Tag: constitution
President Trump

How Trump Is Waging An Illegal War On Blue America

Donald Trump is using the powers of the presidency — augmented with powers that the Constitution doesn’t give him — to make war on blue states and their officials.

There have been critical historical periods when presidents used federal law to enforce constitutional rights against recalcitrant state officials. But never since the Civil War, if then, have we seen a president undertake a methodical program of harassment and domination of states controlled by his political opponents.

Begin with the ongoing crisis in Los Angeles. The fundamental point is that the crisis is entirely of Trump’s making. There is no tenable argument that federalizing the National Guard is necessary to quell unrest, which has already subsided and never approached the levels that justified prior federal interventions.

On the contrary, California and its governor have been adamant that Trump’s power play is unwelcome, and that the state’s law enforcement resources are fully capable of handling any disturbance. They took the unusual step of suing the Trump administration, and an opinion by Judge Chuck Breyer upheld their claim. (It is currently administratively stayed in the Ninth Circuit, which heard argument earlier this week. Breyer, for his part, is going ahead with a preliminary injunction hearing tomorrow.)

But the point here is less about Trump’s potential authority to charge into LA than his zeal to do so over the state’s objections. As usual, the dispute features Trump’s lies to justify his excessive response — grossly exaggerating the degree to which LA is under siege.

Importantly, Trump’s order purporting to authorize his intervention isn’t limited to Los Angeles; it could apply anywhere.

Indeed, earlier this week he issued a Truth Social message proclaiming that "we must expand efforts to detain and deport aliens in America's largest Los Angeles, Chicago, and New York, where Millions upon Millions of Illegal Aliens reside."

Why those cities? According to Trump: “These, and other such Cities, are the core of the Democrat Power Center, where they use Illegal Aliens to expand their Voter Base, cheat in Elections, and grow the Welfare State, robbing good paying Jobs and Benefits from Hardworking American Citizens.”

It’s a breathtaking statement from an American president. The various accusations against Democrats are patently false. But even setting that aside, exploiting a supposed national crisis to demonize political opponents is antithetical to a president’s role in moments of national crisis.

Nor is it an isolated example. This week saw horrific murders and attempted murders by a Trump partisan in Minnesota — exactly the kind of violence long feared as a product of Trump’s incendiary rhetoric.

What do we expect from a president in such circumstances? Consider President George W. Bush after the 2007 Virginia Tech shooting, saying the tragedy “is felt in every American classroom and every American community.” Or President Barack Obama, who called then-Republican Governor of Arizona Jan Brewer to offer federal resources after the shooting of Gabby Giffords. They and other presidents acted swiftly to reassure and unify the nation and reaffirm broad democratic values.

Trump’s reaction was to refuse even to call Minnesota Governor Tim Walz. Instead, he vilified Walz as a “terrible governor” and a “grossly incompetent person,” saying any call would be a waste of time.

It fell to Walz and the entire bipartisan Minnesota congressional delegation — four Democrats and four Republicans — to strike the proper note of unity and honor for the victims, making Trump look like a horse’s ass by contrast.

Yet, the feds found another way to exploit Minnesota, one that’s gone largely unnoticed.

The Department of Justice has a longstanding policy — the Petite Policy — that imposes a strong presumption that the state of Minnesota should prosecute defendants like Vance Boelter first. The feds step in only if the state prosecution leaves federal interests “demonstrably unvindicated.” That principle is especially strong here, given that the victims include Minnesota state officials.

Instead, it appears the federal government is maneuvering to leapfrog the state and grab the first trial of Boelter. He was scheduled to appear on state charges, but federal marshals seized him and brought him to federal court to face federal charges.

The hip check, if successful, will let the feds hog the spotlight for the trial that fundamentally concerns Minnesota far more than it does the administration. And the Department is likely to seek the death penalty, especially given Trump’s general exhortations to pursue capital cases. The Hennepin County attorney who would bring state charges, by contrast, opposes the death penalty. In this respect too, the feds are steamrolling the sovereign interests of the state and its popular judgment that life without parole is the maximum punishment the government should impose.

