The Free Press
The first 90 days of President Trump’s second term have been marked by a series of aggressive legal maneuvers. Among them: shaking down law firms the president regards as “anti-Trump”; threatening to revoke tax-exempt status from Harvard; the deportation of Kilmar Abrego Garcia to El Salvador and green-card holders on campus; and more.
Regarding the deportation of alleged Venezuelan gang members, the Supreme Court on Saturday ordered a hold on the administration’s plans, writing: “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.”
Many critics argue that the administration’s actions stretch the limits of executive power. Others argue that they are outright unconstitutional.
The Trump White House and its defenders say that this is hysterical—and that the president is only using the powers of the presidency arrogated since the Obama administration. In the case of deporting illegal immigrants, to choose one example, they say he is doing nothing less than restoring the rule of law that the Biden administration flouted.
We decided to ask seven of the sharpest legal minds in the country from across the political spectrum—including a Bush White House lawyer, a progressive constitutional scholar, and a former federal judge—one simple question: Is the Trump administration acting lawlessly?
What should we make of Trump’s legal strategy—if there indeed is a clear strategy? What stands out about this moment? Is this the usual clash between the courts and the executive branch? Or are we heading into uncharted waters?
The consensus is striking—and perhaps surprising, given the ideological diversity of these contributors. All agreed that the president’s legal tactics reflect a dangerous willingness to ignore statutory and constitutional constraints—and that he must be reined in quickly.
Here’s what they said:
It’s Not Too Late for This Administration to Get a Grip
By Michael W. McConnell
The Trump White House is sabotaging itself with its unbridled hostility toward the courts. The Supreme Court has been doing its best to defuse the looming clash with the administration—a confrontation that would wreak certain damage both to the presidency and to the courts, and thus to our constitutional republic. The Court has reined in some of the more questionable district court interventions against the administration, insisting (as it should) on compliance with rules of jurisdiction, standing, and remedial authority, while upholding basic principles of due process.
The best examples are the deportation cases, where the Court reversed one lower court that halted mass deportations for acting without jurisdiction, but in the same order forbade the executive from whisking potential deportees off to foreign lands before they have time to file suit in the proper court and obtain due process. In another, it moderated a district court order to “effectuate” the return of an erroneously deported alien, Kilmar Abrego Garcia, while upholding the order to “facilitate” his return and to “share what it can” with the court about the steps it is taking to bring him back.
Rather than welcoming these partial victories, the Trump administration responded by refusing to do anything to bring back Garcia, insulting individual judges and threatening impeachment, and even floating the bizarre notion of imprisoning American citizens, along with aliens, in foreign jails. These reactions will almost certainly produce the opposite result from what the administration hopes for. Life-tenured judges are not easy to bully.
As a parallel branch, the government has advantages in court that no other party receives. Courts tend to defer to the government’s judgment in close cases, and to accept the government’s version of the facts when events are murky. The Trump administration could forfeit these advantages if its statements in court are seen to be evasive or misleading, if it acts carelessly, without a sound factual basis, and it fails to treat the courts with due respect. This kind of behavior is unprofessional and self-defeating.
It is not too late for the administration to get a grip. Already, President Trump has backed down on some of his tariffs. Surely his lawyers are advising a less belligerent strategy for working with the courts. As the ancient Greeks knew well, hubris leads to nemesis, and nothing is so likely to cause a reversal of political fortune as overreach.
Michael W. McConnell is the Richard and Frances Mallery Professor and the Director of the Constitutional Law Center at Stanford Law School. From 2002 to 2009, he served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit.
President Trump: Mafia Boss
By Lawrence Lessig
We need to recognize—and name—the form of government we are living in right now. Its closest analogue is the Mafia. President Trump is using extortion to achieve his objectives. Too many are yielding to his extortion because they believe that to be the less costly alternative. For some it is; for the world, it is not. The only way to respond to a Capo-in-Chief is through full-on resistance, regardless of the cost, for however long it takes.
