NYT assembles constitutional scholars on Trump's first-100-day record

Here's a gift link to the New York Times's new mini-symposium (which I liked) assembling 35 legal scholars' views on the legality of Trump's actions in his first three months. There was a lot of consensus, with a few divisions. Some highlights:

The biggest consensus was on birthright citizenship. "I am confident the courts will reject the president’s claim that children of illegal aliens born in this country lack birthright citizenship," says Stanford lawprof Mike McConnell, a leading conservative. Deportations without due process also ranked high as an urgent and multi-dimensional issue on which Trump has directly attacked constitutional liberties. Even citizens are at risk, noted lawprofs Shirin Sinnar of Stanford, Amanda Frost of U.Va., and Ingrid Eagly of UCLA.

On Trump's orders penalizing law firms for representing his opponents, Northwestern's Martin Redish says it "would be difficult to imagine a presidential action more undermining of the foundations of our system of constitutional democracy." Colleagues Kate Shaw at Penn and Barry Friedman at NYU concur. (I’ve published repeatedly on this topic at Cato.)

Trump's abuse of the power of the purse -- on impoundments and in using funding to push around universities and others -- drew heavy fire too. Some saw his tariff decree as vulnerable as well. In some other areas, though, Trump was acting fully or partly within his accepted power. For example, many scholars expected Trump to prevail at least partly in his attack on independent agencies. Bad acts including the J6 mass pardons and politicizing the Justice Department are within his power entirely or nearly. He can do a lot of cutting of outlays, agencies and staff within the law.

Perhaps most disturbing of all is the big-picture view: the individual examples of lawlessness, retaliation, and contempt for constraints on the presidency amount in combination to what Katie Eyer (Rutgers) calls "the actions of an authoritarian government, not a liberal democracy."

A few days earlier, the editors of the Free Press (who have to my mind gone too far too often to excuse Trump) asked a wide ideological array of experts and got a similar, consistent answer.

So don’t just take my word for it: Yes, Donald Trump is breaking the law, as a matter of purpose and policy. Here’s what I wrote at Cato back in February, which I think still holds up pretty well:

To get back to the unitary executive theory [which the Trump administration has embraced as law in several moves], you’ll notice that the Supreme Court has *not* handed down a decision embracing it as law. Should it do so, it’ll rank among the cases of the century. But it hasn’t! Many read the tea leaves as mixed; the court might embrace the theory in some respects but not all.

And this is a pattern. The Trump White House puts out one executive order after another and launches one management initiative after another that might make sense had it just won a landmark Supreme Court case uprooting old law, except that it hasn’t won those cases—it simply hopes to in the future. It’s speculating on wins in cases still unargued, carving nuggets from chickens still unhatched.

Thus, multiple spending-freeze moves seem based on the idea that the courts have already struck down the Impoundment Control Act as infringing on inherent executive power. (They haven’t.) Purges of employees at federal agencies, sometimes baldly based on inferred political loyalty, seem based on the idea that courts will nullify civil service rules and the Elrod v. Burns line of First Amendment cases (shielding some public employees from dismissal for partisan reasons on the same rationale. (They haven’t done those things, either.)

What happens if not all these cases go their way and the court doesn’t agree to strike down a long list of constraints on the executive, some, as with civil service, of considerable historic provenance? Then the events of recent weeks will look very much like a lawbreaking spree.