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Yahoo
7 days ago
- General
- Yahoo
Opinion - The Constitution strikes back against Trump
Early in President Trump's first term, humorist Andy Borowitz wrote a New Yorker piece that imagined Trump's frustration with court rulings blocking his executive orders on constitutional grounds. 'There's something going on,' Trump says about how 'very unfairly' the Framers of the Constitution have treated him. 'I don't have their names yet but that's something I'm looking into. These jokers are not going to get away with this.' Those 'jokers' who wrote the Constitution are really getting under Trump's skin in his second term. By one count, 180 judicial rulings have partly or wholly blocked Trump's executive orders and initiatives — many on constitutional grounds — which led to his attacks on 'radical left' judges and calls for their impeachment. Trump cannot grasp that his fundamental problem is with the Constitution, not the judges. His executive orders are too much for some of his own judicial appointees, one of whom, Judge Timothy Reif joined — 'Et tu, Brute?' — in the unanimous opinion of the U.S. Court of International Trade that Trump lacked constitutional authority for his global tariffs. The judicial setbacks have apparently pushed Trump into the 'eat your young' phase of his second term. After the tariff ruling, Trump blamed the conservative Federalist Society, attacking Leonard Leo, its long-time leader, as a 'sleazebag' for giving him 'bad advice' in his first term on judicial nominations. Talk about petulance — the Federalist Society helped Trump put three justices on the Supreme Court who provided the key votes for two of the conservative movement's greatest victories: the end of affirmative action and the overruling of Roe v. Wade. The Framers designed the Constitution as a bulwark against monarchy, yet within hours of swearing an oath to support and defend the Constitution, Trump began governing as a monarch. He issued more executive orders in his first 100 days than any president in American history. Trump's executive orders were not written on parchment and sealed with crimson wax, but in their scope and cruelty they have the feel of royal decrees. His orders launched a worldwide tariff war, punished individuals and organizations for exercising their right of free speech and, by halting foreign food aid and HIV-prevention programs, according to one calculation, may have already caused the deaths of thousands of children in the developing world. As if to underscore his monarchical impulses, Trump, after issuing an order to cancel congestion pricing in New York City, proclaimed on Truth Social, 'LONG LIVE THE KING!' Thanks to the Framers, presidential executive orders are subject to judicial review because our system of checks and balances was designed so that each branch of government restrains the other two. Trump has so neutered the GOP Congress that James Madison's famous phrase in Federalist No. 51 describing checks and balances — 'Ambition must be made to counteract ambition' — needs to be displayed in 10-foot letters in both chambers to remind Republicans why they are there. But the judicial branch, including Trump's own appointees, is still loyal to the Constitution, and this infuriates Trump. In fact, Trump has won significant rulings from what he calls a 'judicial tyranny.' At least preliminarily, federal courts have upheld his right to fire the heads of independent agencies with apparently limited exceptions, stripped (for now) hundreds of thousands of immigrants of temporary legal protections and paused the Court of International Trade's tariff ruling. But since Trump claims the right to 'run the country and the world,' he finds any judicial setback intolerable. Trump's rage against judicial rulings putting the Constitution, and not him, first is the best evidence that the system designed by the Framers endures — at least so far. Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six representatives of bribery. He is the author of 'Into Siberia: George Kennan's Epic Journey Through the Brutal, Frozen Heart of Russia.' Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
The Hill
03-06-2025
- General
- The Hill
The Constitution strikes back against Trump
Early in President Trump's first term, humorist Andy Borowitz wrote a New Yorker piece that imagined Trump's frustration with court rulings blocking his executive orders on constitutional grounds. 'There's something going on,' Trump says about how 'very unfairly' the Framers of the Constitution have treated him. 'I don't have their names yet but that's something I'm looking into. These jokers are not going to get away with this.' Those 'jokers' who wrote the Constitution are really getting under Trump's skin in his second term. By one count, 180 judicial rulings have partly or wholly blocked Trump's executive orders and initiatives — many on constitutional grounds — which led to his attacks on 'radical left' judges and calls for their impeachment. Trump cannot grasp that his fundamental problem is with the Constitution, not the judges. His executive orders are too much for some of his own judicial appointees, one of whom, Judge Timothy Reif joined — 'Et tu, Brute?' — in the unanimous opinion of the U.S. Court of International Trade that Trump lacked constitutional authority for his global tariffs. The judicial setbacks have apparently pushed Trump into the 'eat your young' phase of his second term. After the tariff ruling, Trump blamed the conservative Federalist Society, attacking Leonard Leo, its long-time leader, as a 'sleazebag' for giving him 'bad advice' in his first term on judicial nominations. Talk about