Then we have completely improper, unpredicated investigations of Democratic figures at the whimsy of administration hacks such as Ed Martin Jr. and Alina Habba, who declared that she intends to use her perch as Acting U.S. Attorney in New Jersey to try to advance Republican fortunes in that state. She has announced investigations into New Jersey’s Democratic governor and attorney general.

Even assuming they go nowhere, federal investigations bring expense and anxiety to their subjects. Launching them without basis is a signature undertaking of a corrupt authoritarian government.

And of course, there is the ongoing spectacle of militarized arrests of Democratic — and only Democratic — politicians: four and counting (plus a judge without party affiliation), carried out by ICE agents in masks and heavy tactical gear. The agents aim for maximum intimidation — a bully-boy tactic Bill Kristol aptly called “ridiculous.”

There have been only a handful of instances in the last 150-plus years where presidents deployed force over state objections — nearly always when state officials openly defied federal law or court orders.

Trump’s warfare is different. First, he’s the instigator. His aim is to sow chaos and panic in blue states, then use it as a pretext to storm in. The blue states are keeping the peace; he’s breaching it. Second, his war plans target only Democratic strongholds. He seeks to bully and intimidate political opponents while rousing MAGA supporters he has trained to see Democrats as traitors. Third, he seeks to deepen the national divide — the engine of his despotic rule.

Trump may be executing a long and detailed playbook drawn from Project 2025, but he remains a one-trick pony: aggrandizing his power by belittling and intimidating opponents. After four months, he has little to show for his second term: courts have repeatedly blocked his executive orders, and he has no meaningful legislative wins. He is a vicious hater, and his direct assault on blue states and officials is fully in character. But at this point, it’s also his sole governing strategy.

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Reprinted with permission from Substack.

Qatari government

Trump's 'Palace In The Sky' Is A Constitutional Affront -- But Who Will Stop It?

Having brought Congress completely to heel in the political sphere, Donald Trump is now seeking to write them out of the Constitution. Both of his biggest moves of the past week entail the evisceration of a constitutional role the Framers very plainly and expressly wanted Congress to play.

That is the case for the flirtation with suspension of habeas corpus, which only Congress can do. And it’s even more manifest in Trump’s plan to accept a $400 million (or is it $625 million?) jumbo jet “palace in the sky” from the Qatari government.

On the suspension issue, Stephen Miller’s pompous primer on suspension of habeas corpus, coupled with the announcement that “we’re actively looking at [it],” was risible and unsettling in equal measure. The constitutional command he was mangling is directed to Congress, not the Executive—which is why it is in Article I along with other definitions of congressional power.

The recognition that only Congress can suspend is essentially universal, consistently reaffirmed in Court opinions from early in the 19th century, which themselves apply the previously ensconced practice from England. (Lincoln’s wartime suspension during the Civil War is not to the contrary: Congress was out of session; it later ratified the suspension; and many scholars still contend that Lincoln violated the Constitution.)

Moreover, Miller ham-handedly slices off the limiting half of the Clause in the second half—that suspension can occur only when “the public Safety may require it.” Whatever national crisis Trump is attempting to manufacture about the presence of immigrants in the country, the public safety does not require that courts not consider the due process rights of detainees.

Miller’s ensuing suggestion that the decision not to suspend is contingent on “whether the courts do the right thing” is a thuggish non sequitur. Whether courts remain available to entertain writs of habeas corpus cannot turn on the content of their decisions. This is no more than another “heads I win, tails you lose” suggestion from a lawless Administration.

Miller’s Suspension Clause rhetoric is of a piece with his assurance to Trump that the Supreme Court had ruled unanimously for him in its Alien Enemies Act opinion—when the opposite was the case. All nine justices agreed that the Administration has to provide due process to detainees. If the Administration continues to let Miller, a non-lawyer and faintly reptilian figure, announce its legal analyses, it’s going to suffer further embarrassment in the courts when actual lawyers have to disavow Miller’s legal twaddle.

