This is Part V of a definitive article on the current state of the “Rule of Law” in the United States written by one of the country’s top jurists, J. Michael Luttig. It is a little too long for one blog, so I will publish it in five installments; that serves two purposes: The first is that it makes it palatable in size, and the second is that publishing it at least twice will have more impact on all of us. This final installment is a bit longer because I think that five installments is enough for anyone to read and absorb, including me.
“Trump’s unilateral ordering of massive tariffs on our global trade allies and enemies alike has been his most stupendous initiative and his most colossal failure. By presidential edict on April 2, the president declared that foreign trade and economic practices have created a national emergency, and he imposed tariffs ostensibly under the authority of the International Emergency Economic Powers Act of 1977. No previous president has ever invoked this national-emergency law to order tariffs, let alone the kind of massive, sweeping global tariffs of unlimited duration that Trump has attempted. His unconscionable tariffs immediately roiled the markets of the world, slowing growth and hastening inflation and recession domestically and around the globe. The United States is now weeks into a global trade war with no end in sight as the world’s economies languish.
The Constitution grants Congress the sole authority to regulate foreign commerce and levy taxes, including import tariffs. Congress has delegated to the president the power to impose limited tariffs unilaterally and adjust them in limited instances when such tariffs are urgently necessary to protect the nation’s security. But the present circumstances do not even arguably qualify as an “emergency” under the IEEPA. As the Stanford law professor and former U.S. Court of Appeals Judge Michael McConnell has said, “No statute expressly authorizes the president to impose tariffs for the nonemergency purposes of raising revenue, improving our long-term balance of trade or winning unrelated concessions on miscellaneous issues.”
The president is already facing a plethora of lawsuits from states, businesses, and conservative political groups challenging his sweeping tariffs, correctly arguing that the president has usurped Congress’s power to levy taxes and tariffs. These lawsuits will almost certainly prevail, if for no other reason than the Supreme Court recently held that, as to “major questions,” a law must explicitly authorize a president’s actions. The IEEPA, which never mentions the word tariff, does not even begin to explicitly authorize the president’s tariffs.
When Powell, the Federal Reserve chair, predicted that Trump’s unlawful tariffs would cause “higher inflation and slower growth,” Trump needed a scapegoat as always and threatened to fire him. Trump knows he is forbidden by statute and by the Supreme Court’s 1935 decision in Humprey’s Executor from firing Powell except for cause. “Powell’s termination cannot come fast enough!” Trump posted on Truth Social. Later that day, he repeated his view from the Oval Office. “If I want him out, he’ll be out of there real fast, believe me,” the president said.
On the heels of this presidential outburst, White House Deputy Chief of Staff Stephen Miller’s America First Legal Foundation was even so brazen as to sue Chief Justice John Roberts, the Judicial Conference of the United States, and the Administrative Office of the United States Courts in a shocking attempt to seize control of the coordinate branch of government. America First Legal Foundation is arguing that the Judicial Conference and the Administrative Office are executive-branch agencies that “must be overseen by the President, not the courts.”
The Judicial Conference is the policy-making arm of the federal judiciary, and the Administrative Office runs the federal court system. Neither executes anything nor supports any executive function. Neither is even arguably an executive-branch agency controllable by the president. This lawsuit, like so many actions taken by this president, is just one more reprehensible attempt to threaten and intimidate the federal judiciary.
The Framers of the Constitution of the United States may never have foreseen the multitudinous independent agencies and departments of today’s federal government, let alone the Judicial Conference or the Administrative Office, but I am certain of this: If they had, they would have forbidden that any of these governmental organizations, and especially the Federal Reserve, the Judicial Conference, and the Administrative Office of the Courts, would ever come under the control of any president as irresponsible as this one.
Knowingly or not, Trump has staked much of his presidency on the so-called unitary executive theory, which would give him absolute control over these institutions and the entire federal government, including the independent departments and agencies, a stake that is entirely dependent upon the Supreme Court overruling Humphrey’s Executor. By insisting that he has the power to fire Powell and in his reckless threats to do so, and through Miller’s threatening lawsuit, Trump has already made the most compelling argument possible that the Supreme Court should never overrule Humphrey’s Executor.
Other priority initiatives of this administration—Trump’s attacks on existing federal programs, federal elections, colleges and universities, birthright citizenship, and press freedoms – are just as unlawful.
On January 20, the president signed executive orders freezing foreign aid and funding for energy programs. Since then, he has prevented billions of dollars of congressionally appropriated funds from being disbursed in violation of the Impoundment Control Act of 1974, which limits the president’s power to hold back (that is, impound) appropriated funds. The president once called the Impoundment Control Act “clearly unconstitutional” and “a blatant violation of the separation of powers” but has now impounded billions upon billions of dollars in appropriated funds on the authority of that law.
