Trump Makes Constitutional Scholars Nervous

While Republican politicians and voters are now mostly reconciled to having Trump as their candidate, conservative legal scholars are not. Adam Liptak interviewed constitutional experts from across the political spectrum and found many of them worried about Trump's authoritarian impulses.

Donald J. Trump’s blustery attacks on the press, complaints about the judicial system and bold claims of presidential power collectively sketch out a constitutional worldview that shows contempt for the First Amendment, the separation of powers and the rule of law, legal experts across the political spectrum say.

Even as much of the Republican political establishment lines up behind its presumptive nominee, many conservative and libertarian legal scholars warn that electing Mr. Trump is a recipe for a constitutional crisis.

“Who knows what Donald Trump with a pen and phone would do?” asked Ilya Shapiro, a lawyer with the libertarian Cato Institute.

With five months to go before Election Day, Mr. Trump has already said he would “loosen” libel laws to make it easier to sue news organizations. He has threatened to sic federal regulators on his critics. He has encouraged rough treatment of demonstrators.

His proposal to bar Muslims from entry into the country tests the Constitution’s guarantees of religious freedom, due process and equal protection.

I think this is the serious concern about the American political system going forward. Presidential political systems have across the world been less stable than Parliamentary systems, because of the conflicts that arise when the president and the legislature are controlled by opposite parties. In the United States this has mostly been elided by the mushy character of our political parties and a fondness for centrist deal making. But in the new era of disciplined, ideologically pure parties, compromise is often impossible. Faced with the gridlock this situation creates, Obama has often been tempted to order executive solutions to problems that range from technical glitches in his health care law to immigration. So who knows what a more ruthless and less cautious president might do?

But on the other hand I have to say that Trump strikes me as much more bluster than real danger, and I tend to agree with Republican politicians who say things like

I still believe we have the institutions of government that would restrain someone who seeks to exceed their constitutional obligations. We have a Congress. We have the Supreme Court. We’re not Romania. (John McCain)

So it struck me that what really upsets some legal scholars is Trump's recent attack on the judge overseeing lawsuits against Trump University:

Mr. Trump accused the judge of bias, falsely said he was Mexican and seemed to issue a threat.

“They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace,” Mr. Trump said. “O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”

David Post, a retired law professor who now writes for the Volokh Conspiracy, a conservative-leaning law blog, said those comments had crossed a line.

“This is how authoritarianism starts, with a president who does not respect the judiciary,” Mr. Post said. “You can criticize the judicial system, you can criticize individual cases, you can criticize individual judges. But the president has to be clear that the law is the law and that he enforces the law. That is his constitutional obligation.”

Is that really scary? I don't know. I'm hoping we'll never have to find out.