Trump's Excellence and Excesses (Podcast with John Yoo)
TikTok, birthright citizenship, H1-B scam, impoundment, presidential powers.
As one would expect, President Donald Trump triumphantly returned to the White House with a fusillade of activity that ranged from excellent to excessive.
Trump has already signed dozens of executive orders and set the tone for a radical restoration of the country. Actions ranged from getting control of the southern U.S. border, humiliating the insolent socialist who runs Colombia, threatening imminent tariffs on Mexico and Canada, and firing many government officials.
On trade and foreign policy, Trump is turning away fundamentally from globalism and back to a traditional view of how America as a normal nation-state should relate to the world. Economically, he clearly intends to use the tariffs that served America so well from the first law that George Washington signed, the Tariff Act of 1789—and the deregulation and pro-energy policies that marked Trump I. Culturally, he is taking steps to restore American meritocracy and end the unAmerican racism known as DEI.
Take a step back from the flood of executive orders and other actions, and you see a president who is restoring the power of the presidency itself—an institution badly weakened during the 1970s Watergate era and never quite recovered.
Ronald Reagan has long been credited by conservative historians for firing illegally striking air traffic controllers in 1981. Certainly, the American people saw that action as decisive and liked it. What Trump has done in recent days is several orders of magnitude larger. It is the most decisive beginning of a presidency since at least the arrival of Franklin Roosevelt and his New Dealers in 1933.
It doesn’t just feel like the end of a four-year nightmare that began under Biden. It feels like the end of a sixteen-year nightmare of stagnation, self-loathing, racism, and Orwellian lies that began with Obama.
But no presidency starts out perfectly and Trump has stumbled in trying to save TikTok, a Chinese-controlled app that can track Americans’ locations and force feed them with hostile media.
His executive order purporting to redefine citizenship explicitly detailed in the Fourteenth Amendment has already been set aside by a federal judge. The tinfoil hat crowd who talked Trump into this view are just setting him for an embarrassing defeat at the hands of the Supreme Court.
Elon “Rain Man” Musk and Vivek “Shamwow Salesman” Ramaswamy have great skills, but have already embarrassed Trump with a legislative loss on the budget continuing resolution in which they blew the debt ceiling in exchange for magical beans. They also induced Trump to support the H1-B visa scam that obviously takes jobs from young Americans and creates a cottage industry of mass importation of Indians, many of whom have anchor babies while here. Musk’s imprecisions on cutting government through the self-indulgent “DOGE” (Department of Government Efficiency) will set up Trump for judicial and legislative losses unless there is rapid improvement. Shamwow has already split town to run for governor of Ohio. Let’s see how they like his enthusiasm for giving their kids’ jobs to foreigners.
In our latest podcast edition, John Yoo, the former Justice Department official and leading legal scholar who is overwhelmingly supportive of Trump’s strong action to control immigration, outlines what is wrong with the Trump’s moves on TikTik and birthright citizenship. We also discussed options to restore the president’s power not to spend appropriated funds that are wasteful—a power called “impoundment” that was recognized from 1789 until 1974. Additional discussion centered on the power of the presidency generally. Video and excerpts below, followed by the full episode.
As stated, Trump is off to an extremely powerful start—and the American people want decisive action and honesty after decades of lies and failed presidencies. But Trump must eventually guard against overestimating his mandate the way Bill Clinton did after his 1992 victory.
Bubba ended 12 years of Republican rule and was the first Baby Boomer president. His charisma made up for liberals who still dominated the party and his repugnant wife. But he won only 43 percent of the vote in a three-way race against President George H. W. Bush and Ross Perot. Bubba ran specifically as a New Democrat against “tax and spend,” yet he and congressional Democrats raised taxes and spending dramatically, attempted to enact Canadian-style socialized medicine, and sought to allow gays to serve openly in the military long before America was ready for that. These acts and others plus an unusually energized and unified Republican opposition led by Rep. Newt Gingrich resulted in Republicans gaining control of both houses of Congress in 1994 for the first time since the 1952 elections. It was an extreme rebuke of Bubba and his radicals.
Trump can avoid this fate. While most analysts and even most Republicans presume the party will lose control of the House to the Democrats in 2026, this frequent midterm occurence is not preordained. George W. Bush gained seats in the Republican House and retook control of the Senate in his first midterm elections in 2002. Roosevelt added to overwhelming Democrat margins in both houses in his first midterms in 1934.
