Trump’s disregard for US constitution ‘a blitzkrieg on the law’, legal experts say

Donald Trump’s rapid-fire and controversial moves that have ranged from banning birthright citizenship to firing 18 inspectors general means the US president has shown a greater willingness than his predecessors to violate the constitution and federal law, some historians and legal scholars say.

These scholars pointed to other Trump actions they say blatantly broke the law, such as freezing trillions of dollar in federal spending and dismissing members of the National Labor Relations Board (NLRB) and Equal Employment Opportunity Commission (EEOC), even though they were confirmed by the Senate and had several years left in their terms.

“Without any doubt Donald Trump is the most lawless and scofflaw president we have ever seen in the history of the United States,” said Laurence Tribe, one of the nation’s leading constitutional scholars and a professor emeritus at Harvard Law School.

Tribe said Trump has carried out “a blitzkrieg on the law and the constitution. The very fact that the illegal actions have come out with the speed of a rapidly firing Gatling gun makes it very hard for people to focus on any one of them. That’s obviously part of the strategy.”

Tribe said the so-called pause in federal spending that the Trump administration ordered last Monday “was a clear usurpation of a coordinate branch’s [Congress’s] exclusive power of the purse”.

Before the Trump administration rescinded the freeze two days later, several groups had sued to stop the freeze, saying Trump had violated the constitution and the 1974 Impoundment Control Act, which lets presidents withhold funds in limited circumstances, but only if they first follow several special procedures – which legal experts said Trump failed to do.

Erwin Chemerinsky, dean of the University of California Berkeley School of Law, also voiced dismay at what he said was Trump’s flagrant flouting of the law in his first few days back in office.

“A stunning number of his executive actions clearly violate the constitution and federal law,” Chemerinsky said. “I cannot think of any president who has ever so ignored the constitution as extensively in the first 10 days of office as this.

“I certainly doubt that any president has done so much lawless so quickly that affects so many people,” Chemerinsky continued. “The freeze of federal spending potentially affects tens of millions, maybe hundreds of millions of people.”

That freeze caused alarm and chaos across the nation as it disrupted Medicaid payments, childcare programs, meals for seniors, housing subsidies and special ed programs. Matthew Vaeth, the acting director of the office of management and budget, said the freeze was needed to stop “the use of federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies”.

Federal judges moved quickly to temporarily block the spending freeze and the ban on birthright citizenship. Last Tuesday, a federal district court judge in Washington DC, Loren AliKhan, suspended the spending freeze. Facing huge confusion and criticism over the freeze, the Trump administration rescinded it on Wednesday.

On 23 January, a federal district judge in Seattle, John Coughenour, a Ronald Reagan appointee, temporarily blocked Trump’s order to end birthright citizenship. “This is a blatantly unconstitutional order,” Coughenour said. “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.”

Karoline Leavitt, the White House press secretary, defended the president’s move to ban birthright citizenship. In a briefing on Wednesday, she said: “We are prepared to fight this all the way to the supreme court if we have to, because President Trump believes that this is a necessary step to secure our nation’s borders and protect our homeland.”

Many legal experts and Democratic lawmakers condemned Trump’s firing of 18 inspectors general, who serve as independent officials who audit and investigate agencies for waste, fraud and abuse. Those critics, along with Chuck Grassley, an Iowa Republican who chairs the Senate judiciary committee, noted that Trump had failed to give Congress the required 30-day advance notice and specific reasons for the firings.

Late last Monday, Trump fired Gwynne Wilcox, a member of the NLRB, and two members of the EEOC, Charlotte Burrows and Jocelyn Samuels. All three – members of independent boards – were appointed by Democratic presidents and had several years left in their terms.

Kate Andrias, a professor of constitutional law and administrative law at Columbia University, called those firings “unprecedented and illegal”. Regarding the Wilcox firing, she said: “The National Labor Relations Act makes clear that president can fire board members only for neglect of duty and malfeasance. NLRB members can’t be fired just because the president doesn’t want them on the board.”

Andrias noted, however, that the supreme court’s conservative supermajority might rule in Trump’s favor on these firings.

“Trump might have some support from the supreme court on this,” she said, adding that the court, with its “radical anti-administrative law” attitudes, “could reject 90 years of legal precedent and agree with the president that he had the authority to fire members of independent bodies.”

Andrias compared Trump with another president known for sometimes flouting the constitution and supreme court: “Andrew Jackson also had a record of violating the constitution in ways to expand his power,” Andrias said. “But in modern times, it’s unprecedented for a president to act this way to aggrandize his own power and act in contravention of the constitution and federal statutes.”

Julian Zelizer, a historian at Princeton, said Richard Nixon also sometimes broke the law – most notably in the Watergate scandal – but “I don’t think he tried to overturn parts of the constitution. So maybe there, Trump has him beat.”

Zelizer said Trump’s spending freeze was “an effort to essentially ignore Congress’s constitutional power” of the purse and to “throw the Impoundment Act in the garbage”.

“I can’t remember another president who has tried to throw so much of the constitution out the window to do what he wants,” Zelizer added.

Tribe voiced concern that Trump’s actions were weakening the rule of law as well as respect for the law.

“We have to focus on the fact that the sum of this is greater than the parts. Violating the constitution and acts of Congress repeatedly not only creates rips in the fabric that occur with each violation, but shreds the whole thing,” Tribe said. “It’s only the very beginning of this administration. If people normalize this lawbreaking instead of pushing back, it will be very hard ever to restore the system of government that most of us grew up assuming it would be in place.”