National Review has published my essay explaining, in great detail, why Donald Trump’s constitutionalism poses a critical threat to the rule of law. He has already promised us he will violate the Constitution and domestic law. He shows absolutely no awareness of what the separation of powers are, and how that could stop him from accomplishing terrific things. Throughout his entire career, he has repeatedly used the courts to silence dissent, seize property, and evade creditors–all for his personal gain. I also address one of the most potent rejoinders: that we need Trump for the Supreme Court. As I explain in the article, even if Trump actually believes what he is saying now (who knows?), there is no guarantee he will actually listens to outside advice. Here is the introduction:
On January 20, 2017, Chief Justice John Roberts will administer the oath of office to the 45th president: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Donald Trump is utterly unqualified to keep this solemn pledge to our most fundamental law. We know this because in winning the nomination, Trump has already promised that he will knowingly break the law and violate the Constitution. ‘
Free speech? He will “open up the libel laws” to allow public officials to sue the media, and use the Federal Communications Commission to fine critics. Private property? To Trump, eminent domain is a “wonderful thing” and is not actually “taking property” because the owner can move “two blocks away.” Faithfully executing the law? His harebrained scheme to make Mexico pay for the border wall ignores the clear text of a statute and unilaterally prohibits foreign commerce. Serving as commander in chief? Trump has already pledged that he would violate international treaties and domestic law. The military “won’t refuse” his illegal orders. “Believe me,” he promised. Protecting our national security? Trump has lauded FDR’s internment of Japanese Americans, one of the darkest hours in the history of our Republic.
And what about the Supreme Court? Assuming he keeps his promise to appoint conservative jurists — and that this promise is not merely a negotiating tactic — Trump’s approach would likely mirror that of George W. Bush: appoint justices who will defer to bold assertions of federal power. Judicial minimalist, thy name is John Roberts. These are the unconstitutional things Trump has told us he will do. I shudder to think of the trump cards the boardwalk emperor is holding close to his vest. For Trump, courts are merely a venue to silence critics, seize property, and evade creditors through bankruptcy protections. At every juncture, Trump uses and abuses the legal process to aggrandize his own personal power, bragging that “on four occasions I have taken advantage of the [bankruptcy] laws of the country.” Taking advantage of the laws aptly summarizes his approach to the law. Perhaps this makes him a shrewd businessman, but this ethos — and his promises to continue such egregious behavior — renders him ineligible to “preserve, protect and defend the Constitution of the United States.”
I tried as best as I could to keep this argument grounded in legal principles, and only focused on the most egregious, clear-cut statements Trump has made that reflect a stunning ignorance of the law. There are many, many others that I did not include.
For purposes of full disclosure, as I note in the piece, I previously supported the campaigns of Senators Rand Paul and Ted Cruz.