In his first hours back as president, Donald J. Trump did an extraordinary thing: He made a direct assault on the Constitution. He declared that his government would no longer treat U.S.-born children of undocumented immigrants or children of lawful, temporary immigrants as citizens, as the 14th Amendment commands.
You can draw a straight line from that executive order on birthright citizenship to his administration’s revocation of visas, the detention of foreign students, and the wrongful deportation of Kilmar Armando Abrego Garcia, a Maryland resident, to a Salvadoran prison and the subsequent refusal to try to extricate him in spite of court orders. Mr. Trump is claiming far-reaching but dubious powers, pushing or exceeding legal limits without first bothering to determine if they were permissible, as past presidents generally did.
Times Opinion recently reached out to dozens of legal scholars and asked them to identify the most significant unconstitutional or unlawful actions by Mr. Trump and his administration in the first 100 days of his second presidency, and to assess the damage. We also asked them to separate actions that might draw legal challenges but are, in fact, within the powers of the president. And we asked them to connect the dots on where they thought Mr. Trump was heading.
We heard back from 35 scholars — a group full of diverse viewpoints and experiences, including liberals like U.C. Berkeley’s Erwin Chemerinsky and Harvard’s Jody Freeman; the conservatives Adrian Vermeule at Harvard and Michael McConnell, a former federal appeals court judge who directs Stanford’s Constitutional Law Center and is a member of the Federalist Society; and the libertarians Ilya Somin at George Mason University and Evan Bernick at Northern Illinois University. Many are among the nation’s most cited scholars by their colleagues in law review articles.
From all of their responses, we constructed a road map through Mr. Trump’s first 100 days of lawlessness, including his 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.
This road map largely draws on the scholars’ own words, which serve as bright red warning lights about the future of America:
More important than any specific example of unconstitutional conduct is the overall pattern. The depth and breadth of this administration’s disregard for civil liberties, political pluralism, the separation of powers and legal constraints of all kinds mark it as an authoritarian regime. That is the crucial thing to see.
— David Pozen, professor, Columbia Law School
They seek a massive increase in presidential power, which if fully achieved would potentially undermine most of the constitutional separation of powers and create an elective monarchy or a quasi-authoritarian state. If they prevail, it would be terrible for the rule of law and liberal democratic values generally. But they can be stopped, and hopefully will be.
— Ilya Somin, professor, Antonin Scalia Law School, George Mason University
The disregard for law is itself part of the agenda. They do not seem to care whether they violate the Constitution and statutes, make mistakes, do irreparable harm. That recklessness itself sends a message.
— Jody Freeman, professor, Harvard Law School
Our Constitution is written on ancient paper. Its effectiveness, durability and power depend upon people embracing its commands today, with good faith and with good will. If and when one actor disregards or disparages those responsibilities, it is imperative that other actors step up and demand fealty to constitutional norms, lest the spirit of the Constitution be lost. We are in perilous waters.
— Dawn Johnsen, professor, Maurer School of Law, Indiana University, Bloomington
Not all of our legal scholars saw every Trump action the same way, and one saw the problem as lying more with the courts than with the administration. But 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. This guide through the first 100 days is by no means exhaustive, but rather reflects legal issues our 35 scholars highlighted repeatedly or with the gravest concern.
Let’s start with what many of them flagged first: Ending birthright citizenship.
No other issue united our legal scholars, as a group and across ideological lines, more than Mr. Trump’s attack on birthright citizenship, which they assessed as flagrantly lawless in nature with little hope of succeeding in the courts.
But the fact that the president has taken on this fight speaks to his tenacity in trying to upend long established rights and, in this case, a Supreme Court decision that has stood for 127 years.
Federal courts in three states have issued temporary nationwide pauses on Mr. Trump’s order. The administration has asked the Supreme Court to modify the reach of those injunctions, which would allow the president’s executive order to go into effect in some or even many parts of the country. But this battle is likely to be a mere prelude to one over the constitutionality of the order itself.
It’s more than unconstitutional — it’s anti-constitutional. It’s an effort to erase from our constitutional history and law one of the greatest struggles for human freedom in American history and reconfigure the Constitution into an instrument of domination.
