Unconstitutional Corner

Will Gorsuch Hold President Trump Accountable?

During the campaign and since assuming office, President Trump has put forward a number of proposals and taken actions that independent experts have argued are unlawful or unconstitutional. As these controversies make their way through our court system, we need an independent voice, not a rubber stamp, to hold President Trump accountable when he violates the law or the Constitution.

  • Emoluments Clause: Independent ethics lawyers who worked in administrations of both parties have said that President Trump’s ongoing and unresolved business conflicts of interest violate the Constitution’s Emoluments Clause, with one calling them “frankly and nakedly unconstitutional.” 
    • On February 7th, Judge Gorsuch “refused to answer” questions from Sen. Schumer “about his view of what the framers intended with the Emoluments Clause in our Constitution.”
  • Muslim Ban: After President Trump signed his executive order on immigration, which targets refugees and the nationals of seven majority-Muslim countries, it was immediately challenged in courts across the country. Judges have indicated that this executive order violates both the 1st and 5th Amendments.
    • On February 7th, Judge Gorsuch “refused to answer” questions from Sen. Schumer concerning “whether an unambiguous Muslim ban would be constitutional.”
  • Muslim Registry: Trump has called for both the “profiling” of Muslims as well as a national registry of American Muslims. The American Civil Liberties Union (ACLU) argues that these proposals would violate the First and Fifth Amendments, and the latter would also “likely to violate federal privacy law.”
  • Deportation Force: President Trump has called for a Deportation Force to “round up” undocumented immigrants.  As the ACLU notes, “implementing interior immigration dragnets of this sort inevitably rely on race and national origin in violation of the Constitution’s guarantee of equal protection under the law.” The ACLU also states that mass deportations would “lead to a mass breakdown of due process, thus violating the Fifth Amendment.”
  • Violating States’ Rights: Trump signed an executive order on January 25th that threatens localities who refuse to be conscripted into the Trump administration’s mass deportation dragnet with massive cuts in federal funding. Prof. Garrett Epps argues that this order may violate two constitutional rules. First, “Printz v. United States, says that the federal government may never order local officials to enforce federal law.” And second, “the famous 2012 Affordable Care Act case, National Federation of Independent Business v. Sebelius, says that the government cannot use the threat of large funding cuts to ‘coerce’ states into adopting federally demanded policies.”
  • Bringing Back Torture: President Trump has said that “you bet your ass” he will bring back waterboarding and “much worse” forms of torture. As the ACLU states, “torture violates the Fifth and Eighth Amendments, federal statutes, and international law.”
  • Opening Up Our Libel Laws: President Trump and members of his administration have spent considerable time and effort demonizing and attacking the media for its critical reporting on their activities and statements. On the campaign trail, Trump responded to negative press coverage by promising “that, if elected, he would ‘open up our libel laws’ so that ‘we can sue [media outlets] and win money.’” The ACLU adds that “there is no federal libel law for the president to ‘open up,’” adding that libel laws run up against 1st Amendment protections.
  • Closing Houses of Worship: In November 2015, President Trump said “that the U.S. would have ‘absolutely no choice’ but to close down some mosques.” Brown University Prof. Corey Brettschneider described this proposal as “a textbook example of the kind of action expressly prohibited by the First Amendment.”
  • Sending Americans to Guantanamo Bay: As the New York Times reported, President Trump said “that he was ‘fine’ with prosecuting American citizens accused of terrorism offenses before a military commission at Guantánamo Bay, Cuba, rather than a civilian court on domestic soil.” In response, University of Texas Law Prof. Stephen Vladeck argued that “there would also be ‘serious’ constitutional problems involving defendants’ rights to due process and jury trials.”
  • Stop-and-Frisk: President Trump has repeatedly praised stop-and-frisk and proposed adopting the policy nationwide. New York City’s stop-and-frisk policy was declared unconstitutional in 2013 by a federal judge, who called it “a form of racial profiling.”
  • Sending Federal Agents Into American Cities: Using false or misleading statistics, President Trump has frequently derided America’s inner cities as dangerous areas saddled with increasing dire crime rates. He recently called Chicago ”worse than some places in the Middle East where there are wars going on.” And on Twitter, he threatened to send federal agents into Chicago to quell the violence. As ThinkProgress notes, this would violate the 10th Amendment.