On January 20, 2017, Chief Justice John Roberts will administer the oath of office to the 45th president: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Donald Trump is utterly unqualified to keep this solemn pledge to our most fundamental law. We know this because in winning the nomination, Trump has already promised that he will knowingly break the law and violate the Constitution.
Free speech? He will “open up the libel laws” to allow public officials to sue the media, and use the Federal Communications Commission to fine critics. Private property? To Trump, eminent domain is a “wonderful thing” and is not actually “taking property” because the owner can move “two blocks away.” Faithfully executing the law? His harebrained scheme to make Mexico pay for the border wall ignores the clear text of a statute and unilaterally prohibits foreign commerce. Serving as commander in chief? Trump has already pledged that he would violate international treaties and domestic law. The military “won’t refuse” his illegal orders. “Believe me,” he promised. Protecting our national security? Trump has lauded FDR’s internment of Japanese Americans, one of the darkest hours in the history of our Republic. And what about the Supreme Court? Assuming he keeps his promise to appoint conservative jurists — and that this promise is not merely a negotiating tactic — Trump’s approach would likely mirror that of George W. Bush: appoint justices who will defer to bold assertions of federal power. Judicial minimalist, thy name is John Roberts.
Donald Trump shows absolutely no awareness of the importance of the freedom of speech — especially as a means to shine a light on dark public figures. Throughout his career, he has repeatedly turned to the law to silence dissent. In 2006, Trump filed a $5 billion libel suit against author Timothy O’Brien who wrote that he wasn’t a billionaire. In 2012 he secured a $5 million defamation judgment against a Miss USA contestant who claimed the Miss USA pageant was “rigged.” (Sound familiar?) Even when he didn’t actually follow through with litigation, Trump has often threatened to sue critics — which has the effect of chilling speech. In 2013, an online petition was organized to persuade Macy’s to drop his clothing line. His lawyers threatened the organizer of the campaign, whom Trump called a “loser,” with a $25 million lawsuit claiming the petition “far exceeds anything protected by the Constitution.”
During the campaign, Ted Cruz aired a commercial including a clip from a 1999 episode of Meet the Press, where Trump said he was pro-choice. Trump’s response? His lawyers sent a cease-and-desist letter to Cruz, threatening to sue him for “intentionally disseminating libelous statements.” His attorney warned, we “will look forward to doing it.” Cruz, a former Supreme Court law clerk and advocate laughed off the suit and said, “any first year law student can tell you, in a defamation case, truth is an absolute defense.” After Cruz threatened to personally depose Trump, the threat dissipated.
It’s not surprising that Trump has promised to “open up the libel laws” to allow public figures to sue newspapers.
It’s not surprising that Trump has promised to “open up the libel laws” to allow public figures to sue newspapers that write “purposely negative and horrible articles about him.” Luckily, the Constitution stands as a barrier to his ability to silence critics. Fox News Sunday host Chris Wallace challenged Trump on this flatly unconstitutional standard, telling him “the Supreme Court ruled on this . . . so you’re going to have to win them [and] the Constitution.” Trump’s reply? “Well, in England, I can tell you it’s very much different and very much easier.” Trump seems entirely unaware that England lacks a First Amendment. He also seems unaware that libel laws are exclusively state laws, and the federal government would have no power to “open [them] up,” short of passing a federal seditious libel law. (The Adams administration did not have a good experience with the Alien & Sedition Act of 1798.) But more fundamentally, Trump’s response to criticism is to attempt to silence his critics. As the national strongman, he gets to determine what the grounds for debate are.