But the Qatari 757 deal is even more blatant. The plane would replace Air Force One during the pendency of Trump’s tenure and then be given to his presidential foundation created after his presidency—presumably for his use.

There is, however, a small constitutional snag.

Article I, Section 9, Clause 8 of the Constitution—the Foreign Emoluments Clause—says that no person holding an office of the United States shall, without the consent of Congress, accept any present “of any kind whatever” from any foreign state.

Trump's first term was a serial violation of the domestic and foreign Emoluments Clauses, as influence seekers of all stripes clamored to support his Washington, D.C., hotel and other businesses. But the business profits he pocketed from people seeking his goodwill in the first term are chump change next to the gaudily lavish, gold-plated (and possibly bugged) Qatari luxury jet.

There is no serious argument that Trump’s acceptance of the plane does not violate the Emoluments Clause. Trump has tried to trot out an argument that it's really a gift to the government and not to him. But if it's partly for his personal enjoyment—and very clearly if it winds up with his foundation and not the government after his tenure—the law is quite clear that it falls within the Clause.

As usual, Trump is his own worst enemy in clarifying just what’s going on. Speaking to reporters on Monday, Trump noted, “I think it’s a great gesture from Qatar. I appreciate it very much. I would never be one to turn down that kind of an offer.”
He also justified the decision by saying he would have to be a “stupid person” not to take the plane, and he analogized the decision to agreeing to a gimme putt in golf. And we further know that Trump toured the jet in February. If Trump is the one to solicit and accept the offer, then it is not a gift to the federal government.

There is apparently an opinion blessing the deal from Attorney General Pam Bondi, who herself garnered six-figure fees from Qatar for lobbying on their behalf starting in 2019. We haven’t seen the analysis yet, but since Bondi sees it as her job to fight for Trump the person—as opposed to the office—you can bet that it’s at most as good an argument as can be made for a client, but a total loser.

The argument that Trump can be expected to rely on in the coming cluster of lawsuits from NGOs and state attorneys general is that the various plaintiffs lack standing. That was the central issue in most of the Emoluments Clause litigation during Trump 1.0. The courts were divided on the question, and eventually the Supreme Court dismissed the various cases as moot because Trump had left office.

In fact, properly understood, the standing issue only reinforces the unconstitutionality of what Trump is doing. It's true that it's hard to conceptualize the injury of the constitutional violation in terms of a pocketbook loss to, say, an individual state attorney general. It requires ingenuity and a court that takes a somewhat elastic view of standing.

That's precisely because the constitutional injury entailed by Trump’s acceptance of the palace in the sky is social, absorbed by all of us. It’s precisely for that reason that the Framers specified that Congress, the representatives of the people, must determine whether a particular gift may be accepted.

After all, not all gifts to officials are objectionable. Most famously, Congress in 1791 passed a resolution allowing Ben Franklin to keep a gold snuff box given to him by Louis XVI. On the other hand, Congress never exercised its authority to approve President Lincoln’s request in the middle of the Civil War to keep an elephant tusk from the King of Siam (along with an elephant, which Lincoln politely declined).

Consider the example of the Statue of Liberty, which Trump defenders are wont to proffer in his defense for keeping the plane—but which actually cuts sharply in the other direction.

The statue was a gift from the French people to the American people, not to a particular official. Moreover, Congress ratified its receipt.

But suppose Trump decided to transfer the Statue of Liberty to the Rose Garden, to gaze on and continually remind him of the grander purpose of his presidency. The injury of its removal from Liberty Island—and make no mistake, it would be an injury—would be to all of us, equally. And it would not really be a pocketbook injury, of the sort that confers standing in the federal courts, but an injury to our shared civic sense.

In the same way, Trump's acceptance in the people’s name of this gaudy showpiece would pose severe problems to the nation, even if no individual could demonstrate a particular monetary loss.

