New York Times

New on Law School Syllabus This Fall: Trump’s Actions

August 15, 2017

by Adam Liptak

President Trump is transforming the study of constitutional law.

The nation’s law professors have spent the summer revising their courses to take account of a president who generates fresh constitutional questions by the tweet. When classes start in the coming weeks, law students will be studying more than dusty doctrine. They will also be considering an array of pressing questions.

When is firing a subordinate to thwart an investigation obstruction of justice? Can a sitting president be indicted? Can the president pardon himself? May he accept financial benefits from foreign governments? Are his campaign statements evidence of religious bias? Must Congress authorize a nuclear strike against North Korea?

“It would be easy to design a whole course or write an entire book about the constitutional issues raised in just the first six months of the Trump presidency,” said Jay D. Wexler, a law professor at Boston University.

Constitutional scholars sounded both anxious and energized by these developments.

“Teaching the Constitution has never felt more urgent, like unraveling a mix of ‘Apocalypse Now’ and ‘Alice in Wonderland,’ but with the highest possible stakes,” said Laurence H. Tribe, a law professor at Harvard and vocal critic of Mr. Trump, who also represents plaintiffs challenging foreign payments to Mr. Trump’s companies. Many law professors, including several quoted in this column, have signed briefs opposing Mr. Trump’s actions.

Generations of law students have grappled with the same basic issues in their constitutional law classes: the separation of powers, federalism, the Bill of Rights, equal protection, due process. Mr. Trump, a one-man course in constitutional arcana, is supplementing that curriculum with some seldom-examined provisions of the Constitution.

In 2011, Professor Wexler published “The Odd Clauses: Understanding the Constitution Through 10 of Its Most Curious Provisions.”

At least one of those curious provisions is suddenly salient. Professor Wexler devoted a chapter to the president’s power to bypass the Senate by making recess appointments. Mr. Trump might test that power should he try to replace Attorney General Jeff Sessions with someone prepared to fire Robert S. Mueller III, the special counsel investigating ties between the Trump campaign and Russia.

Then there were the clauses that were too obscure even for Professor Wexler.

“I don’t think anyone even knew how to pronounce the word ‘emoluments,’ much less know what it might mean, before Trump took office,” Professor Wexler said. Now there are several lawsuits challenging payments to Mr. Trump’s companies as violations of the Constitution’s two emoluments clauses, which bar federal officials from accepting compensation from foreign governments or payments from the federal government or the states beyond their salaries.

Sanford V. Levinson, a law professor at the University of Texas, said Mr. Trump’s presidency had revealed some shortcomings of the Constitution. For instance, he said, the framers should have made it easier to remove the president before his term was over.

“The fixed four-year term means we’re stuck with him unless we go through an unlikely impeachment or the 25th Amendment,” he said, referring to an elaborate and confusing method of removing a president “unable to discharge the powers and duties of his office.”

“A desirable system,” Professor Levinson said, “would offer a way of voting ‘no confidence.’”

Justice Antonin Scalia, who died last year, used to say there was more to a constitution than its words. “Every banana republic in the world has a bill of rights,” he told the Senate Judiciary Committee in 2011.

“The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,” he said. “We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!”

“Of course,” Justice Scalia continued, “it’s just words on paper, what our framers would have called a ‘parchment guarantee.’”

Legal scholars around the nation said the nation might soon decide whether its sacred founding charter was built to last.

That is “what’s different about teaching con law in the Trump era,” said Leah Litman, a law professor at the University of California, Irvine. It requires, she said, “acknowledging that much of what we consider settled beyond the capacity of lawyers to unsettle it may not be so settled after all.”

David Strauss, a law professor at the University of Chicago, said he had been trying recently to convey that unsettled state of constitutional law to his students.

“A lot of what we teach in constitutional law classes rests on unspoken assumptions about how people in the government will behave,” Professor Strauss said. “Everyone understands that when we’re talking about other countries — their constitutions may look great, but if the officials are authoritarian or corrupt, the formal law won’t matter very much.”

“Now we have to think about those questions,” he said, “in explaining to students how our own constitutional principles are vulnerable and what we can do about it.”

The sudden relevance of constitutional law is harrowing and heartening to people who have spent their careers studying and teaching it, said Vikram D. Amar, dean of the University of Illinois College of Law.

“Many constitutionalists I know seem somewhat anxious these days,” he said. But, he added, “recent events make our life’s work more salient and urgent.”