Donald Trump vs. The Rule of Law

by Marjorie Cohn, Truthout | Report –

One of the most sacred duties of the president of the United States is to enforce the laws. The Take Care Clause, in Article II, §3 of the Constitution, says the president “shall take care that the laws be faithfully executed.”

Yet, six months after taking office, Donald Trump has demonstrated contempt for the rule of law. He has not only refused to enforce certain laws; he has become a serial lawbreaker himself and counseled others to violate the law.

Trump is undermining Obamacare, which is currently the law of the land. He is advocating police brutality. Plus, he has illegally bombed Syria, killed large numbers of civilians in Iraq and Syria, instituted an unconstitutional Muslim Ban, violated the Emoluments Clause and obstructed justice.

Each of these actions either violate or indicate an intention to violate the law.

Sabotaging the Affordable Care Act

The Affordable Care Act (ACA), also known as “Obamacare,” is a federal statute that has been upheld by the Supreme Court. Yet, instead of vigorously enforcing it, Trump has, on several occasions, announced his intention to let the law “fail” or “implode.”

He has threatened to withhold cost-sharing reduction payments that reduce what individuals must pay for copayments, deductibles and insurance. He has curtailed outreach, pulled $5 million in advertising that encouraged individuals to sign up for health care under the ACA, and even promulgated negative ads. He has proposed reducing the ACA’s tax credits, which offset premium costs for middle-income individuals; this reduction would make insurance plans more expensive and raise deductibles and co-payments. And he has moved to weaken the individual mandate by lifting the requirement that taxpayers report to the Internal Revenue Service whether they have health insurance.

“Trump is not talking about letting the patient die,” wrote Dean Baker, co-director of the Center for Economic and Policy Research, on Truthout. “He is talking about murder. Trump and the Republicans are not discussing whether they should let Obamacare die. They are plotting to kill it.”

Rather than faithfully executing the ACA, Trump is doing his best to destroy it.

Advocating Police Brutality

Last week, Trump suggested that police officers effectuating arrests should bang suspects’ heads against police car doors. Trump told officers, “Please don’t be too nice” when arresting people.

He elaborated, “Like when you guys put somebody in the car, and you’re protecting their head, you know, the way you put your hand over” their head, “I said, ‘You can take the hand away, OK?'”

In response to Trump’s comments, New York police commissioner James O’Neill stated, “To suggest that police officers apply any standard in the use of force other than what is reasonable and necessary is irresponsible, unprofessional and sends the wrong message to law enforcement, as well as the public.”

Indeed, the Fourth Amendment to the Constitution prohibits police officers from using unreasonable force. Trump was advising officers to violate the law.

Promulgating an Unconstitutional Muslim Ban

In January, Trump signed an executive order that would have barred nationals from seven Muslim-majority countries from the US for at least 90 days. It would also have indefinitely prevented Syrian refugees, even those granted visas, from entering the United States. And it would have suspended the resettlement of all refugees for 120 days.

After the ban was struck down by several courts, Trump issued a second Muslim ban, reducing the seven countries to six and lifting the total ban on Syrians.

Opponents of the ban argue it violates the Establishment Clause, the Due Process Clause, the Equal Protection Clause and the Take Care Clause of the Constitution. It also could violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights; both are treaties the United States has ratified, making them part of US law under the Constitution’s Supremacy Clause. The ban likely violates the Immigration and Nationality Act as well.

The Supreme Court will determine the legality of the ban when the high court reconvenes in October.

Illegal Bombing of Syria and Unlawful Killing of Civilians in Iraq and Syria

In April, Trump bombed Syria with 59 Tomahawk cruise missiles, each armed with over 1,000 pounds of explosives, in retaliation for a deadly chemical attack allegedly mounted by Syrian president Bashar al-Assad.

The War Powers Resolution allows the president to introduce US Armed Forces into hostilities or imminent hostilities in just three situations: First, after Congress has declared war, which had not happened in this case; second, in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” which had not occurred; and third, when there is “specific statutory authorization,” which there was not.

The 2001 Authorization for the Use of Military Force allowed the president to use force only against those groups and countries that supported the 9/11 attacks. The bombing in Syria was not authorized by any other act of Congress. Thus, Trump’s missile attack violated the War Powers Resolution.

Regarding international law, the United Nations Charter prohibits the “use of force against the territorial integrity or political independence of any state.” There are only two exceptions: when conducted in self-defense after an armed attack, or with the approval of the Security Council.

Syria had not attacked the United States or any other country before Trump ordered the missile strike. Assad’s alleged use of chemical weapons was Trump’s justification for the strike. But using chemical weapons did not constitute an armed attack on the United States or another country. And the Security Council had not approved Trump’s bombing. It therefore violated the Charter.

In addition, the Trump administration has killed an inordinate number of civilians, in violation of the UN Charter and the Geneva Conventions.

“Almost 1,000 non-combatant deaths have already been alleged from coalition actions across Iraq and Syria in March — a record claim,” according to Airwars, a non-governmental organization (NGO) that monitors civilian casualties from airstrikes in the Middle East. “These reported casualty levels are comparable with some of the worst periods of Russian activity in Syria.” US aircraft inflicted most of the casualties in the coalition strikes, Airwars added.

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Reprinted with permission from Truthout