petulance — the Federalist Society helped Trump put three justices on the Supreme Court who provided the key votes for two of the conservative movement's greatest victories: the end of affirmative action and the overruling of Roe v. Wade. The Framers designed the Constitution as a bulwark against monarchy, yet within hours of swearing an oath to support and defend the Constitution, Trump began governing as a monarch. He issued more executive orders in his first 100 days than any president in American history. Trump's executive orders were not written on parchment and sealed with crimson wax, but in their scope and cruelty they have the feel of royal decrees. His orders launched a worldwide tariff war, punished individuals and organizations for exercising their right of free speech and, by halting foreign food aid and HIV-prevention programs, according to one calculation, may have already caused the deaths of thousands of children in the developing world. As if to underscore his monarchical impulses, Trump, after issuing an order to cancel congestion pricing in New York City, proclaimed on Truth Social, 'LONG LIVE THE KING!' Thanks to the Framers, presidential executive orders are subject to judicial review because our system of checks and balances was designed so that each branch of government restrains the other two. Trump has so neutered the GOP Congress that James Madison's famous phrase in Federalist No. 51 describing checks and balances — 'Ambition must be made to counteract ambition' — needs to be displayed in 10-foot letters in both chambers to remind Republicans why they are there. But the judicial branch, including Trump's own appointees, is still loyal to the Constitution, and this infuriates Trump. In fact, Trump has won significant rulings from what he calls a 'judicial tyranny.' At least preliminarily, federal courts have upheld his right to fire the heads of independent agencies with apparently limited exceptions, stripped (for now) hundreds of thousands of immigrants of temporary legal protections and paused the Court of International Trade's tariff ruling. But since Trump claims the right to 'run the country and the world,' he finds any judicial setback intolerable. Trump's rage against judicial rulings putting the Constitution, and not him, first is the best evidence that the system designed by the Framers endures — at least so far. Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six representatives of bribery. He is the author of 'Into Siberia: George Kennan's Epic Journey Through the Brutal, Frozen Heart of Russia.'
Boston Globe
21-05-2025
- Politics
- Boston Globe
Don't blink. The arrest of a lawmaker is a constitutional crisis in motion.
Get The Gavel A weekly SCOTUS explainer newsletter by columnist Kimberly Atkins Stohr. Enter Email Sign Up McIver is now living proof that the constitutional crisis is escalating. 'If I'm going to be charged with a crime for doing my job, it just speaks to where we're headed in this country,' McIver said in a CNN interview Tuesday morning. Advertisement McIver was in fact doing her job, which includes oversight of federal Homeland Security operations. McIver, who conducted the visit with two other members of Congress, had 'They gave us a tour and allowed us to go in, and tour the facility, and speak to detainees,' McIver told CNN. These facts suggest acting US attorney for New Jersey and former defense lawyer for President Trump Alina Habba may need to brush up on her constitutional law. The Speech and Debate Clause protects lawmakers from facing arrest in the course of carrying out their legislative duties. Courts, including the Supreme Court, have interpreted it to extend beyond the debate floor and even halls of Congress, saying it applies to other legislative duties, including conducting oversight. The only exceptions are in cases of 'Treason, Felony and Breach of the Peace.' That last category must be what Habba is trying to hang her hat on — to the extent that she considered the Constitution at all before charging McIver. 'I have persistently made efforts to address these issues without bringing criminal charges and have given Representative McIver every opportunity to come to a resolution, but she has unfortunately declined,' Habba McIver told CNN: 'Alina Habba wanted me to admit to doing something that I did not do, and I was not going to do that.' The whole point of the Speech and Debate Clause is to prevent the executive branch from using its arrest power as a tool to intimidate people who have been elected by their constituents to carry out their legislative duties. Put short, the Framers were trying to keep any president from acting like a tyrannical monarch. Advertisement Unfortunately for Habba's case, there is The thin evidence likely means the constitutional problems with McIver's charges probably won't get any attention, as the case is likely to get swiftly dropped. I actually feel secondhand embarrassment for the career line prosecutor tasked with bringing this case before a court. But it is still important for Americans to clock this for what it is, as Democrats on the House Judiciary Committee have. 'The targeting of Representative McIver is a blatant attempt to intimidate Members of Congress and to block our oversight of this administration's actions, which have been enjoined more than 150 times by federal courts,' Representative Jamie Raskin, ranking member of the House Committee on the Judiciary, and other Democratic members Advertisement And make no mistake. They are coming. Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at
Yahoo
19-05-2025
- Politics
- Yahoo
Opinion - What happens when religious freedom clashes with personal protections in court?
