Although I am deeply disturbed by President Donald Trump’s disregard for the Constitution in his first days in office, I am hesitant to join those who are calling this a “constitutional crisis.” I am not sure what a “constitutional crisis” means, but my preference would be to save it for even graver threats to our constitutional system that I fear may arise in the months and years ahead.
To be sure, Trump has shown a stunning lack of understanding of the Constitution, or a lack of concern about it, in his first two weeks in office. There already are dozens of lawsuits against him for serious constitutional violations. For example, I am co-counsel in Citizens for Responsibility and Ethics in Washington v. Trump, suing Trump for violating the provision of the Constitution that forbids a person holding office in the federal government from benefiting from a foreign government. Article I, Section 9, of the Constitution states: “And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”
This provision was meant to restrict the ability of foreign governments to influence American office holders, a matter of great concern to a new nation. The emoluments clause applies to all who hold “office” in the United States government. The clause is broad in what it prohibits, forbidding receipt of benefits “of any kind whatever.” Trump’s international business holdings mean that foreign governments are frequently providing him benefits―whether out of a desire to curry favor with the president of the U.S. or otherwise―that violate the emoluments clause. The lawsuit seeks a declaratory judgment that Trump is violating the Constitution and an injunction to ensure his compliance.
Another example is Trump’s executive order barring individuals from entering the U.S. from seven predominately Muslim countries: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. However, the president said that religious minorities in these countries, notably Christians, would be eligible for admission. Trump’s action, determining the ability to enter the country based on nationality, religion and place of residence, is clearly illegal.
What do we do if Trump refuses to comply with court orders?
The Immigration and Nationality Act of 1965 explicitly says that no person can be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” This was adopted to eliminate the prior practice of immigration quotas from specific countries. In signing the legislation, President Lyndon Johnson said that “the harsh injustice” of the national-origins quota system had been “abolished.” Absent a specific authorization by Congress, the government cannot discriminate based on nationality or place of residence, which is exactly what Trump has ordered.
The order is also illegal and unconstitutional because it bars those with green cards or visas―and thus with a lawful right to be present―from entering or even returning to the country. The president has no legal authority to do this.
Moreover, Trump’s policy is unconstitutional discrimination based on religion. The U.S. Supreme Court has repeatedly said that above all, the First Amendment’s religion clauses forbid the government from favoring some religions over others. Although Trump’s executive order does not expressly exclude Muslims, that was unquestionably its purpose and its effect, as it bans refugees from predominately Muslim countries while creating an exception for minority religions in these countries. In fact, Trump told Christian Broadcast News that he intended to give priority to “Christians” seeking asylum over “Muslims.” The Constitution does not allow such religious discrimination or permit the government to assume that a person is more likely to be dangerous because of his or her religion, national origin or race.
Already, several federal district courts have enjoined aspects of the Trump policy as likely illegal and unconstitutional. More are sure to do so.
These are three very serious constitutional violations in less than two weeks in office.
Yet another example of Trump’s disregard for the Constitution is his executive order that threatens to cut off federal funds to cities that refuse to cooperate with federal immigration authorities. Cities have good reasons to not do so. Victims of crime and witnesses to crimes will not come forward if they fear deportation. Those with communicable diseases that can spread to everyone will not go to public hospitals for treatment. Parents will not send their children to schools.
The U.S. Supreme Court has been clear that the federal government cannot commandeer state and local governments and force them to enforce federal policy. In Printz v. United States, in 1997, the Court struck down a provision of the federal Brady Handgun Control Act that required state and local governments to do background checks before issuing permits for firearms. The Court said it violated the Tenth Amendment for Congress to “commandeer” state and local governments in that way. The Court similarly has held, such as in National Federation of Independent Businesses v. Sebelius, that Congress cannot use strings on grants to state and local governments to coerce them into acting. Yet that is exactly what Trump has done by saying that local governments that do not cooperate with federal immigration authorities will lose their federal funds.
San Francisco has filed a suit challenging this Trump executive order as violating the 10th Amendment. Other cities are certain to file such suits.
We cannot refrain from challenging his disregard for the Constitution in every possible way―in the streets, in the media, in Congress, in the courts.
These are three very serious constitutional violations in less than two weeks in office. When the constitutional problems have been quickly revealed, Trump has been defiant.
Together these examples show a president who doesn’t understand the Constitution and does not seem to care about it. Lawyers and courts are likely to be more important in the months and years ahead than ever before.
But is it a constitutional crisis? It is tempting to use that phrase. But what do we call it if Trump refuses to comply with court orders? That is something I truly fear. What do we call it when his constitutional violations continue unabated, as I am afraid they will?
So I will refrain, for now, from using that label. But we cannot refrain from challenging his disregard for the Constitution in every possible way―in the streets, in the media, in Congress, in the courts.