Trump could threaten US rule of law, scholars say

Washington: Donald Trump’s blustery attacks on the press, complaints about the judicial system and bold claims of presidential power collectively sketch out a constitutional worldview that shows contempt for the First Amendment, the separation of powers and the rule of law, legal experts across the political spectrum say.

Even as much of the Republican political establishment lines up behind its presumptive nominee, many conservative and libertarian legal scholars warn that electing Trump is a recipe for a constitutional crisis.

“Who knows what Donald Trump with a pen and phone would do?” asked Ilya Shapiro, a lawyer with the libertarian Cato Institute.

With five months to go before Election Day, Trump has already said he would “loosen” libel laws to make it easier to sue news organisations. He has threatened to set federal regulators on his critics. He has encouraged rough treatment of demonstrators.

His proposal to bar Muslims from entry into the country tests the Constitution’s guarantees of religious freedom, due process and equal protection.

And, in what was a tipping point for some, he attacked Judge Gonzalo P. Curiel of US District Court in San Diego, who is overseeing two class actions against Trump University.

Trump accused the judge of bias, falsely said he was Mexican and seemed to issue a threat.

“They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace,” Trump said. “OK? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”

David Post, a retired law professor who now writes for the Volokh Conspiracy, a conservative-leaning law blog, said those comments had crossed a line.

“This is how authoritarianism starts, with a president who does not respect the judiciary,” Post said. “You can criticise the judicial system, you can criticise individual cases, you can criticise individual judges. But the president has to be clear that the law is the law and that he enforces the law. That is his constitutional obligation.”

“If he is signalling that that is not his position, that’s a very serious constitutional problem,” Post said.

Beyond the attack on judicial independence is a broader question of Trump’s commitment to the separation of powers and to the principles of federalism enshrined in the Constitution. Randy E. Barnett, a law professor at Georgetown and an architect of the first major challenge to President Barack Obama’s health care law, said he had grave doubts on both fronts.

“You would like a president with some idea about constitutional limits on presidential powers, on congressional powers, on federal powers,” Barnett said, “and I doubt he has any awareness of such limits.”

Republican leaders say they are confident that Trump would respect the rule of law if elected.

“He’ll have a White House counsel,” Sen. Mitch McConnell of Kentucky, the majority leader, told Hugh Hewitt, the radio host, on Monday. “There will be others who point out there’s certain things you can do and you can’t do.”

Sen. John McCain, Republican-Arizona, who has become a reluctant supporter of Trump, said he did not believe that the nation would be in danger under his presidency.

“I still believe we have the institutions of government that would restrain someone who seeks to exceed their constitutional obligations,” McCain said. “We have a Congress. We have the Supreme Court. We’re not Romania.”

“Our institutions, including the press, are still strong enough to prevent” unconstitutional acts, he said.

Post said that view was too sanguine, given the executive branch’s practical primacy. “The president has all the power with respect to enforcing the law,” he said. “There’s only one of those three branches that actually has the guns in its hands, and that’s the executive.”

Republican officials have criticised Obama for what they have called his unconstitutional expansion of executive power. But some legal scholars who share that view say the problem under a President Trump would be worse.

“I don’t think he cares about separation of powers at all,” said Richard Epstein, a fellow at the Hoover Institution who also teaches at New York University and the University of Chicago.

President George W. Bush “often went beyond what he should have done,” Epstein said. “I think Obama’s been much worse on that issue pretty consistently, and his underlings have been even more so. But I think Trump doesn’t even think there’s an issue to worry about. He just simply says whatever I want to do I will do.”

Trump has boasted that he will use Obama’s actions as precedent for his own expansive assertions of executive power.

“He’s led the way, to be honest with you,” he said in January on “Meet the Press,” referring to Obama’s programme to spare millions of immigrants in the country unlawfully from deportation. “But I’m going to use them much better, and they’re going to serve a much better purpose than what he’s done.”

But Post said there was a difference between Obama’s view of executive power and that of Trump. “Whatever you think of Obama’s position on immigration, he is willing to submit to the courts,” he said. “There is no suggestion that he will disobey if the courts rule against him.”

Several law professors said they were less sure about Trump, citing the actions of another populist, President Andrew Jackson, who refused to enforce an 1832 Supreme Court decision arising from a clash between Georgia and the Cherokee Nation.

“I can easily see a situation in which he would take the Andrew Jackson line,” Epstein said, referring to a probably apocryphal comment attributed to Jackson about Chief Justice John Marshall: “John Marshall has made his decision; now let him enforce it.”

There are other precedents, said John C. Yoo, a law professor at the University of California, Berkeley, who took an expansive view of executive power as a lawyer in the Bush administration.

“The only two other presidents I can think of who were so hostile to judges on an individual level and to the judiciary as a whole would be Thomas Jefferson and Franklin Roosevelt,” he said.

Both of those presidents chafed at what they saw as excessive judicial power.

“But they weren’t doing it because they had cases before those judges as individuals,” Yoo said. “They had legitimate separation-of-powers fights between the presidency and the judiciary. Trump is lashing out because he has a lawsuit in a private capacity, which is much more disturbing.”