Wait, That’s Unconstitutional

Making sense of Trump's all-out assault on the foundations of our system

A view of the first page of one of only two known copies of The Official Edition of the Constitution. Photo by Alexi Rosenfeld/Getty Images.

There’s a common reaction to the headlines these days. Over the past 100 days, those of us who spent any time in law school (or paid attention in civics class) find ourselves recoiling, blinking, or shaking our heads in disbelief, thinking to ourselves, “He can’t do that.”

“He” being Trump, and “that” being whatever latest affront to our Constitution and laws he has announced or his administration has done.

Because these attacks are so rapid-fire in nature, it’s easy to get lost in the fog of his war on our founding principles. When this happens, it’s helpful to climb to a higher vantage point, reassert how things are supposed to be, and then understand more precisely how Trump has come for the constitutional, foundational values of our nation.

These are not always so easy to parse or understand at first glance. Trump isn’t acting with pinpoint precision but rather with a heavy hammer. Moreover, he acts primarily in his own self-interest to accumulate power and money, while our Constitution suffers collateral damage. To complicate things further, some of his declarations and actions violate multiple parts of our Constitution, while others leverage one violation to create or amplify others.

Today, I want to focus on five basic principles and rights contained within our founding documents, as envisioned by the founders:

• The establishment of co-equal, separate branches of government

• The prohibition on corruption within the Emoluments Clause

• The First Amendment’s guarantee of free speech and a free press

• The Fourth Amendment’s right to due process under law

• The Fourteenth Amendment’s right to equal protection

For each of the above, I’ll lay out relevant language and principles before discussing a few key ways Trump has shredded them through his executive orders and actions.

Note that this is not meant to be exhaustive; that would no doubt fill whole history books and legal treatises. Rather, through some better-known examples, I hope to provide a way to think rigorously and with discipline about how Trump threatens our constitutional foundations. Through a clearer understanding of the precise nature of his attacks and the core values he threatens, we can all feel less overwhelmed and helpless in the face of the flood while steeling and grounding ourselves more firmly in the defense of our constitutional Republic.

Stay in your lane, Donald: Disrespecting the separation of powers

Our Constitution begins with three distinct articles that establish a tripartite government: the legislative, the executive, and the judicial branches. We understand these to be both independent and co-equal, and that they are intended to place checks upon the power of the others.

But where does that notion of separate, co-equal branches that check each other come from?

It derives partly from the fact that we have three separate branches in the first place, each charged with different roles. The legislature makes laws and controls the public purse. The executive faithfully executes those laws. And the judiciary, at least since Marbury v. Madison, acts as the arbiter and interpreter of our laws and the Constitution.

We often take this set-up for granted, but at one point in our history, before we became a sovereign nation, all these powers lay in one party’s hands. It was a major reason we rebelled against the British crown. As James Madison wrote in Federalist No. 47,

The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”

Madison articulated the structure of our Constitution, explaining that:

“The several departments being perfectly co-ordinate by the terms of their common commission… none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.”

See? Separate, co-equal, balanced powers.

Trump doesn’t see it this way.

One of the first things his administration did was freeze billions in funds that Congress had already appropriated. This is called “impoundment” and the Supreme Court ruled 50 years ago, when Nixon tried it, that it’s unconstitutional because it usurps the power of Congress over public funds. If our democracy were functioning in a healthy way, Congress would have impeached Trump over this power grab the moment it happened. We face a crisis today precisely because our GOP-controlled Congress is unwilling to stand up to him and reclaim its authority. That means we must fight in the courts until we have a chance to change the balance of power in the 2026 midterm elections.

Beyond seizing critical control of the flow of funds, Trump has also unilaterally imposed the most massive tax hike in generations. He’s done this by raising import taxes, also known as tariffs. It’s important to understand that the President doesn’t actually have the power to impose tariffs on his own. Trump is arguing that Congress gave him that power, however, by allowing him to declare “national emergencies” and impose tariffs in response. But these “emergencies” are pretextual and non-existent, and rule by emergency decree is how authoritarians seize power within a democracy, whether it’s Germany in the 1930s or the U.S. today. Once again, it’s largely up to Congress to stop him, but even just yesterday Republicans in the Senate narrowly voted down an effort to repeal Trump’s tariff authority.