These examples illustrate that the appropriateness of a particular gift is a nuanced, contextual, political question. The Framers were extremely concerned about the prospect that gifts could be used corruptly to buy and sell influence. But they declined to constitutionalize a categorical rule against gifts, instead opting for greater flexibility and political accountability by insisting on an overall political judgment by the body best positioned to deliver it.

That judgment, by the way, is pouring in—and it’s largely negative. Many people on the right and left are expressing grave reservations about Trump’s excitement. Conservative commentator Ben Shapiro wrote that “[t]aking sacks of goodies from people who support Hamas, the Muslim Brotherhood, Al Jazeera, all the rest—that's not America First.” No less staunch a Trumpista than Laura Loomer called the Qatari officials “jihadists in suits” and disparaged the idea as “a stain on the administration.”

The chorus of critics now includes a number of elected Republicans. On Tuesday, the Senate Majority Leader, John Thune of South Dakota, said of the jet, “I can assure you there will be plenty of scrutiny of whatever that arrangement might look like.” Republican Senator Ted Cruz, a strong Trump ally, expressed national security concerns. “I also think the plane poses significant espionage and surveillance problems.”

All of this suggests that political pushback may eventually doom Trump’s cherished idea. If so, that's the sort of national judgment that the Constitution contemplates.
It goes without saying—anywhere but in Trump World—that the last person to decide whether a gift should be kept is the putative recipient. That means that, questions of standing aside, Trump’s plain constitutional responsibility is, as with Franklin and Lincoln, to serve up to Congress the question of whether he gets to keep his gold-plated palace in the sky.

And if he fails to do that, the plain reading of the Constitution is that he may not keep the plane. To do so would be to accept a present without the consent of Congress.
It’s not an anomaly but a matter of constitutional design that the charter establishes a limit that falls to the political branches to enforce. This being America in the twenty-first century, there surely will be lawsuits attempting to get at the constitutional problem.

But the fundamental dereliction is by our political leaders: If Congress fails to take up the question of whether Trump can keep the plane, it’s a fundamental disregard of its constitutional duties; likewise, if Trump tries to keep his latest and greatest toy without submitting it to Congress, he is flouting the Constitution, whatever Pam Bondi may say. The question, as always with Trump, is not what’s right or lawful or even decent, but whether anybody can stop him.

Harry Litman is a former United States Attorney and the executive producer and host of theTalking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing toTalking Feds on Substack.

Reprinted with permission from Substack.

How Will Chief Justice Roberts Tame The Monster He Created?

How Will Chief Justice Roberts Tame The Monster He Created?

The Constitution does not have a clause which states specifically, “either we have laws and follow them, or we don’t.” The closest the Constitution comes is in Article II, Section 3, where it is mandated that “the president shall take Care that the Laws be faithfully executed.” This clause is violated each day when Donald Trump awakens and opens his eyes. He committed the offense of insider trading last week, when two hours before he relaxed his onerous tariffs, he posted on Truth Social that it was “a good time to buy!” signaling to his friends that stocks would be recovering from the dive they took when he imposed the tariffs in the first place.

Trump is running a lawless presidency right out in the open and announcing that fact practically every day because he has been given permission by the Supreme Court to ignore not only norms and traditions observed by previous presidents, but the law itself.

Today, a law-abiding (if undocumented) migrant is the victim of Trump’s blatantly illegal behavior. The most frightening thing about the first three months of Trump’s second term is not knowing where we stand. Unless and until Chief Justice John Roberts decides to step up and draw some lines, there are no limits on Donald Trump. Even if that happens, it remains to be seen whether Trump will deign to adhere to judicially imposed limits. He is already in violation of two district court orders and one order by the Supreme Court itself.

We are learning a grim lesson: Democracies don’t necessarily die in darkness but in the sunlight of outright defiance of the law by a president charged with its enforcement.

Reprinted with permission from Lucian Truscott Newsletter.

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