Trump, Pence, and the Constitution

Congratulations are in order to Vice President Pence, and to the John F. Kennedy Library for bestowing its Profile in Courage award on America’s 48th vice president. The Library explains that by “upholding his oath to the Constitution” on January 6, 2021, and “following his conscience, the Vice President put his life, career, and political future on the line.” That heroism was evinced when Mr. Pence, amid the tumult of protest, opened all the certificates.Seeing a rock-ribbed Republican like Mr. Pence garlanded on Sunday night by Caroline Kennedy and Jack Schlossberg — JFK’s daughter and grandson — was itself a balm in these divided times. Mr. Pence, in accepting the award, reflected that “whatever differences we may have as Americans, the Constitution is the common ground on which we stand. It’s what binds us across time and generations.” Those are wonderful sentiments — and true. That’s the context in which President Trump seemed to express doubt about whether everyone in America is owed due process under the Constitution. It was a startling comment given that every officer of the executive branch, every judge, and every legislator — at the federal and state level — must be sworn to the parchment. All the more urgent is the question of what the Constitution’s clauses mean. It’s why so many lawsuits are swirling around the president.Mr. Trump’s doubts emerged when Kristen Welker asked him whether the Fifth Amendment’s promise of due process extends to both citizens and non-citizens. The 47th president responded: “I don’t know. I’m not, I’m not a lawyer. I don’t know.” He added that he has “brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said.” Certainly he’s entitled, whatever the courts decide, to argue his case.Mr. Trump is right that constitutional challenges are part of what the courts are for. If all the clauses of the Constitution were plain as day, the Founders wouldn’t have had to give us a judiciary. That the Trump administration is engulfed by these suits doesn’t mean that the cases lack merit. It’s a moment to remember that Mr. Trump has won his share of cases — presidential immunity, say, or power to restrict migration from some majority-Muslim nations. Mr. Trump’s record before the high court is far from a washout. He beat back, by a unanimous margin, the effort to disqualify him on the basis of Section Three of the 14th Amendment. He also bested, in Trump v. United States, President Biden’s Department of Justice on the question of presidential immunity, a landmark decision that set the bounds of executive protection from criminal charges. That effectively sank Special Counsel Jack Smith’s January 6 case.The 47th president’s record before the Nine during his first 100 days is mixed, no surprise given the rash of executive action. The high court has greenlit, then frozen, temporarily, Mr. Trump’s efforts to deport Venezuelan migrants under the 1798 Alien Enemies Act. It has ruled, against the administration, that even those deported under the statute are owed the rudiments of due process — and a forum in which to make their case. The subject on which Mr. Trump expressed uncertainty — the reach of due process — is a one that is vexing legal sages, even as it appears as if some form of due process is owed, under the Constitution, to non-citizens. The Court held in 1953 that “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.” Mr. Trump has also moved, via executive order, to outlaw birthright citizenship. The Supreme Court will hear that case soon — and could surprise those who see the administration’s position as crosswise with the plain language of the parchment. At least four justices saw enough in the petition to grant the arguments for and against their days in court. It seems that the Constitution is no less, as Mr. Pence put it, “common ground” when the turf is contested.

Trump, Pence, and the Constitution

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