Trump will need to find a way to balance energy and shock with discipline and strategy—broken into blocks that are digestible by the public and which will survive challenges in the courts. It can be done. He’ll just need to sideline some of the crazies and come up with a combined political, congressional, and communications plan. He has an outstanding White House team, and the the three most senior members of his cabinet, Vice President JD Vance, Secretary of State Marco Rubio, and Secretary of Treasury Mark Bessent, comprise an incredibly competent, energetic, and strategic team.
John Yoo on Trump’s Executive Order on Constitutional Birthright Citizenship
Excerpts (edited):
Christian Whiton: I'll throw you another one from left field or maybe right field if you'll take the pun, which is birthright citizenship. Again, we didn't prep you on this, but it's just in the news and, you know, being a knuckle dragging right winger, amateur historian, I just think the Constitution should be, is meant to be understandable, plain language: [For example,] “The right of the people to keep him bear arms shall not be infringed….”
With birthright citizenship, I just never gave it much thought. I thought, oh, it says, you know, if you're, if you're born here, then you're an American. But you know, we see these things like Chinese who will sort of manage to be here just for the sort of six week around birth…
John Yoo: Tourism, birth tourism.
Christian Whiton: Things like that. And there has been a move. I think it's, it's emanated from parts of, of the New Right… but I'm just curious if between the politics and the law it's, it's going to be played out and it looks like it's going to be litigated since there's already, I think an injunction, against Trump's executive order. What are your thoughts on where this goes?
John Yoo: So I don't share the view of our Claremont friends about birthright citizenship, but it goes actually to the point I was making earlier about the president allowing to have, being allowed to have his own constitutional view.
The president, the Supreme Court has its view, Congress may have its view the president is allowed to say, I interpret the Constitution differently, and I'm going to order the executive branch agencies to follow my view until the other branches try to stop me. This was Lincoln's view amongst others.
It was Andrew Jackson's view, Teddy Roosevelt's view, George Washington's view of the presidency. And so I think that's what Trump is doing. I don't think he's going to win in the end. I think in the end the Court will just say, this has been the traditional rule. As you say, this has been the rule since the founding.
People who want to overturn that rule have to have, I think, some pretty good evidence to overthrow it.
Mark Simon: What do you think of any modifications? So for example, even Andy Kim today, very liberal senator from New Jersey, even, he said, look, the birth tourism is a problem. These factories in Saipan and places like that do, do you think that could be specifically addressed?
I think that's what people really are objecting to in my mind.
John Yoo: Yeah. Well, I think the bigger problem is allowing people into the, this is, this is just a symptom of the real problem, which was the lack of patrolling of the southern, controlling the southern border. So if you look up the numbers, you know, this is maybe last year, I think the estimate was there were 150,000 babies born in the United States last year who did not have citizen or green card holders as parents you know, Biden was letting 3 million people in a year cross the southern border without restriction.
So, this is not really a problem. What the problem is, is allowing people to cross the border in a, you know, unregistered, in an illegal way. There might be people coming over on visas. But you could actually cure for that by saying we're not going to issue visas to people, to women who are pregnant. And that would, that would be, that would solve the issue, I think in most part.
I mean, I really think the, this is symbolically important issue, but in terms of consequences, in terms of fix, fixing the immigration problem, it's not going to really make that much of a difference compared to building a wall and enforcing the immigration laws, removing people who are here illegally, you know, primarily people who are committing, you know, violent crimes and felonies.
The interesting thing about the constitutional issue that you mentioned is the text, I don't know, it seems, and this is why we haven't had a different rule, the text seems pretty clear, it says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.
So people who have the contrary view… they say, “subject to the jurisdiction thereof”--that phrase means, “your parents have to be citizens.” This is not the way this language has ever been read, and wasn't understood that way. In fact, it's a very strange way to say, “and your parents have to be citizens.”
They could have just said, “your parents have to be citizens.”
The order, it will get up to the Supreme Court fast. And maybe that's what Trump wants. And maybe he'll lose, but he'll want, he wants to say, I'm taking every aggressive measure I can think of to stop the flow of illegal. Migration across the southern border even this smaller one.
