The ‘fabric of our Constitution’ is frayed

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“Students with visas live in fear,” read the headline from a Friday Star Tribune story about international students studying in Minnesota who were “afraid of being singled out for minor infractions.”

The fear, according to Alan Rozenshtein, an associate professor of law at the University of Minnesota, is unfortunately justified.

“They’re not overreacting,” Rozenshtein said in an interview. The Trump administration, he continued, is “trying to deport some Tufts undergrad for writing an article complaining that a divest-from-Israel petition was not properly presented to the Board of Regents.”

According to a Washington Post report, the State Department had determined that the student, Rumeysa Ozturk, had not engaged in antisemitic activities or made statements supporting Hamas. Still, she was aggressively arrested by masked ICE agents, all caught on video that along with other high-profile cases has sent a chill in international students.

Including a Minnesota State University, Mankato student (who asked Star Tribune reporters to remain anonymous out of fear of retribution) who said, “It’s just disappointing. You come to the land of freedom, and you’re caged.” If anything, she concluded, “I’m less free here than I was in my country.”

On Thursday, this chill and the challenges to our constitutional system were put in context by Harvard University law Prof. Jack Goldsmith, who spoke at a Westminster Town Hall Forum moderated by Rozenshtein and his U colleague Larry Jacobs, director of the Center for the Study of Politics and Governance.

Goldsmith’s credentials are academic, governmental (he served as assistant attorney general, Office of Legal Counsel and special counsel to the Department of Defense during the George W. Bush administration) and ideological: He’s considered a conservative constitutional scholar. So his perspective on the president’s second term is significant.

The executive branch, said Goldsmith, “does a lot of things governed by law — by the Constitution, by statute, by regulations, by norms. And most of the laws that govern the executive branch don’t end up in court; it’s governed within the executive branch. So it’s hugely important that the executive branch be able to self-regulate. [There’s] every reason to be skeptical about this, but it actually has worked remarkably well.”

However, continued Goldsmith, “one of the most important things that [President] Donald Trump has done in this administration is to basically wipe out, in a way that I never thought possible, these internal legal constraints on the presidency.”

The executive branch, Goldsmith said, “has very self-consciously and brilliantly or deviously, depending on how you look at it, organized itself such that the internal constraints of law are no longer operating.”

“[This] is something really new and quite challenging in American history. Because one very important constraint on the executive branch are these internal checks and they’re basically diminished.”

As for Congress, the Constitution’s framers thought it would be the most important constraint on the executive branch, Goldsmith said. But because loyalty now “runs to parties rather than institutions” they’re “placing zero check on this president.”

And so, concluded Goldsmith, “this basically leaves the third institution of government, the courts, as really the only constraint on the president. [It’s] not an accident that the Trump administration has been viciously attacking courts, playing games in courts, threatening courts, and the like. Courts right now are the most important institution for keeping the presidency in check.”

Or trying to, in very trying circumstances — as evidenced by the most egregious case of all, that of Kilmar Armando Abrego Garcia, 29, the Maryland man sent to a notorious Salvadoran prison in what multiple administration officials have admitted was an “administrative error.”

U.S. District Judge Paula Xinis has ordered his return, and the U.S. Supreme Court backed the order requiring the White House to “facilitate” (but said that court could not order the administration to “effectuate”) Abrego Garcia’s return.

“There is no question that we are currently living under some form of authoritarianism,” said Rozenshtein, who added that it wouldn’t be the first time in American history, but “we’ve managed to self-correct every time.”