WASHINGTON — Less than two weeks ago, Donald Trump stood in the shadow of the US Capitol and took an oath to “preserve, protect, and defend the Constitution of the United States.” Now, 11 days later, critics steeped in constitutional law from across the ideological spectrum are already saying the new president has violated sections of that document.
Most attention has been focused on an immigration order President Trump signed last week that banned people from entering the country from seven predominantly Muslim countries. But even before that episode, constitutional experts have been highly concerned about the administration’s seeming lack of interest in the country’s founding document.
“I wouldn’t say he’s bumping into the Constitution, he’s crashing through it,” said Harvard Law professor Laurence Tribe, who has joined litigation against the new president on a separate matter. “I’ve never seen anything like this in my lifetime.”
The areas of concern span multiple sections of the Constitution, and the most attention recently focused on Trump’s immigration order. He signed it on Friday at the Department of Defense, saying that he was “establishing new vetting measures to keep radical Islamic terrorists out of the United States of America.”
“We don’t want them here,” said Trump. “We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas.”
The problem, according to experts, is the order was overly broad.
The Establishment Clause
The First Amendment to the Constitution bars the government from making laws that single out a specific religion — which makes the notion of a “Muslim ban” difficult to square with the country’s founding document.
Though the Trump administration says it isn’t singling out a religion with the new ban on immigration from seven predominantly Muslim countries, during the campaign Trump talked about it as such and people close to the campaign also used that phrase when describing Trump’s order.
Tribe, of Harvard, points out that courts have said “any religious gerrymander” can be seen as a conflict with the Establishment Clause, so if Trump is found to be trying ban Muslims without flat out saying that’s what he’s trying to do, it would be problematic. Furthermore, the order specifically gives priority to religious minorities within those countries, which Trump said would help Christians whom he says have been mistreated.
“If you give a church or religious group special privilege, if you said, ‘We’re going to admit Christians and not Muslims,’ you could read that is an establishment of Christianity,” Tribe said.
Trump’s spokesman, Sean Spicer, argues that the order leaves out dozens of predominantly Muslim countries as proof the administration isn’t trying to target the entire religion.
Tribe doesn’t buy it. “He’s not discriminating against all Muslims. Great,” said Tribe. “But he is discriminating against some.”
The Due Process and Equal Protection clauses
In carrying out the immigration order, according to monitors, hundreds of refugees and visa holders seeking entrance to the United States have been detained without access to attorneys, another area where the Constitution offers clear guidance, according to constitutional lawyers.
The Fifth and 14th amendments say “no person” can be “deprived of life, liberty or property without due process of law.” The 14th Amendment adds “no person” can be denied “equal protection under the law.”
The wording — referring to “no person” rather than “no citizen” — means that the cause applies to those who don’t have full rights as Americans. That doesn’t include all people in the world — there is no constitutional right to obtain a visa, for instance — but once entrance has been granted it can apply.
“They have a right to due process even though they aren’t citizens,” said Richard Albert, an associate professor at Boston College Law School. “They have an entitlement that the US government has given, and before that can be taken away from you, you have a right to a hearing. You can’t just take it away.”
Tribe, with Harvard, agrees. “You have to give some fair access to legal process,” he said. “The administration in a less visible way is cutting that off. They are limiting the ability of people to get lawyers. They are detaining people who are children. They are treating people as though they are cattle.”
The Spending Clause
This one has been eclipsed by concerns over the immigration order, but Trump’s threat to withhold federal funding from cities that refuse to enforce federal immigration statutes could also be constitutionally problematic.
The country’s founding document explicitly gives the power of the purse to Congress — not the White House.
That means the administration doesn’t have the authority to coerce cities and states by denying funds that have already been allocated, says Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute. “The president can’t add conditions on federal funding that were not there to begin with,” said Shapiro. “You can’t pull education or environmental funds based on immigration. The president can’t do it.”
But, he added, Congress can try to write riders linking immigration policies to funding bills during an appropriations process, and he expects a debate in Washington on this very topic as the spending legislation gets moving through the new Congress.
The Emoluments Clause
Trump’s complex web of business holdings overseas could violate a clause barring a president from receiving foreign gifts while in office. Already the new Trump administration has been sued by Citizens for Responsibility and Ethics, a Washington watchdog group, on these grounds.
Just before taking office Trump tried to address some of these issues by handing over his business to his two adult sons.
But that’s not enough, according to some attorneys. “He’s receiving benefits from foreign governments constantly,” said Tribe, who is part of the CREW lawsuit. “The window dressing he has put on it in terms of resigning from his companies is just a joke.”