A year since the immunity decision
Instead of celebrating the birth of American democracy today, many of us are preparing for its demise
I know this is traditionally a day of community and celebration, and we are all exhausted by the ceaselessly awful news.
But we haven’t collectively woken to the threat yet. Until we do that, the resistance won’t really begin. And we will lose our freedoms. Worse, our children will.
So please find the stamina to bear with me as I explain why we need to set aside our differences and not just weather the threats to democracy, but find the personal courage to fight back.
On the 4th of July last year, I wrote that we were the closest this country has been to a monarchy since 1776, when the thirteen colonies celebrated independence from Great Britain. That’s because a year ago on the 1st, the Supreme Court created a new provision under Article II of the Constitution, which granted presidents a presumption of absolute immunity from prosecution for official acts, even if they acted corruptly or in violation of criminal laws.
There are no words to describe how it feels to reflect on how much worse things have gotten since then. I stand corrected: we are now the closest this country has ever been to a monarchy since its birth.
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In her dissenting opinion in Trump v. US, Justice Sonia Sotomayor wrote that “The relationship between the President and the people he serves has shifted irrevocably” because of the majority’s decision.
She was right. Since the immunity decision, Trump has acted with more disregard for the law than ever. And as a result, more and more provisions of the Constitution that have been upheld for centuries are becoming obsolete.
What parts of the Constitution have become optional?
In the last six and a half months—although it’s felt far longer than that—we have seen our country fall into a severe constitutional crisis. President Trump has disregarded virtually every single constraint on his power, and when the federal judges try to bring him back within the boundaries of the law, the Supreme Court majority swoops in and broadens his power.
Appropriations Clause
Article I, Section 9, Clause 7 of the United States Constitution states:
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Article I established Congress and gave it the sole power to legislate as well as the power of the purse (or the power to spend federal funds). As a U.S. District Court judge in D.C. said in a case concerning the freeze of USAID funds, Congress holds the “core constitutional power to determine whether and how much money is spent.”
Nonetheless, the Trump Administration has blocked over $425 billion in federal funding. Here are just a few examples of the programs and agencies impacted by Trump’s actions, which include:
freezing upwards of $6 billion of federal funds that Congress appropriated “for after-school, student support, teacher training, English language and other education programs;”
terminating roughly 6,2000 U.S. foreign aid contracts that are created and funded by Congress;
freezing $2,750 million of federal funds given by Congress to the National Institute of Health (NIH) for grants that support biomedical research and cancelling $770 million in grant funds for research of Alzheimer’s disease, women’s health, cancer, and diabetes; and
cancelling $1,700 million of Congressionally appropriated funds for the Environmental Justice program of the Environmental Protection Agency (EPA).
Emoluments Clause
There are two portions of the Constitution that address emoluments, one domestic and one foreign.
Article I, Section 9, Clause 8 of the Constitution addresses foreign emoluments:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Domestic emoluments are addressed by Article II, Section 1, Clause 7:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
The Brennan Center for Justice has explained that “the Department of Justice generally has taken the position that the clauses broadly prohibit receipt of any tangible profit, advantage, or benefit from a foreign government (absent congressional consent) or a U.S. state.”
Yet, Trump has…
created two different cryptocurrency businesses: the $TRUMP meme coin and a cryptocurrency trading platform known as World Liberty Financial. Both have reportedly “funneled hundreds of millions of dollars to the Trumps.” Some of the purchasers are “connected to foreign governments like the United Arab Emirates and China;”
accepted the “luxury jet” from Qatar’s royal family as a gift; and
received almost $8 million from foreign governments in his first two years as president through his various business enterprises.
First Amendment
The right to free speech is protected by the First Amendment, which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Despite this protection (here are just a few examples):
students have been arrested for their involvement in certain clubs, organizations, and peaceful protests;
law firms are being bullied;
universities are being silenced; and
Trump has created a list of banned words and “ordered the removal of these words from public-facing websites, or ordered the elimination of other materials (including school curricula) in which they might be included,” according to The New York Times. There are reports of scientists removing the words from reports, and government agencies are removing key historical figures that may relate to the banned terms.
Fourth Amendment & Sixth Amendment
The Fourth and Sixth Amendments provide a lot of protections for individuals facing criminal charges. The Fourth Amendment is thought of as setting forth “pre-trial” rights, while the Sixth Amendment applies more to the actual trial phase and afterwards.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
But these protections have been tossed to the wayside by the Trump Administration:
people are being searched, detained, and arrested without warrants or a lawful exception to the warrant requirement;
Pam Bondi, the US Attorney General, has directed law enforcement to essentially not worry about the Fourth Amendment when arresting noncitizens under Trump’s invocation of the Alien Enemies Act; and
law firms are being prevented from representing clients and thereby violating those clients’ right to counsel under the Sixth Amendment.
Due Process
Due process resides in the Fifth and Fourteenth Amendments that protect all people, citizens and noncitizens, from being deprived of life, liberty, or property by the federal or state government without due process.
However, Trump has claimed he doesn’t know anything about this, despite being the president of the United States and responsible for ensuring all the laws are faithfully executed. Yet:
people are being put on planes and buses in the middle of the night and sent to different countries, sometimes to places they have zero ties to, without any sort of notice or an opportunity to be heard;
individuals are not being given their right to voice concerns about their safety should they be deported to certain countries;
more than 1,500 international students have had their visas or student statuses taken away without much explanation; and
law firms that refuse to comply with Trump’s orders are seeing their federal contracts ended, along with losing security clearances and federal building access.
Article I Lawmaking
Article I outlines how the nation’s laws are to be made—and by whom. Section I states that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
It’s pretty simple: Congress, and only Congress, makes the laws. There is no mention of executive orders anywhere in the Constitution. Rather, it is an implied power from Article II, but the Supreme Court has always held that presidents may not issue executive orders that override or contradict Congress’s legislation.
But Trump has done just that:
Trump issued an executive order to end birthright citizenship despite the plain language of the Fourteenth Amendment that protects it;
the president has instructed the Department of Justice to stop enforcing the federal laws that prevent foreign business corruption; and
countless federal employees and civil servants have been fired without following the legal protocols to do so.
What’s the takeaway?
The immunity decision opened the door for Trump to do what he’s doing without worrying about criminal law so long as he is acting within his presidential duties. He is acting contrary to the Constitution, and nothing is being done about it. Instead, the Supreme Court majority continues to hand down decisions that make it easy for him to act like a king.
Follow the facts,
KW
My latest book is Pardon Power: How the Pardon System Works—and Why.
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thank you for your clear explanations. combined, these attacks on the rule of law are breaking the country.
This was heavy lifting, but vital stuff. Thanks sooo much for what you do for us. /n