LITIGATION BOUTIQUE


Explanation of Determining the Legality of a Government Process Desired by Donald Trump

Below is commentary concerning whether a President Donald Trump would be able to legally implement a plan that would require suspects of terrorism, who are US citizens, to be tried by military tribunals. In a recent interview, Trump expressed his intent to initiate military adjudication for terror suspects. The news article pointed out that this was likely unconstitutional but failed to fully explain why. The article simply pointed to the language in the constitution that conferred certain rights. And the article ended the inquiry there. But that explanation was woefully inadequate and was uninformed. Below, is a more exhaustive explanation.

It's highly probable that this is a violation, but before any adjudication of the issue and the exact interests of the government are known and articulated (assuming Trump were to win the presidency and retain high quality lawyers to articulate the government interest in Trump's wishes), one cannot definitively say for sure whether this is unconstitutional.

The process to determine whether something is unconstitutional is an in depth process. One cannot examine a right conferred by the constitution and subsequently conclude that a law or government desire is unconstitutional simply because that desire prohibits or impedes a citizen's ability to exercise that right.

When determining whether a government desire/law/procedure is unconstitutional, there are a myriad of factors to be considered. The first is that one must look to the constitution and assess whether the constitution confers a right that conflicts with the government desire/law seeking to be implemented. In this case, Trump wants to try terror suspects who are civilian citizens of the United States in military courts. Well, this desire conflicts with the rights conferred by the 6th amendment and may conflict with the 5th amendment and 14th amendment, as well. However, I don't think there is a big due process hurdle to overcome as the article erroneously thinks. Due process primarily consists of notice and a hearing and if the substance of an act a citizen is being punished for is worthy of invoking punishment. In this case, we are talking about procedural due process, so any inquiry into substantive due process is irrelevant. There are administrative agencies that have the power to determine your rights and remedies (i.e. IRS) in compliance with due process. I hardly doubt having your criminal case adjudicated by a military tribunal inherently conflicts with due process, although, there might be an issue as to why terror suspects are singled out for this military tribunal adjudication, but I think that is not much of an issue, at the end of the day.

When examining the 5th amendment issue, there are some procedural hurdles, but I think those are small issues that can be cured with simple modification of procedure.

The biggest road block is the 6th amendment. The 6th amendment confers the right to be tried in the district and state where the crime was committed. This applies to both, federal and state crimes and relates to a fundamental hallmark of jurisprudence in regards to the jurisdiction of different courts. But regarding the standard of review that must be applied, the appropriate standard is strict scrutiny. This is because the government desire seeks to deprive a citizen of a constitutional right conferred by the Bill of Rights (1st ten amendments of the constitution). Under strict scrutiny in this case, a court will determine whether the government interest/desire is compelling and whether that interest outweighs the right being deprived. So the court will compare the harm done to the citizen to the benefit of the government when acting upon its interest. In addition to this, a court will assess whether this interest sought by the state is being achieved by the least restrictive means and if those means are narrowly tailored to meet that objective.

What this means in practical terms is that virtually all government/state interests evaluated under strict scrutiny fail. (See 1st amendment case law on various prohibitions on speech, these prohibitions are always struck down.) The 2nd amendment is not subject to this type of impossible hurdle in regards to strict scrutiny because the language in the actual amendment calls for regulation ("well regulated militia"). As a result, it is weaker than all other Bill of Rights amendments. But in theory, Trump's desire is not impossible to implement under these guidelines.

However, under jurisdictional principals, I see a massive road block. Jurisdiction is jurisdiction and is not a right of citizens, but a right of the courts. Jurisdiction is not subject to standard of review. And because these are civilian citizens that Trump wants to try in military tribunals and not foreign opponents of war, I do not think this jurisdictional hurdle can be overcome. I think this is the biggest obstacle to Trump's desire, without an act of Congress, of course.