The most critical test of our system of governance is now well underway. The judiciary is empowered with interpreting our Constitution, and in a 9-0 opinion has ordered the government to facilitate the return of Kilmar Abrego García, a migrant wrongfully sent to a maximum security prison in El Salvador at the request of and with payment from the United States. To date, the White House has not done so, though there are reports that half-hearted efforts to request Abrego García’s return have finally begun. In an interview with ABC News, Trump startlingly admitted that he has the power to obey the Supreme Court but is declining to do so because “the lawyers” said the ruling said otherwise. (It did not.)

If the White House can seize the power of the purse from Congress and can thumb its nose at judiciary orders, then it has seized for itself “all powers, legislative, executive, and judiciary, in the same hands” as Madison warned. And that is in fact “the very definition of tyranny."

The grift that keeps on grifting: What Emoluments clause?

We have become rather numbed to corruption now on full daily display from this administration and in particular the Trump family. Trump’s self-dealing, conflicts of interest, and public acceptance of “donations” from corporations and wealthy patrons are not only illegal under multiple laws but violate the letter and spirit of the Constitution.

Before I tell you what the Constitution says, let’s concede that “emoluments” is a weird word that nobody really uses or understands these days. If we ever get to rewrite or amend the Constitution, we should put it in plainer terms. But it basically means a payment, gain, or benefit received as a result of holding office.

The Constitution has both a “foreign” and a “domestic” emoluments clause. Together, they are supposed to discourage if not prevent corruption and conflicts of interest among federal officials, including the President.

In relevant part, the Foreign Emoluments Clause says,

And no person holding any Office of Profit or Trust under them, shall, without Consent of the Congress, accept any present, Emolument, Office, or Title…from any…foreign State.

The Domestic Emoluments Clause says that the President shall receive a “Compensation” and

shall not receive within that Period any other Emolument from the United States, or any of them.

The weird and unfortunate thing about the Emoluments Clauses is that the Supreme Court has never weighed in on them before. In fairness, historically speaking, there’s simply never been an administration with this level of corruption and these kinds of multiple conflicts of interest. The few cases that have percolated up to the appellate courts keep getting dismissed for lack of standing because plaintiffs such as Citizens for Responsibility and Ethics in Washington (CREW) couldn’t prove how they were harmed by Trump’s actions.

That has left the door fairly wide open for abuse.

During Trump 1.0, one of the biggest problems was that Trump held real estate properties including hotels and resorts, and he wanted to develop more of them, often in foreign countries. That gave foreign states a way to “gift” money to Trump in the form of frequenting his clubs and hotels and spending lots of money there. Moreover, because Trump had his eyes on building big expensive resorts in places like the Middle East, we never knew if his foreign policies were designed to further U.S. interests or his own personal interests.

(Narrator: It was his personal interests.)

Trump 2.0 makes that level of corruption look like harmless gratuities. I’ll cite three glaring examples:

• Trump is now in partnership with the Saudis on his golf courses and tours, and just yesterday the New York Times reported that the Trump Organization has agreed to a new Middle East resort real estate deal involving a Qatari government-owned firm. This is on top of a new planned Trump Tower in Dubai involving a Saudi company with close ties to the government. As if timed perfectly, the White House just announced a $100 billion arms sale to Saudi Arabia, raising the question of how much this huge sum has to do with the Saudis scratching Trump’s back, too.

• Trump Media, which owns Truth Social, is now a publicly traded company. It has been losing money since the outset, but its stock price is artificially buoyed by buyers willing to bet on the value of Trump’s personal stock. Institutions, wealthy individuals, and foreign governments wishing to get on Trump’s good side can simply purchase stock in his company to keep its stock price inflated.

• In perhaps the most head-spinning grift of all, Trump launched a $TRUMP meme coin with insiders owning 80 percent of the fake asset. The coin has no inherent value but he pumps it from time to time online, earning millions on transaction fees alone. Because cryptocurrency is largely unregulated, there’s no way to trace which individuals or foreign actors are putting money directly into the hands of Trump, his family, and their close associates. And as MSNBC recently reported, “A website promoting one of the president’s crypto offerings launched a contest of sorts, in which those who purchased his meme coin would have a chance to win special access to Trump.”

Corruption, bribery, and grift are hallmarks of an authoritarian regime, particularly after oligarchs hitch themselves to the regime in order to siphon off public funds. The founders had the foresight to try to prevent this from happening, but so far the legal system has proved incapable of preventing Trump from profiting directly from his office.

That pesky First Amendment: Trump tramples upon free speech and a free press

Of all of the amendments to our Constitution, we are likely most familiar with the First. On the subject of freedom of speech, it says this:

Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble….

