Trump v. United States as Roe v. Wade

For half a century, conservatives complained to anyone who would listen that the Supreme Court’s decision protecting abortion rights in Roe v. Wade (1973) was “egregiously” wrong. The Constitution, they shouted in party platforms, on the campaign trail, and in law reviews, does not mention abortion, the authors of the Fourteenth Amendment did not intend to protect abortion, and Americans did not consider abortion a right when the Fourteenth Amendment was framed. Roe, they continued, confused discrete textual protections for some rights related to privacy with a constitutional commitment to privacy rights generally that is nowhere mentioned in the Constitution. Roe’s majority opinion supposedly dramatically overextended dubious precedents protecting other privacy rights when protecting abortion under that umbrella and invented three legal categories of pregnancy when putting in place a regulatory scheme that smacked more of legislation than constitutional law.

Two years after overruling Roe, the Roberts Court’s conservative super-majority justified limiting the capacity of the American people to bring Donald Trump to justice for numerous crimes by employing the very legal technique they condemned when employed to advance women’s reproductive rights. Trump, Trump rules, is largely immune from criminal prosecution, even though the Constitution does not mention presidential immunity, no person responsible for any constitutional provision intended to grant immunity from the criminal law to the president, and no evidence exists that Americans living in 1787 thought presidents enjoyed criminal immunity. Trump confuses particular constitutional practices that facilitate some separation between the different branches of the national government with a constitutional commitment to the separation of powers generally that is nowhere mentioned in the Constitution. The majority opinion dramatically overextends dubious precedents immunizing presidents from civil liability to encompass criminal liability and invented three categories of presidential action when putting in place a regulatory scheme that, coincidentally, smacks more of legislation than constitutional law.

Abandoning Originalism and Textualism

Trump v. United States stands accused under the first charge conservatives level against Roe v. Wade, that neither the constitutional text nor constitutional history sanction the right in question. The Constitution does not mention presidential immunity. The framers who considered that issue in the late eighteenth century uniformly agreed that presidents who broke the law should be prosecuted and, if found guilty, punished. The best response the Chief Justice could make to the evidence the dissents presented that the founding generation rejected presidential immunity was to observe that many of the quotations cited asserted that no federal officer was above the law and made no particular reference to the president. By the same logic references to federal justices in the framing and ratification debates may not refer to the justices on the Supreme Court or the Chief Justice of the United States.

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Embracing/Elevating Unenumerated Rights and Principles

The majority opinion in Trump v. United States also stands accused under the second charge conservatives level against Roe v. Wade. The decision confuses particular constitutional provisions that entrench a discrete aspect of a more general principle the Constitution refrains from enumerating with a constitutional commitment to protecting anything that might conceivably fall under such an unenumerated principle. Conservatives celebrate Justice Hugo Black’s dissent in Griswold v. Connecticut (1965) for pointing out that discrete constitutional protections for privacy do not justify protecting privacy rights that are not mentioned in the Constitution. Yet Roberts in Trump claimed that constitutional texts that provided some separation of the presidency from Congress justified additional protections for the separation of powers that the framers self-consciously chose not to put in the Constitution. To paraphrase the passage in the Black dissent that was formerly conservative gospel, “I like [the separation of powers] as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

The Unjustifiable Expansion of Precedents

The Roberts Court stands accused under the third charge conservatives level against Roe v. Wade, that the decision unjustifiably expanded past precedents with dubious constitutional foundations. Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization (2022), the case that overruled Roe, insisted that past judicial decisions protecting rights to marriage and contraception had no bearing on abortion because only the latter concerned taking an unborn life. The precedential connection between Trump and past legal decisions is far more tenuous. Chief Justice Roberts insisted that decisions holding that a president could not be sued in a civil proceeding for illegally firing a subordinate entailed that the president could not be criminally punished for employing core presidential powers to stage a coup d’état. As the dissent pointed out, this ignores that the precedents in question explicitly maintained a distinction between civil and criminal liability. Furthermore, it emphasized that the public interest in preventing a coup overthrowing constitutional democracy is far greater than the interest of a private litigant in obtaining damages for an injury.

Judicial Legislation

The Roberts Court stands accused under the fourth charge conservatives level against Roe v. Wade, that the tribunal’s implementation scheme is legislative rather than judicial.  Roberts’ tripart division of presidential actions into core presidential powers, peripheral presidential powers, and private actions has no more basis in the Constitution than the Roe Court’s tripart division of abortion regulation into three trimesters. Indeed, the Roberts Court’s scheme is far more difficult to implement than the Roe Court’s scheme. The gerrymandered division of powers in Trump is unworkable, particularly when compared to the regulatory scheme in place for abortion immediately after Roe. In virtually all abortion cases from 1973 until 1992, courts were able to determine whether a woman was asking for an abortion in the first, second, or third trimester of pregnancy. Whether a fetus is viable, the test after 1992, is only controversial for a week or two during the forty weeks of a pregnancy. Discerning what actions fall into what categories of presidential powers is nearly impossible. Consider a president who commands the military to murder a romantic rival. Is that an example of the president abusing a core political power, a peripheral presidential power, or a private power? As the dissents note, the majority provides no clear instance of presidential actions that are not immune from punishment. Commentators are now disputing whether Richard Nixon was immune from punishment for his role in Watergate.