But a Trump administration wouldn’t need to alter laws to chill speech. After a September 2015 debate, where Carly Fiorina rebuked Donald Trump’s misogynistic attacks, National Review’s Rich Lowry rebuked him on Fox News: “Let’s be honest: Carly cut his balls off with the precision of a surgeon — and he knows it.” Moments later, the choleric Trump tweeted “Incompetent @RichLowry lost it tonight on @FoxNews. He should not be allowed on TV and the FCC should fine him!” Instead of sending frivolous cease-and-desist letters, the Trump administration could simply fine anyone who speaks ill of his policies — which I am sure will be hailed as terrific in the polls. Or, a U.S. attorney appointed by Trump can give special attention to media entities that are critical of the government. Or, a Trump IRS can look extra closely at the tax returns of groups that are disfavored. The panoptic powers of the federal government are pervasive.
Beyond libel laws, the serial-tweeter even said he would censor the Internet in the name of national security. In a speech in December, Trump urged shutting down parts of the Internet to stop ISIS — as if the Internet can be sectioned off like rooms in a casino. “We have to go see Bill Gates” and “people that really understand what’s happening,” Trump said, and “talk to them about, maybe in certain areas, closing that Internet up in some way.” What about the Constitution? In a mocking tone, Trump scorned, “Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people. We have a lot of foolish people.” Present company included.
In addition to using the courts as a tool to squelch speech, the real-estate mogul has cheerfully exploited the state’s power of eminent domain to aggrandize his personal wealth. During an October 2015 debate, Trump was asked about eminent domain. His answer: “So eminent domain, when it comes to jobs, roads, the public good, I think it’s a wonderful thing, I’ll be honest with you. And remember, you’re not taking property, you know, the way you asked the question, the way other people — you’re paying a fortune for that property. Those people can move two blocks away into a much nicer house.”
The very purpose of eminent domain powers is for taking a person’s private property! The Fifth Amendment expressly provides, “nor shall private property be taken for public use, without just compensation.” Further, victims of eminent-domain abuse seldom get fair-market value, let alone a “fortune.” That doesn’t even begin to compensate a property owner who values his home above market prices.
And Mr. Trump has personal history with this populist abuse: He attempted to use eminent domain to take the home of an elderly widow in Atlantic City in order to construct a parking lot for one of his casinos. For Trump, ample parking for limousines contribute to the “public good.” The New Jersey court ruled against him, finding that the “primary interest served here is a private” purpose — that is, benefiting Trump — “rather than a public one and as such the actions cannot be justified under the law.” The pattern is consistent — he uses power and the courts to promote his bottom line.
The Constitution imposes a duty on the president to “take care that the laws be faithfully executed.” Unfortunately, President Obama has routinely delayed, suspended, and modified the laws in violation of this fundamental principle of the separation of powers. President Trump would up the ante. On Meet the Press, Trump was asked whether he would rely on executive action in the manner of President Obama. “I won’t refuse it. I’m going to do a lot of things,” Trump replied. “I mean, [President Obama] led the way, to be honest with you,” he added. But rest assured, Trump noted, “I’m going to use [executive actions] much better and they’re going to serve a much better purpose than he’s done.” The Constitution does not vest the unitary executive with this authority for good reason. Trump’s constitutionalism would, like his hair, comb over any limitations.
For a preview of how Trump will simply disregard the law when it is inconvenient, consider his signature proposal to make Mexico pay for the border wall. How would he do this? His legal team released a memo to the Washington Post detailing this audacious executive action. First, he would propose a regulation that would prohibit people in the United States without lawful presence from transferring money abroad. Second, President Trump would demand a “one time payment of $5-10 billion” from Mexico to ensure that wire payments continue to flow south of the border. Third, we build the wall. I will put aside for a moment the catastrophic implications this extortion racket would have on our diplomatic relations. More pressingly for our purposes, such a move would be flatly contrary to domestic and constitutional law.
For a preview of how Trump will simply disregard the law when it is inconvenient, consider his signature proposal to make Mexico pay for the border wall.
