, okay? The amendment starts with these words: "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States." It's really that simple, folks. It's not interpreted otherwise, so in terms of legally where this executive order is at, there are at least five lawsuits against this executive order. Attorneys general from 22 states have filed a couple of those lawsuits saying that this violates the 14th Amendment. There's a few lawsuits where the plaintiff is an anonymous mother who is pregnant and says that the child, their infant, will be one of the targeted citizens by this executive order. And at this point, at the time of recording, this executive order is on pause. A federal judge has ordered that this executive order cannot be implemented, putting it on pause while the case makes its way through court.

Peter: Yeah. And this is one that feels like it will inevitably wind its way up to the Supreme Court. Whether they actually take the case is a different story, but certainly someone will try to get this in front of the Supreme Court. And I am looking forward to that because this is a great opportunity for us to find out whether law is over or whether law is sort of still happening. Because if the Supreme Court says no birthright citizenship, it's game over for coming up with arguments, let's put it that way. We're gonna have to come up with some other approaches, because that would be a brazen, brazen rejection of the Constitution.

Michael: I can think of a few.

Peter: Yeah.

Rhiannon: Methods? Ways?

Michael: Yes.

Rhiannon: Yeah.

Michael: Non-argumentative methods.

Peter: Yeah, I actually can't—I can't think of any.

Michael: [laughs]

Peter: Write that down, FBI.

Michael: Listeners, he just gave us a two thumbs up.

Peter: What the hell, Michael.

Michael: Your bashful smile. [laughs]

Peter: All right, so that's sort of the policy side. Everything we've covered so far, all of these executive orders are, you know, reflections of reactionary policy that the right wing has been seeking and Donald Trump is ready to enact. But there's another element of what we've seen so far: The power grab happening in the executive branch.

Michael: Mm-hmm.

Peter: The Trump administration has been solidifying its grip on the executive branch apparatus while also attempting to seize much of Congress's power for itself. And this is where he has gone past being a shitty reactionary into at least attempting to be a genuine authoritarian. The details of this can be overwhelming, so we want to distill it into a couple of broad categories.

Rhiannon: Yeah.

Peter: First, Donald Trump has taken steps to start clearing out the civil service. Many positions in executive agencies are partisan. They're appointed by the sitting president, and they would generally change between administrations. But most of the federal bureaucracy consists of career civil servants who don't change across administrations. They are nonpartisan. They remain in their position no matter who's in power. These are the people that make the government run day to day. Those people are potentially impediments to Trump because they aren't loyal to him. And in his first term, he was frustrated by his inability to make the bureaucrats bend to his will, so he has started to clean house in the style of Nixon's famous Saturday Night Massacre. He fired well over a dozen inspectors general across different agencies, including some that he himself appointed in his first term. If you don't know, inspectors general are tasked with identifying, like, fraud and corruption within their agencies.

Rhiannon: Yep.

Peter: So you can imagine what he's trying to accomplish here. These folks were an impediment to him in his first term. He removed Gwynne Wilcox, a National Labor Relations Board member who was appointed by Biden. He fired two EEOC commissioners, and now both of those bodies are without a quorum, preventing them from taking major actions. He sent an email purporting to fire a bunch of members of Jack Smith's team, the special prosecutor who led Trump's federal prosecution. There have been rumors of him firing the FBI agents affiliated with the January 6 investigations, and that would be a massive chunk of the FBI.

Michael: It's like 40 percent of the FBI. [laughs]

Rhiannon: Yeah.

Peter: Right. I'm gonna assume that one's a bluff, but I would also expect FBI firings. All of these violate civil service laws, which don't necessarily prevent Trump from firing these people, but do require that he have cause or provide Congress with notice at the least.

Rhiannon: Yeah, like, there has to be some kind of procedure to it. Yeah.

Peter: Right. On top of this, you have OPM, the Office of Personnel Management, which oversees the federal civil service. They've offered deferred resignations to anyone who wants them. Deferred resignations are basically opportunities to remain technically employed while not doing any work for a few months. So just incentivizing as many people as possible to leave, especially those who perhaps don't want to deal with the Trump administration, right?

