A Canary-in-the-Coal-Mine Moment
May/June 2025An interview with David French
The first months of the new presidential administration have brought an unrelenting stream of headlines—many touching on issues of constitutional law, the role of the judiciary, and the nature of presidential executive authority.
For some perspective on recent events, Liberty editor Bettina Krause spoke with David French, an attorney turned journalist, best-selling author, and nationally known commentator on constitutional law.*
French is a New York Times opinion columnist who describes his unconventional career path as a “long and winding road.” He was born in Alabama in a conservative Christian family and grew up in Kentucky and Tennessee before heading north to Harvard Law School. After a few years in commercial litigation and lecturing in constitutional law at Cornell Law School, French embarked on a tour of military service in Iraq as a JAG Corps lawyer. He was later awarded a Bronze Star for his service with the 3rd Armored Cavalry Regiment in Diyala province.
On his return to the U.S., French spent the next two decades in courtrooms across America as a litigator defending free speech and religious freedom. He also served for a time as president of a free-speech advocacy organization, the Foundation for Individual Rights and Expression.
In 2015 French joined National Review as a senior writer but left a few years later to help start a conservative media company called The Dispatch.
Today, along with his regular New York Times columns and media appearances, French helps anchor the popular legal podcast Advisory Opinions and, with host Sarah Isgur, churns out two episodes a week focusing on the Supreme Court and the judiciary and exploring current constitutional debates.
French describes himself as a conservative evangelical Christian who believes in a “vision of American democracy, in which people with deep religious, cultural, and moral differences can live and work together and enjoy equal legal protection”—and he brings this faith-shaped sensibility to his writing and media work.
His most recent book is Divided We Fall: America’s Secession Threat and How to Restore Our Nation (St. Martin’s Press, 2020).
Bettina Krause: Since taking office, President Trump has asserted what has been called “maximalist” executive authority. Depending on whom you’re talking to, this is either a constitutional emergency—it’s time to break the glass and press the button—or it’s just a realignment. It’s simply bringing the role of the executive back to what our country’s founders originally intended, something they called an “energetic executive.” Can you help us understand what’s happening?
David French: I think what we’re watching is an attempted constitutional revolution. The executive branch, the Trump administration, is trying to assert more raw authority over the federal government than any other president, certainly in the modern era.
I’m not going to say it’s as much as Lincoln asserted, say in the Civil War, or maybe FDR at the height of World War II. But in a time of peace and prosperity, this is absolutely the biggest attempted presidential power grab that we’ve seen.
Regardless of whether you think the system might need reform—and you can put me in that camp; I think there are a lot of things about the federal government that need reform—we should not be reforming the federal government at the expense of the constitutional order.
The constitutional order is not one that is designed to have “coequal branches of government.” It’s actually designed for the legislative branch to be supreme. When you read the Constitution, that’s pretty obvious. Congress can override vetoes. Spending can come only from Congress with a bill originating in the House of Representatives. Congress has the ability to fire the president and Supreme Court justices. Congress is not uncheckable, but it’s supposed to be supreme.
But now the presidency is asserting itself as supreme, and that is not the intended constitutional order. This has lots of negative ramifications, even if you are somebody who thinks there’s a need for reform in the federal government.
Bettina: How much of what the president is doing is technically constitutional, but is breaching norms and traditions?
David: We can break things down into several different buckets or categories. One bucket would be just “flat-out unconstitutional.” For example, there are multiple courts that have already ruled against his effort to revoke birthright citizenship. That’s something that would be just flat-out unconstitutional.
Then there’s another category that is “unlawful, but the president is arguing that the laws themselves are unconstitutional.” For example, the ability to hire and fire federal workers is very constrained by federal law. Trump can appoint, hire, and fire at will the policymakers, the heads of cabinet agencies, and so on. But the millions of other civil service workers have federal protection for their jobs.
The president has blown through these protections, which are established by Congress. He argues that because he’s the chief executive, he should be able to do this. This is where you’re going to have a court fight between his assertion of executive authority and the workers who claim that these statutory protections are enforceable.
And then there’s a third category, which is “He’s just blowing through a norm that he can go through because he has the power, unquestionably.” For example, directing our United Nations delegation to vote with Russia and North Korea against Ukraine. That would be where he is, obviously, blowing through a norm. We never have sided with Russian aggression before. But he can do that. He’s the nation’s chief diplomat. He’s constrained by law, but he has enormous amount of flexibility to decide American foreign policy.
Bettina: You mentioned the courts and the role they’re going to have in working through these issues. Are the courts prepared? How effective a check will they be on those first two categories you mentioned?