I mean the word extortion precisely. In context after context, Trump is threatening illegal action as a way to induce a deal. He has threatened to impose huge penalties on universities—without due process of law—as a way to induce them to accept his demands. He has threatened to destroy law firms whose lawyers have opposed him in the past—without due process of law—as a way to build free legal resources to advance his ends. And though some believe the law technically gives the president the power to declare an “emergency” when there clearly is none, so as to trigger the power to impose crippling tariffs on friends and opponents alike, I do not believe the law, properly interpreted, gives him that power. So here, too, he deploys illegal action to bully nations and corporations to do what he wants.
Never has a president behaved like this. It’s not even close. Sure, during actual wars, presidents have walked up to the line of executive authority. Maybe FDR and Lincoln crossed those lines. Legal historians are on both sides of those debates. But this president threatens with power he knows he does not have, even if he believes he will get away with threatening it. And in the face of this threat, the truly tragic reality is that the key institution designed to resist this threat—Congress—is incapable of mustering any resistance. The courts will do what they can, but courts were never built to address this kind of threat.
Trump knows that. Or the architects of Trump’s chaos know that. Which is why, on so many fronts, extortion is working.
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School.
I Support Trump’s Policy Goals, but Oppose Turning Law Into Politics
By Ed Whelan
Evidently for Donald Trump, law is nothing but politics. So it’s not surprising that he would apply his tactics for political battles in the legal realm: Always be on the attack. Never admit error. Stoke grievances. Proclaim false victories. Posit conspiracies. Condemn betrayal. Decry tyranny. Own the libs. Redefine reality. Sow chaos. Improvise on the run. And so on.
A primary means by which Trump has implemented this political vision is to make the Department of Justice an extended arm of the White House. The attorney general has always been accountable to the president, but DOJ has long enjoyed considerable day-to-day operational autonomy. That separation has been driven by the concern to avoid both the appearance and the reality that the White House’s political interests are distorting the administration of justice.
The Trump White House has no such concern. On the contrary, it wants it known that DOJ is pursuing the White House’s political interests. So the de facto attorney general—to whom nominal attorney general Pam Bondi and other top DOJ officials answer—appears to be White House deputy chief of staff Stephen Miller, a non-lawyer whose sharp political skills include an inclination to utter brazen falsehoods.
The White House has also marginalized DOJ’s Office of Legal Counsel. That office has long had the responsibility to review a president’s proposed executive orders and proclamations to ensure that they are lawful. The Office of Legal Counsel has a strong institutional bias in favor of executive power, but its unwillingness to rubber-stamp Trump’s decrees has rendered it unwelcome. The unsurprising result is that many of Trump’s executive orders and proclamations have serious legal vulnerabilities.
As someone who supports many of Trump’s policy goals, I fear that the administration has no coherent legal strategy. Its temperamental disposition to see law as politics will not help it win legal battles. And its growing but wildly overblown perception of the judiciary as its enemy portends a stark conflict that will leave us all worse off.
Ed Whelan is a distinguished senior fellow at the Ethics and Public Policy Center. A former law clerk to Supreme Court justice Antonin Scalia, he served as principal deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel from 2001 to 2004.
Open, Repeated, and Shameless Violations of the First Amendment
By Aziz Huq
The heartland principle of First Amendment law is an unwavering prohibition on discrimination between viewpoints. Of course, the government can speak and can adopt a perspective—say, smoking kills or fracking is wonderful—but it cannot issue a ban on one side of an argument, or use its funding powers to indirectly achieve the same end.
What is so startling about the Trump administration is the fact that it has openly, repeatedly, and unashamedly engaged in what is plainly unconstitutional viewpoint discrimination. With brutal frankness, it has targeted universities, law firms and lawyers, not-for-profits, and media outlets based on their viewpoints. Often, its aim is plainly to scare or overwhelm a speaker, such that they quail rather than querulously litigate.