Peter: The point of all of this is that Donald Trump wants an executive branch that is occupied top to bottom with loyalists. As it stands, the executive branch is led by the president, but is essentially a power-sharing situation between the President, Congress and civil servants. Trump wants to seize all of that power for himself. And the cherry on top here: There is a legal theory that supports him—and we've talked about this before. Many conservatives, including at least a couple members of the Supreme Court, notably Clarence Thomas, subscribe to what is called "unitary executive theory." That is the idea that the executive branch is constitutionally under the full control of the president, and any restrictions on his ability to manage the branch are unconstitutional. So many people have said, "Hey, this is all illegal." But if it were challenged, and I wouldn't be surprised if it is, I'm not very confident about where this ends up.

Peter: Back in the '30s there was a case called Humphrey's Executor where the court held that limitations on FDR's ability to fire agency heads were constitutional. I wouldn't be surprised to see that case challenged in the coming months or years.

Rhiannon: Yeah.

Peter: So that's sort of part one of this executive branch consolidation. And Michael, I'll let you handle part two, which is a doozy.

Rhiannon: Money.

Michael: Oh, yeah. Part two is Elon going wild. So we'll start with the treasury and Elon. So Elon has just been sort of breaking shit, and he's been doing it mostly without an official position in the government. DOGE or whatever his stupid Department of Governmental Efficiency isn't a real thing. He doesn't have a real—you know, he's not a cabinet secretary, anything like that. Just at the time of this recording, he had been named a "special governmental employee," which is a position that can't be impeached and removed by Congress. Also, though, you know, those are usually employees that are positions created by a law. There's no law creating this. So again, it's just totally like he's a rich guy who's friends with Trump and he's going and saying shit and people are listening to him.

Rhiannon: Yeah.

Michael: Because they think Trump will back him. And so what's he doing? Well, this is gonna sound like you're on LSD, I know, but this is real. A 19-year-old college freshman whose prior job before working for Elon Musk was camp counselor, who goes by the name Big Balls, has been given complete unfettered access to the entire digital infrastructure of the US payment systems. This is about a fifth of the federal government's budget; goes to things like Social Security payments, Medicare and Medicaid payments and things like that. And they've been in there rewriting the code, quite literally. Big Balls is rewriting the code, and it appears they might be building in backdoor access for Elon and his team.

Michael: There are another handful of teen and 20-something freaks along with this. None of them have classified clearance, but they're getting access to classified information. None of them have been elected or appointed to anything, but they have your Social Security number, they have your credit history, they have all that shit. Anything the government has in their payment system, they have access to. The Treasury Secretary Bessent doesn't even seem to be fully up to date on this, or he's lying to Congress to cover for them. He reported to Congress that they had read-only access, they couldn't, you know, rewrite code or anything like that. And the same day he reported that, it was reported by multiple outlets that actually they did have write access and were changing code. Kind of a big deal. Suggests that Musk is gonna just start turning payments off and saying, "Make me turn them back on."

Peter: And maybe it's worth framing this a little bit, because the Constitution gives spending power to Congress.

Michael: That's right.

Peter: There's a clause in it that says Congress can collect taxes, duties, imports, and then it can provide for the common good, which pretty clearly in the context it's written, means spend the taxes for the common good.

Michael: Right.

Peter: So the way the system has always worked is that spending is something that Congress does. It allocates a budget to certain agencies, et cetera. Those agencies might have leeway within their budget, but what's happening here is that it appears that Elon Musk, acting as Donald Trump's agent, is stepping in to basically intercept the funds, right? To gain control of the funds as they are distributed by the treasury. That would mean effectively seizing Congress's primary source of power.

Michael: Yes.

Peter: Without their spending power ...

Michael: They're an advisory board.

Peter: Right! I mean, they can create certain restrictions on people's behavior. For example, they can say "It's illegal to do X or Y," but without the ability to fund it themselves, that might be illusory, that might be a fiction.

Michael: And I think even more to the point, you can say "It's illegal to do X or Y," but when they create an agency, they're also saying "It's illegal to not do X or Y." The agency exists and it has to do X, Y and Z. It has to keep our air clean or whatever. We have created this thing, and now it has a mission and it must do its mission.

