Teaching Constitutional Law During the Second (and Hopefully Final) Trump Administration
For many years now, I have started just about every day of my first-semester-first-year Constitutional Law class with 5-10 minutes of "Con Law in the News." I encourage students to report on some story in the news that raises a constitutional issue, and we discuss it. Some days there is so much regularly scheduled material to cover that I skip Con Law in the News, but I have difficulty recalling any day over the course of the period in which I have been following this practice in which there were no newsworthy con law issues that we could have discussed. During the past semester, I had to put an arbitrary end to the discussion of Con Law in the News because, if I didn't, we would never get to the regularly assigned material.
Even so, and even though the current semester started in late August--when we were already seven months into the second Trump administration--I was surprised at just how much fodder we had to discuss. To be sure, in the spring 2025 semester, I taught Federal Courts, and during that semester Fed Courts in the News was busier than ever. But due to the more technical nature of the subject matter, I am generally a bit more permissive with what counts as "in the news" when it comes to Federal Courts than I am with Constitutional Law. A district court ruling that is reported on law news sites would count as Fed Courts in the News, whereas to qualify for Con Law in the News, an issue pretty much has to be on the front page of The New York Times. That high bar was surpassed multiple times daily.
Don't believe me. Try it yourself. Go to The New York Times home page and see if you can't find at least a half dozen constitutional issues raised by the stories you find there. Feel free to try this exercise at any time between now and January 20, 2029.
Indeed, there has been such a cornucopia of constitutionally dubious or outright unconstitutional actions emanating from the Trump White House that frequently I had the luxury of focusing a particular day's Con Law in the News segment on an issue that dovetailed perfectly with what happened to be on the syllabus. That will be true today.
Today will be the last class of the semester. In our penultimate class, we studied the state action doctrine. Among other things, the students read Shelley v. Kraemer (1948), in which the Supreme Court held that a racially restrictive covenant that runs with the property is judicially unenforceable. The Court said that although the inclusion of such a covenant in a contract between private parties is not unconstitutional because the 14th Amendment's Equal Protection Clause applies only to state actors, its enforcement by a court would be state action that--in virtue of its racially exclusionary character--does violate the 14th Amendment.
In Con Law in the News today, I intend to ask the students whether Trump's latest plan to exclude from the United States Somalis, Afghans, and, more broadly, Black and Brown garbage people from shithole "third world" countries is a kind of nationwide restrictive covenant that violates the equal protection component of the Fifth Amendment's Due Process Clause. In addition to exploring what counts as race discrimination (bonus points for students who juxtapose these exclusions with Trump's welcome mat for white South Africans), the latest actions are an occasion to review separation of powers and federalism questions, including how much latitude the president has to take actions with respect to immigration that would be impermissible in other settings.
See? Trump really is the gift that keeps giving.
Hence, in the event that Trump leaves office on January 20, 2029, I'll have at least slightly mixed feelings. The main feeling will be relief, followed closely by exhaustion, but, even if Trump is somehow succeeded by a Democrat who is permitted to take office, my sense of relief will be ever so slightly tinged with a kind of nostalgia for the days (our present) when the very air I breathed was saturated with constitutional issues.
But who knows? Maybe Trump will be succeeded by an equally zealous racist of a president. As Trump concluded his tirade against Somalis in general and Representative Ilhan Omar in particular yesterday, Vice President J.D. Vance could be heard loudly pounding the table in encouragement. Notwithstanding Vance's long-ago comparison of Trump to Hitler, I believe that by now Vance is sincere in his anti-immigrant racism. After all, Vance doesn't pound the table in appreciation for everything his master says. Donald Trump's repetition of the absurd claim that Haitian immigrants were eating the dogs and cats of Springfield, Ohio led to an awesome song, but Trump made the claim only after J.D. Vance promoted this calumny.
Should Vance eventually end up as president, maybe there will be no appreciable drop-off in material for Con Law in the News. How's that for optimism?
--Michael C. Dorf