On May 7, a devout Muslim was called to give testimony in her ex-boyfriend's criminal case. He was charged with assaulting her and with domestic violence. What would have been a tragic but routine moment in the justice system took an unexpected twist when the defense asked the judge to order the victim to remove her niqab, the religious attire that completely veils the face except for the area around the eyes. Some Muslim women wear it in places where they may encounter men who are not members of their family. The defense argued that allowing the victim to testify in her niqab would violate their client's constitutional right to confront their accuser and deny the jury critical demeanor evidence to help them assess her credibility. It was a smart tactic, one used in many different cases, to put the victim in the difficult position of having to choose between her religious convictions and her desire for justice. If she refused to testify, it would have led to a dismissal of the case. While governments often resist claims for religious accommodations, in this case, the prosecution argued that forcing the woman to remove her niqab would violate her right to practice her religion. Today, the banner of religious freedom is being raised all over the country, encouraged by a Supreme Court that has given priority to religious values even when they conflict with other constitutional norms. In each case, religious liberty must be balanced against other values. That means that the front lines in the battle over religion and its place in society will be continually shifting and, however those battles come out, each skirmish will fuel culture wars. That is why the Boston case made headlines. The battle was joined when Boston Municipal Court Judge Kenneth Fiandaca ruled that the alleged victim could only testify if she removed her niqab. His ruling was, however, quickly appealed and reversed by the Massachusetts Supreme Court. Traditionally, religious liberty has been seen as a kind of private right. The government should not tell people whether, when or how to worship. The philosopher John Locke, who influenced the Framers, wrote that 'The care of each man's soul' should not be part of the 'mutual compacts' that create a government of free people. No one, Locke added, 'ought to be excluded from the civil rights of the commonwealth, because of his religion.' In this understanding of religious liberty, people are free to go to the house of worship of their choice, but religion is not to be brought into the workplace or the 'public square.' This conception of freedom of religion requires tolerance. And it minimizes conflict between religion and other values of the kind seen in the Massachusetts case. In our era, another conception of religious liberty has come to prominence. In this view, confining religious practice to the private realm is seen as favoring an impoverished kind of religion. For people who hold this view, religion is seen as an indispensable part of a person's entire life, not just what someone does in their church, synagogue or mosque. This conception has been exemplified in cases such as that of the Colorado baker sanctioned by the state for refusing, on religious grounds, to make a wedding cake that celebrates a same-sex wedding. Another involved a religious order of nuns that did not want to cover contraception in the health insurance they provided for employees of their group homes for children. Inevitably, those practices run up against competing rights-claims. Those conflicts are often framed as involving a choice between different ways of life, religious and secular. Not surprisingly, they become the stuff of intense legal and political debate. For example, speaking to the Federalist Society in November 2020, Supreme Court Justice Samuel Alito, a longtime proponent of enhanced freedom of religion, observed that 'religious liberty is fast becoming a disfavored right.' In Alito's view, too many Americans do not cherish that liberty or regard it as 'just an excuse for bigotry.' On the other side, as political scientist Michael Bobic argues, 'When Congress or state governments try to accommodate the sincere religious beliefs of citizens, they risk violating the establishment clause of the First Amendment or the equal protection clause of the Fourteenth Amendment.' This brings us back to the Massachusetts case. The trial judge's initial ruling was not surprising, but it was wrong. There are many ways to assess witness credibility, and a long line of cases have held that the right to confront one's accuser is, as Justice Serge Georges of the state Supreme Judicial Court explained, 'not absolute.' Courts, he said, 'have recognized limited and exceptional circumstances in which a defendant's rights under the Sixth Amendment … may appropriately yield to competing constitutional interests.' Georges directed the lower court to consider whether the religious convictions of the witness are sincere and prohibit her 'from displaying her face to males.' If so, Georges concluded, the 'right to confrontation … including any 'face to face' component, must yield to the witness's First Amendment rights.' This ruling meant that a Muslim woman could testify in her niqab, rightly vindicating the claims of religious liberty. But, at the end of the day, the jury was not persuaded by her testimony and found the defendant not guilty. Also, we are no closer to healing the deep divides over those claims. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
The Hill
19-05-2025
- Politics
- The Hill
What happens when religious freedom clashes with personal protections in court?