PRESIDENTS CAN’T JUST DECLARE LAWS UNCONSTITUTIONAL AND REFUSE TO ENFORCE THEM. IT IS TRUMP’S IMPOUNDMENT OF THESE APPROPRIATED FUNDS THAT IS CLEARLY UNCONSTITUTIONAL, NOT THE IMPOUNDMENT CONTROL ACT. IT IS HIS IMPOUNDMENTS THAT ARE A BLATANT VIOLATION OF THE SEPARATION OF POWERS. (My caps, Luttig’s words)
Trump’s DOGE wrecking ball suffers from the same constitutional infirmities. As Alan Charles Raul, a former White House associate counsel for President Ronald Reagan, wrote in The Washington Post, “Congress has not authorized this radical overhaul, and the protocols of the Constitution do not permit statutorily mandated agencies and programs to be transformed – or reorganized out of existence – without congressional authorization.” He went on, “The DOGE process, if that is what it is, mocks two basic tenets of our government: that we are a nation of laws, not men, and that it is Congress which controls spending and passes legislation. THE PRESIDENT MUST FAITHFULLY EXECUTE CONGRESS’S LAWS AND MANAGE THE EXECUTIVE AGENCIES CONSISTENT WITH THE CONSTITUTION AND LAWMAKERS’ APPROPRIATIONS – NOT BY ANY DIVINE RIGHT OR ABSOLUTE POWER.” (My caps, Luttig’s words). Nothing else need be said.
Consonant with this understanding that Trump’s executive order gutting much of the federal government is unconstitutional and otherwise in circumvention of the laws preventing a president from unilaterally reorganizing the federal government, last Friday a federal court ruled that Trump may broadly restructure the federal government in the way he wishes only if Congress authorizes him to do so. The judge quoted from the earlier landmark case, Youngstown Sheet & Tube Company v. Sawyer: “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”
The court said that the plaintiffs challenging Trump’s executive order and the Office of Management and Budget and DOGE’s implementation of that order are likely to succeed on their claims that Trump’s executive order is beyond his powers and authority, as he “has neither constitutional nor, at this time, statutory authority to reorganize the executive branch,” and temporarily blocked implementation of Trump’s order until further proceedings.
PERHAPS MOST WORRYING OF ALL IS TRUMP’S UNLAWFUL ASSERTION OF POWER OVER FEDERAL ELECTIONS, POWER THAT IS CONSTITUTIONALLY COMMITTED TO THE STATES IN THE FIRST INSTANCE AND RESERVED TO CONGRESS IN THE SECOND. WHERE HE HAS NO AUTHORITY AT ALL, TRUMP HAS CLAIMED EXTRAORDINARY UNILATERAL AUTHORITY TO REGULATE FEDERAL ELECTIONS, USURPING THE POWERS OF NOT ONLY THE 50 STATES BUT ALSO CONGRESS. TRUMP’S MARCH 25 EXECUTIVE ORDER FLIPS THE CONSTITUTIONAL STRUCTURE ON ITS HEAD.
THE FEDERAL COURTS WILL NEVER ALLOW THIS UNCONSTITUTIONAL POWER GRAB. TO GIVE THE PRESIDENT ANY POWER OVER FEDERAL ELECTIONS WOULD ALLOW A PRESIDENT TO CHANGE ELECTION RULES TO SERVE HIS SELF-INTEREST AND HIS PARTY. INDEED, THE VERY FIRST FEDERAL COURT TO ADDRESS THE MATTER TEMPORARILY BLOCKED KEY PARTS OF THE ORDER IN AN OPINION THAT IS DESTINED TO BE UPHELD ON APPEAL. “OUR CONSTITUTION ENTRUSTS CONGRESS AND THE STATES—NOT THE PRESIDENT—WITH THE AUTHORITY TO REGULATE FEDERAL ELECTIONS,” THE FEDERAL JUDGE COLLEEN KOLLAR-KOTELLY WROTE. (My caps, Luttig’s words)
Trump’s attacks on colleges and universities, the free press, and the Fourteenth Amendment’s birthright-citizenship guarantee all likewise contradict the Constitution and laws of the land. Trump has mercilessly and unlawfully bludgeoned the nation’s colleges, universities, and law schools with lawless order after lawless order. His federal government cannot commandeer higher education’s governance and dictate the viewpoints that are taught at the country’s colleges and universities. The First Amendment zealously guards such decisions from the federal government.