It has done this, moreover, while ostentatiously declaring its fealty and espousal of First Amendment values. In this arena, Marco Rubio deserves a prize for dizzying incoherence and dishonesty. As Jacob Sullum noted in Reason, Rubio has painted himself a champion of free speech, making much of his shuttering of the State Department’s anti-misinformation efforts, all while locking up students and green-card holders on the basis of what is plainly First Amendment–protected speech.
The interesting question is not whether the Trump administration honors the First Amendment (it doesn’t). Rather, the question is how those of us loyal to the Constitution, so long as it stands, ought to respond. Here, I believe, there is no substitute for the hard slog of raising one’s voice above the parapet; insisting at every turn on speech rights; and, wherever possible, using the shield of judicial review to our advantage.
Trump’s assault on the Constitution will not abate anytime soon. And it will be those with the greatest stamina—and the firmest convictions—that will prevail.
Aziz Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School.
We Need Pushback Against Progressive Excess. But Not at the Cost of Our Principles.
By Jonathan Adler
No one thought that Donald Trump was particularly concerned with constitutional niceties. But some are still shocked at the aggressiveness with which the second Trump administration has challenged the rule of law, asserting authority denied by the Constitution, disregarding legal constraints enacted by Congress, and thumbing its nose at judicial orders—and doing so with the active cooperation of so many lawyers in the administration who have taken oaths to uphold the law and Constitution.
The administration’s declaration of unilateral authority to define the contours of American citizenship and deport individuals without affording them the barest degree of due process is a betrayal of constitutional values. Its insistence that the president can simply decree changes in federal law and disregard legislatively enacted constraints on agency authority are assaults on the rule of law. Attempting to force states to align with administration priorities distorts the constitutional structure. The whole point of federalism is that California gets to be California and Texas gets to be Texas. That prior administrations abandoned such principles is not an excuse for more of the same.
Even where the Trump administration pursues laudable goals, such as reducing the burden of federal regulation or pushing back against the ideological monoculture of elite institutions, it acts with reckless disregard for relevant legal rules and norms governing the exercise of government power. (The Obama-Biden definition of showerhead, for example, may well be bureaucratic overreach, but agencies do not get to rescind regulations without following the Administrative Procedure Act just because the president says so.)
Some universities may well deserve to lose federal funding, but there are legal processes governing the revocation of grants. The executive branch lacks the authority to impose conditions on the receipt of federal funds just because the president or his underlings are justifiably upset with what American higher education has become.
As much as America needs a presidential administration willing to push back against the progressive excesses of the twenty-first century, it needs one capable of pursuing such ends without adopting the illiberal means and methods of its predecessors. Indeed, abandoning such principles, and inviting inevitable defeat in court, will compromise the goals the administration seeks to achieve.
Jonathan Adler is the Johan Verheij Memorial Professor of Law at the Case Western Reserve University School of Law.
Major Steps Toward Authoritarianism
By Ilya Somin
The second Trump administration is trying to undermine the Constitution on so many fronts that it’s hard to keep track. But three are particularly dangerous: the usurpation of Congress’s spending power; unconstitutional measures against immigration justified by bogus claims that the U.S. is under “invasion”; and assertions of virtually limitless presidential power to impose tariffs.
Since taking office, Trump has claimed the power to “impound” federal funds expended by Congress, and to impose conditions on federal grants to state governments and private entities that Congress never authorized. The Constitution gives the power of the purse to Congress, not the president. Especially when it comes to grants imposed on state governments, Supreme Court precedent also indicates that any attached conditions must be clearly indicated by Congress.
Yet Trump has repeatedly sought to impose grant conditions on issues ranging from transgender rights to even tying transportation grants to jurisdictions’ marriage and birth rates. He has also sought to use federal grants to control the hiring practices and curricula of universities and public schools. The goal here is not to save money (federal spending is actually up compared to last year), but to use illegal grant conditions to force state governments and private institutions to bend to one man’s will, across numerous issues.
