Today, I’m supplementing my posts of December 24, 2024 and February 25, 2025, which discuss proposals by President Donald Trump to enlarge his own powers and those of the executive branch. I’ll be addressing the following questions: Can the president lower drug prices, suspend habeas corpus, punish sanctuary cities, cancel our refugee and asylum programs, require illegal aliens to register, demand proof of citizenship, and rescind the rights of public sector workers? Also: Are Trump’s crypto connections and his receipt of an airplane from Qatar conflicts of interest? Do Trump’s United Kingdom and China deals vindicate his tariff strategy? And can he serve more than two terms as president?
I’ll be focusing on the legal and constitutional implications of those topics, which is different than assessing whether the ideas are good or bad as a matter of public policy. It’s possible, of course, that a program can be both good for the country and yet illegal. When that happens, the options are either change the law or modify the program.
I begin with one of Trump’s key economic initiatives:
1. Can the president lower drug prices paid by Medicare and Medicaid?
On May 12, President Trump signed an executive order establishing a “Most Favored Nations” policy whereby the United States will pay the same price for pharmaceuticals as the country that pays the lowest price. Trump claims that’ll save 30 to 80 percent. But the administration will face stiff opposition from providers and hospitals concerned about continued drug access. Pharmaceutical giants Eli Lilly, Johnson & Johnson, Merck, Roche, and others had pledged to invest tens of billions of dollars in US manufacturing and research, but they now argue that price controls will mean less innovation and fewer new drugs.
Congress has not granted Trump authority to force price controls on private pharmaceutical companies. Medicare and Medicaid purchases, however, are a closer call. During Trump’s first administration, a federal judge in Maryland issued a nationwide injunction against his “Most Favored Nations” rule. The judge held that the Center for Medicare Services failed to follow required procedures for notice and comments before imposing such sweeping changes. During Trump’s interregnum, the proposal was dropped by the Biden administration. This time around, the legal outcome is likely to be the same. The president cannot act unilaterally without following proper administrative procedures.
Next, a series of immigration-related questions:
2. Can the president suspend habeas corpus?
White House Deputy Chief of Staff Stephen Miller has indicated that the Trump administration is actively considering the suspension of habeas corpus—the right of individuals to challenge their detention in court. The Constitution, in the sections that specify what Congress can and can’t do, provides that habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The administration has argued that we are facing an “invasion” of illegal immigrants, even as the president takes credit for a 95 percent decline in illegal crossings. The courts have repeatedly found no proof of an invasion—much less one that threatens public safety. And even if the administration had such proof, habeas can be suspended only by Congress, not unilaterally by the president. Moreover, Miller has stated that suspension depends “on whether the courts do the right thing.” That suggests his real complaint is with judges who have consistently ruled against Trump. That’s not a legitimate reason to suspend a foundational American right.
More generally, what are the rights of illegal aliens? First, they’re limited by national security concerns—as are the rights of US citizens. Beyond that, illegals have speech and due process rights; the right to contact a lawyer, remain silent, refuse unreasonable searches, request bond, appeal deportation, ask for asylum, and claim protection under the Convention Against Torture. But they can be detained without a warrant and have no right to a government-appointed attorney. Moreover, immigration courts are under the executive branch. Judges can be fired at will; and the usual criminal protections don’t apply. The president insists that the United States couldn’t possibly hold trials for each deportee. But there were 2.5 million deportations during the Obama administration, without (to my knowledge) denial of due process.
3. Can the president withhold federal benefits to shut down sanctuary cities?
A number of cities have refused to cooperate with federal authorities in detaining and deporting illegal aliens. In response, President Trump threatened to cut their federal funding. That threat ignored several principles of federalism. Most important, although federal law supersedes conflicting state law, and although states may not impede federal enforcement, neither the president nor Congress can commandeer state officials to execute federal law. So, if the feds want their laws enforced, and local jurisdictions refuse to cooperate, then federal enforcement personnel must be used.
In other words, states don’t have to cooperate with the feds, but officials in sanctuary cities cannot obstruct federal enforcement. The difficulty, of course, is to distinguish active obstruction from refusal to cooperate.
With respect to the denial of federal benefits: No city or state has a “right” to receive federal funds. But once the feds have authorized a program that dispenses benefits, there are certain rules that apply when receipt of the funds is conditioned on the recipient’s conduct. Broadly, the conditions must be clearly stated; they can’t be coercive; and they must be related to the purpose for which the benefits are being dispensed. Additionally, the conditions may not depend on relinquishment of a constitutionally guaranteed right. In the case of sanctuary cities, the key requirement is for a logical connection to exist between any federal funding to be withheld and the law that the feds want enforced. For example, if Congress were to withhold highway funds when a state refuses to prosecute illegal aliens, the linkage would not be sufficient. And of course, if the president tried to do that without Congress’s approval, it’s even more likely that the Court would step in.
