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Analysis: Trump administration & judicial review

SDPB

This interview originally aired on "In the Moment" on SDPB Radio.

The Trump administration has delivered an ultimatum to Columbia University in New York.

Federal officials told the private university to place its Middle Eastern, South Asian, and African Studies Department under "academic receivership."

Critics of the university say it's a necessary move to address antisemitism on campus. Critics of the Trump administration say it's an attack on academic freedom and an attack on the First Amendment rights of Americans to speak out about international policy.

Our Dakota Political Junkies join us to unpack the unprecedented move.

David Wiltse, Ph.D., is a professor of political science at South Dakota State University. And Lisa Hager, Ph.D., is an associate professor of political science at SDSU.
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The following transcript was auto-generated and edited for clarity.
Lori Walsh:
We are going to have a theme to our conversation today as we look at how President Donald Trump views the presidency, how our congressional delegates are functioning in Congress, how the courts function, and who better to ask than a political scientist to explain this to freshmen and sophomores and juniors and seniors, and now the rest of us too. So thanks for doing that.

I want to start today with a college out of New York City, Columbia University, because of this idea of an academic receivership and that was new to me.

Dr. Hager, do you want to start with what you're seeing the federal presidential administration saying their role is in fixing what they perceive as problems at public universities?

Lisa Hager:
Right. So I saw that the federal government wants to put the Middle Eastern, South Asian, and African Studies Department under receivership for a minimum of five years, and there are some differing interpretations floating around as to what that actually means in practice.

So what we've seen so far is that this is in response to anti-Israel, pro-Palestinian protests that are taking place at the campus, and then this discussion of whether that is promoting anti-Semitism.

And so it's an interesting concept just because of the fact that when I necessarily think about receiverships, I'm thinking about it in terms of financial reasons. And so that's why there's some oversight that is needed. But instead, we're seeing these oversight needs for other reasons pertaining to what I would say the administration is chalking up to discrimination-oriented issues.

Lori Walsh:
And so as I read the articles about this, and again, we're a long ways from New York City, so we're looking at it through reading the news like everyone else is, but I'm also not seeing a failure of an academic program to fuel students into jobs or to prepare them for the workforce.

It's specifically that the university, according to the Trump administration, did not protect students from anti-Semitism and therefore these departments are being overlooked. David Wiltse, what are you seeing in here? Is there connective tissue between the charge of anti-Semitism running rampant and the receivership that the administration is proposing?

David Wiltse:
Well, there are certainly some pretty nasty things that have happened at Columbia. I mean, there's no doubt there. Certain incidents, particularly some professors that have been drilling students that they think are Jewish or what have you.

But I don't know if it's quite the job of the academic department to go out and protect students from any kind of physical act, any kind of protest like this. That seems to be more of something you do with campus security.

This really is something that we've never seen before, and it really just seems like score-settling more than anything. I don't think it can be justified on any legal grounds so far that I've seen. It's not akin to police departments that have gone into receivership because of civil rights violations against their own citizens. And correct me if I'm wrong, but Columbia is a private institution. No?

Lori Walsh:
Yeah, I said public. I think it's private. Yeah. I misspoke.

David Wiltse:
Here we have the federal government coming in and trying to regulate a private higher educational institution, which is just I've never seen anything like it and it's disturbing.

Lori Walsh:
It is sounding alarm bells for legal scholars and colleges because Columbia might be the example but the president is not intending to stop there.

And so there are many people who are deeply concerned about what this means for academic freedom. When we say academic freedom, what are we talking about?

David Wiltse:
Well, we're talking about the ability of people like myself, Lisa, other professors across the country to go out and pursue their research in whatever field they're practicing in and disseminate that information freely. And what we're seeing here is a pretty clear case of harassment, trying to squelch those basic academic freedoms.

And if they can get away with it on a private campus like Columbia and as prominent and wealthy of a campus as Columbia, where couldn't they do it?

Lori Walsh:
The chilling effect of that, Lisa Hager?

Lisa Hager:
Right, and I think that's really the natural connection. So academic freedom has always been protected by the First Amendment. And so naturally when you start to see attacks on academic freedom, it will have a chilling effect in the sense that people, in this instance, obviously faculty members, administrators, staff, are going to feel like they're not able to say the things that they would normally say, not research the things they would normally research, not disseminate that research in that way, not teach the things they would typically teach within the classroom.

So people will be altering their behavior most likely based on what we're seeing occur at Columbia.

Lori Walsh:
I read an article by Jelani Cobb in The New York Times where they were in a room and the dean of the Columbia School of Journalism, which is one of the preeminent journalism schools in the country, told his students, "If you were on a student visa, stop writing about anything that has to do with Palestine or Israel or the arrest or the detainment and deportation of students and former students from this institution."

He got some pushback. And he said, according to The New York Times article, "I cannot protect you."

And that is astonishing to me as a journalist that you would hear the Columbia head of journalism say, "Don't report on this because I cannot protect you from the consequences of reporting on the story."

Lisa Hager:
Well, and I think that's where you see folks in those types of positions having to really advise students about what they should be doing. And I would expect there are probably administrators who feel like they need to advise their faculty on what to do in those situations. It just goes back to that chilling effect that it's having.

Lori Walsh:
And again, I'm reading The New York Times most because Columbia is in New York. I've been getting most of my information from those reports. I have not spoken to anybody in administration or education at Columbia.

But I mentioned deportation, and I want to jump ahead to another topic, which is the judicial pushback on President Trump's and Department of Homeland Security Secretary Kristi Noem's acts of detaining and deporting people, especially this former student, graduate of Columbia, who had legal status, had a green card, was a green card holder in the U.S., and the deportation of flights to Venezuela that a federal judge said, "We need to stop this."

