[Salon] A Constitutional Redline by David Cole and Daniel Drake - Guest Post, New York Review of Books

A Constitutional Redline David Cole, interviewed by Daniel Drake March 22, 2025 “It is unprecedented for the federal government to proceed with a challenged action while in a court hearing on whether they can lawfully do so. It is a subversion of the rule of law.”Albrecht Dürer: Justice, ca. 1499 Albrecht Dürer: Justice, ca. 1499 This article is part of a regular series of conversations with the Review’s contributors; read past entries here and sign up for our e-mail newsletter to get them delivered to your inbox each week. This week the NYR Online published an open letter signed by eighteen constitutional scholars from across the ideological spectrum that argued that the Trump administration’s treatment of Columbia University “risks deterring and suppressing constitutionally protected speech.” One of the signatories is David Cole, who since Trump’s inauguration has been writing in our pages about the dangers of the president’s encroachment on the Constitution. Cole, the former national legal director of the ACLU and a professor of law at Georgetown, has been writing about legal issues for the Review since 2004. At the end of a week in which the government escalated its attempts to deport thousands of people on dubious legal grounds and succeeded in extracting from Columbia University a number of concessions after threatening to withhold $400 million in federal funding, I called him to ask about what is beginning to seem like a constitutional crisis. Daniel Drake: There are many serious legal issues unfolding right now. The Trump administration seems to be testing the extent of its power, from the detention and deportation of immigrants and permanent residents, without due process, to the efforts of Elon Musk’s DOGE office to fire federal employees en masse and close offices, like USAID, that were created by Congress, from the threats to withhold funding from universities in order to punish pro-Palestine protesters to, finally, the executive branch’s apparent willingness to defy judicial rulings. This has started to look like an emergency. How serious is this crisis? Are there any analogues from American history that might clarify the situation we are in? David Cole: In its scope, its brazenness, and its utter disregard for legal constraints, what the Trump administration is doing across the board is unprecedented. It has launched a multifront attack on virtually every aspect of civil society. It has invoked obviously inapplicable statutes like the Alien Enemies Act to expel foreign nationals without any due process. It has targeted others, like Mahmoud Khalil, for removal for their constitutionally protected political speech. It has used the levers of the federal government for personal and partisan retaliation. I haven’t seen a president do anything like this in my lifetime, and I don’t think this country has seen an all-out assault on basic principles of civil liberties and bedrock principles of constitutional governance ever before. So you would say that the gravity of the situation is beyond, say, Watergate? Absolutely. Watergate was deeply troubling, to be sure. You had a president involved in criminal activity against the opposition party for purely partisan ends, and an enormous effort to cover up that crime. But here you have a president who is openly and repeatedly engaging in blatantly unconstitutional action across the board, and he is charging ahead as if legal constraints simply do not matter. He’s taken a wrecking ball to the very structure of our federal government—and to the lives of thousands of workers, citizens, and immigrants. Earlier this month he issued an executive order targeting the law firm Perkins Coie, ordering, among other things, that government contractors be prohibited from hiring the firm. This was explicitly in retaliation for their having represented Hillary Clinton during the 2016 election, which is constitutionally protected activity. The order was quickly enjoined by a federal judge, but two days later he issued essentially the same order, this time against the firm Paul Weiss for hiring an ex–Manhattan prosecutor, Mark Pomerantz, who wrote a letter in The New York Times charging Trump with being “guilty of numerous felony violations”—also entirely protected speech, not to mention accurate. That’s just unheard of. It’s almost as if Nixon, upon getting caught for Watergate, had issued an executive order directing James McCord to burgle another DNC office and claimed that he had the absolute right to do so. What would you say is the most consequential of the unfolding legal battles? That’s hard to say. The Trump administration has adopted a flood-the-zone approach in which it has taken dozens of actions that appear to violate federal statutes, the Constitution, or both. All of them are in some stage of litigation in the federal courts. They’re all important. That said, at the moment much focus is, appropriately, on the controversy about Trump’s blatantly illegal invocation of the Alien Enemies Act of 1798 in order to deport immigrants and refugees from Venezuela whom he alleges are gang members. That act gives the president the power to detain and deport