Rhiannon: It has to administer Social Security. Yeah.

Michael: Right. And if Trump and Elon Musk are just like, "Nah," if their opinion is, we don't have to listen to Congress when they direct us to spend money in certain ways, well, then why would they have to listen to Congress on anything else?

Peter: Right. And I don't think we should theorize too much about what exactly they're going to do. We will presumably find out in time. But people are, you know, sort of fretting that, for example, they could turn off funds to blue states while activating them to red states, right? Turn off funds to programs they don't like and turn on funds to programs they do like.

Michael: It's the end of the constitutional order if this happens. Like, legitimately, it's over. It's over.

Peter: One hundred percent. And not in some, like, abstract, oh, this is like a constitutional crisis because, like, the power balance between the court and the executive is off.

Michael: Right.

Peter: Just meaning that, like, the president has seized such a large percentage of power that the Constitution is functionally no more.

Rhiannon: Yeah. Yeah.

Peter: No matter what anyone says or does.

Michael: His only legitimacy is literally that, you know, presumably the army still listens to him and people are scared of the army. His power, his legitimacy flows from the Constitution. If the Constitution's a nullity, he has nothing to say to us. He has nothing to do to us. It's just all at the end of a barrel of a gun.

Peter: Right. Now it's all guns.

Rhiannon: Right. Exactly. You know, we've talked about on this podcast a few times. It's probably the first time that we said this was in the last year or so, if not two years, but that the Supreme Court isn't so much within the constitutional system of this country anymore so much as, like, it views itself as outside of the constitutional order and also in charge of it, above it. And I think you see here, like, the executive branch doing the same thing. Like, the Constitution isn't there to constrain us. Trump doesn't view the Constitution as giving him the power of the presidency or the executive branch. This is about doing whatever they want, and it doesn't fucking matter what the Constitution says.

Michael: Right. And so, like, as an example of how extreme this can be, let's talk about USAID. This is an agency, again, that was created and funded by Congress. It has a mission. Some people have problems with it because some of their people are spies or they fund things that seem bad. And I don't want to wade into that. Regardless, sure, maybe. I don't care. It also feeds kids all over the globe. It's also congressionally mandated spending. It exists, and you can't just snap your fingers and say it doesn't.

Peter: Or can you?

Michael: Or can you? Elon Musk has said so. And as a result, it does seem to be being shuttered. Seems like payments are not going out. At the time of this recording, all staff and families abroad have been recalled to the US, and it was said that if they don't come voluntarily, they will be escorted by the US military.

Peter: I mean, there's a long standing right wing complaint about foreign aid. The idea that, like, this money is just being wasted abroad.

Michael: 0.01 percent of the US budget.

Peter: Right. I mean, it's a tiny sliver of the US budget. And also, like, even the money that is doing good, like, I promise you, is being deployed for, like, real politic sort of purposes. You know what I mean? Like ...

Michael: Yeah.

Peter: ... it's not just about the kindness of the United States of America. It's about soft power. And it always cracked me up when conservatives were like, "We're wasting money that we should be spending on Americans." I mean, as if they give a shit about Americans, of course. But point being, like, dude, they're, like, spreading the influence of the United States States abroad. Like, I promise you, they're not helping anyone, like, just out of charity, so don't worry.

Rhiannon: Right. Right.

Michael: [sighs] So that's the executive branch consolidation.

Peter: Good stuff!

Michael: [laughs]

Peter: So if you take a step back, you have the right wing policy moves, anti-LGBT orders, anti-immigration orders, orders about education. You know, there are rumors, of course, of the executive order that would abolish the Department of Education, which would also be an illegal executive order, of course. Then you have what amounts to a consolidation of power within the executive branch, and a power grab that is essentially attempting to seize the most important source of congressional power with the treasury funds, right?

Michael: Right.

Peter: And some early indicators that they have done it. We've seen money get cut off in certain areas, which indicates that they do have some control over the flow of money. If they do seize control of treasury funds and deploy them to the ends that Donald Trump and Elon Musk desire, then like we said, the constitutional order evaporates. Congress has a very small amount of power, and the president reigns over the government in ways comparable to a dictator. That's why you're seeing people call this a constitutional crisis, even if a lot of people aren't talking about it as such. I think in large part because the average person, including, like, the average journalist, doesn't even know about these norms. Doesn't even know about how fucking treasury funds function, right?

