May you live in interesting times.
Said to be an Ancient Chinese curse
Donald Trump clearly been acting as if he’s been given complete power by the Supreme Court.
- He denies already-apportioned funds to those who displease him – but he has no authority to do that. Only Congress may decide on that matter, thanks to the Appropriations Clause, found in Article I, Section 9, Clause 7. And appropriations already made are established laws – that’s important, because the Constitution’s “Take Care” Clause, Article II, Section 3 states that the president “shall take Care that the Laws be faithfully executed…”
- He creates what can only be called concentration camps for Latinos. His rationale? The bizarre concept that these people – who are just trying to make enough money to feed themselves and their families – are ‘alien enemy combatants’, who are openly declaring war on the United States every time they take a job in this country.
Specifically, Trump accuses all of them of belonging to the Venezuelan street gang Tren de Aragua. The problems with his argument?
- ) The U.S. is not fighting a war with Venezuela – nor is this country in a declared war with a street gang. Therefore his rationale has no basis in reality.
2. ) Immigrants were not allowed to challenge their detentions – for instance, Trump shipped a number of Latino immigrants to a mega-prison located in El Salvador, after refusing to provide them a hearing before a judge. Even the Supreme Court admitted in April that an immigrant has a right to challenge his or her detention.
And if the immigrants had full access to a legal hearing, it probably would have been proven that most of those arrested in fact are not members of any gang. Data released in August reveals that 70% of those who were detained by Trump’s Immigration and Customs Enforcement (ICE) do not have criminal convictions.
Thus again, his basic argument for the Latino round-ups – and their detentions in concentration camps – has no basis in reality.
We suspect that readers understand the hubris of the Trump Administration. What almost certainly allowed all of this to happen? It probably comes down to a suspect Supreme Court decision from July 2024, which declared that presidents have an immunity from prosecution if he or she can be said to be performing their constitutionally-mandated duties.
Many have rightly called the Court to account for such a sweeping proclamation. As Politico pointed out:
“The decision has clearly emboldened Trump,” the news source declared, adding that, in his second term, “Trump has pursued an aggressive and wide-ranging effort to expand the power of the executive branch,” often by working to assume powers that are rightly the constitutional domain of the courts and of Congress.
It was the more conservative members of the Supreme Court that gave such a gift to Trump, in a 6-3 decision. But those conservatives haven’t quite realized that their decision doesn’t really change much at all, if we read the Constitution closely on this matter.
Trump’s presumption of power rests on the mistaken idea that the decision provides a blanket immunity. But the operative point of that decision rests on the notion that a president is only immune from prosecution if they may be said to be ‘performing the duties of the president’.
But the Constitution makes a point of spelling out the clearly defined – and clearly limited – duties of the presidency. So if the president does something not clearly spelled out as a presidential duty by the constitution, he may be said to be acting outside of those duties … and can be held accountable for performing such unwarranted actions.
This is especially true if the activity is also illegal, since readers may remember our earlier point that Article II, Section 3 of the Constitution declares that the president “shall take Care that the Laws be faithfully executed…”
We’ll provide a thought experiment to make our point. A pardon is a core presidential duty. But if the president takes graft to issue a pardon to a wealthy individual, he is still just as accountable as he was a before the decision. Why? Because accepting graft is a crime, and – barring a declared exemption – nothing in the Constitution grants the president the right to commit a crime.
In our example, it’s true that the president cannot be held legally accountable for the pardon, but he is still accountable for accepting graft, since such an activity is not one of his constitutionally-mandated duties. Outside of those well-defined and very limited duties, the president is still bound to our laws. It’s something to think about during these interesting times.
