Alright. Welcome back to Discourse. I am your host Wayne Unger, and we are recording today’s episode at 7:00 PM on Tuesday, April 29. As always, things may have changed since. 

We are back and ready to roll after a short break from the podcast. For those who were dying for another episode, I apologize for the delay. Now that we’re heading into summer, expect more episodes each week as we attempt to make sense of the chaos in current events. 

On today’s episode, the First Amendment, Immigration, and the Constitutional Crisis. We’ll discuss how all three of these are related in an ongoing dispute about deported individuals from the United States. Has the Trump Administration violated the free speech rights of international students who have had their student visas revoked? What about Abrego Garcia—who was wrongfully deported to El Salvador? Is Trump ignoring court orders—causing a clash between the Executive and Judicial branches? If so, how can we recover from the crisis? All of that and more on today’s episode of Discourse. 

Let’s begin by detailing some of the facts that set the stage for today’s conversation. You may have heard by now about Kilmar Abrego Garcia—a 29-year-old from El Salvador who was deported by the Trump Administration last month. Well, his deportation has prompted a legal and political showdown. According to the BBC, “judges all the way up to the Supreme Court have ruled that Abrego Garcia was deported in error and that the federal government should help ‘facilitate’ his return to Maryland.” In defending the deportation action, the Trump Administration claims that Garcia is a member of MS-13 – an international gang, which the Trump Administration has designated as a foreign terrorist organization. But is there any truth to that accusation? 

According to BBC, which conducted a thorough review of court documents, including evidence submitted by the parties in the litigation, Garcia has acknowledged that he entered the United States unlawfully in 2012. In March of 2019, he was detained outside of a Home Depot in Maryland, and law enforcement claimed that he was loitering. Law enforcement later detailed in a “Gang Field Interview Sheet” that they observed signs consistent with “Hispanic gang culture.” According to the reports, Garcia was wearing a Chicago Bulls hat and hoodie with rolls of money covering the eyes, ears and mounts of the presidents depicted on those bills. Officers claimed that the wearing of the Chicago Bulls hat represents that they are members in good standing with MS-13.

There is some collaboration regarding the symbolism of the Chicago Bulls. Journalists who have studied MS-13 told the BBC that it is true “at some point the Chicago Bulls logo with the horns” became a substitute symbol for the MS-13’s devil horns symbol. 

Here’s the thing. Not everyone who wears the Chicago Bulls logo—whether that is on a hat or on clothing or even tattoos—is affiliated with MS-13. That would be a preposterous assumption. No one would suggest that Michael Jordan is a member of MS-13 if he were to wear the Chicago Bulls logo again. 

So, the Chicago Bulls cap may be relevant to determining whether a person wearing that hat is affiliated with MS-13, but in no way, none whatsoever, could it be dispositive. As the BBC article states, “Any assertions about gang affiliation would need to be corroborated with testimony, criminal history, and other evidence.” 

While Maryland law enforcement has stated that they received a “tip” that Garcia is affiliated with MS-13, in Garcia’s defense, his attorneys argue that the tip is unreliable hearsay. 

As a quick aside, hearsay is a term that is often thrown around in common parlance. But it has a legal definition. According to Black’s Law Dictionary, the term hearsay refers to testimony given by a witness who recites information that he does not know personally (or first-hand), but rather, what others have told him, or what he has heard said by others. In other words, hearsay is a statement made outside of the court when that statement is offered to prove the truth of whatever it asserts. Still confused? Well, let me provide an analogy then. 

Have you ever played the game telephone? That’s the game that involves someone stating a message to a figurative “line” of people, and it gets passed from person to person. So, Albert tells Brody. Brody tells Cameron. Cameron tells Donna. Donna tells Eugene. Etc. If you have ever played this game, you know that the message first conveyed from Albert to Brody is never the same message when it gets to the end of the line. This illustrates the fundamental concept of hearsay. 

If you are testifying about a message that you “heard” from Cameron, who heard from Brody, that originated with Albert…that message is inherently unreliable. What that message conveys is inherently unreliable because it has likely changed as it passed from person to person. 