Courts have interpreted this to include any state official action, including by the White House, that impinges on free speech. These protections importantly include not permitting government officials to favor one type of speech over another.

Thus, content-based laws or restrictions are disfavored and presumptively unconstitutional, while content-neutral laws or regulations (which affect the time, place or manner of speech, without regard to content) can more readily pass muster.

For example, in 1972 the Supreme Court held in Police Dept. of City of Chicago v. Mosley that the “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial rules.”

Further, it held in 1992 in R.A.V. v. City of St. Paul that the “government may not regulate speech based on hostility—or favoritism—toward the underlying message expressed.”

And in 1995, it held in Rosenberger v. University of Virginia that a public university couldn’t deny funding to a student publication because its statements were religiously themed, provided it was supplying funding to other groups. This was a form of “viewpoint” discrimination—a disallowed form of content-based regulation.

You can probably see where I’m going with this. Over the past 100 days, the Trump White House has regularly engaged in content-based bias and viewpoint discrimination, particularly against the press and other institutions such as big law firms and universities.

Take its actions toward the Associated Press. When that organization refused to start calling the Gulf of Mexico by Trump’s new name for it (the “Gulf of America”), Trump tried to ban it from the White House. A federal judge quickly ruled that this was improper viewpoint discrimination.

“Under the First Amendment, if the Government opens its doors to some journalists—be it to the Oval Office, the East Room, or elsewhere—it cannot then shut those doors to other journalists because of their viewpoints,” wrote federal district court Judge Trevor McFadden. “The Constitution requires no less.”

Trump has also come after major law firms and elite universities for their liberal politics and advocacy for his opponents.

One executive order targeted the firm of Perkins Coie, which had done legal work for Hillary Clinton’s campaign as well as defended against election-related lawsuits filed by the Trump campaign, by stripping its lawyers of security clearances necessary to do a great deal of high-level government work. Perkins Coie responded with a lawsuit that claims the order “violates core constitutional rights, including the rights to free speech and due process.” In a statement, the firm noted,

At the heart of the order is an unlawful attack on the freedom of all Americans to select counsel of their choice without fear of retribution or punishment from the government. We were compelled to take this action to protect our firm and our clients.

Trump also came for universities such as Columbia and Harvard, threatening their federal funding unless they bent to his will. While Columbia initially caved, Harvard stood firm and filed a lawsuit to protect its academic independence, saying it would fight to preserve its constitutional rights. Said Harvard in a statement,

No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.

Here, it’s worth noting that the major universities are coming under triple fire. At stake are not only their free speech and freedom of association rights, but also their financial well-being. Trump has unconstitutionally seized control of funds already allocated by Congress, particularly when it comes to research grants made to university-affiliated hospitals and labs. Moreover, the White House has imposed these demands without having followed any of the process guarantees set out under Title VI.

In short, the power of the government to dictate what law firms or universities can do or advocate is being amplified many times over by its unconstitutional grasp of the public purse and its flouting of due process guarantees.

Not getting what we’re due: The Fifth Amendment, ignored

Lately, we’ve all been getting a refresher on the subject of “due process.” But where does that term come from?

Enter the Fifth Amendment, which says,

“No person shall … be deprived of life, liberty, or property, without due process of law.”

The Fifth Amendment applies to the federal government, and the Fourteenth Amendment, enacted after a devastating civil war to end slavery, applied that requirement to the states.

But what does this mean in practical terms? Generally speaking, due process means respecting individual legal rights. And it comes in two flavors:

• Procedural due process, meaning the use of a fair set of procedures or rules to establish someone’s right to life, liberty, or property, and

• Substantive due process, meaning basically that the government cannot enact laws that are fundamentally unfair.

Due process is foundational to how we think of our rights and how we protect them. The Supreme Court famously stated in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951):

“The history of liberty has largely been the history of observance of procedural safeguards.”

This makes sense when you think about it. After all, what good are a bunch of guarantees about freedoms and rights if there aren’t ways to monitor and enforce those rights?

We’ve seen how lack of due process plays out in real time lately, especially in Trump’s draconian efforts to deport migrants. Shipping people merely accused of being members of a Venezuelan gang to a brutal prison in El Salvador, without so much as a hearing, violates a basic tenet of due process, namely that everyone within the jurisdiction of the United States is entitled to at least a fair and impartial hearing before being punished.