— Evan Bernick, associate professor, Northern Illinois University College of Law
The reinterpretation of birthright citizenship is a challenge to one of our central constitutional principles: that there shall be no hereditary underclass in America.
— Kermit Roosevelt, professor, Carey Law School, University of Pennsylvania
It would call into question the citizenship of more than a million children and likely many more adults who were born here to parents not authorized to be in the country. The result would be chaos.
— Ann Carlson, professor, U.C.L.A. School of Law
I am confident the courts will reject the president’s claim that children of illegal aliens born in this country lack birthright citizenship.
— Michael McConnell, professor, Stanford Law School
From there, it’s a straight shot to deporting people without due process.
The case of Mr. Abrego Garcia has put a klieg light on the Trump administration’s contempt for perhaps the most fundamental guarantee of the Bill of Rights: due process under the law. It means the government must provide a person — and that is any individual, not just a United States citizen — with notice and an opportunity for a hearing before stripping him of life, liberty or property.
But it is not just the case of Mr. Abrego Garcia that is alarming. He 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. In other cases, the Trump administration cited a seldom used provision of a 1952 law to target international students who protested the war in Gaza on the ground that they pose a threat to U.S. foreign policy. By using a broad interpretation of what constitutes a threat, critics say the Trump administration eroded constitutionally protected rights to due process and free speech.
The State Department also revoked the visas or student status of over 1,500 international students and recent graduates, generally without providing clear justification. This lack of transparency provided little recourse for students or universities to correct or appeal these decisions. On Friday, the Trump administration, in an apparent about-face, announced that it will restore the legal status of hundreds of students as it works on a new system for assessing and terminating student visas. But officials said those students may yet see their status and their visas discontinued.
If the administration can simply spirit people outside the United States in violation of the law and then disclaim any power to bring them back, then no U.S. citizen is safe from similar actions.
— Shirin Sinnar, professor, Stanford University Law School
These events should terrify all of us — not just noncitizens. If the executive branch has unfettered discretion to deport anyone it asserts is an “alien enemy” and then claim to be powerless to rectify the “error” once the person is removed, even citizens are at risk.
— Amanda Frost, professor, University of Virginia School of Law
The president is pushing to have a system of enforcement that is free from any constitutional or statutory constraints and untouchable by the courts. The actions also sweep broadly to strip lawfully present immigrants — and even natural-born U.S. citizens — of their status.
— Ingrid Eagly, professor, U.C.L.A. School of Law
Due process dates back to Magna Carta; it is the essence of liberty. Without it, America is not a democracy as freedom itself is at the arbitrary whims of a malevolent ruler.
— Kim Wehle, professor, University of Baltimore School of Law
The lawless attacks also have targeted law firms …
In February Mr. Trump began targeting top law firms that he has accused of helping to “weaponize” the justice system against him by representing clients or causes at odds with his agenda. He has forced them to bow to his demands or see their federal contracts summarily terminated and their lawyers lose security clearances and access to federal buildings that they need to represent their clients. Jenner & Block, one of the firms targeted, has argued in court that the order violates the First Amendment, the Fifth Amendment’s due process clause and the Sixth Amendment’s right to counsel. “It goes beyond the president’s constitutional power” and “is authorized by no statute,” the firm said. One federal judge has called a similar effort against another law firm “a shocking abuse of power.”
So far, to avoid reprisals, at least nine firms have promised to provide roughly $1 billion in top-tier pro bono legal advice to causes Mr. Trump embraces. More than a few of these scholars likened this coercive scheme to extortion.
Few things are more terrifying in a constitutional republic than a president exercising retributive power without constitutional restraint. The president’s retributive actions obviously violate a remarkable number of constitutional provisions. This cannot be tolerated.
— Barry Friedman, professor, N.Y.U. School of Law
In terms of the sheer number of constitutional violations, the orders targeting individual law firms for retribution are hard to beat.
— Kate Shaw, professor, Carey Law School, University of Pennsylvania
It would be difficult to imagine a presidential action more undermining of the foundations of our system of constitutional democracy.