John Yoo on Trump Attempt to Save TikTok:
John Yoo: …Let me say right away you know, I think that a lot of what Trump has done on his first two, first few days, I guess we're in day three now, have been really positive, particularly with national security, particularly with foreign policy. The problem here is that while in general, he's trying to refocus us to our main national security rival, which is China, and that's how I read him, you know, wanting to, reduce our involvement in the Middle East, wanting to pull us out of wars in Europe so we can refocus on what's important.
However, I think you might have a blind spot here on TikTok. TikTok is a popular social media platform, but at the same time, it collects enormous amounts of data on everyone who uses it. That's 170 million Americans. It collects data on where you are, when you use it, what you're looking at, right? You give it a lot of permissions, probably don't even notice when you sign up for the service and under Chinese law, TikTok is obligated to provide that information to the Chinese government whenever it asks for it.
It allows China, the Chinese Communist Party, in conjunction with all the other things it's been doing, like stealing all the databases--you guys have worked in the federal government ever; the Chinese probably have your OPM file, just like they have mine, right--they probably have our applications to be given clearances. They are accumulating huge databases on everyone in the United States. Makes it possible for them to blackmail people, makes it possible for them to identify who they want to influence, makes it possible for them to pressure people we know.
I mean, it's what an intelligence service would do. So when President Trump was in office the first time, I think he came to the right conclusion. The first time when he found out about TikTok, he wanted it banned or sold. This ban or sell thing was his idea from 2020, 2019. So that's one. So the second thing is, Mark asked about the law.
You know, what's going on right now, the law required as of January 19th, the day before President Trump took office, that TikTok either close or be sold. Under that law, the president had the power to extend that for another 90 days, but that power ended on January 19th. In fact, if you read it, you could say like Congress is almost trying to do Trump a favor that so he wouldn't have to take a position on it.
Congress took all the responsibility for trying to close this popular social media site trying to close off this channel for the Chinese to spy on us, essentially, but President Trump instead wants a deal to be made. And so he said, I order the Justice Department not to enforce the law for 75 days.
Now, the interesting thing is this may not solve the problem because the law is written very broadly and has some really stiff penalties. It doesn't just apply to TikTok. It applies to any company that's going to do business with TikTok, essentially. So anybody who distributes it like Apple and Google, any cloud companies that host it.
So that could include Amazon and Microsoft, anybody who carries it, that could be, you know, Comcast. They all are subject to fines and the fines are not tiny. The fines, believe it or not, are $5,000 per TikTok user per day. There's 170 million TikTok users in the United States. So any company that, you know, is involved with TikTok is subjecting themselves to hundreds of billions of dollars in damages per day.
So I think there's a lot of potential legal liability for the companies other than TikTok. To continue cooperating them with it, even during this period. So what might happen? I could see, and that's the last question, Mark. I could see state attorney general suing. If you think about it, if you're like I was on a conference call with the attorney general from Montana, he, you know, Montana already tried to shut off TikTok. Why is TikTok not any different than any other product that's now illegal under federal law and TikTok. And these companies coming to your state and selling it to you. After the federal government said, no, this is all, this product's illegal. Could you get away with, like, if, could you sell a drug that loses its FDA approval and still keep selling it as safe and effective?
So states might sue. And then also people who own shares in these companies might sue. Like, I own Apple stock. I mean, if Apple starts selling this, you're subjecting the company to potentially hundreds of billions of dollars in losses and fines. Shareholders often sue companies for making terrible decisions, you know, for destroying shareholder value.
So that's my last answer is the what's going on with third parties is states might sue, even shareholders might sue to stop these companies from cooperating with TikTok.
Full Episode
Check out the full episode for more on these topics, whether Trump can impound and refuse to spend funds appropriated by Congress, and other matters regarding presidential power, immigration, John’s plans, etc.
Also available on Spotify, Apple, and other podcast catalogs (see below).
Parting Shot: Confirming Tulsi
I was honored to be part of a large group of former officials who endorsed Tulsi Gabbard to be Director of National Intelligence. The naysayers in the Senate are standing in the way of reform of our failed, $100-billion-per-year intelligence bureaucracies. We used to have topnotch intelligence bureaucracies that were good at stealing secrets and influencing political events abroad to the advantage of the United States. Not anymore. Too much “intelligence” involves welfare for mediocrities and political warfare against Republican presidents and other officials. Tulsi can change that.
Read the Fox News story here. The full letter of support with all of the signatories in addition to me is attached.
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