Rhiannon: Yep. Yeah.

Peter: And so you tell them this norm is being violated, another line has been crossed. But they didn't know about that norm. They didn't know about that line. And yet in the aggregate, all of those lines are holding a lot of the country together. And so I am concerned, I am worried, and I'm also worried about DEI because it's crashing planes all over this country.

Rhiannon: [laughs] Oh my God!

Peter: And as someone who doesn't like flying already, to think that wokeness, it might take me out? It's terrifying. As you probably know, there were a couple of deadly plane crashes, the first in many years in the United States, shortly after Trump entered office. The FAA head had resigned at Trump's behest on day one. He had a history of bumping heads with Elon Musk. Trump fired the head of the TSA, the head of the Coast Guard, and then, of course, DEI took down a couple planes unrelated to those developments.

Rhiannon: Right. Right. DEI is such a good example of how fascists do governing, which is to say they don't do so much governing, so much as they identify problems and create problems, and they don't have solutions other than creating more problems for the rest of us, attacking others, enacting violence. There is no actual sort of concrete or material or legislative or policy solution to this that makes things better, that protects people. DEI is a great example of the creation of a scary "other" group. There's an in group, and then there's another group, and they don't deserve what they're getting, and they're causing all these problems for all of us. And it's just super abstract. And, you know, there is no agenda beyond this vision of everybody who is an "other" is the problem, but we won't propose actual solutions to actual, real people's struggles.

Peter: Fascism as an ideology has very little policy prescription built in. It is an ideology about enemies, about identifying and pursuing enemies. So when something bad happens, you identify the enemy responsible, and that is that. And because fascist governments are so often incompetent, they will have to continue to identify more and more enemies. They will present themselves as increasingly besieged by those enemies as their own incompetence engulfs them. And that's what we're seeing here. I fooled you with sarcasm. I don't actually believe that DEI crashed those planes. I used classic trickery.

Rhiannon: [laughs] Yeah. Note recently, what, the past week, Elon Musk is on this, like, labeling everything a "crime" or a "criminal," right? Like. everything, USA, this is a criminal agency or whatever, you know? Everybody's bashing everybody's life who he's ruining, every agency he's fucking tearing through right now. It's all criminal, criminal, criminal, criminal, criminal. He'd know a lot about that.

Peter: Several people identified the 19-year-old weirdos who Elon Musk had deputized to start seizing control of these federal agencies online. People, like, were like, "Here are these people who are acting as government workers despite having no security clearances, et cetera." And Elon Musk responded to one of them just saying, "You have committed a crime."

Rhiannon: [laughs]

Peter: Which, no. No, they haven't. But that will be, you know, the response, because why is he hollowing out all of these agencies? Because they're rife with fraud and corruption by evildoers, our enemies. Why are they targeting student speech? Because they are enemies. Who crashed the planes? Our enemies did. It will go on and on forever. The only good news is this is how fascists eat themselves, because they can't solve problems. All they can do is point fingers, and they will find fewer and fewer people to point them at and they will eventually start pointing them at each other. It happens to every fascist movement in history. The only question is how much damage do they do first?

Rhiannon: Yeah, that's right. Maybe that brings us to the Democrats then and what the response is.

Michael: Our saviors!

Peter: Chuckie Schumer to the rescue. Don't worry, folks.

Rhiannon: Yeah.

Michael: Well, look, it's not like Project 2025 was published in 2023, and it's not like they had 18 months to figure out a "what if they try to enact this plan?" This thing that Democrats spent July and August and September saying, "They're gonna do this if they win." But then they did not spend November and December being like, "Okay, what should we do when they try to do this? Because they did win, they're gonna try to do it, right? They're gonna try to do Project 2025. What should we do?" So the first two weeks of the Trump administration there was a lot of, like, we want to find bipartisan solutions to American problems. A lot of friendly allowing nominees to get votes, and even large portions of the Democratic caucus voting for some of Trump's nominees, presumably in the hope of getting some other nominees some no votes from the Republican side. That seems unlikely at this point. Pam Bondi, Pete Hegseth, these are very, very bad nominees, and they got confirmed this week.

