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Constitutional Limits on the Presidency

Law and Public Policy Professor Thomas Berg reflects on public fears about Donald Trump's upcoming presidency.

Donald Trump’s election has triggered fears that his administration will take oppressive or corrupt actions. He has spoken of registering Muslims or barring them from entering the country, deporting up to 11 million illegal immigrants, “building a wall” on the Mexican border and “open[ing] up libel laws” to sue the press. If he undertakes such steps, will our constitutional system block him?

In this polarized age, fears of executive power cross the political aisle. President Obama’s critics claimed he abused his authority with executive orders on immigration and Obamacare.

The Constitution created a strong presidency but also checked it by assigning powers to Congress, the courts and the states.

Limits on executive lawmaking

Under the Constitution, Congress legislates and the president should “faithfully execut[e]” those laws. But in practice, execution of law involves significant discretion; moreover, the president has broad powers concerning foreign affairs and national security. Thus, if Trump unilaterally barred immigration from certain nations, courts would be unlikely to say he’d intruded on legislative power.

Congress, however, holds another crucial power: spending. Even if Trump theoretically has discretion to build a physical wall, or escalate deportations, he will have to get money from Congress, where skeptics of these projects – who include some Republicans – could curtail them.

Limits on federal intrusion on states

The Constitution leaves many matters in state hands, barring action by the president or Congress. Trump showed indifference to such limits when he proposed attacking crime through a nationwide policy to “stop and frisk” citizens. Policing is a local matter. Similarly, if he tried to require local officials to assist in immigration deportations, and “sanctuary cities” such as Chicago objected, courts would rule the requirement was an impermissible “commandeering” of states.

Congress could still pressure states, again by using the purse strings. Trump has threatened that sanctuary cities will lose federal funds; he might also ask Congress to use funding to incentivize cities to expand “stop and frisk” policies. Congress has broad power to attach conditions to funds, although a condition cannot be too onerous.

Civil liberties

Even if the president or Congress have power to act, they can’t do so in ways that violate civil liberties. An explicit ban on Muslims entering the country would violate core principles of religious freedom and equality. But Trump might reach a similar goal by barring entry from certain countries. Challengers could attack the discriminatory motive, but courts give the political branches wide discretion over immigration policy.

In contrast, American citizens enjoy much stronger protection. Profiling Muslim citizens, requiring them to register, or surveilling mosques would likely be invalidated by courts if not based on some individualized ground for suspicion. And the Supreme Court will not reverse the press’ First Amendment protections against libel suits.


Trump’s worldwide business dealings have prompted concerns that his official policies might also benefit him personally. Most government ethics rules exempt the president. But Trump is subject to the Constitution’s Emoluments Clause, which prohibits any federal officer from accepting “any present [or] emolument (benefit) from a foreign state” (Art. 1, §9, cl. 8). Other nations might funnel business to Trump’s hotels to curry his favor. In January he proposed to have his sons run the business during his presidency and to donate foreign profits to the Treasury, but critics pointed out that this still left him with interests in the business’ success.

It’s unclear if there’s any court remedy for such conflicts. The ultimate remedies for corruption are political. Congress could refuse to enact Trump’s substantive agenda; at the extreme, it can impeach and remove a president. Recall that congressional Republicans eventually abandoned Richard Nixon.

This article was written in mid-January.

“Final Thoughts” offers a creative space and scholarly forum to address timely issues. All content represents the author's point of view.

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