The crux of Trump’s proposal revolves around Section 236 of the Patriot Act, which requires financial institutions to verify the identity of customers who “open an account.” Regulations issued by the Bush administration made clear that this provision does not apply to financial institutions where customers do not open accounts, such as “wire transfer” services. This is a sensible reading of the statute. In his legal memo, Trump announced the he would ignore the clear text of the statute, and apply the provision to “money transfer companies, like Western Union.” Even though these institutions do not require a person to open an account, which is what the statute requires. Like President Obama before him, a President Trump would simply ignore statutes that get in the way of his terrific goals.
Further, the statute makes absolutely no reference to excluding foreigners from U.S. financial institutions, unless they are on a “suspected terrorist” watch list. Under the Bush administration’s regulations, an alien only needs to provide a foreign “passport number and country of issuance.” Trump would change that too. Now, an alien who wants to send money abroad must “provide a document establishing his lawful presence in the United States.”
This executive action would not be limited to aliens sending money to Mexico, but would also prohibit investments by foreigners where funds are transferred abroad. As a result, foreign nationals will no longer be able to open accounts and invest in American banks. There is absolutely nothing in the tenor of the act — passed in the wake of 9/11 — that would remotely suggest that the president has the authority to limit investments with financial institutions to U.S. persons.
Billions of dollars already in American bank accounts held by foreign nationals could no longer be withdrawn. The money will effectively be seized, and impounded within our borders by the federal government, without any due process of law or statutory authority. More foundationally, Congress’s power over the regulation of foreign commerce would be ignored.
The most troubling aspect of this harebrained scheme — an apt phrase for anything from the mind of Donald J. Trump — is that his lawyers have already blessed this proposal. No doubt a Trump Justice Department would be staffed with attorneys who would continue the trend of rubber-stamping implausible assertions of power. This is the sort of illegal executive action that President Obama has made routine, with respect to the implementation of Obamacare. President Trump would continue down this dangerous path.
Under Article II of the Constitution, the civilian president is also the “Commander in Chief” of the armed forces. This is a solemn duty that Trump has already shown a complete lack of regard for. During a debate, he announced that in the fight against ISIS, the military would kill not only the terrorists, but also “take out their families.” However, as Senator Rand Paul (R., Ky.) pointed out, “if you are going to kill the families of terrorists, realize that there’s something called the Geneva Convention we’re going to have to pull out of. It would defy every norm that is America.” He’s right. Common Article 3 of the Geneva Conventions — which the United States Senate ratified, and is part of our “supreme law of the land” — mandates that people who are taking no active part in the hostilities “shall in all circumstances be treated humanely.” That means you can’t kill innocent family members. Perhaps Trump’s handlers didn’t coach him on this in advance — although frankly, it shocks the conscience that a presidential candidate could even propose this. But even more importantly, the military could not, and would not comply with such illegal bloodshed.
Trump brushed off the criticism.
CIA Director Michael Hayden stated that if President Trump “were to order that once in government, the American armed forces would refuse to act.” Hayden added that he “would be incredibly concerned if a President Trump governed in a way that was consistent with the way that candidate Trump expressed during the campaign.” In a debate following Hayden’s comments, Trump was asked what he would do if the military disobeyed his illegal orders. His reply: “They won’t refuse. They’re not gonna refuse me. Believe me.” Moderator Brett Baier shot back, “but they’re illegal [orders].” Trump brushed off the criticism: “I’m a leader, I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it.” This is Trump’s modus operandi. The law is always subordinate to his leadership, and he will do whatever it takes to achieve his terrific goals.
The next day — after his handlers no doubt got to him — Trump issued a statement purporting to walk back his outrageous remarks: “[I would] use every legal power that I have to stop these terrorist enemies,” he said. “I do, however, understand that the United States is bound by laws and treaties and I will not order our military or other officials to violate those laws and will seek their advice on such matters. I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.”
This statement is not reassuring. As George Mason University law professor Ilya Somin pointed out, “that is not the same thing as saying he will refrain from ordering the military to target civilians.” He only said he would obey the law. Trump did not state that ordering the execution of innocent family members would be illegal. But as president, he would have expansive authority to decide how the law and the Constitution ought to be interpreted. Compare President Bush’s interpretation of his Article II war powers with President Obama’s interpretation of his discretion to enforce immigration laws. “The really important question,” Professor Somin asks, “is what [Trump] think[s] the law is and how much it constrains presidential power.” The answer is: not much.
