Of the endless torrent of illegal, unconstitutional — and anti-constitutional — actions flowing from the Trump administration, there are three that stand out for their contempt for the rule of law.
There is the president’s ongoing assault on the right to due process, seen in his administration’s refusal to facilitate the return of Kilmar Abrego Garcia, the Maryland man who was arrested in Baltimore in March and removed to a prison in El Salvador. Not only is the White House ignoring an order from the Supreme Court that sought to bring Garcia back to the United States, but its spokesmen insist on tarring Garcia as a “terrorist” and “human smuggler” in an escalating series of attacks on his character.
Other Republicans, it should be said, have backed the administration on this point, insisting that due process does not apply to undocumented or unauthorized immigrants. “When it comes to due process, that is a privilege reserved for American citizens,” Representative Byron Donalds of Florida, a vocal ally of the president, said on NBC. Donalds should probably consult the Constitution, which makes no mention of citizenship or immigration status in either of the two amendments, the fifth and the 14th, that guarantee the right of due process to all “persons.”
If the framers and ratifiers of these amendments had intended to differentiate between citizens and noncitizens, they would have done so. That is especially true for the authors of the 14th Amendment, who were preoccupied with questions of rights and citizenship, and who dealt with nativism and anti-immigrant sentiment within their own political coalitions. They could have written a due process clause whose protection only went as far as native and naturalized citizens. They chose not to.
The second incident is the suggestion, by the White House deputy chief of staff Stephen Miller, that the president might suspend habeas corpus to keep federal courts from releasing the administration’s detainees — thus blocking its efforts to remove, among others, some lawful residents from the country. “Well, the Constitution is clear,” Miller said in a briefing with journalists last week outside the White House, “that the privilege of the writ of habeas corpus can be suspended in a time of invasion.” It’s an option, he continued, that the administration is “actively looking at” and which “depends on whether the courts do the right thing or not.”
Habeas corpus — Medieval Latin for “you have the body” — is a proceeding used to adjudicate the legality of any given individual’s detention, incarceration or imprisonment. When a judge issues a writ of habeas corpus, the government has to prove that it is the lawful custodian of the individual in question. Habeas corpus is one of the oldest principles in the English legal tradition, dating back to the 13th century. And it was of special significance to Americans, whose rebellion led Parliament in 1777 to suspend habeas corpus in what the legal scholar Steve Vladeck describes as an “unprecedented” manner. The language of this suspension, he writes, “set a dangerous precedent for future suspensions in England, suggesting that Parliament could displace the writ based upon status, and without either of the constraints (necessity and duration) that had characterized every previous suspension.”
It was in part this experience that led Americans to write explicit protection of the writ of habeas corpus into their state constitutions following independence, and which led delegates at the Philadelphia Convention of 1787 to write a nearly inviolable protection of the writ into their new federal constitution. “The Privilege of the Writ of Habeas Corpus shall not be suspended,” reads Article I, Section 9 of the Constitution, “unless when in Cases of Rebellion or Invasion the public Safety may require it.”
With regard to the framers’ reverence for habeas, it should be emphasized that, as the legal scholar Francis Paschal observed in 1970, “There is abundant evidence of an early and persisting attachment to ‘this darling privilege’ in pre-1787 America. Indeed, in the Philadelphia Convention and in the struggle for ratification, there was never the slightest objection to according a special pre-eminence to the Great Writ.”
Habeas corpus is such a bedrock part of the American legal tradition that its suspension during the Civil War — an actual rebellion, a large part of it happening within riding distance of the Capitol — was hugely controversial. In the first months of the conflict, in 1861, Abraham Lincoln directed Gen. Winfield Scott to suspend habeas near the railroad lines that ran from Washington into Philadelphia, in order to circumvent rebel activity in Maryland, a slave state. What followed was a legal confrontation that ended in a rebuke of Lincoln by Chief Justice Roger Taney, acting as the senior judge on the U.S. Circuit Court for Maryland, which he oversaw. “I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen except in aid of the judicial power,” Taney said.
That summer, Lincoln would ask Congress to retroactively authorize his suspension of the writ. He argued that he was acting in Congress’s stead while it was out of a session — tacit admission that he may have been operating outside the bounds of the Constitution. Congress obliged and would later, in 1863, authorize Lincoln to suspend habeas as he saw fit for the duration of the conflict.
This is all to say that whatever you think of recent migration to the United States, it is not a rebellion. Nor is it, as the president would argue, an invasion. In back-to-back rulings issued this month, two federal judges agreed that an invasion of the kind that might justify the administration’s detentions and removals requires “military action,” although on Tuesday night a third federal judge sided with the administration. Even so, common sense tells us that migrants crossing a border do not constitute military action. And President Trump is most certainly not Abraham Lincoln.