David: That’s a great question. I would say they’re prepared. I would say that the litigants who are involved in the cases have been preparing for these cases for a long time. Some of these confrontations that are now happening in court have been unfolding and debated about for quite some time before Trump actually became president. So there’s a lot of preexisting legal work to draw on, court precedents that already exist. I’d say that in many ways the judicial branch is extremely prepared.
Now, the judicial branch does not move all that quickly. And so you can see these things unfold—people are fired and grants are cut off—and you wonder why isn’t anything happening right now. Well, a lot is happening right now, lots of court filings are being made, but it takes time to adjudicate these things.
We’ll know a lot more in five or six months. In the meantime, there’s an injunction here, there’s an injunction there. It’s kind of like assembling a jigsaw puzzle.
The courts are prepared, but they were never intended to be the primary check on a president. That was meant to be Congress. Congress was always intended to be the primary check—it can move more quickly.
Bettina: America’s Founders seemed to believe that Congress would be jealous of its own strength and prerogatives, and that it would defend those prerogatives. How did we get to the point where Congress is now effectively the weakest branch of government?
David: It’s been a long, slow decline followed by a precipitous drop off a cliff. As Hemingway once said: “How do you go bankrupt? Two ways. Gradually, then suddenly.”
For a lot of time in the modern era—and when I say the modern era, we’ll peg it to post-Watergate—you had a high watermark of congressional power. Congress had effectively just removed a president. And by 1974 Congress was passing a ton of good government reforms to prevent the rise of another “imperial presidency,” a term applied to Richard Nixon.
So at this point Congress was at a modern high watermark. And then over time, as America became more partisan, and as Americans became more partisan and more entrenched in that partisanship, the incentives for Congress began to shift. Loyalty to your partisan imperative began to trump your jealousy for your own power in Congress.
This was a result of feedback that members of Congress were getting from their own constituents. What begins to develop is a dynamic whereby partisan polarization increases to such a point that your median Democrat and your median Republican really, really, really dislike each other.
And so that means there’s not so much incentive for compromise in Congress. If you’re a Republican and you come back to your home district with a big legislative accomplishment, where you got some stuff for your district, but a Democrat also got something for their district, those days of bragging about that were over, because the Democrat got something.
The partisan imperative and the partisan animosity have just kept escalating. And now it is genuinely the case that Speaker Mike Johnson will risk his career if he asserts his independent authority as speaker of the House.
James Madison thought it would be different; that if I were a member of Congress, that the idea of my position being neutered so thoroughly would be repugnant to me and I would continue to try to exert the power of my position. I don’t think Madison saw how firmly the partisan imperative would take hold over American hearts, to the point where now the voters say, “Well, that’s all well and good, Mike Johnson, that you’ve asserted your power. Now we’ll take it away from you.”
Bettina: So ultimately you’re tracing the dysfunction back to “we the people”?
David: Yes, 100 percent. And look, I understand the frustration people have, but let me share two numbers with you. One number is 17 million, and the next number is 77 million.
Seventeen million is the number of Americans who voted for Donald Trump in the primaries. This was in the Republican primary contest.
And 77 million-ish is the number of people who voted for Donald Trump in the general election. You’ll note a big difference in those two numbers, right?
For Democrats, the difference was even more dramatic. I think there were about 14 million who voted for Joe Biden in the primaries, and then about 75 million who voted for Kamala Harris in the general election.
So those numbers tell the tale—only a minority of American voters participate in the primary process. Then the majority goes to the polls to vote, and says the same thing every four years: “How did we get these people? Why is this our choice?”
If you want better choices, start participating in the process earlier. And don’t just delegate and punt to the most activist base of American politics and then lament the choices that they deliver to you.
I’m not going to say that politicians don’t bear responsibility for lying or for stoking divisions. Obviously they do. But it wouldn’t work if the American people weren’t so eager to hear it.
Bettina: I want to ask about the pseudo-Napoleonic quote tweeted by President Trump: “He who saves his country breaks no laws.” He’s asserting something here that’s foreign to the American constitutional regime: the idea that sometimes the rule of law doesn’t apply. How seriously do we take something like this?
David: We need to take it seriously. We are now learning how vulnerable the American system is to a person who wants to be a strongman. We were warned about this by our country’s Founders. The Anti-Federalists looked at the 1787 Constitution and said, “This document gives too much power to the president.”
For a long time we didn’t realize how much the example of George Washington really was a firewall, because he was the first president, and he set the model. This model was one of dignity, restraint, and honor. I’m not going to say that everyone who’s occupied the office has had those qualities of character. But it’s true that presidents have not tended to try to maximize all the power and authority that they could conceivably get under the Constitution.
