THE LONG & THE SHORT

Trump 2.0 and the Rule of Law

The most respected Constitutional law scholar in America, Laurence Tribe, is the author of countless important books, articles and treatises. He has argued in the Supreme Court 36 times and has inspired generations of law students. Recently, Professor Tribe publicly stated that the US is in ‘a severe Constitutional crisis.’

It’s a crisis the implications of which extend far beyond the borders of the US or the Americas. This is a global issue that we are watching play out dramatically in the US.

In the face of hubristic flouting of the most basic principles of government, which ‘[M]ost Americans recognize …is wrong…(and) contrary to the rule of law’, the American Bar Association, a politically nonpartisan organisation, has courageously issued a strong statement in defence of the rule of law against wide-scale affronts by the newly elected (and non-elected) executive in the US.

The ABA calls upon ‘elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law….We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way.’

There’s plenty of talk about rights these days. Alot less about responsibilities. But if we want our rights, we need to own up to our responsibilities. Like upholding the rule of law. It’s a high maintenance beast, but it protects our rights. It’s fundamental to the integrity and proper function of governments around the world. And it’s under threat.

This is a global issue; right now we are watching it play out dramatically in the US across multiple fronts. In case anybody’s having trouble keeping up, here are a few things, by no means an exhaustive list…

DOGE

One concern is Elon Musk’s executive appointment as Director of a new extension of his global information empire, a speciously created entity called the Department of Government Efficiency (DOGE), which itself is under challenge as questions surround its legality. Legitimate or not, its functions raise significant privacy concerns due to the extensive access to sensitive government data (with global reach). As servants of DOGE directives, Musk’s technocrats have been described as an unregulated threat to privacy.

Some challenges that have been initiated:

1. Legal Challenges and Court Rulings

• Access to Sensitive Data: A federal judge issued a temporary restraining order preventing DOGE from accessing personal information from the US Education Department and the Office of Personnel Management. This decision came after labor unions argued that such access violated the Privacy Act of 1974.

• IRS Data Concerns: DOGE’s attempts to access Internal Revenue Service (IRS) data without Congressional approval have been cited as posing risks to taxpayer privacy and security.

• Privacy Act Violations: DOGE’s broad access to federal databases may contravene the Privacy Act of 1974 intended to protect individuals’ personal information from unauthorized use.

2. Internal Directives and Employee Privacy

• Employee Performance Reporting: Musk has issued a directive requiring federal employees to report their weekly accomplishments, with non-compliance potentially leading to termination, causing confusion and resistance among federal workers, with some agencies advising employees to disregard the directive.

TARIFFS

On the question of tariffs, quite apart from the serious implications for international relations and trade, Trump 2.0’s imposition of tariffs has been legally contentious on the basis of executive overreach and procedural violations, because the administration relies on questionable legal bases:

1. Section 232 of the Trade Expansion Act of 1962

• This law allows the president to impose tariffs on imports that threaten national security.

• Trump used this authority to impose tariffs on steel and aluminum imports, arguing that domestic production was vital to national defense.

• Legal Challenges: Businesses and foreign governments challenged these tariffs, arguing that they were not truly based on national security but were instead economic protectionism. Some lawsuits claimed that the law gives too much discretion to the President, potentially violating Constitutional separation of powers.

2. Section 301 of the Trade Act of 1974

• This provision allows the US to impose tariffs in response to unfair trade practices by other countries, particularly intellectual property theft.

• Trump used this law to impose tariffs on hundreds of billions of dollars’ worth of Chinese goods, citing unfair trade practices.

• Legal Challenges: US importers argue that the administration has exceeded its authority by expanding tariffs beyond the initial investigation without following required procedures.

3. International Emergency Economic Powers Act (IEEPA)

• This Act allows the President to regulate economic transactions in response to a national emergency.

• Trump threatened to use IEEPA to impose tariffs on Mexico over immigration concerns. The tariffs were never implemented, but the threat raised Constitutional questions.

Court Rulings and WTO Decisions

• US Court of International Trade (CIT): Some cases challenging earlier tariffs are still working through US courts.

• World Trade Organization (WTO): The WTO has ruled that some Trump tariffs violate international trade rules. The administration has ignored these rulings, arguing that the WTO must not interfere in national security matters.

OTHER CONSTITUTIONAL AND LEGAL QUESTIONS

By its own admission Trump 2.0 has been involved in a flood of activity that has raised further legal and Constitutional concerns, leading to numerous legal challenges. The following list summarises just a few of these actions:

1. Executive Order on Birthright Citizenship

The executive order aiming to revoke birthright citizenship for children of undocumented immigrants, has been widely criticised as unconstitutional, and the American Civil Liberties Union (ACLU) has filed suit challenging its legality.

2. Dismissal of Inspectors General

The dismissals of several inspectors general without providing notice or rationale have been challenged as violations of legal procedures designed to maintain governmental checks and balances.

3. Federal Workforce Restructuring

Musk’s oversight of the DOGE has included directives requiring federal employees to justify their positions or face termination, leading to legal challenges from federal workers.