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Methodological Hypocrisy

The Roberts Court stands accused under a fifth charge to which Roe v. Wade is entirely innocent: methodological hypocrisy. The progressive and moderate conservative justices who provided constitutional protections for abortion rights believed the Constitution was best interpreted consistently with changing political and social circumstances. Women who most Americans by the late twentieth century understood to be equal citizens might have a constitutional right to terminate a pregnancy safely even though women who most Americans in the nineteenth century expected to be wives and mothers had no right to an often-dangerous abortion. The progressive justices on the Roberts Court applied the same living constitutional principles in Trump. Distant history was not dispositive. Trump’s fate was not sealed by evidence that the framers in the late eighteenth century rejected presidential criminal immunity as necessary for the separation of powers. Rather, both Justice Sonya Sotomayor and Justice Ketanji Brown Jackson in their dissenting opinions detailed why no intervening political change had occurred in the past two-hundred and fifty years that made presidential criminal immunity a vital means for maintaining the separation of powers today.

The justices in the majority in Trump had repeatedly described as illegitimate and egregious claims that constitutional provisions ought to be interpreted consistently with changing political and social circumstances.  When progressive advocates asked the Court to declare bans on abortion unconstitutional and sustain restrictions on concealed weapons, the conservative justices maintained that understandings in 1791 and, for that matter, the thirteenth century were far more relevant to constitutional decision making than the circumstances of the present. Yet suddenly, the needs of contemporary presidents became relevant when Donald Trump became the subject of a criminal indictment. The Roberts Court, the evidence suggests, has no good principle for determining when the thirteenth century, 1787, 1868 and 2024 matter for constitutional adjudication, other than the differing political beneficiaries of its decisions.

Lady Justice lost her Blindfold

The conjunction of Roe v. Wade and Trump v. United States raises an interesting problem.  Suppose a president procures for a woman he impregnated an abortion in a state where terminating a pregnancy is illegal. The president claims that the abortion was necessary because having a child would interfere with his exercise of core executive functions and, besides, the seduction occurred as part of that president’s attempt to induce the woman to support his official policies. Which principles govern? Those that Republicans advance when condemning Roe or those they endorse when celebrating Trump? Judging by the Roberts Court’s recent decisions, the probable answer depends on whether the offending president is a Republican or a Democrat.

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The Week on Verfassungsblog

The outlook is not rosy for Democrats, neither politically nor in court. Democrats’ hopes that President Biden – who, according to some polls, is trailing Trump in all seven swing states – could turn the odds in his favor in an early debate have been dashed by his disastrous performance. To add insult to injury, in three 6-to-3 rulings along ideological lines, the Supreme Court further reigned in on administrative agencies, putting Biden’s regulatory agenda at risk. The most far-reaching of these decisions is, undoubtedly, Loper Bright Enterprises v. Raimondo in which the Supreme Court overruled the Chevron doctrine. MARK BUSE explains why the case is for the conservative legal movement’s fight against the administrative state.

As most expected, Marine Le Pen’s Rassemblement National (RN) was the clear winner of the first round of the snap legislative elections in France. Le Pen’s party, allied with a rump Les Républicains, led by Eric Ciotti, obtained 33.1% of the votes. GIOVANNI CAPOCCIA explains why an RN-led government is not a foregone conclusion and sketches three scenarios that can emerge from the election.

More than seven years ago, 406 academics and researchers have been permanently dismissed from their positions at Turkish universities for signing a peace petition condemning the military operations by Turkish security forces in areas heavily populated by the Kurdish minority. The case raises critical questions about the limitations of international human rights bodies in safeguarding freedom of expression. ESRA DEMIR-GÜRSEL demonstrates how the pragmatic considerations of the Council of Europe (CoE) contributed to the creation of a judicial trap disguised as a legal remedy.

In the last few weeks, much has been said about the concept of the Spitzenkandidat that is incorrect. Some accuse the European Parliament of a power grab, subrogating the lawful role of the European Council in choosing the new Commission President. Others trivialize the role of the Parliament and doubt the democratic credentials of the process. Many believe that the candidate must always be drawn from the largest party come what may. All these assertions are wrong. ANDREW DUFF puts the record straight and shows how the election of the Commission President is a joint endeavour between Parliament and Commission, democratically legitimate, and fully in conformity with EU law.  

Two years ago, the U.S. Supreme Court had established a controversial history and tradition test for determining the constitutionality of gun regulations that has thrown lower courts into disarray. While the Court backtracked on this approach in its recent decision in U.S. v Rahimi,  PRUTHVIRAJSINH ZALA argues that it does not address the fundamental problems the test poses. 