Indeed, the Supreme Court held this in a recent 9-0 opinion—and how often do we ever see those? Despite this ruling, Trump has still not obeyed, claiming astonishingly that it came out 0-9 his way and that his “lawyers” still think he doesn’t have to facilitate the return of Abrego García.

Trump’s recent argument is a very dangerous one. He wants to deport tens of millions of undocumented migrants, but many of them may have a right to remain, just as Abrego García did. That means they’d all be entitled to judicial process, but Trump sees that as impractical.

"I'm doing what I was elected to do, remove criminals from our Country, but the Courts don't seem to want me to do that," Trump posted on social media. "We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years."

This ignores the fact that Biden and other presidents were able to deport millions of unauthorized persons back to their home countries without violating the law. There’s a way to do this humanely and by the book, but Trump isn’t interested in it.

Recently, a conservative icon of the Fourth Circuit weighed in on Trump’s efforts to skirt the requirements of the law. Judge J. Harvie Wilkinson III wrote for a unanimous appellate panel,

The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Trump’s violation of process poses a particularly high legal risk for him. Even this Supreme Court, with its pair of what amount to Fox News justices on the right, is willing to unanimously uphold the right to a hearing. This is one way to rule against the Trump administration on technical grounds without getting into the politics at all.

Equal, shmequal: Applying the law unevenly

I spoke in the last section about the Fourteenth Amendment’s guarantee of due process as applied to the states. It also contains another powerful guarantee: that of equal protection under the law:

nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws.

Note that the text does not refer only to U.S. citizens, but rather to any person.

As the nation’s chief executive, Trump is charged with seeing its laws faithfully executed. And that means equally, without any bias or animus. You generally can’t have one set of rules for one group of people and another set of rules for some other group, absent some reason for it. How strong that reason has to be depends on whom you’re trying to target for unequal treatment.

What the Constitution does not contemplate is for the President to use U.S. law enforcement, with all its power and might, to seek retribution on his political enemies. That is an unequal application of the law against a certain group of disfavored people (and likely violates substantive due process as well).

Selective law enforcement can also be a violation of equal protection. For example, if police only stop black or brown motorists for speeding while letting white motorists off, that’s both unfair and unconstitutional. The same reasoning could apply to Trump’s recent decision to selectively target the Democratic fundraising arm “Act Blue” to call for investigations into critics of his prior administration including Chris Krebs and Miles Taylor, and his threats to cause antitrust problems for companies like Paramount, which owns CBS and its 60 Minutes broadcast.

Again, these examples comprise multiple violations of the constitutional rights of those targeted, including their First Amendment rights to speak critically of the government or oppose its policies, their Fifth Amendment due process rights, and their rights to equal application of the law.

A Republic, if we can keep it

While it’s understandable to review the above and conclude that our system cannot withstand such a full-scale attack from its own president, buttressed as he is by a sycophantic and fearful GOP Congress, there remains cause for hope.

We are already starting to see some cracks in the orange foundation. Just yesterday, a federal judge ordered the release of student activist and U.S. permanent resident Mohsen Mahdawi. And this time, the administration has obeyed. It had detained Mahdawi for two weeks without charging him with any crimes or even suggesting there was misconduct. Rather, he was held because of his peaceful advocacy on behalf of Palestinians. (Mahdawi is a Buddhist and believes in nonviolent protest only.)

Mahdawi’s case represents another example of multiple constitutional violations at work. The White House is seeking to suppress Mahdawi’s speech and chill pro-Palestinian speech everywhere (a First Amendment violation) by detaining student activists without any basis (a due process and equal protection violation).

Said Judge Geoffrey W. Crawford of the federal district court in Vermont, “Similar themes were sounded during the McCarthy period in the 1950s when thousands of non-citizens were targeted for deportation due to their political views.” He added, “The wheel of history has come around again, but as before these times of excess will pass.”

In decrying and resisting Trump’s attacks, there is another underappreciated value: We, as a nation, must now reassert and recommit ourselves to the core constitutional principles we claim to stand for. If it’s true, as the Eastern masters have observed, that our greatest enemies are sometimes also our greatest teachers, we can emerge from this dark era with a deeper appreciation for the liberties we cherish and the freedoms millions before us have died to defend.

It is incumbent upon us all to become citizen defenders for the Republic we hope to keep for our children and theirs after them. That begins with a clear-eyed and informed understanding of what rights we stand to lose and how they plan to take them from us. Trump has forced a constitutional reckoning, yes, but we can emerge stronger from it by knowing, claiming, and defending those rights that are ours as Americans.