‘Limitless power': Conservative legal experts warn Donald Trump is breaking the law

News.com.au

23-04-2025

Some of the most prominent legal experts in the United States, including several conservatives, have issued a fresh warning that the Trump administration is blatantly breaking the law.
The Free Press, a publication founded by former New York Times and Wall Street Journal columnist Bari Weiss, surveyed seven such experts from across the political spectrum. The verdict was unanimous.
'The consensus is striking, and perhaps surprising, given the ideological diversity of these contributors,' The Free Press wrote.
'All agreed that the President's legal tactics reflect a dangerous willingness to ignore statutory and constitutional constraints, and that he must be reined in quickly.'
Today President Trump drove home the point by confirming his desire to deport people from the United States without due process – something his administration has already been doing, most strikingly by sending migrants to a notoriously brutal jail in El Salvador.
The American government claims these people are violent gang members, though most of them have no criminal record, and none of them were given a chance to contest the allegation before being deported. The US is paying El Salvador to hold them.
It's unclear whether they will ever be released from El Salvador's Cecot prison, otherwise known as the 'Terrorism Confinement Centre'.
'I hope we get co-operation from the courts, because you know, we have thousands of people that are ready to go out,' Mr Trump told reporters in the Oval Office today.
'And you cannot have a trial for all of these people. The system was not meant, that not – we don't think there is anything that says – we are getting them out. And a judge cannot say, 'No, you have to have a trial.' The trial is going to take two years.
'No, we are going to have a very dangerous country if we are not allowed to do what we are entitled to do.'
To justify deporting people by uncontestable fiat, Mr Trump has invoked the Alien Enemies Act, a law from the late 1700s designed to be used during wartime. It allows the President to remove nationals of a foreign country with whom the United States is at war; in this case he is claiming the presence of foreign gangs in the US constitutes an invasion.
The law has been used thrice before, during the War of 1812, World War I and World War II.
As previously mentioned, The Free Press invited opinions from seven different legal experts. I'm going to start with those more naturally aligned with Mr Trump's policies. First up, Ed Whelan, who served in the Bush administration and, before that, clerked for conservative Supreme Court Justice Antonin Scalia.
'The Department of Justice is pursuing the White House's political interests. So the de facto attorney-general, to whom nominal Attorney-General Pam Bondi and other top DOJ officials answer, appears to be White House deputy chief of staff Stephen Miller, a non-lawyer whose sharp political skills include an inclination to utter brazen falsehoods,' Mr Whelan said.
'The White House has also marginalised DOJ's Office of Legal Counsel. That office has long had the responsibility to review a president's proposed executive orders and proclamations to ensure they are lawful. The Office of Legal Counsel has a strong institutional bias in favour of executive power, but its unwillingness to rubber-stamp Trump's decrees has rendered it unwelcome. The unsurprising result is that many of Trump's executive orders and proclamations have serious legal vulnerabilities.
'As someone who supports many of Trump's policy goals, I fear that the administration has no coherent legal strategy. Its temperamental disposition to see law as politics will not help it win legal battles. And its growing but wildly overblown perception of the judiciary as its enemy portends a stark conflict that will leave us all worse off.'
Andrew McCarthy, a Fox News legal analyst and former prosecutor, brought up the case of Kilmar Abrego Garcia, whom the Trump administration has conceded it deported wrongly due to an 'administrative error'.
It has, however, resisted court orders requiring it to bring him back to the United States, saying he is now in Salvadoran custody and therefore beyond American control.
Mr McCarthy highlighted a recent ruling by federal judge J. Harvie Wilkinson, who was appointed to his position by conservative president Ronald Reagan in the 1980s.
'The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,' Judge Wilkinson wrote.
'Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
'This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.'
Mr McCarthy said the Trump administration is, on its face, acting 'lawlessly', and the real question here is why it's doing so.
'Is there a strategy? The somehow less disturbing possibility is that, having been the victim of ruinous lawfare – the leveraging of the government's law enforcement and intelligence apparatus against a political enemy – Trump is merely exacting retribution, as promised during the campaign,' he said.
'More perilous: having cowed the conservative, constitutionalist elements of the Republican Party and thus nullified Congress's formidable arsenal to check executive misconduct, the President seeks to eviscerate any remaining constraints on his power by illustrating that the courts and American institutions are impotent, too.'
Ilya Somin, a law professor at George Mason University, is a constitutional originalist, placing him in the conservative camp as well.
His argument to The Free Press was that Mr Trump's actions amount to 'major steps towards authoritarianism'.
'The second Trump administration is trying to undermine the Constitution on so many fronts that it's hard to keep track,' he said.
'But three are particularly dangerous: the usurpation of Congress's spending power; unconstitutional measures against immigration justified by bogus claims that the US is under 'invasion'; and assertions of virtually limitless presidential power to impose tariffs.
'The administration's claims that courts are powerless to order the return of illegally deported and imprisoned people menace not only immigrants, but American citizens.
'Under Trump's logic, they, too, could be deported and imprisoned abroad, and courts could not order their return.
'In sum, Trump has tried to impose unconstitutional, unaccountable, one-man rule over the federal budget, immigration policy, and foreign trade, thereby threatening civil liberties, the autonomy of states and private institutions, the US economy, and more.
'If not stopped, he will have taken major steps toward authoritarianism.'
Our last conservative legal scholar is Jonathan Adler, a professor at the Case Western Reserve University School of Law.
'No one thought that Donald Trump was particularly concerned with constitutional niceties,' Prof Adler noted.
'But some are still shocked at the aggressiveness with which the second Trump administration has challenged the rule of law, asserting authority denied by the Constitution, disregarding legal constraints enacted by Congress, and thumbing its nose at judicial orders. And doing so with the active co-operation of so many lawyers in the administration who have taken oaths to uphold the law and Constitution.
'The administration's declaration of unilateral authority to define the contours of American citizenship and deport individuals without affording them the barest degree of due process is a betrayal of constitutional values.
'Its insistence that the president can simply decree changes in federal law and disregard legislatively enacted constraints on agency authority are assaults on the rule of law.'
Prof Adler argued that 'even where the Trump administration pursues laudable goals', it has tended to act with 'reckless disregard' for the law.
'As much as America needs a presidential administration willing to push back against the progressive excesses of the 21st century, it needs one capable of pursuing such ends without adopting the illiberal means and methods of its predecessors,' he said.
'Indeed, abandoning such principles, and inviting inevitable defeat in court, will compromise the goals the administration seeks to achieve.'
Other experts surveyed by The Free Press were of a more progressive bent, and were therefore, if anything, harsher.
Lawrence Lessig, for example, said the 'closest analogue' to the US government's current behaviour was 'the Mafia'.
'Never has a president behaved like this. It's not even close,' he argued.
'Sure, during actual wars, presidents have walked up to the line of executive authority. Maybe FDR and Lincoln crossed those lines. Legal historians are on both sides of those debates. But this president threatens with power he knows he does not have, even if he believes he will get away with threatening it.
'And in the face of this threat, the truly tragic reality is that the key institution designed to resist this threat, Congress, is incapable of mustering any resistance. The courts will do what they can, but courts were never built to address this kind of threat.'