Michael: There has been some signs of life. We've seen some, especially younger House members, trying to force their way into USAID, trying to force their way into the treasury, saying that they have oversight, holding a big rally in front of Treasury where over two dozen members of Congress were there. Chuck Schumer was there. You know, Ayanna Pressley was there, and on and on and on. And the turnout looked big from the photos I saw. I haven't seen a number, but it looked like in the thousands. So that's good. There's been some hint that they're gonna start gumming up the works in the Senate. Brian Schatz has said he was going to object to unanimous consent in, I think, all State Department nominees or something like that. But then Chris Murphy seemed to indicate at the rally that he was just gonna start objecting to unanimous consent across the board. We'll see. At the time of this recording, that's still up in the air. I do want to read some quotes from everybody's favorite top two Obama advisors. David Axelrod, his political advisor, and Rahm Emanuel, his first White House chief of staff. Axelrod says, "My heart is with the people out in the street outside USAID, but my head tells me, 'Man, Trump will be satisfied to have this fight. When you talk about cuts, the first thing people say is, cut foreign aid.'" Rahm says, "You don't fight every fight. You don't swing at every pitch. And my view is, while I care about the USAID as a former ambassador, that's not the Hill I'm going to die on.""

Peter: It's not about USAID, you fucking idiots.

Michael: Folks, let's just end the constitutional order and pick the next pitch to swing at.

Rhiannon: Cowardly. They haven't taken a swing at a pitch in fucking decades.

Michael: Yeah.

Peter: They're getting their paws into the treasury payment system. If you don't wrench them out, you're fucked, and we're all fucked.

Michael: The reporting right now is that there's an executive order coming down to do the Department of Education next. And so what, you want to fight that? On what grounds, after you just said, "Sure, shutter USAID. Why not?" But not the Department of Education? Like, then you're just arguing policy merits.

Peter: I hate to pretend that I'm, like, a political strategist, but my thought here would be when they are trying to eliminate federal agencies created by Congress unlawfully, you fight every single one.

Michael: Yes.

Peter: Publicly and loudly. Indicate that you're not going to let it happen. You can't signal to them, "Oh, we'll let you do this to the ones that are less politically popular."

Michael: Right.

Peter: You can't signal that to them.

Michael: No.

Peter: That's not ...

Michael: It's insane. It's insane!

Peter: Democrats, you know, always overlearning the last lesson that they think they learned are just, like, tweeting about eggs and shit. You know, they thought Trump was gonna implement the tariffs. He did, very briefly, and then they were all halted where, you know, Trump seemed to maybe even get cold feet. Who knows what'll happen with that? There's a reason we haven't really talked about tariffs. But Democrats were hyped on it. They're like, "Oh, my God, he's gonna drive prices up, and we're just gonna talk about that because that's why we lost: Inflation. So when Trump causes inflation, we're gonna win." Maybe that's not entirely how it works. Maybe you're oversimplifying what's going on. Maybe you need to think a little more creatively about politics. You know, I was never someone who entirely bought into the idea that, like, what happened was not inflation, but was instead the media environment that pushed inflation. But considering the fact that eggs don't even exist in the United States anymore, and it doesn't seem to have hurt Trump, you know, maybe I'm leaning more towards that theory. But I just—I wish that the Democrats could think on their feet rather than, like, at some point in November, they were like, "All right, we lost. It's all eggs now. That's what politics is. Politics is about eggs, fundamentally."

Michael: Jesus.

Peter: And then they tried to seize on that. Well, Donald Trump is taking their ability to actually spend money as congresspeople for the American public out from under them.

Rhiannon: You know, I don't fully buy into arguments either around—which I think are reductive and actually kind of like, misidentify the issue. Arguments like, "The Democrats lose on purpose."

Michael: Yeah.

Rhiannon: Or, you know, Democrats and Republicans, they're totally, like—yeah, they're like, in bed together and whatever the ...

Peter: Right. They're a single operation.

Michael: One party. Two names.