— Martin H. Redish, professor, Pritzker School of Law, Northwestern University
And universities …
Universities have similarly come under attack. Mr. Trump has threatened to pull billions of dollars in federal funds unless campuses knuckle under to his demands on hiring, admissions and curriculums. Many of the scholars framed these attacks as part of a larger war on civil society and brazen violation of the First Amendment and procedural protections.
The question we must really ask ourselves is whether we are free to hold and espouse ideas with which the administration disagrees? It would increasingly seem that the answer is no.
— Derek Black, professor, University of South Carolina Joseph F. Rice School of Law
The attacks on law firms and universities are legally indefensible violations of the First Amendment.
— Micah Schwartzman, professor, University of Virginia School of Law
Universities, law firms, public schools, et cetera, are being attacked because of their political views: their opposition to the president, their adoption of D.E.I. policies, their liberalism more generally. These moves flout the cardinal rule of the First Amendment, which is that the government can’t punish people because of their political speech. — Nicholas Stephanopoulos, professor, Harvard Law School
And The Associated Press.
For the last few months, the White House has sharply reduced The Associated Press’s access to Mr. Trump because it declined to refer to the Gulf of Mexico as the Gulf of America, the name that Mr. Trump designated for it. A.P. journalists were excluded from the small, rotating group of journalists who routinely cover events in confined spaces at the White House, including the Oval Office and Air Force One. But recently the White House, on a few occasions, allowed A.P. journalists into such events after a Federal District Court judge in Washington, D.C., ruled that the exclusion violated the First Amendment’s free speech clause.
A judge appointed by President Trump ruled that his exclusion of The Associated Press from the White House press pool for refusing to adopt the new nomenclature of “Gulf of America” was unconstitutional. No surprise — except perhaps to those who think that judges routinely vote with the party of the president who appointed them.
— Michael McConnell, professor, Stanford Law School
This is a violation of the First Amendment: Trump is punishing members of the press for what they publish.
— Suzanna Sherry, emeritus professor, Vanderbilt Law School
Using money as leverage is key to Mr. Trump, even if the Constitution stands in his way.
Mr. Trump wasted little time in challenging Congress’s constitutional power of the purse to control government spending. On Inauguration Day he signed an executive order freezing foreign aid and funding for energy programs. He has impounded billions of dollars, despite a 1974 law that limits the president’s power to withhold those funds and requires him to follow specific steps to delay or rescind funding. He has called that law a “disaster” that “is clearly unconstitutional” and “a blatant violation of the separation of powers.”
But in fact, many scholars see the president’s actions as a further effort to arrogate power within the White House at the expense of Congress.
Refusing to spend funds appropriated by Congress violates separation of powers in usurping Congress’s spending power and violates the Impoundment Control Act.
— Erwin Chemerinsky, dean, University of California, Berkeley, School of Law
No other modern president has tried this on such an enormous scale. If allowed to stand, it would enable the president to both seize control over hundreds of billions of dollars in federal funds and coerce state and local governments by imposing grant conditions not authorized by Congress. All of this also violates the Constitution — both federalism and the separation of powers.
— Ilya Somin, professor, Antonin Scalia Law School, George Mason University
Deploying tariffs at will is suspect, too.
The president’s tariffs are facing numerous legal challenges, including a lawsuit contesting levies that Mr. Trump announced on China in February and later expanded. In imposing the tariffs, the administration invoked a 1977 law, the International Emergency Economic Powers Act, which allows a president to regulate imports if the president declares a national emergency.
He argued that tariffs were necessary because U.S. trade deficits have “led to the hollowing out” of the nation’s manufacturing base, undermined supply chains and made the country’s “defense-industrial base” dependent on foreign adversaries. But the 1977 law has never been used before to impose tariffs, and it is unclear whether it authorizes them.
Most important is the coming showdown over the president’s asserted power to impose, rescind, raise and delay tariffs on imports. The administration can point to broad statutory language authorizing specific import restrictions under emergency circumstances, but the president has no inherent constitutional authority to tax imports. No statute expressly authorizes the president to impose tariffs for the nonemergency purposes of raising revenue, improving our long-term balance of trade or winning unrelated concessions on miscellaneous issues.
