Donald Trump

Teaching Trump

Hopefully the White House can refrain from creating any new constitutional conundrums for a semester.

|The Volokh Conspiracy |

One benefit of teaching in a political science department with colleagues who also teach law-related subjects is that I have the freedom to create some unusual course offerings. In the spring, I taught a class on "Constitutional Difficulties in the Age of Trump." Given student demand, I'm now teaching it again this fall (presumably for the last time).

There are downsides to teaching about Trump. He could blow up my syllabus with a tweetstorm that seems impossible to ignore. The class moves quickly through a lot of disparate material, leaving little time for a deep exploration of any particular area of constitutional law. There are topics of passing interest, that will hopefully be once again relegated to the realm of experts in a few years, if not a few months. There is, of course, the risk that students will be so absorbed in the emotional political and policy disputes surrounding the Trump presidency that they will not be able to think critically about the difficult constitutional issues that also surround this presidency.

Fortunately, students seem able to rise to the challenge. Over the course of the semester, they read both critics and supporters of the administration. They are required to write papers that defend positions that are both consonant with the administration's objectives and that run counter to them. They learn that constitutional issues are generally more complicated than Twitter or cable news would have you believe, and they learn that it is possible to distinguish one's views about a particular constitutional rule from one's views about how a particular politician exercises discretion under that rule.

For undergraduates at least, there is something to be said for simply trying to make them more informed and critically engaged citizens. They are eager to better understand these disputes, and fortunately there are resources to help them achieve that. There is a cornucopia of high-quality, accessible, short commentary on current constitutional controversies from sites ranging from the Volokh Conspiracy to Lawfare to Just Security to Take Care. The class leans heavily on the hundreds of freely available excerpts of primary documents in American constitutionalism, from Supreme Court opinions to Office of Legal Counsel opinions to congressional hearings to state and lower court opinions, that my co-authors and I have generated as a companion to our casebook. Those materials can be found here. It is also a reminder that the "constitutional canon" regarding separation of powers issues includes a lot more than Supreme Court cases.

The Trump presidency might create the need to talk about such unusual constitutional issues as the 25th Amendment, self-pardons, and the First Amendment implications of blocking people on Twitter, but it is also an opportunity to draw students into a more serious engagement with Article II and the separation of powers. Given our polarized politics, divided electorate, and the eagerness of Democratic presidential candidates to issue their own creative executive orders, the basic constitutional challenges of presidential power don't seem likely to be going away anytime soon.

This semester's syllabus (with hyperlinks to most of the readings) can be found here.

NEXT: The mischief and the statute

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  1. “(presumably for the last time)”

    You’re retiring?

  2. I’m personally kind of disappointed with Take Care. The blog’s name comes from the President’s duty to “take care that the law be faithfully executed”, but their stance on immigration issues makes it clear that they’re perfectly willing to complain about him trying to execute the law, if they happen to not like it.

    It would have been a much more interesting blog if they could have stuck to their nominal theme with a bit more principle.

  3. “Constitutional Difficulties in the Age of Trump.” Wondering who was teaching this course in the “Age of Obama”?

    1. Good point: I can’t off hand think of a President in my lifetime when such a course wouldn’t have been appropriate.

      1. I think Trump is way more interesting in this way. The ages-old due process problem persists across administrations, but the sheer weirdness of self-pardons and terrible pardons in the middle of the first term, the ludicrous 25A pieces by opponents, and the weird way he tries to coerce cities to do his bidding all mark him apart from previous presidents.

        The interesting thing, and something I hope the class expands on, is that other presidents issue terrible pardons, just at another time in office, and they did coerce cities to do their bidding, but through reward and not punishment.

        1. The weirdness of self-pardons is a hypothetical at this point, though, along with his refusing to leave office when his term is up.

          Pardons in the middle of his term, rather than waiting on them until his last day in office, is kind of refreshing. Shows he actually thinks the pardons are justified and defensible.

          And I actually think the distinction between reward and punishment, where the reward is financed by a general tax, is somewhat artificial; Taking $10 from everybody and giving $8 back to your friends isn’t materially different from taking $2 from your friends and $10 from your enemies.

          1. Good or not, it is weird. Hypotheticals are, by definition, of interest. Why not have a class about the current weirdness? It’s a poli-sci class: they need the entertainment in order to maybe learn something.

            It is artificial, and that’s precisely why it’s interesting. Presidents from FDR all the way to now have been using awards, grants, and subsidies to curry political support without much consternation and saw it as preferable to punishing entire communities, but now Trump has decided to do both.

            I’m sure other classes address unconstitutional actions by previous presidents, but the problem is that they all tend to blend together. Due process violations under Obama aren’t much different from those under Bush and are almost certainly discussed in some class that focuses on the War on Terror or post-9/11 politics. Journalist suppression and government transparency have been issues since before the Cold War. Trump is at least bringing new stuff to the table.

