The experts have now weighed in: The U.S. Constitution is in crisis, so we can finally cease that senseless debate

The New York Times asked 35 of us to identify the most unlawful actions taken within the first 100 days of this presidency

For months now, I’ve been asked the following question countless times: Is the U.S. in a constitutional crisis? My answer has been a consistent yes. The checks and balances are not functioning to disincentivize presidential lawlessness. The U.S. president is not a king, but he is acting like one—because he can. You don’t need to be a constitutional law professor—or even a lawyer—to understand that basic truth.

So when the New York Times last week published the opinions of 35 constitutional law scholars (myself included), it came as a bit of a relief from having to repeatedly answer this question. We were asked to identify the Trump Administration’s most concerning actions subverting the rule of law. The collective answer was clear: the “bright red warning lights about the future of America” are flashing.

More to the point, “there was abundant assent that the president is trying to operate without limits and that the rule of law and especially due process are being profoundly tested and challenged.”

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This newsletter unpacks the law in plain language during this historic time of national crisis. I hope you share it widely (and if you can, please consider upgrading to paid).

I’m immensely grateful for your support!

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But hasn’t America been in crisis before? The Civil War? The Civil Rights era? The Great Depression? We got through those—we’ll certainly get through this one, too.

My colleagues across the country offered pointed responses to this talking point. Trump 2.0 is unlike any other moment in U.S. history. To dismiss his threats to the rule of law as “business as usual” that will take care of itself is downright dangerous. Here’s a sampling:

What are the biggest problems the experts identified?

The New York Times offered “a road map through Mr. Trump’s first 100 days of lawlessness,” identifying the following top concerns:

• “defiance of our judiciary and constitutional system;

• the undermining of First Amendment freedoms and targeting of law firms, universities, the press and other parts of civil society;

• the impoundment of federal funds authorized by Congress;

• the erosion of immigrant rights;

• and the drive to consolidate power.”

The “erosion of immigrant rights” includes sidestepping birthright citizenship and the Due Process Clause.

Let’s walk through a handful of the most glaring issues.

If birthright citizenship is in the Constitution, why are we still talking about it?

One of Trump’s first orders tries to gut birthright citizenship, which is found explicitly in the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” So long as the parents of a child born in the United States are not “subject to the jurisdiction” of some other country (as, for instance, foreign diplomats would be), the child is a U.S. citizen. Parents’ citizenship status has no bearing on the citizenship of children born here.

Birthright citizenship has been an established right for over 127 years when the Supreme Court upheld it in United States v. Wong Kim Ark. The justices reiterated that children born in the United States are citizens of America so long as their parents were not “employed in any diplomatic or official capacity” in foreign government—per the Constitution’s language.

Trump’s willingness to try and disrupt a firmly-established right that comes directly from our Constitution shows how comfortable he is destroying solidified rights and Supreme Court precedents.

Prof. Michael McConnell, a member of the Federalist Society, former federal appeals court judge, and self-proclaimed conservative told the New York Times he is “confident the courts will reject the president’s claim that children of illegal aliens born in this country lack birthright citizenship.”

The fact that this even has to go to the Supreme Court for confirmation that the Constitution says what it says—and that it is an operative law in this country—is concerning. The validity of the plain language the Constitution should go without saying—as it has for every other president since the 14th Amendment was ratified in 1861.

What about due process?

There’s been a lot of public scrutiny over Trump’s deportation of a Maryland man by the name of Kilmar Abrego Garcia. But let’s not forget, as the New York Times notes, that “[h]e was among 238 migrants declared ‘alien enemies’ under a rarely used 1798 law that allows the government to quickly deport citizens from an invading nation.”

Since taking office, Trump has invoked the Alien Enemies Act, for the first time since World War II, to justify abducting people from across the country and deporting them to El Salvador en masse under the guise of “national security.”