President Donald Trump has never bothered to hide his contempt for the Constitution. By my count, he has openly trashed the principles and safeguards contained in the First Amendment, Second Amendment, Fifth Amendment, and 14th Amendment, plus the doctrine of enumerated powers and the constitutional separation of powers. To that sorry list we may now add Trump's attacks on the Electors Clause and on the peaceful transfer of constitutional power after a presidential election.
Let's walk through it, starting with the First Amendment.
As a presidential candidate in 2015, Trump argued that the federal government had "absolutely no choice" but to close down mosques in the name of fighting terrorism. The First Amendment, of course, protects religious liberty and stands against such assaults on houses of worship.
The federal government must enact "a total and complete shutdown of Muslims entering the United States," Trump argued that same year. His own running mate, Mike Pence, described that idea as "offensive and unconstitutional." Trump's reply? The Constitution "doesn't necessarily give us the right to commit suicide as a country, OK?"
The notion that "the Constitution is not a suicide pact" has always been the last refuge of those who are scheming to violate the document. Mr. President, you can't declare war unilaterally! Well, you know, the Constitution is not a suicide pact. Mr. President, you can't ban private gun ownership! Aw, come on, we all know the Constitution is not a suicide pact.
Speaking of the Second Amendment, Trump enjoys the rare distinction of having been benchslapped twice by his own judicial appointees over his administration's cavalier attempts to expand federal gun control. After 2017's mass shooting in Las Vegas, Trump vowed to ban bump stocks, a type of firearm accessory that the shooter reportedly used. "We can do that with an executive order," Trump asserted. "They're working on it right now, the lawyers."
What the lawyers at the Department of Justice concocted for Trump was a new Bureau of Alcohol, Tobacco, Firearms and Explosives regulation "to clarify that [bump stocks] are 'machineguns' as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968." In other words, at Trump's behest, the federal government would reinterpret the federal ban on machine guns to ban bump stocks too.
Not so fast, said Justice Neil Gorsuch. The executive branch "used to tell everyone that bump stocks don't qualify as 'machineguns.' Now it says the opposite," Gorsuch wrote in a statement respecting the denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives (2020). Yet "the law hasn't changed, only an agency's interpretation of it," the justice complained. "How, in all of this, can ordinary citizens be expected to keep up….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?"
A few weeks later, Judge Brantley Starr, a Trump appointee who sits on the U.S. District Court for the Northern District of Texas, accused the federal government of abandoning basic constitutional principles in its defense of Trump's bump stock ban. The administration claims that the ban is a lawful exercise of the "federal police power," Starr wrote in Lane v. United States. But "the federal government forgot the Tenth Amendment and the structure of the Constitution itself," which grants no such power to the feds.
The Fifth Amendment has fared little better in Trump's hands. Among other things, that provision says that if the government wants to take private property, it may do so only for a legitimate "public purpose." Trump, by contrast, has tried to personally profit from eminent domain abuse. In 1994, Trump joined forces with New Jersey's Casino Reinvestment Development Authority in an effort to kick an elderly widow named Vera Coking out of her Atlantic City home in order to clear space for a new limousine parking lot for the nearby Trump Plaza hotel and casino.
That attempted land grab lost decisively in court. "What has occurred here is analogous to giving Trump a blank check with respect to future development on the property for casino hotel purposes," declared the Superior Court of New Jersey in a sharp ruling against Trump and his government partners. Coking kept her home.
The 14th Amendment is best known for placing a host of fundamental rights beyond the reach of infringing state and local officials. It also placed birthright citizenship squarely in the constitutional firmament. As I've previously detailed, "the text and history of the 14th Amendment are clear: If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth."
Trump's views on birthright citizenship amount to an unconstitutional twofer. First, he has insisted that the text of the 14th Amendment does not mean what it says (Trump's own judicial appointees disagree with him about that). Second, Trump has argued that the president has the unilateral power to abolish birthright citizenship with the stroke of a pen. So much for the doctrine of limited and enumerated executive power.
Which brings us to Trump's behavior during the past two months. Rather than acknowledge the fact that Joe Biden won the presidential election in November, Trump has loudly championed one lawsuit after another in the always-doomed hope that he might somehow remain in the White House.
To put it mildly, the post-election lawsuits promulgated by Trump and his allies were practically laughed out of court. And it was not just "liberal" judges who were doing the laughing. "The Campaign's claims have no merit," ruled Judge Stephanos Bibas of the U.S. Court of Appeals for the 3rd Circuit in Trump for President v. Pennsylvania. "Calling an election unfair does not make it so," Bibas wrote. "Charges require specific allegations and then proof. We have neither here." Trump was the one who appointed Bibas to the 3rd Circuit in 2017.
"We will be INTERVENING in the Texas…case," Trump tweeted on December 9. "This is the big one." Texas v. Pennsylvania was a big one all right, possibly the biggest joke of them all. Bypassing the lower courts, Texas Attorney General Ken Paxton went straight to the Supreme Court, asking the justices to directly intervene in the presidential election by tossing out the results in four key states—Pennsylvania, Georgia, Michigan, Wisconsin—that went for Biden. It should probably go without saying, but no state had ever succeeded in a stunt even remotely like overturning the results of a presidential election by going straight to SCOTUS to challenge the results in another state.
"The big one" soon suffered the unceremonious legal death that it deserved. "The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution," the Supreme Court declared in a terse order. "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot."
His judicial humiliation now complete, Trump turned to one last-ditch crackpot constitutional theory. Namely, he argued that Vice President Mike Pence had the unilateral authority to overturn the election by rejecting pro-Biden electoral votes. "If Mike Pence does the right thing," Trump said. "We win the election."
Pence did do the right thing. "It is my considered judgment," the vice president said, "that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not."
Unfortunately, Trump's undermining of the Constitution did not end there. On Wednesday, a mob of his supporters, who had just listened to Trump peddle yet more conspiracy theories and baseless allegations about a "stolen" election, stormed the U.S. Capitol, leaving five dead.
Trump will soon be out of office. He deserves to be remembered for what his words and actions have repeatedly shown him to be: no friend to the Constitution.