            1. “Presidents from FDR all the way to now have been”

              That “from FDR” should be the first clue that it’s a constitutional circumvention…

                1. Well, if you don’t mind constitutional circumventions, there’s no “and”. A lot of people find circumventing constitutional limits objectionable.

                  1. Could you find the place where I said FDR did the right thing or where I said it was Constitutional?

        2. I’d argue the plethora of nationwide injunctions by district court judges is one of the more bizarre things. Not sure how one even has the authority to make a different district abide by their ruling.

          1. I’m not sure what exactly you’re thinking about, but district court judges are federal judges, so in the travel ban case, if they decide enforcement probably breaks federal law then that’s why they can issue an injunction. Since the feds are one of the parties in the case, they can tell them to refrain from doing the same stuff until the issue is resolved, like temporary restraining orders and gag orders. The feds aren’t just the feds in one district so why would they only be stopped in one district?

            Their rulings aren’t limited to their district, just what cases they hear.

            1. What he’s thinking about is that national injunctions by district court judges were practically unheard of until a few years ago, and have positively exploded since Trump took office.

              1. “Not sure how one even has the authority to make a different district abide by their ruling” does not equate to “national injunctions by district court judges were practically unheard of until a few years ago, and have positively exploded since Trump took office.”

                He was confused on how they could do it but you’re trying to make it sound like he wants to know why they’re doing it.

            2. We have 600 or so district judges. If each and every one can override either the president or congress or both without a full trial, we have rule by judges.

              We already have cases where Judge 1 says one thing and Judge 2 says the opposite. Why should the judge who issues the injunction have more power than the one who declines to issue?

              A district judge is not the peer of the president. The Courts as a whole might be but not a single judge.

              Only the Supreme Court should be able to nationally enjoin the president.

              1. They can’t override the president or congress, they’re only issuing injunctions. The injunction gets the weight of it because the courts are invested in preserving the status quo until the issue is resolved. It’s part of why injunctions even exist at all.

                I don’t recall you complaining when Obama’s overtime pay mandate was hit with an injunction.

                1. I know what an injunction is. Its still a substitute of the court’s judgment for the president’s even if its temporary.

                  There have been at least 37 nationwide injunctions against Trump in less than 3 years, 20 in Obama’s 8 years and only 27 in the 20th century.

                  So a inconvenience is becoming a crisis.

                  Now its Hawaii and the 9th circuit. It will be Louisiana and the 5th circuit against President Biden.

                  1. “It will be Louisiana and the 5th circuit against President Biden.”

                    Cool, that’s fine with me. I’m surprised you’re so worried about President Biden’s policies not being enforced though.

                    The federal government should be constrained to acting legally, even if they have to demonstrate prior to doing something that upsets the status quo that it is legal. It’s up to the Supreme Court to decide how wide-ranging injunctions can be and how easily they can be issued.

                    In any case, I don’t care about whether the injunctions are justified or not. The dude wanted to know why they have power and I explained it. What you’re doing now is saying what the law should be, which is absolutely fine, but it isn’t what the law actually is.

                  2. ” Its still a substitute of the court’s judgment for the president’s even if its temporary.”

                    The courts and the President (and the executive agencies) operate on different time-frames. The President is operating in the immediate, and the courts operate on the broad long-term. That’s why they have different term limits.

          2. ” Not sure how one even has the authority to make a different district abide by their ruling.”

            If you tell the secretary of the Interior that he doesn’t have the authority to do something, and enjoin from doing it, his authority to do it anyway doesn’t magically appear just across the state line.

            1. But if a judge in one district says he has the authority to do it, and a judge in another district says he doesn’t, it isn’t clear why the latter judge automatically wins. One problem with national injunctions is that they can conflict with other circuits’ rulings.

              Potentially you could even have one circuit enjoin some action, and the other order it.

              1. “it isn’t clear why the latter judge automatically wins. ”

                Because you’re making up this detail, maybe?

                1. Two equal federal courts are presented with and rule on essentially the same petition on the same day.

                  Federal Judge A: “Petition for injunctive relief is hereby denied.”

                  Federal Judge B: “Petition for injunctive relief is hereby granted.”

                  What happens?

                  1. “What happens?”

                    There’s this thing called an “appeals court”.

      2. Such a course would not be appropriate during a Democratic administration for the purpose of virtue-signalling to one’s professorial colleagues, which his blog posts indicate to be Prof. Whittington’s primary goal. (Of course, to be fair, most people’s primary purpose in life is to gain respect in the eyes of their peers; the misfortune of the Conspirators is that they chose a rather scummy set of people as their professional peers, which has a corrupting influence.)