So, as a general rule, courts do not admit hearsay evidence. Now, of course there are exceptions to the rule. But if we turn back to Abrego Garcia’s case, Garcia’s lawyers argue that the “tip” that law enforcement received in inherently unreliable hearsay. Law enforcement claims that someone told them that Garcia is affiliated with MS-13. Law enforcement wants to use that information to “prove” that Garcia is a member of MS-13. Because that tip was said outside of the court, it’s hearsay—essentially, unreliable information. Of course, this particular tip may fall under one of the hearsay exceptions, but that’s outside of the scope for this conversation. 

Garcia’s lawyers note that Garcia has never been convicted of any criminal offense in any jurisdiction. But a judge in 2019 concluded that there was sufficient evidence to support the allegation of gang affiliation. That finding was later upheld by another judge, according to the BBC. While in custody, Garcia applied for asylum to prevent his deportation back to El Salvador, and in October 2019, he was granted a “withholding of removal” order. The legal effect of this order barred the federal government from deporting Garcia. 

But the Trump Administration deported him anyway. 

And on April 10, 2025, the U.S. Supreme Court ruled on an application to “vacate injunction entered by the United States District Court for the District of Maryland.” How did this case reach the Supreme Court? Well, Garcia’s deportation was challenged in federal court. The federal trial court concluded that Garcia was wrongfully deported, and the court ordered the federal government to “facilitate and effectuate the return of [Garcia] to the United States.” Almost immediately after the District Court’s ruling, the Trump Administration filed an emergency application to vacate the District Court’s order—meaning the Trump Administration wanted the Supreme Court to step in and “undo” the District Court order. 

In response, the Supreme Court ruled that “the rest of the District Court’s order remains in effect but requires clarification . . . The order properly requires the Government to ‘facilitate’ Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” 

He's what is telling from the Supreme Court’s ruling. First, the Supreme Court seemingly agrees that Garcia was wrongfully deported. Second, the Supreme Court seemingly agrees that the Trump Administration should un-deport him. Third, the Supreme Court emphasized that the Executive Branch is afforded great deference with respect to foreign affairs. And this is true—the Supreme Court has long recognized “heightened deference” to the Executive Branch when it acts in foreign affairs. That said, the Supreme Court did not say anything more than that. It only said that the District Court should defer, but this does not mean that the District Court must rule for the Trump Administration. Quite the contrary actually, because the Supreme Court seemingly agreed with the District Court’s legal conclusions—that Garcia should be returned to the United States because he was unlawfully deported. 

And perhaps no one has said it this way. Essentially, the Supreme Court concluded that the Trump Administration broke the law when it deported Garcia to El Salvador—it was an unlawful deportation. 

Justice Sotomayor provided a written comment in Garcia’s case. She said, “Instead of hastening to correct [the Trump Administration’s] egregious error, the Government dismissed it as an ‘oversight.” She continued, “The only argument that the Government offers in support of its request—to leave Garcia in El Salvador’s custody—is that United States courts cannot grant relief once a deportee crosses the border.” This is plainly wrong. Sotomayor also said, “The Government’s argument . . . implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.” 

I agree with Justice Sotomayor on this point. And it is this point, in particular, that should concern all Americans. If we accept the Trump Administration’s argument—that a federal court is powerless to intervene if the person has already been deported—then that would lead to the horrific situation of a President deporting an American citizen, when the President has no legal authority to do so, and then saying, “Whoops. Now the courts cannot do anything about it.” And you as a citizen, if you are the deportee in this situation, you have no options to right this wrong. 

The Supreme Court issued that ruling on April 10, 2025, and the Trump Administration has yet to bring Garcia back to the United States. Publicly, conservatives and Trump Administration officials have argued that “leftist judges” and “democrats” support MS-13 members, that they want MS-13 members in the United States, that even though the Trump Administration committed a clear error here, the error is justified because Garcia is affiliated with MS-13. 

But those talking points from the Trump Administration are baloney. Abrego Garcia’s case is about due process and the respect for court orders. Garcia properly obtained an immigration court order that prohibited the federal government from deporting him. The Trump Administration should respect that immigration court order. And if Trump wanted to challenge that order, there’s a proper legal process to do so. That proper legal process—“due process of the law”—allows Garcia to present his defense. 

Due process requires notice and a fair opportunity to be heard. Before the Government deprives you of life, liberty, or property, Government must give you due process of law. It must give you notice of the deprivation and an opportunity to present your side. The Constitution requires it! So, I say this to Trump Supporters and Opponents—if you proclaim to have respect for the Constitution, then that includes respect for the Constitution’s requirement that you’d be given due process. 

