The Volokh Conspiracy
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Free Press Symposium on "Is Donald Trump Breaking the Law?"
The degree of agreement among participants with major ideological diferences is striking.
Today, the Free Press published a symposium on "Is Donald Trump Breaking the Law?"
Participants include (in addition to myself), several prominent constitutional law scholars and legal commentators : Jonathan Adler (Case Western/Volokh Conspiracy co-blogger), Aziz Huq (University of Chicago), Larry Lessig (Harvard), Andrew McCarthy (National Review), Michael McConnell (Stanford), Ed Whelan (Ethics and Public Policy Center), and yours truly.
The editors of FP summarize the contributions, as follows:
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.
Speaking for myself alone, I think I have never before been part of an ideologically diverse symposium on a contentious topic where I agreed with over 90% of what the other participants said. But I do here, despite major ideological differences with all the others (except, probably, Adler). If I have a disagreement, it may be with Larry Lessig's argument that the best analogy to Trump's behavior is that of Mafia bosses. I think that comparison is a bit unfair to the Mafiosi, and the better analogy is to various nationalist authoritarians and wannabe authoritarians. But I do agree that what Lessig says is illegal is in fact so.
It's perhaps notable that two of the contributors (Huq and Lessig) are far to the left of me, and two others (McCarthy and Whelan) are far to the right. McConnell is also substantially more conservative than I am, but probably to a lesser degree than McCarthy and Whelan.
Skeptics can argue that FP cherry-picked the participants. But it's worth noting that Free Press is generally viewed as a right-leaning "anti-woke" publication. They've even been criticized for being excessively friendly to the MAGA movement and overly tolerant of its excesses.
Here's an excerpt from my own contribution:
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….
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….
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….
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….
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….