nationals of a country with which the United States is at war, meaning a country Congress has declared war on or a country that has invaded us. Obviously we are not in a declared war at the moment. We haven’t been in a declared war since World War II, and Venezuela hasn’t invaded us. So there is no arguable authority under this statute to deport these people, period. Nor was there any need to do so, as these individuals were locked up in immigration detention while their deportation cases proceeded and therefore posed no threat to us. At the very moment that this illegal act was being considered in an emergency court hearing before Judge James Boasberg in Washington, the administration hurriedly sent two flights of immigrants to El Salvador, quite possibly in defiance of the court’s order. It certainly looks like the administration did everything it could to deport a couple hundred people at the very moment that Judge Boasberg was hearing the case. Moreover, despite the fact that he also ordered the administration to turn any planes around, it deliberately chose not to turn those planes around. This is at best unethical and underhanded, and at worst contempt of court. Since then Judge Boasberg has given the government every opportunity to explain itself, and the Trump administration still has not provided adequate answers about what happened, when, and why. Judge Boasberg has given them until Tuesday to do so, and if he concludes that they subverted his order, then he’ll take appropriate action. We don’t yet have a ruling, but the publicly known facts strongly suggest that they subverted his order. It is unprecedented for the federal government to proceed with a challenged action while in a court hearing on whether they can lawfully do so. It is a subversion of the rule of law. If the government defied Boasberg’s order and continues to defy his orders, that would seem to be putting the country into a constitutional crisis. What are possible remedies if a president flouts judicial rulings? I think it’s important to be clear about what they have and have not done. They are not currently deporting anyone under the Alien Enemies Act, so in that sense they are complying with the court’s order. What’s at issue is whether, while Judge Boasberg was hearing the case, they did everything they could to remove hundreds of Venezuelans, which would clearly be an act of bad faith and a subversion of the rule of law, and possibly contempt of court. But it’s important to emphasize that they have not asserted the authority to violate a court order; they have argued that they did not violate the court order, that the court order came down after the planes had already taken off. These arguments are very weak, and I think Judge Boasberg will reject them. But they are arguments about whether the government violated the court order—not assertions that they have the power to defy the court. Were they to openly defy a court order and claim the authority to do so, that would cross a constitutional redline. No president has ever crossed that line, including Trump himself in his first term. Our constitutional democracy rests on the notion that political actors all the way up to the president are bound by the Constitution, and that the court enforces the Constitution. If the president were to say, “I don’t have to abide by a court order,” then we no longer have a constitutional democracy. That hasn’t happened yet. But the administration’s actions in this case are about as close to defying a court order as you can get short of actually doing so. On Thursday a federal court temporarily blocked the deportation of your Georgetown colleague Badar Khan Suri, who was accused by the Department of Homeland Security of “spreading Hamas propaganda” and for having “close connections to a known or suspected terrorist,” allegations that Suri’s lawyer has denied. What is at stake in this particular case? Suri’s case is similar to the Mahmoud Khalil case. They are the first steps in what Trump has said is going to be a campaign to deport foreign nationals for engaging in pro-Palestinian advocacy—in other words, for their speech. In both cases the individuals appear to be charged with nothing more than political speech or associations that the government dislikes, and in both cases the administration is very likely to invoke a provision that gives the secretary of state the power to certify that a foreign national’s presence or activities in the United States would have potentially serious adverse foreign policy consequences—and then deport the person on the basis of that certification. As with the Venezuelans, the law does not cover the facts in these cases. The fact that a graduate student led campus protests at Columbia does not have any plausibly serious foreign policy consequences for the United States. The fact that a postgrad at Georgetown is married to the daughter of a former Hamas official and posted some statements online that could be deemed pro-Hamas does not conceivably have serious adverse foreign policy consequences for the United States. It’s frivolous to suggest that they do. That law was designed to empower the government to deny entry to, for example, a high-level government official or political leader implicated