Litigation in the matter is ongoing.
6. Bombing Syria
Another instance of Trump’s ignoring the separation-of-powers doctrine to do what he pleases is his air strikes in Syria. In April 2017, the Trump administration ordered the bombing of a Syrian military base to “save” Syrians from the Assad regime. Regardless of the humanitarian justification, Trump did not inform Congress of this bombing mission, much less ask for authorization. He then ordered another air strike in Syria without congressional approval in 2018. A bipartisan group of members of Congress questioned its constitutionality.
7. Blocking Twitter Users
Although Twitter’s ban of @realDonaldTrump is currently in the news, the legal and policy issues raised by that decision are different than those raised by the president’s blocking of users who criticized him. While I was initially skeptical of the lawsuit filed in the first year of his presidency challenging such blockings, it subsequently became apparent that Trump had turned his Twitter feed into a public forum by announcing executive actions and policies there, from the withdrawal of U.S. troops from Syria to the selection of Christopher Waller for the Federal Reserve Board to the goal of returning a citizenship question to the 2020 census to West Wing personnel decisions and so on and so forth. The White House also designated Trump’s tweets as official statements to be maintained by the National Archives, making his account far from a personal one. The U.S. Court of Appeals for the Second Circuit held that Trump’s blocking of unfriendly followers thus constituted viewpoint discrimination, in violation of the First Amendment, but the Supreme Court had since October been postponing a decision on whether to take the case, which now it won’t have to.
8. COVID-19 Executive Orders
Trump built on Obama’s pen-and-phone governance to bypass the constitutional structure when he short-circuited congressional negotiations over COVID relief in August 2020 by issuing four pandemic-related executive orders. These orders extended unemployment benefits and placed the onus on states to top them up, suspended the payroll tax for many workers, facilitated an eviction moratorium later declared by the Centers for Disease Control (the extension of which President Biden is now pursuing), and suspended student-loan repayments. While these may or may not be sensible policies to provide relief to low-income people economically hurt by the global pandemic, even leading progressive legal scholar Erwin Chemerinsky found them unconstitutional.
There are two other types of constitutional dubiousness indulged by Trump that merit a dishonorable mention: corruption and unethical behavior, and the abuses that would’ve been perpetrated had his aides not disregarded his instructions.
The first category encompasses both official actions such as undermining and pushing out federal inspectors general to unofficial actions such as calling his political opponents “human scum” and journalists “the enemy of the people” (even if it’s true that the mainstream media is biased against Republicans and conservatives). The two actions for which he was impeached — pressuring a foreign leader to investigate a political rival and fomenting an assault on the Capitol — can also be included here. And although neither the foreign-emoluments clause nor the domestic-emoluments clause quite covers the benefits Trump got from owning a hotel in central Washington or China’s fast-tracking his daughter’s trademark applications, the Constitution’s framers did mean to preclude that sort of personal corruption and influence-peddling.
As to the would-be violations, although it was fun to read about Gary Cohn’s snatching away an executive order that would’ve started a trade war with South Korea or Don McGahn’s acting like a “real lawyer” and refusing to fire Bob Mueller, it was also unsettling. Nobody elected Cohn or McGahn, but it turns out we all depended on them to avoid disasters, including constitutional crises, many of which we won’t ever know about.
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The Trump Administration is not unique in having violated the Constitution. Presidents of both parties have betrayed the document they swore to protect, from Barack Obama’s unilateral rewriting of immigration law to George W. Bush’s expansive interpretation of antiterrorism powers. Trump’s norm-breaking and his coarsening of American political culture have been extreme, but from a constitutional standpoint, the bulk of his abuses involved phone-and-pen policymaking of a sort we’ve come to expect from the imperial presidency. And we shouldn’t forget that his administration did certain things to help rebalance our constitutional order, such as putting greater constraints on regulatory actions — including one this week — adding due-process protections to campus-disciplinary investigations, and, of course, appointing three superb Supreme Court justices and 231 other federal judges committed to interpreting constitutional text according to its original public meaning. Those positives will get overshadowed by the chaos he’s created, but they are substantial.
Trump could’ve been truly dangerous if he’d had a greater understanding of the law and the powers of his office. It’s frightening to think of a world in which he’d enforced half the notions behind his tweets and used the levers of government rather than just lashing out. But he didn’t, and now he’s been succeeded by a president whose constitutional violations and policy errors both will likely fall within more “normal” parameters. That’s not exactly a cause for celebration — but then, those are few and far between for we who seek to preserve the Constitution and hold government officials responsible for adhering to it.