One of the strongest rejoinders to the #NeverTrump movement is that a President Hillary Clinton could appoint four Supreme Court justices, and radically alter the High Court for a generation. At a minimum, Trump supporters counter, the presumptive Republican nominee can be trusted to nominate the right kind of justice. Don’t be so sure.
For such a frequent litigant, Trump has a striking ignorance of how courts work. During an interview on ABC’s Good Morning America, he was asked what kind of justice he would appoint to the High Court. “Well, I’d probably appoint people that would look very seriously at [Hillary Clinton’s] e-mail disaster because it’s a criminal activity, and I would appoint people that would look very seriously at that to start off with.” Trump’s muddled answer makes it difficult to understand exactly what he is getting at. However, in no sense should a justice-to-be care, at all, about Secretary Clinton’s e-mail situation. Monumental issues of constitutional law hang in the balance with these appointments.
For such a frequent litigant, Trump has a striking ignorance of how courts work.
Further, it is unclear if Trump even understands what courts do. During a February debate, Senator Cruz criticized Trump for suggesting he would nominate his sister to the Supreme Court, Judge Maryanne Trump Barry, who wrote a decision supporting partial-birth abortion. The real-estate tycoon displayed a stunning ignorance of the judicial function when he said Cruz was “criticizing my sister for signing a certain bill.” Huh? Judges don’t sign bills. They write opinions. Trump continued: “You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill.” Again, Alito did not “sign the bill,” nor did he agree with Judge Trump Barry’s opinion. Alito’s opinion concurring in judgment stated in the very first sentence, “I do not join Judge Barry’s opinion, which was never necessary and is now obsolete.”
Trump doesn’t even seem to understand how justices decide issues of constitutional law. Fox News host Bill O’Reilly asked Trump if he would appoint a justice who would overturn Roe v. Wade. Trump replied, “I will appoint judges that will be pro-life.” He can’t even impose the correct litmus test. (Litmus tests are entirely inappropriate because they would force a justice to recuse himself after prejudging questions of law.) The question is not whether a justice, in his or her personal views is “pro-life.” The question is whether they view the 14th Amendment’s Due Process Clause as including a substantive right to abortion. It is entirely irrelevant what a nominee thinks about abortion. In 2012, Justice Scalia offered an answer that should give Trump some guidance: “The Constitution, in fact, says nothing at all about [abortions]. It is left to democratic choice. Now, regardless of what my views as a Catholic are, the Constitution says nothing about it.” It is not enough for Trump to promise to appoint justices in the mold of Scalia or Thomas — he must understand what that actually means.
During the primary process, Trump has shown signs that perhaps he will seek some outside advice for his Supreme Court nominations. In an interview with the Washington Post, Trump said “I’m getting names. The Federalist people. Some very good people. The Heritage Foundation.” (Trump was referring to the Federalist Society for Law & Public Policy.) During a debate in February — hours after Justice Scalia passed away — Trump announced that he would nominate someone like Diane Sykes of the Seventh Circuit Court of Appeals or Bill Pryor of the Eleventh Circuit Court of Appeals. (These are both judges whom I deeply respect, and think would make excellent Supreme Court justices.) Two months later, he promised to “announce [who] these judges” are that he would consider. “I’m going to guarantee it. I’m going to tell people,” Trump said. “Because people are worried that, oh, maybe he’ll put the wrong judge in.” With the nomination now secured, the clock is already ticking for him to fulfill his promise and announce this list.