On May 7, a devout Muslim was called to give testimony in her ex-boyfriend's criminal case. He was charged with assaulting her and with domestic violence. What would have been a tragic but routine moment in the justice system took an unexpected twist when the defense asked the judge to order the victim to remove her niqab, the religious attire that completely veils the face except for the area around the eyes. Some Muslim women wear it in places where they may encounter men who are not members of their family. The defense argued that allowing the victim to testify in her niqab would violate their client's constitutional right to confront their accuser and deny the jury critical demeanor evidence to help them assess her credibility. It was a smart tactic, one used in many different cases, to put the victim in the difficult position of having to choose between her religious convictions and her desire for justice. If she refused to testify, it would have led to a dismissal of the case. While governments often resist claims for religious accommodations, in this case, the prosecution argued that forcing the woman to remove her niqab would violate her right to practice her religion. Today, the banner of religious freedom is being raised all over the country, encouraged by a Supreme Court that has given priority to religious values even when they conflict with other constitutional norms. In each case, religious liberty must be balanced against other values. That means that the front lines in the battle over religion and its place in society will be continually shifting and, however those battles come out, each skirmish will fuel culture wars. That is why the Boston case made headlines. The battle was joined when Boston Municipal Court Judge Kenneth Fiandaca ruled that the alleged victim could only testify if she removed her niqab. His ruling was, however, quickly appealed and reversed by the Massachusetts Supreme Court. Traditionally, religious liberty has been seen as a kind of private right. The government should not tell people whether, when or how to worship. The philosopher John Locke, who influenced the Framers, wrote that 'The care of each man's soul' should not be part of the 'mutual compacts' that create a government of free people. No one, Locke added, 'ought to be excluded from the civil rights of the commonwealth, because of his religion.' In this understanding of religious liberty, people are free to go to the house of worship of their choice, but religion is not to be brought into the workplace or the 'public square.' This conception of freedom of religion requires tolerance. And it minimizes conflict between religion and other values of the kind seen in the Massachusetts case. In our era, another conception of religious liberty has come to prominence. In this view, confining religious practice to the private realm is seen as favoring an impoverished kind of religion. For people who hold this view, religion is seen as an indispensable part of a person's entire life, not just what someone does in their church, synagogue or mosque. This conception has been exemplified in cases such as that of the Colorado baker sanctioned by the state for refusing, on religious grounds, to make a wedding cake that celebrates a same-sex wedding. Another involved a religious order of nuns that did not want to cover contraception in the health insurance they provided for employees of their group homes for children. Inevitably, those practices run up against competing rights-claims. Those conflicts are often framed as involving a choice between different ways of life, religious and secular. Not surprisingly, they become the stuff of intense legal and political debate. For example, speaking to the Federalist Society in November 2020, Supreme Court Justice Samuel Alito, a longtime proponent of enhanced freedom of religion, observed that 'religious liberty is fast becoming a disfavored right.' In Alito's view, too many Americans do not cherish that liberty or regard it as 'just an excuse for bigotry.' On the other side, as political scientist Michael Bobic argues, 'When Congress or state governments try to accommodate the sincere religious beliefs of citizens, they risk violating the establishment clause of the First Amendment or the equal protection clause of the Fourteenth Amendment.' This brings us back to the Massachusetts case. The trial judge's initial ruling was not surprising, but it was wrong. There are many ways to assess witness credibility, and a long line of cases have held that the right to confront one's accuser is, as Justice Serge Georges of the state Supreme Judicial Court explained, 'not absolute.' Courts, he said, 'have recognized limited and exceptional circumstances in which a defendant's rights under the Sixth Amendment … may appropriately yield to competing constitutional interests.' Georges directed the lower court to consider whether the religious convictions of the witness are sincere and prohibit her 'from displaying her face to males.' If so, Georges concluded, the 'right to confrontation … including any 'face to face' component, must yield to the witness's First Amendment rights.' This ruling meant that a Muslim woman could testify in her niqab, rightly vindicating the claims of religious liberty. But, at the end of the day, the jury was not persuaded by her testimony and found the defendant not guilty. Also, we are no closer to healing the deep divides over those claims. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