So essentially the big theme here, without getting into the weeds for every little case that's happening, is the judiciary and the role of the judiciary in checking the power of the executive branch.

So again, take us into the classroom. What is the judiciary's role? Who do they report to?

Lisa Hager:
Yeah, so whenever I start explaining the issue of judicial review to students, I always remind them that we're not just talking about the courts checking Congress and the legislation that they're putting into place, but it's also checking the executive branch and more formally, the president and his actions.

And so I think that's the first thing that a lot of folks are noticing with respect to this is, oh yeah, there's that aspect of what's the relationship between the courts and the president. And so yeah, we're seeing the courts pushing back on a variety of different issues, and I think there's just a lot of sorts of issues we're going to see continue coming before the courts. And I think that's what a lot of the ultimate goal is for folks.

Lori Walsh:
Somebody asked me the other day, "Well, how can one federal judge be more powerful than a president?" And I said, "That's kind of the point. This is how this works, that there are federal judges who are paying attention to the law." How would you explain that, Dr. Wiltse, if someone said, "Well, how can one federal judge from a state in wherever stop a president from what he wants to do?"

David Wiltse:
Right. The very first thing I would say is it's not just one judge because that judge's decision is subject to review, and then there's a panel of judges in an appellate circuit that's going to hear that, and then their decision is going to be subject to review. So it's not just an individual, it is an entire institution that is providing review. That one judge is just a step along the way.

And obviously if the higher court wants to hear it, they will hear it or they can just abide by the ruling that the district judge made.

But it's not about a single judge. This is about undermining the judiciary. And unfortunately, they are pushing in every way that they can in issue after issue, particularly when it comes to the use of a very broadly defined executive authority. And that's the long and short of it.

Lori Walsh:
And threats have come that individual judges should be impeached or removed from office. Is that possible? Can the president do that?

Lisa Hager:
No. So impeachment is something that originates in Congress. And so the president can definitely call for that. That's not something where it's unprecedented per se. But no, the president cannot single-handedly remove a federal judge from office.

Lori Walsh:
All right. So continuing on this theme of "how does our government work in the United States," the Department of Education, and we had an interview not too long ago with U.S. Senator Mike Rounds, who had introduced some legislation to remove the Department of Education to take their essential functions and replace them in other departments. And now we have the president signing an executive order saying, "We would like to get rid of the Department of Education."

For people who are scratching their heads, what's happening here?

David Wiltse:
Well, the president's trying to go as far as he can. Even they recognize that they cannot dismantle the department single-handedly, that it will take an act of Congress to do so, but they're going to strip it down to the rafters and the studs if they can.

So they're trying to get rid of as many of the functions as possible within that department, shut it off to others to make it centrally a shell of an institution, and then let Congress finish the job at some point.

And to me, it really just says something about how this president has to exercise the power that he's got. I mean, first, he's in a weak position. He can't convince people in Congress to do this. He's got very narrow majorities in both chambers, but that's not enough. You need more than a simple majority really in either chamber to get something through. So he's going to push this executive authority as much as he can.

Presidents since Roosevelt onwards are in an era of an active legislative agenda for a president. They've campaigned on a large legislative package. They have put together the legislative coalition necessary, and they can push through some very enduring institutions as a result. But that's just not possible right now, and this president just has a different understanding about how he ought to do his job.

Lori Walsh:
What are we looking for next? What happens next?

Lisa Hager:
I think to a certain extent, we have to continue watching to see what the public's reactions are to a lot of what's going on with the Trump administration because I think we will continue to see these actions through executive orders take place until there is some sort of large-scale pushback where enough people are saying, "Enough is enough. We don't want the president single-handedly making these decisions. We want our members of Congress to have a say or to take action in different areas." So I think it's really just to watch and see what that breaking point ends up being.

David Wiltse:
And I think it's going to take some real harm. If you look at what's going on right now in the Social Security Administration, the way they are trying to scale back the workforce there, the proposals to close a lot of the field offices, to centralize a decentralized system, get rid of certain aspects of customer service, all just further fueled by the comments coming out of the administration on this, it's going to hurt people.

And at some point when enough people are harmed and people pay attention to their social security checks, there will be a pushback. And that's probably when we're going to see Congress step in.

But so far they've been virtually silent.

Lori Walsh:
So we know there have been protests at the Sioux Falls VA, for example, for veterans who were concerned about a drop in services, but also concerned about how many veterans who were hired were then let go. So we know there have been some protests. Of course, we followed the news of the burning of a Tesla, for example, which would be illegal destruction of property, which doesn't seem particularly useful long-term. So what kind of public reaction moves the needle?

David Wiltse:
Well, again, it comes down to numbers. I mean, you would know better than I, Lori, what proportion of our citizens are veterans and what proportion of them are reliant upon some service that the VA provides.

That's a pretty narrow piece of our population when it comes right down to it. But there are 60, 70 million people that are pulling some kind of social security benefit right now.

Lori Walsh:
I see.

David Wiltse:
And if enough people get to the point where they're being harmed and they actually begin to take action, both individually by contacting members of Congress and more importantly, collectively through organizations like the AARP and other interest groups, that's when things are really going to get real in terms of the political pushback.

Lori Walsh:
All right. We will keep our eyes open for the things that happen next. And of course, always ask people to give us an email and let us know how these decisions are impacting you. Email [email protected].

But today for our political analysis, we have welcomed political scientists from SDSU, David Wiltse and Lisa Hager. Thank you both for being here. We really appreciate it.

Lisa Hager:
You're welcome.

David Wiltse:
Thank you.

Lori Walsh is the host and senior producer of "In the Moment."
Ellen Koester is a producer of In the Moment, SDPB's daily news and culture broadcast.