The Trump Administration failed to do that here. The Trump Administration has failed to give hundreds of deportees, maybe thousands, due process. 

Remember Trump’s impeachment hearings from his first term? Trump and his defenders railed the “lack of due process.” Trump repeatedly said that the impeachment proceedings were unlawful because Congress did not give him due process. That the Dems failed to give him due process. First, as a matter of fact, that’s false. Second, as a matter of law, I argue he wasn’t constitutionally entitled to due process. 

During Trump’s impeachment trials, the Senate allowed Trump to present a defense. That’s due process. The Senate gave him due process! 

But constitutionally, the Senate was not required to do so by my reading of the Constitution. That’s for two reasons. First, the Constitution clearly states that the Senate has the sole power to try all cases of impeachment. The Supreme Court has been very clear on this—the Senate gets to decide however it wants to proceed. If the Senate decides to proceed with a one-sided trial by not allowing the impeached official to present a defense, it can do so because it has the sole or exclusiveauthority to try all impeachments. Second, the Due Process Clause mandates that the Government must give you due process for any deprivations of life, liberty, or property. Removing someone from public office is not depriving someone of their life—compare this with the death penalty. And a public official does not have a property interest in the office that they hold. So, the question is whether a person has a liberty interest in holding office. There is no case law that I am aware of that supports the contention that a public official has a liberty interest, subject to the Constitution’s due process requirement, in holding that office. 

So, I find it a bit rich that Trump supporters are arguing—eh, no due process for those who are unlawfully present in the United States—just deport them—when they cried for due process during Trump’s impeachment trials, even though Trump received it. 

Some supporters of Trump’s deportation actions argue that they are not entitled to due process because they are unlawfully present—they’re in this country illegally. But here’s the thing. The Constitution protects everyone, regardless of legal status, except for perhaps the privileges and immunities clause. In this country, constitutional rights and liberties are not limited to only U.S. citizens and/or permanent residents.

Consider, for a second, how this country would look if we did not recognize constitutional rights and liberties for non-citizens. Imagine law enforcement arresting an individual who is not lawfully present in the United States for petty theft. Under a hypothetical regime where we do not give unlawfully present individuals the same constitutional rights, then this would mean that the person arrested for petty theft is not protected by the Eighth Amendment. The Eighth Amendment protects us from cruel and unusual punishment. So, the person not lawfully present in the United States who committed petty theft can now be subject to cruel and unusual punishment? 

The right of access to contraception is protected by the Constitution according to Griswold v. Connecticut. It’s inherently protected by the Due Process Clause of the Fourteenth Amendment. But in the hypothetical regime where we do not give those who are unlawfully present in the U.S. the same constitutional rights, that right of access to contraception wouldn’t apply. Thus, government would be able to ban contraception for anyone who is unlawfully present in the United States. How does this square with the Republican Party’s stance on birthright citizenship these days? Food for thought. 

Relatedly, according to the Associated Press, over the past few weeks, the Trump Administration has revoked the visas of more than 1,000 international students. Inside Higher Education reports the number exceeds 1,700. Some were involved in the protests over the Israeli-Palestinian conflict. But for many others, the reasons for the revocations remain unclear. At least 160 colleges and universities across the country have had at least one international student face a visa revocation. 

According to the Associated Press, in some high-profile cases, including the detention of Columbia University protestor, Mahmoud Khalil, the Trump Administration has argued that it should be allowed to deport non-citizens over involvement in pro-Palestinian activism. 

In response to public criticism, Secretary of State Marco Rubio has said publicly that “no one’s entitled to a student visa.” And he has cited the Immigration and Nationality Act as the source of his legal authority to revoke the student visas. So, let’s discuss the Immigration and Nationality Act. Before we do, I note that I am not an immigration law expert, but I am a constitutional law expert. So, my analysis of the Immigration & Nationality Act is through that lens. 