The last, and by comparison relatively minor, instance of constitutional subversion by this administration is the president’s plan to accept a $400 million luxury aircraft to temporarily replace Air Force One, provided to the United States by the royal family of Qatar. When he leaves office, that plane is set to be given to the Trump presidential library, where the future ex-president can maintain it for personal use, should he choose to do so.
This may not meet the strict legal definition of corruption as established by the Supreme Court (in decisions that have all but legalized an unspoken quid pro quo of money, gifts and favors in the American political system). But a supposed gift of this sort meets every reasonable definition of the term and represents the kind of venality that the framers were desperate to shield against in their new government. “One of the weak sides of republics, among their numerous advantages,” Alexander Hamilton wrote in Federalist No. 22, “is that they afford too easy an inlet to foreign corruption.”
To that point, the Constitution includes three separate clauses forbidding the collection of “emoluments” by federal office holders, including one that is as explicit as anything you’ll find in the document: “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.”
In the absence of Congressional authorization — and an agreement to place the aircraft under the direct and permanent ownership of the federal government — the president cannot accept this gift without violating the Constitution, even if he is doing so on behalf of the United States.
Trump’s decision to accept it — he’ll take anybody’s luxury jet, if they’re just giving it away — is one of the most shameless acts of corruption in the history of the American presidency, dwarfed only by this president’s other acts of brazen corruption, self-dealing and personal enrichment.
Take these constitutional violations together and you have a clear picture of how this president sees himself and his office in his second term. The presidency, for Trump, is a vehicle for his personalist rule, in which all power flows from his person. It is a virtual extension of Trump himself, and in the same way that we control our bodies, he holds authority over the entire body politic, with the power to detain and remove anyone he’d like, without explanation, justification or even cursory legal proceedings. The presidency is also, in this vision, his to use as he sees fit, up to and including endless self-enrichment and personal aggrandizement, with no regard for the public good.
This is the president as elected despot. It is a conception of the office that is inimical to the American political tradition in every respect.
But somewhat more interesting than the president’s abuse of power is the indifference — or active support — of both the Republican Party and the conservative movement. One might think that even with its zeal for tax cuts and right-wing social engineering, the conservative movement’s reverence for both the founding fathers and the nation’s revolutionary heritage would not overwhelm a basic respect for the hard-fought rights and privileges of the American way of life. You would think that those who elevate 1776, who fetishize the Constitution as an object and who practically spend every waking moment reminding the public of their patriotic bona fides would, at some point, have something to say about this perversion of the American republic.
You would be wrong. The Republican Party is, with only a few quibbles and some occasionally timid disagreement, united in support of Donald Trump. Conservative intellectuals have spent the last decade spinning endless excuses for the president and his allies. They treat his tyrannical aspirations as little more than a curiosity, or even a justified response to some imagined revolutionary movement of the political and cultural left. Both the MAGA cheerleaders of the Claremont Institute and the Trump rationalizers in the nation’s premier publications agree: Nothing Trump has done, or wants to do, is beyond the pale. Everything is a necessary and defensive act in the war against “critical race theory” or “gender ideology” or so-called wokeness.
This attitude, while shocking in its moral and ethical decadence, is not all that surprising. As the writer and editor Jacob Heilbrunn shows in “America Last: The Right’s Century-Long Romance with Foreign Dictators,” the conservative movement has always had a soft spot for despots of various stripes. The political and intellectual antecedents of the Trump movement, stretching all the way back to the early 20th century, have often had nothing but praise for those despotic rulers who extinguished the freedom of the many for the liberty of the few, from Gen. Francisco Franco in Spain and Gen. Augusto Pinochet in Chile to, at this moment, Vladimir Putin in Russia and Viktor Orban in Hungary. (Not to mention the American right’s long love affair with apartheid South Africa.)
This is not to say that the political left has never been guilty of affection for tyrants. But among conservatives there is a strong, coherent and distinctly under-discussed tradition of support and affection for the enemies of liberal democracy around the world.
Which brings us back to the current president. What Trump brings to the table of American politics is personalist and authoritarian rule of a kind that we haven’t seen in the national government, but that we have seen in other countries — and even in certain places at certain points in our own history.
But whether you think this moment is continuous with our past, or a break from it, one thing we can say for sure is that conservative support for this type of governance is not an aberration. It belongs to a consistent pattern of enthusiastic support for tyrants and would-be tyrants. This is who they are, this is what they’ve been and, whenever the age of Trump passes, this is who they’ll be. What it should signal to observers of American politics is that there won’t be a time when either the conservative movement or the Republican Party truly changes course.
There is no “Trumpified” conservative movement. There never was. There is only the conservative movement that was, we can see now, waiting for its Donald Trump.
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Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie
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