        1. “the misfortune of the Conspirators is that they chose a rather scummy set of people as their professional peers”

          I do not believe that every Federalist Society member is scummy. To the contrary, many of them are fine people. (Although my perspective may be questioned; I attend plenty of Federalist Society events.)

        2. What’s odd, is Whittington was already a rather famous and well respected academic in the field of Political Science before his started to blog here. More amusingly, his research is very even handed, one can hardly tell much of a bias in it, but here he’s a bit off his rocker.

    2. Deflection powers: Activated!

  4. Are they really Constitutional difficulties or is it that Trump is not a politician nor a lawyer like the majority of recent Presidents. Therefore he goes by the Constitution not the made up rules from the political parties.

    1. Yes, dangling pardons in front of violent supporters absolutely shows how he’s directly tapped in to the spirits of our Founding Fathers. It’s what they would have wanted.

      It’s more like he goes by whatever he wants but doesn’t have the experience previous presidents had in justifying their shitty actions.

      1. What “violent supporters” are you raving about?

      2. Offering pardons to people who work for him seems a reasonable response to the attempt to make working for him legally dangerous through lawfare. As for offering pardons to “violent supporters”, I’m going to need a link to that, I haven’t seen him do it.

        1. I was thinking rather of when he offered to pay costs for violent supporters. Still not very attentive to the spirit of the Constitution.

          1. It wasn’t a general offer, it was an offer if they performed a specific service, stopping anybody from throwing anything at him at his rallies.

            Since it is in fact legal to use violence to stop an assault, and politicians actually hire security guards to do just that, I don’t see how this was supposed to be legally problematic.

            Mind, Trump’s critics deliberately took the offer out of context to make it out to be something different, and maybe you were mislead by that.

          2. In other words, you were just making up nonsense when you claimed he offered pardons to violent supporters.

            How positively trumpian of you. I can see why he bothers you so, I can’t imagine anyone would enjoy having their ugliest face stuffed in front of a mirror.

    2. “Trump is not a politician nor a lawyer like the majority of recent Presidents. Therefore he goes by the Constitution”

      Objection: Assumes facts not in evidence.

      1. Over-ruled. 😛

        1. Over-ruled or not, it assumes facts not in evidence.

        2. Trump is a huge fan of the Constitution.

          Much as he is a huge fan of the Bible (so much that he couldn’t bring himself to identify a verse as a favorite, for fear of slighting the rest of the inerrant word of the Lord God Of The Bible — a position the credulous appear to have swallowed).

          Just ask the two Corinthians.

    3. Yeah, the key to proper Constitutional fidelity is not being an expert…

  5. The fact that you did not think the same course was necessary for Obama presidency tells me everything I need to know. Just wondering what the OP thinks of “I have a pen and a phone”

    1. “The fact that you did not think the same course was necessary for Obama presidency tells me everything I need to know.”

      That you rush to judgment seems to be the takeaway.

      Professors (and instructors) pitch classes they’d like to teach to the administration, which picks the ones that they think they can justify to their accrediting bodies, and which students will actually sign up for.

      The fact that there may or may not have been a similar class during the Obama years tells you close to nothing about the prof, other than the simple fact that this topic is an interest of theirs (and, in some schools, not even that, since the prof might have been scheduled to teach that class because they were the one available during the time period the registrar chose to offer the course.)

  6. Here is another teaching moment for the professor. The attached is a syllabus request that you give to your students and ask them to produce papers for.

    Part 1: Argue in favor of abolishment of the electoral college and move towards a direct popular vote.

    Part 2 (after Part 1 is complete): Critique the majority Obergefell supreme court decision.

    1. Or better yet, critique the minority opinion.

      1. A competent lawyer should be able to critique BOTH opinions, and construct the argument for both sides on the EC controversy.

        1. Indeed, so should pretty much anyone with an education and access to Google to look up terms of art.

  7. Keith- This looks like an interesting premise. Take a topic that students and the media are talking about. Then provide free resources that can be used in the future. Then create an environment where students can have honest discussion and need to consider different perspectives.
    This causes students to think more deeply than social media and other media do.

  8. So Barak Obama can create law ‘because Congress won’t get anything done,” but Donald Trump can’t undo the same laws under the same powers.

    1. The short answer to that is “sometimes, yeah” and the slightly longer answer is “it depends on the circumstances”.

    2. I believe the argument against Trump ending DACA mostly has to do with compliance with the administrative procedures act. The counter argument is that if DACA was an unconstitutional usurpation of power by the previous administration, then no act of Congress can actually require the President to continue violating the Constitution, as he has an independent duty to obey it.

  9. “I believe the argument against Trump ending DACA mostly has to do with compliance with the administrative procedures act.”

    And promissory estoppel.

    1. Estoppel against the government in its law enforcement capacity?!

          1. Arguments don’t need precedents.

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