The Immigration and Nationality Act is a foundational immigration law. It sets rules for who can enter the United States, the types of visas available, and the process for naturalization. For international student visas, students must gain admission to a school in the United States. Students must complete an application and interview at a U.S. embassy or consulate abroad. They must show that they have financial support for their course of study, and they must remain in good standing with their academic programs. Assuming the student meets all of the requirements, the student is issued F-1 or J-1 visa—both of which are the specific visas for international students, which one the student is issued is dependent on the nature of their program and duration of study in the United States. Of course, if an international student holds an F-1 visa, then they are lawfully present in the United States. 

Many international students have challenged their visa revocations in federal court. And at least one federal judge has ordered the Trump Administration to reinstate the legal statuses of 100+ international students. These students claim, among other things, that they were not given proper notice and an opportunity to respond before their visas were revoked—so, a due process violation. They allege a due process violation. They further allege that the Trump Administration has exceeded its statutory and regulatory authority—meaning that these international students claim the Administration has acted unlawfully. 

And the Administration argues that they acted lawfully with respect to these revocations. As I previously mentioned, Secretary of State Marco Rubio’s statements seemingly imply some unrestricted legal authority to revoke these student visas. Given my general lack of expertise in immigration law, I am not the best person to opine on whether the Administration has followed immigration law, specifically. 

But I was able to find one court case that may be informative here. This case, titled Rafeedie v. INS from 1992, dealt with the provisions of the Immigration and Nationality Act that, I think, Secretary Rubio is relying on to support the revocations and deportations. In that case, a Jordanian nation, who was a lawful permanent resident of the United States, told immigration officials that he intended to travel to Cyprus because his mother was set to have heart surgery. Instead, reportedly, he traveled to Syria, and according to the case, purportedly attended a meeting of a group closely associated with the Popular Front for the Liberation of Palestine. His reentry was later denied, and Rafeedie subsequently sued the federal government alleging, among other things, a violation of his right to due process—as he wasn’t given the opportunity to defend himself before his reentry was denied.

According to the federal court, “It is clear that under the Mathews analysis, the summary exclusion provisions,” which is what immigration officials used to deny Rafeedie reentry, “violate the due process clause of the Fifth Amendment.” Now, both Rafeedie and the court recognized that the United States has a legitimate government interest in protecting the national security of the United States. But the court went onto criticize the Government’s sudden shift in using the “summary exclusion” process—suddenly using it against lawful permanent residents. 

But here’s the thing. Rafeedie also invoked his First Amendment rights in that case. “As a threshold matter, defendants urge the Court to find that resident aliens are not entitled to the same First Amendment protections as citizens…” The court rejected that claim. The court said, “It has long been settled that aliens within the United States enjoy the protection of the First Amendment.” 

In other words, the First Amendment’s protections and rights apply to everyone, regardless of citizenship status, in the United States. That’s correct. It is clearly settled law. The Supreme Court has held, over and over again, that the First Amendment, as well as the Due Process Clause, apply to everyone regardless of citizenship status. 

But let’s go back to the Government’s core accusation against Rafeedie—that he attended a meeting affiliated with the Popular Front for the Liberation of Palestine—an accusation that later evolved to Rafeedie being a “high-level leader” in the group.  The federal court in Rafeedie’s case correctly noted that mere advocacy for violence is protected speech. It “crosses the line” into unprotected speech once the speaker advocates for imminent lawless action, which was not present in Rafeedie’s case. 

Moreover, the First Amendment protects a right of association. As the judge in Rafeedie’s case said, “By the same token, guilt by association alone is an impermissible basis upon which to deny First Amendment rights” Okay, but what about the general speech of the Popular Front for the Liberation of Palestine? The court said, “Although the government plainly may have a legitimate interest in regulating subversive conduct, it cannot broadly prohibit teaching or advocating unpopular tenets, or association with an organization that teaches or advocates such doctrines.” The court went onto agree with Rafeedie that the Immigration and Nationality Act, specifically the provisions that the Government relied on to defend the denial of reentry, impermissible “punished” Rafeedie for constitutionally protected speech and association. 

With that said, let’s go back to what is happening right now with the Trump Administration and these international students. Secretary of State Rubio has defended the Trump Administration’s revocations and deportations—he said, “If they’re taking activities that are counter to our foreign—to our national interest, to our foreign policy, we’ll revoke the visa.” He has also said, “Visiting America is not an entitlement, but a privilege.” He has stressed that all foreign nationals—including those in the country on a student visa—“must respect American values and laws,” and that “foreign nationals protesting in support of Hamas or similar groups are not protected by the First Amendment,” according to several press reports. 

