Lawfare Archive: Are the Courts Ready for a Trump Presidency?
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 21 February 2026
⏱️ 49 minutes
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Summary
From February 13, 2025: Only a few weeks have passed since inauguration, but President Trump's barrage of executive orders has already generated dozens of legal challenges. Which raises the question: are the courts up to the job? Executive Editor Natalie Orpett sat down with Benjamin Wittes, Lawfare's Editor-in-Chief, to discuss his recent article, “Are the Courts Up to the Situation?,” published in Lawfare earlier this week. They talked about the courts' role in the face of unprecedented assertions of executive power, how they're faring so far, and what comes next.
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Transcript
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| 0:00.0 | The Electronic Communications Privacy Act turns 40 this year, and it's showing its age. |
| 0:06.0 | On Friday, March 6th, Lawfare and Georgetown Law are bringing together leading scholars, |
| 0:11.1 | practitioners, and former government officials for installing updates to ECPA, a half-day event |
| 0:16.6 | on what's broken with the statute and how to fix it. The event is free and open to the public, in person and online. |
| 0:23.2 | Visit lawfaremedia.org slash ECPA event. |
| 0:26.4 | That's lawfaremedia.org slash ECPA event for details and to register. |
| 0:47.5 | Music I'm Marissa Wong, intern at Lawfare, with an episode from the Lawfare for February 21, 2006. Over the past six months, the Trump administration's mandatory detention policy, |
| 0:57.6 | which allows immigration agents to detain anyone found to be undocumented without possibility |
| 1:02.7 | of bond, has now flooded the courts with hundreds of habeas corpus cases a day. |
| 1:08.2 | A key issue is if the courts are equipped to handle this massive influx of habeas |
| 1:13.4 | cases. For today's archive, I chose an episode from February 13, 2025, in which Natalie Orpitt |
| 1:22.7 | joined Benjamin Wittis to unpack the barrage of legal challenges from President Trump's first month of his second turn, |
| 1:29.3 | sparked by the wave of executive orders that push the limits on the boundaries of executive authority. |
| 1:35.3 | Orpah and Wittis also discussed the role of the courts in responding to expansive assertions of presidential power, |
| 1:42.3 | and if the courts are up for the job. |
| 1:57.1 | It's the Lawfare podcast. I'm Natalie Orpet, executive editor of Lawfare, with my colleague Benjamin Wittes, editor-in-chief of Lawfare. |
| 2:05.9 | You know, if the court fears that the executive branch is not going to follow their orders, that lessens the incentive to issue an order because it's like announcing the emperor has no clothes. And there may be a |
| 2:19.3 | reticence about issuing an order that you believe the president is going to defy. |
| 2:27.1 | Today, we're talking about Ben's recent article in lawfare called Are the Courts Up to the Situation, |
| 2:33.7 | which asks how the judicial branch is faring in the face of a barrage of Trump executive |
| 2:38.4 | orders. |
| 2:39.9 | Okay, Ben, so let's start with something that may seem a bit obvious, but I think actually |
... |
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