It has been attributed to the late associate justice Antonin Scalia that it is possible for an act of government to be extremely stupid, but still constitutional. It is tragic, but remediable when the government does something both stupid and unconstitutional; it is just tragic when it is stupid.
Regrettably, the actions of the second Trump administration illustrate this dogma skillfully. Many of President Donald Trump’s acts are both unconstitutional and stupid, in the sense that they obviously violate the Constitution and create an aggregate deficit to the Union as a whole. Consider Trump’s executive order attempting to subjugate the birthright citizenship clause of the Fourteenth Amendment. Such an executive order cannot be justified by either the strictest textualist interpretations of the Constitution or the broadest liberal ones.
However, a few of the Trump administration’s actions are constitutional despite the ill intent that compels them. Regrettably, Trump’s mobilization of the National Guard and the U.S. Immigration and Customs Enforcement (ICE) are among such actions.
It is a fundamental caveat of living in a constitutional republic that some acts of government, no matter how pompous, illogical, or menacing, will be permitted under its constitution. The constitutionality of such acts is not upheld to condone such laws or affirm their morality, but rather, to protect whatever important principle reared them. Unfortunately, Trump’s decision to mobilize the National Guard is necessarily constitutional, under the principle that the president—as commander-in-chief—is qualified to mobilize soldiers as he deems fit. Such an act is purely one of executive power, which is provided to the president under Article II, Section I, Clause I of the Constitution: “the executive power shall be vested in a president of the United States of America.”
This is not to say that the other two branches are not granted discretion in the exercise of the military. For example, the judicial branch has ruled military tribunals unconstitutional during the War on Terror, and most prudently, the Framers granted Congress the power to declare war. But the ability to quickly mobilize soldiers is fundamentally different from either of these acts. Both the legislative branch and the judicial branch are necessarily more deliberative compared to the executive: when a crisis ostensibly demanded it, the Framers believed the president would need the ability to act quickly and with little obstruction. This is why Congress has the ability to declare war, but the president has the ability to move troops—the former is an enormous responsibility that requires careful deliberation and debate, while the latter must be conducted spontaneously.
The responsibility of mobilizing troops in the manner Trump has can be granted to no other branch but the executive. The legislative and judicial are simply not nimble enough. It is not, generally, the judiciary’s place to swat down acts by the president that are made primarily in his capacity as commander-in-chief, or as Trump might see them, to “protect” the people. Suppose the extremely unlikely scenario of the judiciary rejecting the president’s direction to quell a domestic uprising. Such a scenario is highly improbable, but illustrates that the judicial branch should rarely interfere with the executive’s role as commander-in-chief. Allowing the judiciary to rule moving troops as unconstitutional would menace the president’s military discretion.
Of course, it is unlikely that the Framers would deem modern illegal immigration as a crisis so enormous it warrants “protecting” the people. It is tragic to think that an important power the Framers crafted 238 years ago—the ability to mobilize soldiers with little Congressional or judicial oversight—would be used to menace American citizens, ignite fear in Spanish-speakers, or intimidate local politicians into bending to the federal government. It is deeply regrettable that the mobilization of the National Guard and ICE is a constitutional act used to corroborate unconstitutional ones.
Resultingly, the responsibility of challenging the Trump administration must be laid to the American people. In fact, such a duty was laid to the American people, on three separate occasions: in 2016, 2020, and 2024. Each time, the people have made their voices heard through the Electoral College, and the acts of the second Trump administration are the results. It can easily be argued that Trump is not qualified, intellectually or militarily, to mobilize the National Guard or ICE in the manner he has. Unfortunately, voters last November thought otherwise.
The Trump administration’s mobilization of the National Guard and ICE are a humble reminder of the Constitution’s supremacy, and for better or for worse, the fact that the Constitution can be an undemocratic document. The provisions of the Constitution exempt a handful of principles—such as those protecting free speech—from the normal democratic process. And in the same vein, the people and their legislatures may seek a law that aggregately benefits the Union which might be later struck down for violating the Constitution. It is regrettable that the manner in which Trump has mobilized soldiers is one such principle.
