Initiatives announced or planned by the Trump Administration signal inconsistent and profound legal challenges, a panel of Kline School of Law professors said during a teach-in on Feb. 24.
The administration has taken steps in immigration, civil rights, finance, the Supreme Court, environmental protection, health care and criminal justice that pose contradictions and raise varied legal questions, the professors said.
Professor Anil Kalhan said Trump’s immigration initiatives have vastly expanded the number of people who will be prioritized for deportation, despite the fact that senior White House adviser Steve Bannon has called for “deconstructing the administrative state.”
A massive crackdown on immigrants means that “we’re going to have a ramping up of the administrative state,” Kalhan said.
Despite historic lows in crime rates across most of the country, Professor David S. Cohen said, Trump has revived “law and order” language that dates back to the era of President Nixon.
“It’s code,” Cohen said. “It was used as a justification to infringe on people’s rights in the name of tamping down crime.”
While Trump would not be able to force local police departments to engage in a national “stop and frisk” program that he has mentioned, Cohen said, the Department of Justice can stop holding local police departments accountable for their enforcement tactics, and it has already signaled that federal authorities may prosecute recreational drug use in states that allow it.
Imposing federal drug rules on the states stands in marked contrast with the administration’s decision to withdraw protections for transgender students in public schools that let them use bathroom facilities that correspond with their gender identity, Cohen said.
The rule of law that has held sway in the United States may face profound new challenges, Professor Lisa McElroy said, citing Trump’s criticism of judicial rulings that did not favor him.
“The president has to accept when courts place limitations on his power,” she said, noting that our system relies upon all three branches of government to hold the others in check.
Likewise, Professor Chapin Cimino said our system of self-governance requires that the press remain free, even to make mistakes.
“The press needs to bring us information we need to preserve our system or popular sovereignty,” she said, citing the New York Times v. Sullivan ruling in which the Supreme Court affirmed the First Amendment protections that allow the press to operate independently of government officials, even when it errs.
Despite rising premiums for some of those who receive health insurance through Obamacare, the system is eminently fixable, Professor Robert Field said.
Professor Roger Dennis said that Trump has latitude to erode regulations that were put in place in response to previous financial crises: the Great Depression, the dot-com bust and the crisis of 2008.
Trump could enact changes by working with Congress to enact laws, to create new administrative rules or simply by underfunding agencies that are supposed to enforce financial regulations, Dennis said.
The scenario is similar in the environmental sphere, where the president has expressed little interest in regulating industry, Professor Alex Geisinger said.
Trump was able to quickly erase an Obama-era rule barring coal companies from dumping waste into streams, Geisinger said, explaining that through the Congressional Review Act, he gained GOP lawmakers’ support to overrule the regulation.
Older rules could only be erased after a lengthy public comment period, and the decisions would be subject to judicial review, Geisinger said.
“It’s hard to dismantle the regulatory state,” he said.