4. Can Trump shutdown our refugee and asylum programs?
In March, the Ninth Circuit allowed the Trump administration to impose a partial, temporary ban on refugee admissions, which Trump had completely shut down in January. The bi-partisan program was designed to admit up to 125,000 refugees in 2025, mainly from Communist countries and the Middle East. A federal judge had stated that Trump exceeded his statutory authority, which limited him to setting a ceiling on admissions and favoring certain geographic areas. But the Ninth Circuit allowed Trump to go forward pending a final rule on the merits.
On taking office, Trump had also declared a national emergency at the Mexican border and issued executive orders effectively suspending our asylum system—allegedly to stop an invasion of immigrants. Now, would-be applicants are either deported or detained under rules that have not been published or even formalized. Legal challenges are pending and, in my view, they are likely to succeed.
To clarify: The refugee program admits migrants who apply from their home countries after rigorous security and health screenings. Then it provides support for resettling the migrants here. By contrast, persons seeking admission at the border are not part of the refugee program. They may be here for asylum, or for other reasons, but they have not been through the refugee process.
5. Can the Department of Homeland Security require all illegal aliens to register?
Registration as an illegal alien effectively compels someone to admit the crime of illegal entry. That process may violate Fifth Amendment protections against self-incrimination. In United States v. Sullivan (1927), the Court ruled that registration requirements for routine government regulatory purposes are okay, but not if registration explicitly compels self-incrimination. It seems to me that Trump’s proposal to require registration under the 1940 Alien Registration Act falls into the latter category. It’s less likely that Trump plans merely to track the status of illegals, and more likely that he intends to prosecute (or deport) them for being illegal.
6. Can the president require proof of citizenship at voter registration in federal elections?
The US Constitution gives state legislatures control over the manner of conducting federal elections, subject to congressional override. The executive branch plays no role in that process. By federal statute, only citizens can vote in federal elections, but most states simply require a sworn written statement, and no other documentation. Noncitizens who sign can be deported. So, the cost-benefit calculus is a powerful incentive not to lie when you register. The benefit of lying is one more vote for your candidate; the cost might well be that you’ll be removed from the United States.
Still, the president plans to withhold grants to states that don’t require proof of citizenship. Those grants come from the Election Assistance Commission, which is an independent agency created by Congress to improve voting administration. Under current law, Trump has limited authority—only to appoint commission members. His proposal to deny funds is unlawful.
There’s also a separate provision of the same Trump executive order that bars states from counting mail-in ballots received after Election Day. Again, the president has no authority in this area. Congress, not the president, can specify the time of federal elections—including any restrictions on mail-in ballots.
7. Can the president rescind rights of public sector unions and workers?
Trump signed an executive order in March revoking union contracts and selected employee rights at more than two dozen departments. The rights of federal workers were already limited. For example, they can’t strike or bargain over pay. And the 2018 Janus decision held that extraction of agency fees (i.e., dues) from non-consenting employees violates their First Amendment right to advocate for their own interests.
In constraining the unions, Trump cited national security concerns pursuant to the 1978 Civil Service Reform Act. But his order applies not only to the Departments of Defense, State, and Homeland Security, but also to Veterans Affairs, Justice, Health and Human Services, Interior, Treasury, and Commerce, as well as the EPA, FCC, and FDA—which have little or no connection to national security.
Interestingly, the order excludes police and firefighters, whose unions endorsed Trump in 2024. The American Federation of Government Employees has sued; and the AFL-CIO has denounced the order as “union-busting” and retaliatory.
Notably, however, public sector bargaining is not always even-handed. Negotiations consist of a government employer, using other people’s money to pay government employees, who belong to a union, that spends lots of dollars to elect the politicians, who set the bargaining rules. The potential conflict of interest couldn’t be clearer. On one side of the table sit union officials with substantial political clout. On the other side of the table sit government administrators who are appointed via the political process. And the two sides are divvying up taxpayer money that doesn’t belong to either of them. So, Trump’s policy arguments may be valid; but his invocation of national security is dubious.
8. Can the president accept an airplane gifted by the Qatari government?
Many questions arose when foreign governments spent big bucks at Trump hotels. And now, Saudi Arabia will be promoting Trump-branded apartments; Qatar is building a golf course jointly with one of the Trump companies; and the UAE, Saudi Arabia, and Qatar are investing billions in a private-equity fund run by Trump’s son-in-law.
