//  12/23/19  //  Commentary

President Trump recently became only the third President to be impeached by the House of Representatives, an event dominating the news cycle.  While the nation digests this news, the focus is shifting to the Senate, where the impeachment trial will take place.  But the Senate has been engaged in business less well covered by the media, confirming 13 more federal judges just this week.  President Trump has now placed (meaning nominated and, with the help of a Senate led by Majority Leader Mitch McConnell, confirmed) 187 judges in lifetime positions on the federal bench.  One in five active federal district court judges is now a Trump appointee.  In the federal courts of appeal, which is where almost all federal cases end, one in four active judges is a Trump appointee.  During his campaign, then-candidate Trump promised to transform the federal bench, and it appears to be the rare promise he has kept. 

Transformation is not simply a function of the number of jurists added to the bench, but the types of jurists being added.  To the extent these judges reflect President Trump’s vision of Constitutional fidelity, we should be deeply concerned.

Journalists and public interest groups alike have begun to document the ways in which these Trump-appointed judges have rendered decisions that seemingly ignore the law and precedent, and privilege the interests of corporations over everyday people.  And the nominations continue apace, with the President continuing to name judges who, according to him, “will uphold our Constitution as written.”  But why trust the President when he provides assurances about fidelity to the Constitution’s text?

President Trump’s loyalty and fidelity record is dismal.  Trump rather famously displays a lack of loyalty to colleagues and others in his circle, although he seems obsessed with the concept; unfortunately, he is no more loyal to the Constitution’s text.  His brand of originalism is not a principled commitment to our founding document’s meaning, but rather is a selective commitment, allowing for the distortion or outright deletion of parts he finds inconvenient.  Trump’s brand of fidelity to the text is not originalism, it is fauxriginalism.

A few examples help illustrate this point. 

Following public outcry in October, President Trump cancelled plans to host the next G7 Summit at his Trump Doral Miami resort.  Reacting to questions from reporters, President Trump complained, “you people with this phony emoluments clause.”  Of course, the Foreign Emoluments Clause is as real as the President’s duty to comply with it.  The Constitution’s text states that certain federal officials, including the President, may not “accept” any “emolument” from “any King, Prince or foreign State” without prior congressional consent.  No leaps of the imagination are required to understand what the text demands.  It requires a President to obtain Congress’s affirmative prior consent before accepting any emolument (roughly, any benefit or advantage, including income from private commerce) from a foreign leader or foreign state.  Prior to Trump, Presidents have routinely complied with the plain meaning of the text.

In 2018, President Trump advocated for denying undocumented immigrants due process, proposing deportation without trials or an appearance before a judge.  As was widely reported, President Trump suggested that due process rights were limited to citizens.  Of course, the Constitution’s text says no such thing.  The Due Process Clause, whether in the Fifth Amendment (applicable to the federal government) or the Fourteenth Amendment (applicable to the states), prohibits “any person” from being deprived of “life, liberty, or property, without due process of law.”  There are provisions in the Constitution that apply to “citizens,” yet here the text refers to “any person.”  And the history of the discussions that informed the text’s drafting underscores the intentionality of this word choice.  But when it presented an obstacle to President Trump’s plans to curtail the rights of immigrants, he was willing to ignore constitutional text and history. 

In October of 2018, President Trump claimed that he could end birthright citizenship through an executive order, falsely describing birthright citizenship as unique to the United States and suggesting that the provision was never intended to be applied to the children of non-citizen parents.  These claims were widely debunked by political scientists, historians, and constitutional experts alike.  Undaunted, in August of 2019, President Trump reiterated his intent to end birthright citizenship.  Thankfully, our nation’s legal charter stands in the way.  Birthright citizenship is firmly embedded in the text of the Constitution, which states “[a]ll 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.”  These provisions were part of the Fourteenth Amendment, whose broad equality, liberty, and citizenship provisions were adopted in the wake of the Civil War during a period so transformative, it is often referred to as “the Second Founding.”  The debates that informed the adoption of this Amendment’s clear language were studded with references to the need to address deeply entrenched prejudices not only against African Americans, but also against a number of immigrant communities.  Once again, unambiguous constitutional text and history proved to be of little concern to President Trump.

Of course, these are just a few of the instances in which President Trump has demonstrated what his brand of constitutional “fidelity” looks like.  And each of us who values adherence to our nation’s founding document—no matter where we stand across the political spectrum—should be troubled.  For as President Trump packs the courts with judges who embody his constitutional vision, Trump’s vision of constitutional fidelity is relevant.  Assurances of fidelity should mean less when issued by someone who has demonstrated little understanding of the concept.  And as the nation waits to learn how and when President Trump will leave office, we should not overlook his race to place more judges, people who will still powerfully shape our lives long after this presidency ends. 


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George Washington University Law School

Robert W. Tuttle

George Washington University Law School

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12/19/19  //  Commentary

On this week’s Versus Trump, Easha and Charlie discuss the Trump Administration’s efforts to resume federal executions after a decade-and-a-half hiatus. Listen now!

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12/19/19  //  Commentary

With the Trump administration's support, the Fifth Circuit ruled yesterday that the health-care law contains a constitutional flaw—and that most or all of the law may have to be scrapped.

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University of Michigan Law School