The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Trump's fake emergencies are the real crisis
My co-authored Washington Post op-ed today: "His vague national security claims chill speech and action far beyond his individual targets."
I have an op-ed out in the Washington Post today: "Trump's fake emergencies are the real crisis," co-authored with Serena Mayeri (Penn Law) and Amanda Shanor (Wharton). Here's an excerpt:
The Trump administration has doubled down on its refusal to remedy its mistaken deportation of Kilmar Armando Abrego García, a Maryland father, to a notorious prison in El Salvador — despite a federal court order to facilitate his return. This case is one of many recent presidential actions that cloak flagrant violations of core constitutional rights in spurious claims of emergency power.
Alleging an "invasion" or "predatory incursion" of terrorists and foreign criminals, President Donald Trump is removing and imprisoning noncitizens without due process, asserting he is authorized to do so by the Alien Enemies Act. The administration invokes "foreign policy" to seize and detain students, including legal permanent residents, conflating political speech and peaceful protest with "terrorism." Citing "national security," the president has sought to revoke security clearances, order investigations into, and otherwise threaten and punish lawyers, law firms and former government officials who have opposed Trump in court or publicly criticized him.
In each instance, Trump asserts that the courts cannot stop him because, he says, these "emergencies" give him exclusive presidential power under Article II of the Constitution. But his true motive appears to be liberating the executive from all accountability to constitutional law.
The three of us have divergent views on many legal and political questions, but we all agree that the unchecked executive power the president claims poses an existential threat to liberty and constitutional democracy. . . .
As they say, Read the Whole Thing.
