Adler: Trump’s Inauguration Day ignites historic legal and constitutional controversies
President Donald Trump’s second inaugural address ignored the path of reconciliation, magnanimity and unity that distinguished the historic addresses delivered by Thomas Jefferson and Abraham Lincoln.
Instead, Trump took “the road less traveled,” to borrow from Robert Frost, and used his platform, in part, to rehash old grievances and lash out at his predecessor, seated a few steps behind him, minutes after President Joe Biden had welcomed the 47th president and his wife, Melania, to a White House Tea – “Welcome Home” – restoring an old tradition that adorns the peaceful transfer of power in America, although one not extended by the Trumps to the Bidens after the 2020 presidential election which, to this day, Trump refuses to recognize.
President Trump’s address, which resembled a State of the Union message more than most of these quadrennial speeches, omitted substantive homage to the expectation that the newly minted chief executive will be a president for all Americans and leave old battles in the rearview mirror, introduced a new “Golden Age” for the United States.
In a rising voice, Trump declared his first day as “Liberation Day.” His stated goals, policies and words, set in motion through a flurry of Executive Orders throughout the day and night, were music to the throngs that supported him: he closed the southern border, announced that it would be the policy of the government that there are only two genders – male and female – in the United States, that he would end birthright citizenship, retake the Panama Canal, rename the Gulf of Mexico the “Gulf of America,” and rename Denali as “Mount McKinley,” in honor of his new favorite president – William McKinley – who championed tariffs.
Some of Trump’s Executive Orders, as expected, have sparked legal controversy and litigation. His order to the Department of Defense to prepare plans to deploy the military to seal the border are in violation of the Possess Comitatus Act of the 1850s, which prohibits use of the military to enforce federal law. His plan to dust off the 1798 Alien Enemies Act to deport undocumented immigrants is inapplicable, since the statute authorizes presidential detainment and deportation of those with whom the U.S. is at war. Currently, Congress has not, in fulfillment of constitutional requirements, declared war against Mexico, Guatemala or Colombia.
Trump’s threat to reclaim the Panama Canal Treaty through use of force requires the same congressional authorization. His effort to terminate the 14th Amendment guarantee that all people born in the United States are citizens of the United States is ineffectual without satisfaction of the constitutional process for amending the Constitution.
Trump’s biggest, boldest act, one that fulfilled a promise central to his campaign – a full, unconditional blanket pardon to 1,600 Jan. 6, 2021, defendants – overshadowed every other word and act. Indeed, the pardon of those who attacked the U.S. Capitol and viciously assaulted police officers, to stop the peaceful transfer of power, including some who were convicted of seditious conspiracy for attempting to overthrow the government, will define his second Inauguration Day, and perhaps his second term in office.
It will, at least at this juncture, be regarded by scholars as one of the two or three most flagrant abuses of the pardon power in American history, principally because it included the 174 defendants who were charged with using a deadly or dangerous weapon or causing serious bodily injury against Capitol police officers. His act has been condemned by a growing number of GOP leaders who would like their party to be known by the electorate as defenders of the men and women in Blue. Trump’s grant of a pardon to those who beat up police officers complicates that brand.
President Trump’s controversial exercise of the pardon power on Inauguration Day is sufficient to renew calls for a constitutional amendment to curb the scope of the authority. Simply put, the nation should adopt a proposal, first suggested by Senator Walter Mondale in 1974, in the wake of Gerald Ford’s pardon of Richard Nixon, that no presidential pardon would be effective “if Congress by resolution, two-thirds of the members of each House concurring, disapproves the granting of the pardon within 180 days of its issuance.”
This meritorious proposal, with some tweaking, would place the pardon power in the mainstream of the political system by rendering it subject to checks and balances. We discuss its merits next week.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.