Rhiannon: Right. One party, two names. And, you know, whatever the results are of an election, both sides are pretty much okay with it, because they're working together and they're the same group. Like I said, I don't really, really get behind those arguments. I think it misidentifies and is not accurate to how American politics works. But when you see that the Democrats are not thinking on their feet, seem to have no plan for real opposition to what Trump is doing, even given the long notice, right? The months and years that they had to plan for exactly this. What you do have, like, whether they do this on purpose or not, I think is actually irrelevant because what you do have, without any opposition to the Trump authoritarian regime, what you get out of a Democratic Party that is not opposing, not confronting this in any kind of effective way is what is de facto, then. It is regime consolidation. It is that they're acting together.

Peter: There's no difference.

Rhiannon: Right. There's no difference, and they're not doing anything to stop it. And Rahm Emanuel and David Axelrod are saying, "Mmm, not my fight." And so I don't think it's like, what motivates the Democrats is to be like, "Oh, actually, I agree with Trump, and so I'm gonna let him do all the things," right? I'm saying de facto in real life, the life that all of us are now subjected to, the authoritarianism that we're all subjected to, is in part as a result of the Democrats not doing shit.

Michael: Yeah. I want to read a post from a friend of mine, Aaron, on Bluesky that I think is pretty good. Aaron Huertas, former comms guy for Dems who quit because he was so discouraged by them, like, never wanting to do anything creative and active and proactive. He says, "Steadfastly preserving all the arcane Senate rules because, quote, 'You'll regret not having them when we're in the minority,' then when you're in the minority, not using them." That's—that's the Democratic Party move. They haven't used them yet. At the time of this recording, they haven't used them. Hopefully in the next few days they start using them. That would be nice. But when we're recording this, that post is absolutely correct. Like, what the fuck are you doing?

Peter: Well, that's why, as much as I think that people who are like, "The Democrats lose on purpose," anyone who thinks that is very stupid. However, I do have some sympathy because what's going through their mind is no one could be this stupid and incompetent.

Michael: Right.

Peter: And it's a good question to ask, but the answer is actually no. Like, Amy Klobuchar is.

Rhiannon: Right, Maybe they're not losing on purpose, but losing isn't hurting them enough, like it's hurting the rest of us.

Michael: Right.

Rhiannon: They're comfortable in it.

Michael: Because they care first and foremost about their positions, right? Their specific seats, right? The sources of their individual influence more than they care about some larger ideological projects. And so it's like, "As long as I am getting reelected, I'm fine. And there's always the next election for us to regain power." Like I said, I've been in their victory parties before and they're fucking thrilled. They love to win. They like winning, they like governing, they like doing that stuff. But yeah, no, they don't—they don't see it as a crisis when they lose, even when the other side is doing what they're doing right now, you know?

Rhiannon: Yeah. Even when it is a crisis for the rest of us.

Peter: Right. Yeah, so I think that's our, you know, broad view of what has happened so far. And again, stuff that we are saying here will probably be a little bit out of date, but the big picture, I promise you, won't be. And I also think that maybe it helps to just check in with a four-days-out-of-date podcast every now and then to keep your head in the right place, rather than driving yourself insane trying to, you know, process every headline you see. So hopefully we can provide that service.

Peter: Next week? Fuck it, McCutcheon v. FEC. We've been promising it for weeks. I'm almost positive we're gonna do it. I'm almost positive, guys.

Michael: It'd be a pretty good bit if we just didn't do it all year, but it was our outro every episode.

Rhiannon: Yeah. Because stuff just keeps coming up. Yeah.

Peter: That's the kind of bit you start in the fifth year of your podcast.

Michael: Yes.

Rhiannon: And really tickles the three of us and nobody else. Yeah. [laughs]

Peter: Someone will be listening to the archives of this in three years and being like, "What the fuck was going on in 2025 where they never did McCutcheon v. FEC?" Before they were, of course, publicly executed at the end of the year.

Michael: [laughs]

Peter: Follow us on social media @fivefourpod. Subscribe to our Patreon: Patreon.com/fivefourpod—all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We will see you next week.

Rhiannon: Bye!

Michael: Bye!

Peter: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh and Andrew Parsons provide editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod