Trump defying constitution?
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Trump is engaging in an arguably thuggish, demagogic campaign, staking out controversial and offensive positions.  The billionaire, most troubling of all, already is defying the Constitution.  The next president, on taking office, will pledge to “preserve, protect and defend the Constitution.” Any president is obliged to uphold the separation of powers and Bill of Rights.  The president is in charge of the military, intelligence community, Justice Department, and IRS, and is obligated to respect restrictions on presidential power. 

Lincoln called the Constitution “the only safeguard of our liberties.”  Supreme Court Justice Felix Frankfurter declared: “There can be no free society without law administered through an independent judiciary.  If one man can be allowed to determine … what is law,  … [that] means first chaos, then tyranny.”  Trump arguably has challenged Constitutional principles in questioning Hispanic federal Judge Gonzalo Curiel’s fitness to hear a civil case against Trump University in California, in attacking the media, and in responding to the Orlando terrorist attack. 

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Trump has excoriated Curiel, born in Indiana 63 years ago, as a “Mexican” whose “hostility” disqualifies him.  Trump threatens, if elected, to retaliate by bringing a civil suit against Curiel.  Trump states he might make similar allegations about any Muslim judge in a similar case.  This is racial and religious bigotry and challenges Article VI of the Constitution’s prohibition against “religious tests.”

Trump is attacking New York Attorney General Eric Schneiderman, who is suing Trump University, as unfit.  His attacks on Curiel and Schneiderman raise concerns as to whether he would respect the judiciary’s powers and autonomy delineated in Article III of the Constitution.  Trump’s lawyers have not submitted recusal motions for either man.

Trump appears to have little regard for the role of the press, outlined in the 1st Amendment, which prohibits “abridging freedom … of the press.”  He has banned several major news organizations from attending his events.  Trump excoriates Jeff Bezos, Washington Post owner and Amazon CEO, for allegedly buying the Post to protect his own corporate interests.  He is threatening Bezos and the Post, warning, “if I become president, oh do they have problems.”  This raises the specter of a politicized Justice Department and IRS targeting them.     

Trump has threatened all manner of critics.  When the Ricketts family, which owns the Cubs, gave $3 million to the Never Trump Movement, he warned: “They better be careful, they have a lot to hide!”  Voters were left to wonder whether Trump would retaliate, if elected.

Trump repeated controversial statements about Muslims after the Orlando ISIS-inspired terrorist attack.  Trump has said he would ban Muslim immigrants and visitors to the US, and immigration from countries wracked by terrorism.  He states he may place Muslims in a national registry to be tracked, close mosques and dispense with terrorism-related warrants.  Trump pledges to employ torture against ISIS and target family members of terrorists.

Many of these proposals challenge the 4th, 5th, 6th, and 14th Amendments.  They arguably defy prohibitions against unilateral suspensions of writs of habeas corpus and warrantless or unreasonable searches and seizures, as well as the right to due process and equal protection under the law.  Banning Muslim immigration may violate the 1st Amendment prohibition of laws restricting religious freedom.   

If Trump were to employ torture or target innocents in military operations, this would violate the Geneva Convention.  If he sanctioned torture against alleged jihadists or terrorists in the US, this would violate US law and the Constitution. 

Trump’s view of the 14th Amendment is particularly controversial.  He denies it grants citizenship to the children of illegal immigrants born in the US.  The 14th Amendment clearly does so.  Trump denies the right of due process for illegal immigrants.  The 14th Amendment declares “The validity of the public debt of the [US] … shall not be questioned.”  Notwithstanding, Trump says he may reduce US debt by persuading or pressuring creditors to accept less than full payment. 

President Obama’s own politicization of the Justice Department and IRS, executive orders and regulatory edicts circumventing Congress may provide Trump precedents.  Trump notes Obama “led the way” on executive orders, pledging to emulate him.  He also would be in a position to rescind Obama’s executive orders, regulations, and international agreements based solely on executive branch authority. 

The presidential oath of office obligating the occupant to uphold the Constitution would appear to disqualify Trump.  The billionaire demonstrably takes exception to many Constitutional tenets.  The voters must decide whether Trump’s constitutional views preclude him from becoming president.


Davis is a retired intelligence analyst, who worked with the Army Special Operations Command, Defense Intelligence Agency, and CIA. He has a blog, entitled “Foreign Policy & Domestic Politics.”