THE CONSTITUTION CATEGORICALLY FORBIDS THE PRESIDENT FROM WIELDING THE POWER OF THE PURSE (WHICH IS NOT EVEN HIS TO WIELD) TO PUNISH THE NATION’S INSTITUTIONS OF HIGHER EDUCATION FOR EXERCISING THEIR FIRST AMENDMENT RIGHTS. (My caps, Luttig’s words)
When Harvard University called Trump’s hand on his blatantly unconstitutional attack on the nation’s oldest institute of higher education, Trump characteristically doubled down on his lawlessness, withholding billions of dollars more in federal funding from Harvard. Incensed by Harvard’s refusal to submit to his unconstitutional attack, Trump later said the government was going to take away Harvard’s tax-exempt status. “It’s what they deserve!,” he announced on Truth Social.
A FEDERAL STATUTE FORBIDS THE PRESIDENT FROM “DIRECTLY OR INDIRECTLY” REQUESTING THE IRS TO “CONDUCT OR TERMINATE AN AUDIT OR OTHER INVESTIGATION OF ANY PARTICULAR TAXPAYER.” VIOLATION OF THE STATUTE IS A CRIME PUNISHABLE BY FINE AND IMPRISONMENT.
No other president would ever have launched the broadside on the plain command of the Fourteenth Amendment’s birthright-citizenship right that Trump relished launching on his first day in office. Contradicting the clear language of the Fourteenth Amendment, controlling federal statute, and Supreme Court precedent, the president’s order does not simply deny citizenship to children of undocumented immigrants; it denies citizenship to children whose parents are legally present in the United States if they don’t have permanent status when their children are born.
THERE IS NOT A CHANCE IN THE WORLD THAT THE SUPREME COURT WILL AGREE WITH TRUMP’S ASSAULT ON THE FOURTEENTH AMENDMENT. ONLY THROUGH A CONSTITUTIONAL AMENDMENT COULD THE PRESIDENT’S INVIDIOUS AIM BE WROUGHT. (My caps, Luttig’s words … and I hope he’s right, although I’m not too sure the ways things are going!)
Finally, for years now, Trump has pronounced the free press in America “the enemy of the people.” So, it was no surprise that the media would be among the first he would target with his unconstitutional edicts. As he has crushed every institution, organization, and U.S. citizen on his road to absolute power, the president’s onslaught against the First Amendment–protected free press has been particularly vile. But as with most else, the federal courts have slapped down Trump in every free-press challenge that has made its way to them. Trump’s vindictive response was to have his Department of Justice announce that it would not hesitate in the future to subpoena reporters’ telephone records and compel their testimony to ferret out and prosecute the leakers in the administration, which unsurprisingly is already leaking like a sieve.
THE 47TH PRESIDENT OF THE UNITED STATES MAY WISH HE WERE A KING. BUT IN AMERICA, THE LAW IS KING, NOT THE PRESIDENT. (My caps, Luttig’s words)
Donald Trump may wish he could dictate his unconscionable global tariffs; dispense with due process and deport whomever he pleases, citizen and not; and vanish away huge swaths of the federal government without check or rebuke. He may wish he did not have to contend with the First and Fourteenth Amendments, the free press, or the Constitution’s birthright-citizenship guarantee. He may wish he could ignore the Constitution’s elections clauses and run America’s elections from the White House. And he may wish he could intimidate the nation’s lawyers and law firms from challenging his abuse of power and commandeer them to do his personal bidding. But it is these constitutional obstacles to a tyrannical president that have made America the greatest nation on Earth for almost 250 years, not the fallen America that Trump delusionally thinks he’s going to make great again tomorrow.
AFTER THESE FIRST THREE TYRANNICAL, LAWLESS MONTHS OF THIS PRESIDENCY, SURELY AMERICANS CAN UNDERSTAND NOW THAT DONALD TRUMP IS GOING TO CONTINUE TO DECIMATE AMERICA FOR THE NEXT THREE-PLUS YEARS. HE WILL CONTINUE HIS ASSAULT ON AMERICA, ITS DEMOCRACY, AND RULE OF LAW UNTIL THE AMERICAN PEOPLE FINALLY RISE UP AND SAY, “NO MORE.”
FROM ACROSS THE AGES, FREDERICK DOUGLASS IS CRYING OUT THAT WE AMERICANS NEVER FORGET: “THE LIMITS OF TYRANTS ARE PRESCRIBED BY THE ENDURANCE OF THOSE WHOM THEY OPPRESS.” (My caps, Luttig’s words)