— Michael McConnell, professor, Stanford Law School
Issuing tariffs under dubious legal authority without Congressional authorization … could pull the entire world economy into chaos and recession and undermine the U.S.’s position as global financial leader and a haven of economic stability by destabilizing Treasury bonds.
— Ann Carlson, professor, U.C.L.A. School of Law
Then there’s the firings at independent agencies.
Independent agencies like the Federal Communications Commission and the Securities and Exchange Commission were created by Congress with regulatory authority over their domains. Their leaders are appointed by the president but operate independently from the White House. This arrangement, as the Heritage Foundation argued in its blueprint for a second Trump term, “makes them constitutionally problematic in light of the Constitution’s having vested federal executive power in the president.”
And that is why these agencies are now in Mr. Trump’s cross hairs as he seeks to extend and strengthen his hold on the bureaucracy. The president has already summarily fired members of several independent commissions without cause before their terms were up, in violation of the law and a 1935 Supreme Court decision. But the judicial winds may be blowing the president’s way. Many of these scholars expect the Supreme Court will side with Mr. Trump.
This is consistent with the views of some conservatives both in promoting the unitary executive theory and advocating for the dismantling of the administrative state.
— Barry Friedman, professor, N.Y.U. School of Law
When Trump fired the heads of these independent agencies, he overrode the deliberate choice of Congress to deny presidents that power. That threatens the balance of power established by the Constitution’s creation of three branches of government. As the framers knew — and tried to avert — concentration of power in the hands of one branch (or worse, in the hands of one man) was a sure path to tyranny.
— Suzanna Sherry, emeritus professor, Vanderbilt Law School
Now let’s turn to actions within Trump’s authority.
We asked these scholars to offer examples of significant actions by Mr. Trump that have received legal criticism but were within his writ as president, regardless of whether they agree with what he did.
As a starting point, Professor Johnsen at Indiana University noted, “Presidents possess enormous powers to change policy.” Another scholar, Derek Black at the University of South Carolina, made the argument that legitimate exercises of Mr. Trump’s authority may simply be obscured by the sheer breadth and velocity of his effort to impose his will on the government and the country.
He has done 1,001 things, a large chunk of which appear facially beyond his power. But when we get into the facts, surely many would be within his power. We just need the facts to know — and he must justify certain actions based on facts.
— Derek Black, professor, University of South Carolina Joseph F. Rice School of Law
Much of what the administration has been doing — far more than his critics are willing to acknowledge — is within the president’s rightful prerogatives, or at least within a reasonable interpretation of the law, whether I like it or not as a policy matter.
— Michael McConnell, professor, Stanford Law School
Not everyone agreed on the particulars, but among the actions some scholars pointed to as being within Mr. Trump’s power, or likely to be upheld by the courts, were:
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The pardoning of the Jan. 6 rioters
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The creation of the Department of Government Efficiency
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The terminations of civil servants using proper procedures
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The canceling of some government contracts, grants and programs, and the sequestering of certain funds
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The firing of independent agency heads and inspectors general
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Certain deportations in which the government has invoked national security as a concern
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Certain efforts within the government to eliminate D.E.I. initiatives
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Appointments within the Justice Department that have been criticized as politicizing the department
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Some tariffs
All of which brings us to Trump and the courts.
More than 200 legal challenges have been filed so far against the administration’s actions since Mr. Trump returned to the White House. With the Republican-controlled Congress broadly compliant with the White House agenda, the courts are left as the last fortification against administrative overreach. But will the judiciary, in the end, be up to the task? And will the White House comply with judicial orders?
Courts have limited power to actually enforce their orders — judges rely on the executive branch to do that — and some federal judges have complained that the administration has ignored them or slow-walked compliance.
In a worrisome comment in February, Vice President JD Vance asserted that “judges aren’t allowed to control the executive’s legitimate power.” He has made a similar argument in the past. Moreover, the president and his allies have demeaned judges who have ruled against the administration and called for their impeachment. In a striking development on Friday, F.B.I. agents in Milwaukee arrested a state court judge on charges of obstructing immigration agents.
