Aziz Huq Writes About Violations of the First Amendment
Is Donald Trump Breaking the Law? Seven Experts Weigh In.
The first 90 days of President Trump’s second term have been marked by a series of aggressive legal maneuvers. Among them: shaking down law firms the president regards as “anti-Trump”; threatening to revoke tax-exempt status from Harvard; the deportation of Kilmar Abrego Garcia to El Salvador and green-card holders on campus; and more.
Regarding the deportation of alleged Venezuelan gang members, the Supreme Court on Saturday ordered a hold on the administration’s plans, writing: “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.”
Many critics argue that the administration’s actions stretch the limits of executive power. Others argue that they are outright unconstitutional.
The Trump White House and its defenders say that this is hysterical—and that the president is only using the powers of the presidency arrogated since the Obama administration. In the case of deporting illegal immigrants, to choose one example, they say he is doing nothing less than restoring the rule of law that the Biden administration flouted.
We decided to ask seven of the sharpest legal minds in the country from across the political spectrum—including a Bush White House lawyer, a progressive constitutional scholar, and a former federal judge—one simple question: Is the Trump administration acting lawlessly?
What should we make of Trump’s legal strategy—if there indeed is a clear strategy? What stands out about this moment? Is this the usual clash between the courts and the executive branch? Or are we heading into uncharted waters?
The consensus is striking—and perhaps surprising, given the ideological diversity of these contributors. All agreed that the president’s legal tactics reflect a dangerous willingness to ignore statutory and constitutional constraints—and that he must be reined in quickly.
Here’s what they said:
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Open, Repeated, and Shameless Violations of the First Amendment
By Aziz Huq
The heartland principle of First Amendment law is an unwavering prohibition on discrimination between viewpoints. Of course, the government can speak and can adopt a perspective—say, smoking kills or fracking is wonderful—but it cannot issue a ban on one side of an argument, or use its funding powers to indirectly achieve the same end.
What is so startling about the Trump administration is the fact that it has openly, repeatedly, and unashamedly engaged in what is plainly unconstitutional viewpoint discrimination. With brutal frankness, it has targeted universities, law firms and lawyers, not-for-profits, and media outlets based on their viewpoints. Often, its aim is plainly to scare or overwhelm a speaker, such that they quail rather than querulously litigate.
It has done this, moreover, while ostentatiously declaring its fealty and espousal of First Amendment values. In this arena, Marco Rubio deserves a prize for dizzying incoherence and dishonesty. As Jacob Sullum noted in Reason, Rubio has painted himself a champion of free speech, making much of his shuttering of the State Department’s anti-misinformation efforts, all while locking up students and green-card holders on the basis of what is plainly First Amendment–protected speech.
The interesting question is not whether the Trump administration honors the First Amendment (it doesn’t). Rather, the question is how those of us loyal to the Constitution, so long as it stands, ought to respond. Here, I believe, there is no substitute for the hard slog of raising one’s voice above the parapet; insisting at every turn on speech rights; and, wherever possible, using the shield of judicial review to our advantage.
Trump’s assault on the Constitution will not abate anytime soon. And it will be those with the greatest stamina—and the firmest convictions—that will prevail.
Read more at The Free Press