We didn’t really realize until now how much our Constitution depended on an honor system. Now we’re learning. We’re learning that when the honor system doesn’t hold, the constitutional order struggles.
Bettina: Liberty magazine focuses on religious freedom and other civil liberties. I’m looking at the legal dustup between the White House Press Office and the Associated Press, which has been expelled from the White House press corps, and the issues of free speech and freedom of the press that raises. Can you draw some lines between what’s happening and potential red flags for the protection of civil liberties down the track?
David: Well, the case involving the Associated Press is very interesting, because as a general matter, if there’s limited office space, or limited space for media, you do have to make choices as to who gets the space that’s available. If you can’t give it to everybody, there has to be some system for allotting the available space.
But under our constitutional structure, as a general rule you can’t pick and choose based on preferred viewpoint. In other words, you can’t say, “Well, you’re a friendly news outlet, so you get 100 percent access. You’re an unfriendly news outlet, so you’re out of the building.” That kind of viewpoint discrimination violates the First Amendment.
And so I would say that the Associated Press has a pretty good chance in its lawsuit. Now, I mean, of course there’s going to be some deference given to the executive to determine how to allocate limited spaces. But the administration has been so upfront that it did this on the basis of the Associated Press not wanting to use the phrase “Gulf of America.” And that gives Associated Press a much better shot at winning this case, because the administration has been so openly saying that it’s taking this action as punishment for speech it doesn’t like.
And so I think that this is a canary-in-the-coal-mine moment.
Bettina: I don’t know if you saw the speeches the president gave at the two national prayer breakfast events in February, but there was a lot of rhetoric such as “We’re going to make the country more prosperous and more faithful to our God than ever before.” Christians pushed Trump over the line in last year’s election. Do they now have a champion for Christianity in the White House?
David: Well, this is a very interesting thing, Bettina, because there is one particular cohort of Christians who pushed Trump over the line, and that’s White evangelicals. There are other cohorts of Christians who voted against Trump. So Black Protestants, for example, who have a very similar high view of Scripture and who are very similar, theologically, to White evangelicals—voted overwhelmingly against him. Non-White evangelicals were much more evenly split. Catholics, much more evenly split.
It’s very interesting when we break all of this down. What did Trump’s constituency believe it was getting from him?
And I think what they thought they were getting from him was a fighter. This goes back to something I think is very deeply ingrained in a lot of evangelical culture. And here’s how I’d put it. I would say that an enormous number of evangelicals grew up with a fight-the-world view of Christianity, as opposed to a love-your-neighbor view of Christianity. I believe an enormous segment of the White evangelical church has been caught up in that fight-or-flight Christianity, to such an extent that the fact that Trump is a fighter has connected with them at a heart level. It’s “like calling out to like”—that inclination toward political combat.
Bettina: So the president’s announcement of a task force focused on eliminating anti-Christian bias in the federal government bolsters this same narrative?
David: Absolutely. It’s bolstering the narrative that he’s their bulwark against destruction. Now, the irony here is that the president is defunding Christian charities at a level that we have not seen in a generation. You can go back to Bill Clinton and his Charitable Choice initiative. Or you go back to George W. Bush—his very first executive order was to incentivize faith-based initiatives, because both the Clinton and Bush administrations saw that religious nonprofits were often better at delivering some services than the government or secular nonprofits.
In my legal career we fought for equal access to funding for religious groups to serve the poorest and most marginalized people in the world. And we won that fight. And actually, it’s one of the really genuinely good things that our government has done—opened up grantmaking to all nonprofits and NGOs, regardless of their religious point of view. You can serve poor people effectively whether you’re secular or Christian, and you can be funded.
Bettina: On another front, some religious groups have recently filed lawsuits saying that their First Amendment expressive association rights are being infringed by changes in immigration enforcement policies that are driving down attendance at houses of worship. What’s happening here?
David: Traditionally there were certain places and locations—churches and schools, for instance—that weren’t the focus of immigration enforcement.
Some of that is changing now to the point where religious organizations who serve migrants—and I’m not talking about hiding migrants, I’m talking about just giving them food, and clothing, and shelter—are now facing punitive government action.
A number of Quaker organizations have brought suit, and there was a court decision handed down recently in Maryland, and a federal judge has blocked some of the immigration enforcement actions that were taking place around churches.
There’s a very real threat to religious liberty coming out of the mass deportation mindset, because many, many Christian ministries serve the poor and marginalized without first asking, “Are you here legally or not legally?” For the government to come in and begin to take punitive action is a grave violation of religious free exercise under the First Amendment.
* Interview edited for length and clarity.