The Israeli military operation in Gaza has been discussed around the globe for several months now. So much so that some other conflict regions have fallen out of focus; not with us, though. In Sudan in particular, a long-simmering conflict has flared up again. Accusations of ethnic cleansing and even genocide are also associated with very high death and displacement figures, particularly in the Darfur region. KALIKA METHA and ATEL ONGEE PAITO with an important intervention.

Two competitions are currently predominating Europe’s agenda – the UEFA Euro 2024 in Germany and the brute reality of geopolitics. While the former will decide over Europe’s next soccer champion, outcomes of the latter will arguably shape whether Europe will champion the new geopolitics of the 21st century. To win this competition, MORITZ WEISS and BENJAMIN DAßLER argue that the European Union does not need a unified military force, but rather a new defense commissioner who would act as a dual security manager, bringing together the EU’s global entanglements with its economic clout to enhance the military power of its Member States.

International economic relations rarely take center stage in public reporting. However, two decisions in the U.S. and the EU on the imposition of additional tariffs on electric vehicles from China have garnered significant attention. CHRISTIAN TIETJE explains why the U.S. measures violate World Trade Organization law and why it is questionable whether the EU measures adequately consider climate protection.

In its recent decision in K,L, the CJEU held that women sharing a belief in gender equality are members of a ‘particular social group,’ making them eligible for refugee status. GIULIA RAIMONDO assesses the ruling’s successes and failures in advancing a gender-sensitive interpretation of the Common European Asylum System (CEAS). 

In Germany, there is currently a debate on how to better protect the Federal Constitutional Court from authoritarian-populist attacks. What about the European courts? In view of the rise of anti-European forces, KONSTANTIN KIPP analyses the weaknesses of the European Court of Justice and the Court of First Instance and calls for reforming some procedures. 

The U.S. Supreme Court has ruled that official actions by presidents are immune from prosecution. KATHARINA STEIN explains why the decision is a success for Trump and will not only influence further criminal proceedings against the former president but also have far-reaching consequences beyond the current case.

VERONICA BOTTICELLI and ISABELLA RISINI report on the hearing in the proceedings between Ukraine, the Netherlands and Russia before the European Court of Human Rights. Russia was absent, but 26 states were present as third parties. The question is whether and how the European Convention should be applied to the conflict that has been ongoing since 2014 – probably one of the most important questions the Court has had to decide in recent decades. 

HENNING GROSSE RUSE-KAHN was a visiting professor at New York University from January to the end of May and experienced the student protests against the Gaza war firsthand. What he saw and the lessons he learned from his time in New York, he has written down for us in a report.

New Blog Symposium: Nerve pressure techniques by the police at peaceful assemblies

Is the use of painful nerve pressure techniques by the police at peaceful assemblies legal? Despite the fact that these techniques cause extreme pain, they are used almost routinely by police forces in some states in Germany. Our newest blog symposium examines the legal framework of nerve pressure techniques from a criminal and constitutional law perspective. JOCHEN VON BERNSTORFF AND JÖRG SCHEINFELD introduce the debate by asking whether the use of pain control by the police in the context of peaceful protests can be regarded as an effective practice or rather as poison for the liberal constitutional state. JOACHIM WIELAND considers the Berlin police’s use of nerve pressure techniques against participants in sit-ins to be disproportionate and unlawful: The police could have carried the demonstrators away. This would have been a more lenient measure than the use and threat of nerve pressure techniques. According to SARAH AHMAD and JOCHEN VON BERNSTORFF, the police violated the ECHR’s ban on torture and the human dignity oft he protestors protected under the German Constitution when they used nerve pressure techniques to break up sit-ins. If the use of nerve pressure techniques by the police is unlawful, can people defend themselves against it? BERND HEINRICH discusses the scope of the demonstrators’ right of self-defense against the police. He untangles the legal web of resistance to law enforcement officers, the specific concept of unlawfulness in police action, and possible limitations on the right of self-defense of those affected. JÖRG SCHEINFELD uses the example of nerve pressure techniques used by Berlin police officers to explain that police officers and their superiors can be prosecuted for assault in the line of duty or for inducing subordinates to commit crimes if they use or order nerve pressure techniques. BENJAMIN DERIN and TOBIAS SINGELNSTEIN point out the shortcomings and limitations of the judicial handling of police crimes. They argue that criminal cases should be investigated by a completely independent authority, and that an external body should be set up outside the criminal justice system, responsible not only for prevention but also for communication and mediation. ANDREAS RUCH sheds light on the socio-strategic considerations that guide the police when deciding whether to use nerve pressure techniques at demonstrations. From the police’s point of view, it is particularly important whether the procedure is still considered fair. In the case of peaceful protests, however, the use of nerve pressure techniques is neither compatible with the police’s self-image nor with the principle of the rule of law. ERIC VON DÖMMING suggests that nerve pressure techniques reduce the visibility of police violence. This makes it more difficult to recognize the full extent of the violence. For an increasingly violence-sensitive society, this is easier to bear ­ a tendency that can be observed not only in the case of pain grips, but also in state violence in general.

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That’s all for this week. Take care and all the best,

the Verfassungsblog Editorial Team

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