in war crimes or some other serious foreign policy concern, not to give the secretary of state a blank check to punish students for their speech. The law requires that the secretary of state have “reasonable grounds” to assert serious foreign policy consequences. Here, there are none. The Khalil and Suri cases also raise serious constitutional questions because the First Amendment protects the speech rights of all people in the United States, not just American citizens. Just as the government could not prosecute me for writing pro-Hamas tweets or for marrying someone who was related to someone who was in Hamas or for engaging in a campus protest, so it can’t deport a green card or visa holder for doing the same things. What are the implications of Columbia University acceding yesterday to the Trump administration’s demands? Are there other universities or organizations that are next in the administration’s crosshairs? Has Columbia weakened future court cases by acquiescing? Columbia was the first, and it will not be the last. The government has already gone after the University of Pennsylvania, and you can be sure that they will go after other universities after Columbia gave in without a fight. I don’t think future court cases are weakened, because what the administration did to Columbia is clearly illegal. But the Trump administration will undoubtedly be emboldened to engage in unlawful, vindictive defunding of other universities, and now it will be politically harder for the next university to fight back. Columbia caved not because they did not have a legal basis to resist, because they almost certainly would have prevailed in court had they sued. They succumbed, I presume, because they were worried that even if they successfully fought to retain the $400 million in federal funding that Trump threatened to withhold, there’s another $5 billion on the table this year alone, and more in the future subject to congressional allocation. Money talks, and the university sacrificed principle to the coercive power of the federal government’s purse. It’s not only universities that face this quandary—it’s also the law firms I mentioned earlier. Perkins Coie courageously challenged Trump’s blatantly illegal action and won immediately, but my understanding is that they have already lost several major clients. They won in court but lost in the market; that’s the real sanction. When Trump has singled out a firm, clients run away because they would rather be represented by someone who has not been identified as an enemy of the president, especially if they’re dealing with the federal government. Is that effectively to say that the executive can hold money over corporations or states or universities to get their way? As a legal matter, no. They can’t. But as a practical matter, it is often hard to prove why a particular funding decision was made. Under the First Amendment, the government cannot deny funding to punish someone for engaging in constitutionally protected activity, which was exactly what the Perkins Coie and Paul Weiss orders did, and what the actions against Columbia did. Law firms cannot be punished because they hire someone the president doesn’t like, or bring voting rights lawsuits challenging laws the president likes. And Columbia has the right to tolerate protests by its students unless it violates Title VI by being “deliberately indifferent” to such severe or pervasive harassment as to deprive Jewish students of equal access to education. But that deliberate indifference standard is a very high bar, and to my knowledge no university has ever been found to violate it for tolerating a student protest. The Trump administration never alleged in their communication with Columbia any specific act that the school did or did not take that constituted deliberate indifference. If people brought complaints about antisemitic harassment and Columbia simply ignored them, that would be one thing. But if Columbia processed those complaints and reached various results in various cases, that’s not deliberate indifference. Allowing students to protest does not constitute deliberate indifference. And if anything, Columbia’s response was more harsh than that of many other campuses across the country. So I see no evidence that they were deliberately indifferent—and more to the point, the administration has cited none. Columbia, Perkins Coie, Paul Weiss, the judicial fights, not to mention Trump’s attacks on the press: these are all calculated efforts to neutralize and defang any opposition. The First Amendment protects these civil society institutions precisely because they constitute an important check on government abuse. We depend on them and the courts to protect and preserve constitutional democracy. It is very disturbing when they fold rather than standing up for the rights that they are entitled to under the Constitution. It’s not just a failure of will, but an abdication of the solemn responsibility these institutions have in our political system to defend our constitution. David Cole David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center and the former National Legal Director of the ACLU. (March 2025) Daniel Drake Daniel Drake is on the editorial staff of The New York Review of Books. --