Is Marco Rubio correct in those statements? Like I said, the First Amendment applies to everyone, regardless of citizenship status, but the extent of that protection might vary depending on citizenship status and the totality of the circumstances. In United States ex rel. Knauff v. Shaughnessy, the Supreme Court ruled that foreign nationals are entitled to “lesser First Amendment protections while seeking to enter the United States, because an alien has no right to enter the country.” But this case occurred in 1950, well before the Rafeedie case. Why didn’t the DC District Court follow the Supreme Court’s ruling from 1950? I don’t know. But I know that five years ago, the Supreme Court said that, “an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause,” and presumably, the First Amendment as well. 

So, the Supreme Court has been clear—fewer constitutional protections apply when a foreign national seeks entry into the United States. But once inside the United States, the Supreme Court has been just as clear--constitutional rights do not differ between U.S. Citizens and non-citizens, except for the Privileges and Immunities Clause, the right to vote, etc. 

But foreign nationals are subject to certain laws that effectively do not apply to U.S. citizens, such as elections and campaign finance. For instance, a foreign national cannot vote in a Presidential election. The USA Patriot Act of 2001 generally provides that foreign nationals can be deported for fundraising for, or providing support to, or associating with groups deemed to be terrorist organizations. But Circuit Courts of Appeals are split on whether these provisions of the Patriot Act are constitutional. 

Perhaps this isn’t as black and white as many have stated, including myself in some past statements. But here’s what I do know—no Executive Branch action, even when the Executive Branch holds broad authority with respect to foreign affairs, can violate constitutional protections. Moreover, neither the Patriot Act nor the Immigration and Nationality Act can supersede the Constitution. 

And with respect to these international students, for the ones like Mahmoud Khalil, who had their visas revoked for protesting in support of Palestine, most of them were already inside the United States. Sure, some of them were seeking to reenter the United States, and I think the law is clear given what I’ve described. But Mahmoud Khalil was lawfully present in the United States. He’s protected by the First Amendment. He has a right to protest, even when the message of that protest is contrary to the national interests of the United States. The Supreme Court has been clear on this point—the First Amendment protests popular and unpopular messages. It protects pro-American speech as well as anti-American speech. It protects speech that advances or aligns with the federal government’s positions and viewpoints as well as speech that attacks those positions and viewpoints. 

You may not like the messages. You may not agree with Mahmoud Khalil. You might disagree with the political viewpoints of every international student who has had their visas revoked, but if you respect the Constitution, if you hold it to a high regard, the law is clear…the speech and beliefs of these international students are protected in this country. 

Trump supporters might argue that the Supreme Court’s cases on the subject are wrong. That foreign nationals should not hold the same level of First Amendment rights and protections, or the same Due Process requirements, as citizens. You can argue that. That’s fair. But here’s the thing—the mere fact that you can argue this position—the mere fact that you can believe and claim that the highest court in the United States got it wrong—the mere fact that you can disagree with the Court and voice that disagreement—that is thanks to the First Amendment. The First Amendment protects you and these viewpoints. 

That brings us to our final discussion point for this episode. Are we in the midst of a constitutional crisis?

Maybe. It would be a constitutional crisis if the President of the United States, leading the Executive Branch, refuses to follow a lawful court order—especially when that order comes from the U.S. Supreme Court, which is a court of last resort. Meaning that whatever the Supreme Court decides, that’s the end, unless the Court sends the case “back down” to a district court for further action. 

Has the Trump Administration disregarded a lawful court order? Maybe. Probably. 

In one case, federal District Court judge Boasberg concluded that the Trump Administration likely acted in contempt of court by not turning around the deportation flights. Judge Boasberg said that the Trump Administration showed a “willful disregard” for his orders, according to CBS News. 

I think it’s still debatable whether the Trump Administration is following the Supreme Court’s affirmation that Trump must “facilitate” the return of Abrego Garcia. What does it mean to “facilitate”? Was level of action from the Trump Administration is sufficient to meet that “facilitate” his return requirement? I don’t know. 

