Page One

Considering the impression Donald Trump gives that he has ascended to a throne, I’m glad to see law professors reminding him and us of the legal framework that holds this country together.

For the Washington Post, George Mason University’s Ilya Somin writes on “Why Trump’s executive order on sanctuary cities is unconstitutional.”

“Unless interpreted very narrowly,” Somin says, this order could be used “to seriously undermine constitutional federalism by forcing dissenting cities and states to obey presidential dictates, even without authorization from Congress.” 

Somin’s analysis is detailed and fine-tuned, as legal analyses tend to be, but we need to take in this basic point: 

“If the president can make up new conditions on federal grants to the states and impose them without specific, advance congressional authorization, he would have a powerful tool for bullying states and localities into submission on a wide range of issues.” 

In a book review for Foreign Affairs, Indiana University’s Dawn Johnsen takes up claims to executive power under the George W. Bush and Obama administrations (she would have herself been a member of Obama’s administration if Republican Senators had not blocked her appointment to head the Office of Legal Counsel). 

Taking as her keynote case a Supreme Court decision on the lawfulness of President Harry Truman’s seizure of the steel mills during the Korean War, she notes that although Supreme Court Justice Robert Jackson “allowed relatively broad presidential authority to act when Congress has not spoken to the contrary,” Jackson made the central point that presidents do not have “general emergency powers to act in ways that would otherwise be beyond the law.” 

With that Supreme Court decision in mind, she says that “if Trump overreaches, the courts should step up once again,” and Congress should push back, as should executive-branch employees. And so should the electorate—holding Trump accountable “should he fail to respect constitutional limits on his authority as president.” 

Before Trump’s election, Cornell University’s Michael C. Dorf offered thoughts on the larger topic, “Trump’s Law and Order Versus the Rule of Law.” 

Writing for Verdict, a legal commentary site run by Justia, Dorf notes that “Trump appears to be both the most litigious person and the most sued person ever to be nominated for the presidency by a major party—and by a very large margin.... Taken together, Trump’s quickness to bring or threaten suit and his disregard of his legal obligations paint a picture of someone who regards the law as a useful tool to coerce others but not a restraint on his own behavior.” 

Dorf warns: “should Trump become president, no one would be safe from his toxic mix of bullying through law and acting above the law. “ 

Now, Trump has become president, and comments by law professors like Dorf, Johnsen, and Somin are more important than ever. 

(Stay tuned to the BDP for updates on legal commentary on the Trump administration.) 

‘ 

i