I have no doubt that my colleagues at the Federalist Society and Heritage Foundation will make excellent recommendations to a Trump administration, including individuals like Judges Sykes and Pryor. However, I harbor serious doubts whether Trump will follow through. For example, within days of locking up the Republican nomination, Trump announced that his positions on income-tax rates for the wealthy, business taxes, and the minimum wage were evolving. On Meet the Press, he explained that whatever proposal he puts in his plan now “really is a floor,” but then he will “negotiate with senators and congressmen.” His campaign plans are only “where we’re starting.” If Trump can so easily buck conservative orthodoxy by floating raising taxes and increasing the minimum wage, why wouldn’t he do the same for the courts?
No matter what advisers say, the president does what he wants for Supreme Court nominations.
Moreover, experience has taught us that, ultimately, it is the president’s decision who to nominate. President Ronald Reagan was burned after the failed nominations of Robert Bork and Douglas Ginsburg, so he fell back on the “Sacramento Republican,” Anthony Kennedy. President George H. W. Bush didn’t want to wage a massive confirmation battle, so he nominated “stealth” candidate David Souter to replace Justice Brennan. For President George W. Bush’s second selection, against all conventional wisdom and advice from outside groups, Bush selected his White House counsel Harriet Miers. Fortunately, after a massive backlash from the sorts of people Bush should have listened to in the first place, Miers withdrew, and Judge Alito was appointed in her stead. (Perhaps Bush liked the fact that Alito signed Judge Trump Barry’s bill.)
Simply stated, no matter what advisers say, the president does what he wants for Supreme Court nominations. But the risk is much higher for a Trump presidency. A candidate who views the law as a means to an end, and has no grounding of constitutional limits, will be an absolute disaster when it comes time to picking a nominee. One can even imagine Trump striking a deal with Senate Democrats: swap a liberal Supreme Court justice for building a border wall. What a terrific deal! (In any event, the construction of the wall will be held up for years with waves of challenges based on environmental-impact statements and eminent-domain proceedings.) Or maybe Trump will appoint one his cronies to the Court, like Lyndon Johnson did with Abe Fortas.
More troublingly, to the extent that President Trump continues President Obama’s abuse of executive action, the sort of justice a President Trump will look for is a deferential jurist who will uphold his constitutional violations. For all of Trump’s ridicule of Chief Justice Roberts for upholding Obamacare, the unpresidential nominee would likely want to appoint a justice to uphold his agenda, and look away from all manners of his demagoguery. President George W. Bush was committed to “judicial minimalism,” and appointed a justice who would defer to government, and be supportive of his war on terror: John Roberts. In the last sentence of NFIB v. Sebelius, which rewrote the Affordable Care Act’s insurance mandate as a tax, Chief Justice Roberts explained that “the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” We may as well print that slogan on a red baseball cap.
The glue that holds our Republic together is the separation of powers — something the presumptive Republican nominee seems utterly unconcerned with. Perhaps I can illustrate the separation of powers with an image even Mr. Trump will understand: a wall. The separation of powers exist between the three branches to block one faction from abusing and exploiting the other. In the timeless words of James Madison in Federalist No. 10, “ambition must be made to counteract ambition. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
After eight years of an Obama presidency, there are no longer walls between our branches. Perhaps, there are what Mr. Trump would call small fences, or what Mr. Madison would call “parchment barriers.” The problem with these fences, as Mr. Trump has observed, is that ambitious people will trample over them. In such a regime, our most fundamental freedoms are in jeopardy. However, under Donald Trump’s constitution of one, there would be no wall. There would simply be a Boardwalk Emperor, unconstrained by the rule of law, who will do something terrific. Sad.
Instead of building a Mexican wall, we need to rebuild the Madison Wall, and reassert the defined spheres of the executive, legislative, and judicial powers. It is only a Republic, if we can keep it.
— Josh Blackman teaches constitutional law at the South Texas College of Law in Houston, and is the author of Unraveled: Obamacare, Religious Liberty, & Executive Power, which will be published by Cambridge University Press in September. He previously supported Senator Rand Paul’s and Senator Ted Cruz’s presidential campaigns.