On immigration, Trump has issued an executive order claiming illegal migration amounts to an “invasion,” thereby authorizing him to suspend most legal migration. The order is at odds with overwhelming evidence indicating that, under the Constitution, “invasion” means an “operation of war” (as James Madison put it), not mere illegal border crossing or drug smuggling. The invasion order threatens not only immigrants, but U.S. citizens. Under the Constitution, in the event of “invasion,” the government can suspend the writ of habeas corpus, and detain people without due process.
Similar bogus invocations of “invasion” have been cited by Trump to justify invoking the Alien Enemies Act of 1798—legislation that can only be used in the event of war, “invasion,” or “predatory incursion”—to deport Venezuelan migrants without due process to imprisonment in El Salvador. Trump has also deported non-Venezuelan migrants without due process, imprisoning some of them in El Salvador, too. The administration has so far refused to return illegally deported and imprisoned Salvadoran Kilmar Abrego Garcia, despite court orders requiring it to do so.
The administration’s claims that courts are powerless to order the return of illegally deported and imprisoned people menace not only immigrants, but American citizens. Under Trump’s logic, they, too, could be deported and imprisoned abroad, and courts could not order their return.
Finally, Trump has usurped congressional authority over international commerce to impose his massive “Liberation Day” tariffs, thereby starting the biggest trade war since the Great Depression, and gravely damaging the U.S. economy. He cites a 1977 law that doesn’t even mention tariffs, and in any event can be invoked only in the event of an “emergency” and an “extraordinary and unusual threat,” neither of which exists in this case (the Liberty Justice Center and I have filed a suit challenging this illegal action).
In sum, Trump has tried to impose unconstitutional, unaccountable, one-man rule over the federal budget, immigration policy, and foreign trade—thereby seriously threatening civil liberties, the autonomy of states and private institutions, the U.S. economy, and more. If not stopped, he will have taken major steps toward authoritarianism.
Ilya Somin is a law professor at George Mason University, and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute.
The Real Question: Why Is This Administration Acting Lawlessly?
By Andy McCarthy
President Trump’s solicitor general has conceded to the Supreme Court that the administration lawlessly deported Kilmar Abrego Garcia to El Salvador, the one country to which his removal was prohibited by law. Having blithely admitted illegal conduct, the administration—of a president who vows to bring the Beijing behemoth to heel with tariffs (unilaterally imposed based on a fictitious national emergency)—risibly says it is powerless to act because mighty San Salvador (a supplicant the administration paid all of $6 million to detain 300 deportees) now has custody.
To describe what President Trump has done in just this one case, one can’t do better than to cite Judge J. Harvie Wilkinson, a Reagan appointee deservedly renowned, especially among originalists, writing for the Fourth Circuit Thursday:
The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The real question now is why the administration is acting lawlessly. And not just in the matter of hundreds of deportations without due process.
The president began his term by flouting Congress’s TikTok divestment law. His executive orders against law firms and other political foes are unconstitutional bills of attainder, stunning in their audacity. Executive power has been turned on the universities, and however in need of reform they are (profoundly in need, to my mind), extortion is not the American way.
Is there a strategy? The somehow less disturbing possibility is that, having been the victim of ruinous lawfare—the leveraging of the government’s law enforcement and intelligence apparatus against a political enemy—Trump is merely exacting retribution, as promised during the campaign.
More perilous: Having cowed the conservative, constitutionalist elements of the Republican Party and thus nullified Congress’s formidable arsenal to check executive misconduct, the president seeks to eviscerate any remaining constraints on his power by illustrating that the courts and American institutions are impotent, too.
Andy McCarthy is a lawyer, a columnist for National Review, and a former Assistant United States Attorney for the Southern District of New York.
For more legal coverage of the Trump administration, read Free Press columnist Jed Rubenfeld’s latest piece here:
