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In the year since President Trump’s inauguration on January 20, 2017, a myriad of constitutional issues has so far arisen during his term. This has led some legal journalists like the New York Times’s Adam Liptak to note that “President Trump is transforming the study of constitutional law.”
The National Constitution Center has closely tracked these constitutional controversies, and offered nonpartisan analysis and commentary as well as nonpartisan educational resources about them. We the People podcast also just hosted a debate between Lisa Manheim and Josh Blackman reviewing one year of President Trump and the Constitution.
Foreign or Domestic Emoluments Clauses
President Trump’s extensive global business empire prompted several lawsuits brought by various litigants arguing that Trump’s business holdings violate the Foreign or Domestic Emoluments Clauses. These lawsuits have alleged that the President has violated the Clauses due to his failure to divest his business holdings in Trump hotels and other private enterprises.
In one of the lawsuits, CREW v. Trump, the government’s motion to dismiss the lawsuit was recently granted after District Court Judge George Daniels found that the plaintiffs lacked standing. A new lawsuit, however, has been filed by the D.C. and Maryland attorneys general, D.C. and Maryland v. Trump, and a separate lawsuit was filed by members of Congress.
In January 2017, We the People hosted a podcast on the filing of the CREW case, featuring Brianne Gorod and Andy Grewal; in October 2017 the NCC hosted a second podcast on the issue with Josh Blackman (who filed amicus briefs in the cases on behalf of scholar Seth Barrett Tilllman, an Interactive Constitution contributor, arguing that the President is not covered by the Foreign Emoluments Clause as he is not someone who holds “office under the United States”), and Jed Sugerman. The Interactive Constitution also features explanations of the Foreign Emoluments Clause of Article I, Section 9, Clause 8 by Seth Barrett Tillman and Zephyr Teachout.
Trump’s Executive Orders on immigration
President Trump has issued several immigration orders, ranging from those regulating immigration into the United States as well as those regulating immigrants already present in the country. Legal challenges have cropped up nationwide against these orders.
Just last week, the Supreme Court agreed to hear a challenge against one of Trump’s immigration orders, an order regulating travel by nationals from six mostly Middle Eastern countries. (The first iteration of the order, issued only a few days after President Trump took office, was soon replaced by other versions after federal judges ruled against it.) In the pending case, Hawaii v. Trump, Hawaii claims that President Trump imposed an unconstitutional “Muslim ban” when he ordered strict limits on entry into the country by foreign nationals from nations with Muslim-majority populations. The suit alleges the president violated several constitutional provisions, including the First Amendment’s Establishment Clause. In February 2017 We the People podcast featured a debate on the order between Peter Spiro and Anil Kalhan on this issue.
There has also been controversy surrounding a second Executive Order signed by President Trump promising to withhold federal money from what it called “sanctuary jurisdictions,” or sanctuary cities. Cities across the country, from San Francisco to Philadelphia, have sued arguing the order violates federalism principles. In November 2017, a federal judge ruled in Philadelphia’s favor, and other cases are pending. In May 2017, We the People podcast featured Cristina Rodriguez and Elizabeth Price Foley to discuss the sanctuary cities debate.
A third immigration-related issue is whether the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program presents any constitutional issues. The rescission was challenged in federal court, and District Court Judge William Alsup ordered the Trump administration to keep the DACA program in place, ruling that the rescission was based on based “on a flawed legal premise.” However, some scholars have argued that since the program was enacted by executive order, Trump is legally able to dismantle it with executive order, and the move to rescind DACA represents a return to separation of powers, because DACA was unconstitutional from the start. The Supreme Court recently granted the government’s request to expedite review of the case.
Dismantling the administrative state
President Trump ran on a platform of shrinking the size of the federal administrative state, and since in office, he has sought to deregulate a variety of industries. The issue is whether Trump’s deregulatory policies may have implicated any constitutional issues.
Some scholars like Lisa Manheim on the recent We the People podcast suggest that the President may have to act in conjunction with Congress to repeal certain regulations or to regulate agencies in certain ways, or otherwise violate separate of powers principles. But others like Josh Blackman have noted that “the three planks of the Trumpian Constitution — delegation, due process, and deference” actual ratchet down the President’s power, thereby reversing the tide of ever-increasing executive power.
Special Counsel Robert Mueller’s investigation
In May 2017, Robert Mueuller was appointed Special Counsel to investigate allegations of Russian meddling and collusion in the 2016 election. Issues have arises as to whether Mueller’s investigation may result in any criminal charges against the president (e.g., for obstruction of justice for firing former FBI Director James Comey) but if so, whether these charges can be constitutionally brought. Another issue is whether Mueller’s findings might lead to proceedings brought by Congress under the Impeachment Clause and if so, how those proceedings may be constitutionally initiated.
We the People hosted a podcast in June 2017 with Alan Dershowitz and Laura Donohue on the constitutional issues involved in Mueller’s investigation of President Trump and what constitutes “obstruction of justice,” and a second podcast in December, with Sai Prakash and Laura Donohue, which looked at updates in the ongoing investigation, and whether new constitutional issues may have been raised by new developments, including calls by some in Congress to pass legislation to insulate Mueller from potentially being fired by President Trump.
The Twenty-Fifth Amendment
Controversies over Trump’s words, actions, and behaviors have led some critics to express concern for his ability to govern and to call for his removal via the procedures outlines in Section 4 of the Twenty-Fifth Amendment, which provides for the involuntary removal of the president if he is “unable to discharge the powers and duties of his office.”
NCC President and CEO Jeffrey Rosen wrote an article for The Atlantic, “The 25th Amendment Makes Presidential Disability a Political Question,” analyzing the history of the Amendment’s ratification and how it might be applied today. The Interactive Constitution explainers on the Amendment by Brian Kalt and David Pozen also offer a nonpartisan summary of this important constitutional provision relating to presidential disability and succession.
The scope of the pardon power
There have been issues raised concerning whether Trump’s controversial pardon of Sheriff Arpaio, an Arizona sheriff who was found guilty of criminal contempt for his interrogation methods with illegal immigrants, violates rule of law norms. And in light of the Mueller investigation, some commentators have brought up questions surrounding the president’s ability to pardon himself. A podcast in September 2017 between Brian Kalt and Margaret Love examined these issues in detail.
Trump’s use of Twitter and the First Amendment
Trump’s use of Twitter as a medium of communication has presented interesting cultural, political, and legal issues, including whether his Tweets may be interpreted by courts as official statements. It has even been said to implicate First Amendment issues—for instance, through President Trump’s decision to block some users from his Twitter feed after critical remarks against him were made. A podcast debate between Alex Abdo and Eugene Volokh in August 2017 discussed Trump’s use of Twitter and the First Amendment.
As President Trump’s second year of office begins, these constitutional issues remain as salient as ever.
Lana Ulrich is associate in-house counsel at the National Constitution Center.