4. Restrictions on Media Access

The administration’s barring of Associated Press reporters from presidential events, has prompted legal action. The case continues to be litigated. (On Monday US District Judge Trevor N. McFadden said the AP had not proven harm requiring an immediate restraining order. But he cautioned the White House that the law wasn’t on its side in barring AP over continuing to refer to the Gulf of Mexico, not simply the ‘Gulf of America’ as Trump decreed via executive order.)

5. Military and Federal Agency Appointments

Characteristic of insecure bullies, Trump always prioritises loyalty over expertise. As applied in military and federal agency appointments this has lead to mass firings and controversial appointments criticised for undermining the effectiveness of government operations. They have attracted legal scrutiny.

6. Public Health Policy Changes

Health and Human Services Secretary Robert F. Kennedy Jr. has promoted an anti-vaccine agenda, leading to policy shifts that have raised public health concerns and potential legal challenges.

7. Withholding Federal Funding

The administration has threatened to withhold federal funding from states that do not comply with certain executive orders, such as those banning transgender women and girls from participating in female sports. These threats have led to legal disputes over the overreach of executive power and violations of Constitutional rights.

8. Impoundment control

In 1961, USAID was established as an independent agency by an act of Congress. Executive action dissolving or merging USAID with the US Department of State without new legislation is unconstitutional. Spending on USAID was mandated by Congress and its funding required by law.

8. Supreme Court Interventions

The US Supreme Court has intervened in cases involving the administration’s attempts to remove officials, such as the head of the Office of Special Counsel, highlighting ongoing legal battles over the administration’s actions.

These instances are just a few in a pattern of legally questionable actions by the new Trump administration, resulting in a multitude of legal challenges aimed at upholding Constitutional principles and the rule of law. No doubt this list will be out of date by the time you read it (by the time I finish writing it) and will need to be updated on a very regular basis to reflect more recent developments.

Oh, and I almost forgot –

THE JANUARY 6 PARDONS

On January 20, 2025, President Trump issued a proclamation granting pardons and commutations to nearly all individuals convicted for offenses related to the January 6, 2021, attack on the US Capitol. This action fulfilled his campaign promise to “free” those he referred to as ‘patriots’ and ‘hostages.’

The pardons have been a subject of controversy. Many of the pardoned individuals had prior criminal records, including convictions for serious offenses such as rape and manslaughter. The sweeping nature of the clemency, which included leaders of far-right groups convicted of seditious conspiracy, has raised concerns about the implications for justice and accountability.

Regarding the prospective promise that these individuals will not face future charges for any subsequent actions, there is no legal basis for such immunity. Presidential pardons apply to past actions and cannot pre-emptively shield individuals from prosecution for future offenses. Any illegal activities committed after the date of the pardon must be subject to standard legal processes and potential prosecution.

The pardons are capricious protectionism. They flout justice, especially in light of the administration’s concurrent implementation of stringent criminal justice policies targeting other groups.

IS THE US IN CONSTITUTIONAL CRISIS?

The term ‘Constitutional crisis’ is often used to describe situations where the fundamental principles of a country’s constitution are tested, undermined, or ignored in ways that create significant legal and political instability.

President Trump’s use of executive authority in disregard of law, including mass pardons, the dismissal of inspectors general, efforts to exert control over federal agencies and Congressional spending mandates are just a few examples of one month’s worth of executive overreach that seriously challenges the separation of powers.

Contravention of the rule of law has occurred with the pardons of January 6 participants, including those convicted of seditious conspiracy, and selective enforcement of laws such as crackdowns on certain groups while others receive leniency.

Erosion of institutional checks and balances is evidenced in the firing of career civil servants and the placement of loyalists in key positions, weakening the independence of institutions meant to check presidential power. And there are the legal battles over the administration’s ability to override judicial decisions. Watch this space….

Increased political violence and rhetoric and the administration’s moves to weaken or circumvent electoral processes, such as the threats to ‘primary’ Congressional candidates who fail to comply with administration demands are just two examples of threats to electoral process.

While democratic norms are eroding, the core Constitutional structure remains intact, just barely, for now. Whether or not the US is in a full Constitutional crisis yet, it is certainly in a period of Constitutional stress. The extent of the crisis will depend on whether institutions continue to function as intended, whether legal challenges to executive overreach succeed, and whether democratic norms are upheld in the face of political pressure. If these mechanisms fail, the situation could deteriorate into a deeper crisis.

In my view, the term crisis has become overused. But in this case, I think it is appropriate. Crisis can be seen as a combination of danger and opportunity. The danger here is real. But so is the opportunity to ensure that legal challenges to executive overreach succeed, and that democratic norms are upheld despite the mounting pressures that threaten them. Preserving the rule of law is our responsibility – and privilege. …To support the precious structures and institutions that, imperfect though they may be, light the way forward in safeguarding freedom and justice for our own and future generations globally.

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‘I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts.’

Abraham Lincoln