Yes, the president is exempt from conflict-of-interest laws; but he is subject to the Constitution’s Emoluments Clause, which states that US officeholders may not, “without the Consent of the Congress, accept … any present [or] Emolument … from any King, Prince or foreign State.” Lower courts had previously ruled against Trump during his first term; but when he left office in 2021, the litigants realized that the lawsuit was moot, and the Supreme Court agreed. So, the issue is still open.
Fast forward to 2025. The Qatari royal family wants to gift a plane valued at $400 million—maybe for Trump’s use even after he leaves office—despite the rule that valuable gifts are transferred to the National Archives when a president steps down. Here’s the plan: First, the plane goes to the Air Force for Trump’s official use (after taxpayers incur the cost of upgrades and security). Then the plane will be donated to the Trump Presidential Library Fund, where it might become a perk for Trump’s personal use. That scheme is unhealthy and arguably unconstitutional. One possible remedy: Make it illegal for a president’s library to raise funds from foreign sources until after his term ends.
Trump argues that the Qatari plane is similar to the Air Force One that’s on display at the Reagan library. But that plane, according to media accounts, was used from 1973 to 2001, by every president from Nixon through George W. Bush. It wasn’t displayed at the library until after Reagan died. And it wasn’t a gift from a foreign government.
My prediction: The Supremes won’t decide this issue. Either: (1) the gift will be canceled; (2) Congress will consent (although that’s unlikely); (3) Trump will recognize the negative optics and pledge that the plane will not be used for personal purposes; or (4) one or more lower courts will find that plaintiffs lack standing, and the Supreme Court will decline to review that finding.
9. Do Trump’s cryptocurrency dealings create a conflict of interest?
The president has been accused of misusing his office for personal gain because of his family’s involvement with cryptocurrencies. Newspapers have reported that World Liberty Financial (WLF) was started by a Trump family affiliate; and Trump was the firm’s “Chief Crypto Advocate.” When WLF launched, Trump family interests received more than $1 billion in coins. Ironically, Trump had derided crypto as a haven for drug dealers and scammers. His change of heart coincided with millions of dollars in campaign contributions from the crypto industry, which faced nearly 100 SEC enforcement actions. In addition, Trump’s sons are principals in a company that owns 60 percent of WLF and receives 75 percent of specified revenue from coin sales. Trump reminds us that his assets are in a trust managed by his children. Still, the trust benefits him directly.
Here are some of the potential conflicts: (1) Trump has announced a federal crypto stockpile that will include a digital currency in which WLF has invested. (2) WLF has sold crypto to foreign investors, who now have an indirect (and potentially illegal) path to curry favor with the president. (3) WLF swapped cryptocurrencies with five start-ups, signaling to the market that the startups were worthy of investment. He used the Trump name to solicit payments totaling $550 million as part of the deals. A large, undisclosed cut was reserved for the Trump family. (4) At Trump’s urging, the House and Senate introduced bills easing the way for firms to issue stablecoins. A week later, WLF announced its own stablecoin, with commitments exceeding $1 billion. If those news reports are reliable, the president’s involvement is highly suspect.
10. Do Trump’s United Kingdom and China deals vindicate his tariff strategy?
Trump’s open-ended bargain with the UK and his prospective deal with China amount to small steps back from the edge of the cliff—in effect, a retreat from Trump’s “liberation day” tariffs. The United States already had a trade surplus with the UK (which is a minor trading partner). And the president’s across-the-board 10 percent tariffs—actually, 30 percent for China—remain in effect. In return, the UK will lower barriers on ethanol, buy $10 billion of Boeing jets, and expand beef trade.
In retrospect, Trump started a trade meltdown in April that triggered a stock market debacle, flight from the dollar, and a surge in bond yields. The economic damage wasn’t politically sustainable, so Trump backtracked—classic damage control, not the Art of the Deal. His haphazard, seat-of-the-pants policies created confusion, planning problems, and supply line uncertainties that have had global impact on government, investors, businesses, and consumers.
11. Can Trump serve a third term?
The 22nd Amendment states, “No person shall be elected to the office of the President more than twice.” So, Trump has floated the idea that he could serve as vice president with Vance as the president. Then Vance would quit, to be succeeded by Trump, who would not have been elected. But … the 12th Amendment says “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President.” Is Trump thus ineligible to the office of President? Maybe not. He’s ineligible to be elected, but not necessarily ineligible to the office, providing he gets there by succession. Farfetched; but constitutionally unsettled. My guess: The Supreme Court would reject such an obvious intent to circumvent the two amendments.