All of this has led to concerns about whether court orders will be ignored by the Trump administration or the courts will be undercut by Congress, which controls their budgets and can, under the Constitution, largely dictate which cases federal courts can hear — and can’t.
Last month the House speaker, Mike Johnson, raised the possibility of eliminating some federal courts. “We do have the authority over the federal courts, as you know,” Mr. Johnson told reporters. “We can eliminate an entire district court. We have power of funding over the courts and all these other things.”
The president of the United States, in brief, takes the position that he is not bound by federal statutes and does not have to obey federal-court orders. The constraint dimension of the rule of law, accordingly, is not met at present in the United States.
— Aziz Huq, professor, University of Chicago Law School
It’s too early to assume that the Supreme Court will roll over for him or that he will directly disobey a Supreme Court ruling.
— Daniel Farber, professor, University of California, Berkeley, School of Law
The impression of a “constitutional crisis” is misleading. That impression was initially created by overreaching district judges selected by plaintiffs, who obtained temporary victories and leveraged those victories in the media. If there is a crisis, it does not arise from the actions of the administration, but instead from a slew of highly aggressive judicial decisions that have transgressed traditional legal limits on the relationship between the judiciary and the executive branch — limits the courts respected during the Biden administration.
— Adrian Vermeule, professor, Harvard Law School
And finally, we end at … the Big Picture.
What do Mr. Trump’s lawless actions add up to? And where do they suggest the president is heading? We concluded by asking those questions to our legal scholars, too.
Having surrounded himself with sycophants, Trump feels unconstrained by the Constitution and federal statutes.
— Michael Dorf, professor, Cornell Law School
President Trump appears to be seeking simultaneously to engage in selective but ruthless enforcement of the law and to dismantle the general governing capacity of the state. … This would constitute nothing less than an authoritarian system under which civil society is significantly diminished for fear of targeted retribution and the government lacks basic indicia of trust, up to and including in the conduct of elections. We have much to fear.
— Jamal Greene, professor, Columbia Law School
Our constitutional system is on a knife’s edge.
— Jack Balkin, professor, Yale Law School
We are witnessing the broad expansion of presidential power, and the system of checks and balances starting to break down. This has serious implications — we are heading to a constitutional crisis (although some say we are already there).
— Rose Cuison-Villazor, professor, Rutgers Law School, Newark
Trump’s assault on the role of lawyers and judges as defenders of free speech, the rule of law and the concept of government under law is an existential threat to American constitutional democracy.
— Burt Neuborne, professor, N.Y.U. School of Law
The use of the levers of government to exact retaliation for private vendettas — sending people to foreign prisons without due process, dismantling agencies and refusing to spend appropriated funds, and pervasive retaliation for the exercise of First Amendment rights … are the actions of an authoritarian government, not a liberal democracy.
— Katie Eyer, professor, Rutgers Law School, Camden
The politicization of the Justice Department strikes me as the most disturbing. Trump is using his power to direct the conduct of individual criminal prosecutions. He is firing line attorneys he deems as insufficiently loyal. And he has installed loyalists as chief prosecutors.
— Daniel Epps, professor, Washington University School of Law, St. Louis
Even if Trump were stopped dead in his tracks tomorrow, it would take years, probably decades to undo the damage and regain public trust, rebuild our civic infrastructure and rehabilitate the rule of law. — Jon Michaels, professor, U.C.L.A. School of Law
I think it is fair to conclude that the U.S. constitutional system is on the verge of an authoritarian takeover. “Authoritarian constitutionalism” is not an oxymoron; unless the Trump takeover is repelled, our system will retain the familiar constitutional forms while becoming ever more illiberal, undemocratic and corrupt. The fight to avoid this fate is already being waged in the courts. That is a necessary first step. But to achieve more lasting victory against Trumpism, the country will need a massive amount of political opposition, as well as a major program of reforms that respond to the legitimate grievances Trump has been able to exploit.
— David Pozen, professor, Columbia Law School.
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