So, let’s play this out. What happens if the Trump Administration disregards lawful court orders? Well, the court would hold individuals responsible in “contempt of court.” Under federal law, criminal contempt of court is defined as “disobeying a federal court’s lawful writ, process, order, rule, decree, or command.” As with any criminal case, a prosecutor would need to prove beyond a reasonable doubt that a defendant—in this case, Trump Administration officials—willfully violated a court order. 

But who prosecutes the case? For a federal charge, that would be the Department of Justice. And while the Justice Department is led by the Attorney General, it technically rolls up to the President. Attorney General Bondi and President Trump, I think, will refuse to prosecute those cases. They’ll probably argue that the judge’s referral of criminal charges is a “witch-hunt” driven by “radical leftist judges” and is unconstitutional. But none of that would be true from a legal perspective. And even if criminal charges are brought, Trump has the authority to pardon individuals. He could just pardon anyone who refuses to follow a lawful court order—effectively immunizing them from following the rule of law from one of the three branches of the federal government. 

That would be the erosion of the rule of law. That would be the constitutional crisis—the President just fundamentally overruling the entire federal judiciary by not prosecuting crimes against the judiciary or pardoning any such crimes. 

Of course, it’s possible that the next President of the United States would decide to bring those criminal contempt of court charges. But even the next President wouldn’t be able to if Trump pardons those individuals, because those pardons extend beyond any one presidency. 

Here’s a thought. Could a subsequent President reverse a pardon of his predecessor? We’ve never had to answer that question before because no President has ever tried. Does the President’s power to pardon include the power to revoke a pardon? I think that would be a dangerous precedent if the Supreme Court said that a successor President could revoke a pardon of his predecessor. 

Could President Trump follow this route? Yes. Will he go down this route? I think he would. He feels emboldened. He has shown disregard for the law. He has acted unlawfully by disregarding legal requirements for processes, procedures, practices, etc. You don’t have to take my word for it. The federal courts have already reached this conclusion in many, but not all, cases against the Trump Administration. 

Why does Trump feel emboldened? I think there are primary reasons. First, he’s Trump. That’s just his nature. Second, the Supreme Court ruled that the President has immunity from criminal prosecution last summer. Remember that? 

In Trump v. United States, the Supreme Court ruled that the President of the United States holds absolute immunity from criminal prosecution for any official acts that stem from his exclusive and preclusive constitutional powers, such as the President’s power to pardon individuals for federal offenses. And the Court also said that the President is entitled to, at minimum, presumptive immunity for all other official acts. 

Many of my listeners might find this to be outrageous and incomprehensible. Well, let me explain what the Court’s reasoning for this decision. The conservative majority reasoned that Congress, as a separate branch of the federal government, cannot legislate in such a way that would violate the Constitution. That’s clear. Like, duh. But in the criminal context, the Court reasoned that Congress cannot criminalize, via legislation because crimes are defined in statutes, actions by Presidents because the Constitution, which is supposed to be the highest law of the land, expressly grants the President the authority to do certain things. So, no statute, including criminal ones, can displace what the Constitution says the President is empowered to do. Hence, the President should get absolute immunity when he acts pursuant to a power that is clearly given to the President in the Constitution. 

But what about immigration, specifically? Because we’ve been talking immigration for this episode. Well, immigration is not a power that is exclusive to the President. The Constitution grants both the Executive Branch (aka the President) and Congress with various powers related to foreign affairs and immigration. A lot of what the Trump Administration has done—the actions that we’ve talked about during this episode—Trump is relying on statutory authority. In other words, Congress has granted the President the authority to deport foreign nationals via statute. Congress has granted the President the authority to revoke visas via statute. While the President has some constitutional authority with respect to foreign affairs, much of what he is doing, much of what any President does, is rooted in statutes. Thus, because the source of the Presidential power is a statute, passed by Congress, and not the Constitution, we don’t run into the issue that the Court described in that immunity case. The Court said that Congress cannot criminalize conduct related to the President’s official acts that stem from his constitutional powers, because those are written into the Constitution, which is supreme. But under this rationale, Congress is free to criminalize the President’s official conduct when the President acts using statutory authority, not constitutional authority, because a statute that criminalizes conduct is “at the same level” in the legal hierarchy as a statute that the President would invoke if he was acting pursuant to a statutory authority. 

So, are we in a constitutional crisis? I think we are heading towards one. I hope that day doesn’t come.

That’s it for today’s episode.