Could the U.S. Constitution Survive Trump? Brooklyn College Professors Investigate

FLATBUSH, BROOKLYN — "Is the U.S. Constitution a strong enough guardrail to protect the republic from a Donald Trump presidency?"

That question, posed just eight days before election day, was explored Monday by two professors at a Brooklyn College event: Dr. Anna Law, the Herbert Kurtz Chair in Constitutional Rights at the school and an immigration law specialist, and Dr. Scott Lemieux, a political science professor at the College of St. Rose in Albany, New York.

It was clear from their remarks that neither academic cares for the Republican presidential nominee, and both focused their remarks on what legal constraints would be placed on Trump were he to be elected president.

Their answer: fewer than one might think.

Lemieux began his talk by citing James Madison's belief that the "institutional design" of governments limits abuses of power, rather than rights simply spelled out on paper.

In American government, he said, that belief manifested itself in the separation of powers, by which the president is checked by both the judicial and legislative branches.

"Political actors have to enforce the Constitution," Lemieux said. "The Constitution empowers certain actors to constrain Donald Trump."

But the question, he continued, was how those actors would act.

While Trump is a Republican outlier in some respects, Lemieux said — citing the candidate's skepticism of trade as an example — his beliefs on many other issues, such as immigration, are "more or less in line with mainstream Republican practice."

This, Lemieux contended, is the case even though Trump has run "an aggressive white nationalist campaign." As evidence, he noted that despite Trump's rhetoric, many Republican leaders have refused to abandon their endorsement of the candidate (though some, like Sen. John McCain of Arizona, have).

And if Trump had the votes to be elected, the Republican Party would have the votes to maintain control of the House and Senate, Lemieux said. In such a situation, "the incentives would be for Trump and Congress to work together."

Moving on to the Supreme Court, Lemieux said Trump has already put forward a list of potential nominees that is acceptable to the GOP. As such, the majority of the Supremes would remain in the conservative column.

Lemieux also argued that the Court is already more conservative that many may realize. As an example, he discussed its 4-4 deadlock this past August over a North Carolina voting rights law that an appeals court had struck down, describing it as an attempt to “target African Americans with almost surgical precision.”

The fact that four Justices disagreed with that ruling, Lemieux said, is "disturbing." But because of that record, Lemieux said he "would not really trust the Supreme Court to push back against Trump" in the realm of racially-motivated lawmaking.

After Lemieux, Professor Law spoke to three of the most controversial elements of Trump's run: his calls for a border wall between the U.S. and Mexico, for the mass-deportation of those in the U.S. illegally, and his proposed ban on all Muslim immigration to the country.

While Law thought all three ideas are impractical and bad social policy, she didn't think any were unambiguously unconstitutional.

The Constitution does not prevent a president from building a barrier on the nation's border, she said, though she noted that the wall's price tag would likely be between $15 and $20 billion. She also said it wouldn't do anything about the estimated 4.4 million undocumented people in the U.S. who simply overstayed their visas, wouldn't have stopped home-grown terrorists like Timothy McVeigh and Pulse Nightclub shooter Omar Mateen, and wouldn't prevent illegal immigration across the country's northern frontier.

Regarding mass deportation, Law noted that many of the country's 11 million undocumented residents live in families with a mix of legal statuses, so such an order would mean millions of painful separations. She also said immigrants have the right to appeal a deportation order, a process that can take years. And according to estimates, Law continued, it would cost hundreds of billions of dollars to locate, and initiate deportation proceedings against, all of the undocumented residents in the nation. But once again, Law said she didn't believe such an approach would be unconstitutional.

Finally, regarding the ban on Muslims, Law stressed that constitutional protections — such as the "equal protection" clause of the 14th Amendment — do not apply to non-Americans. She also said that there is a lack of pertinent case law on the matter. As such, Law said the ban, "may be constitutional."

However, Law stressed again that "lots of things are constitutional, and they're still a really bad idea."

During the event's question-and-answer session, a student asked if Trump could be prosecuted for inciting violence during his campaign.

Lemieux said that was unlikely, because case law has established that unconstitutional language along those lines must be linked to "imminent danger of lawless action," a very hard standard to prove.

Though they had previously argued a President Trump would have significant legal and political latitude, both professors said they didn't believe the U.S. military would follow illegal orders issued by the candidate, an issue raised by his past assertion that he wanted to engage in “a hell of a lot worse” than waterboarding during interrogations of terrorist suspects.

And Lemieux said Trump's talk of loosening libel laws so media organizations could be sued for their coverage of political figures would be a clear violation of the free press precedent established in the case of New York Times Company v. Sullivan, which protects even false reporting, so long as the falsehoods aren't intentional and designed to cause harm.

Of course, Democratic presidential candidate Hillary Clinton is also linked to major U.S. policies whose constitutionality has also been questioned.

For example, Clinton was a Senator during the years when the National Security Agency began its bulk collection of telephone metadata, a project ruled illegal by the United States Court of Appeals for the Second Circuit and by Judge Richard J. Leon of United States District Court for the District of Columbia. (Last year, Clinton backed a reform law that keeps metadata records with phone companies instead of with the federal government, describing it in a tweet as "a good step forward in ongoing efforts to protect our security & civil liberties.")

And as Secretary of State, Clinton championed military action against Muammar Gaddafi in Libya, even though such action wasn't authorized by Congress. When asked in 2007 about whether the president could strike Iran without a Congressional vote, however, Clinton said that, "I do not believe that the President can take military action – including any kind of strategic bombing – against Iran without congressional authorization."

Asked about Clinton's commitment to constitutional principles, Lemieux said, "I think presidents are always tempted to push the envelope."

"I have fewer concerns about Clinton than about Trump, but I don't think we should be unconcerned about anybody," he said.

Pictured at top: Anna Law, left, and Scott Lemieux, right. Photo by John V. Santore