Mark Kende

  • February 15, 2017
    Guest Post

    *This piece originally appeared in The Des Moines Register. Read the entire post here.

    by Mark Kende, James Madison Chair in Constitutional Law, Director of the Drake University Constitutional Law Center

    Few people know that Fred Korematsu, one of the named plaintiffs in perhaps the U.S. Supreme Court’s most troubling racist wartime decision, actually lived long enough to defend some Muslims who were deprived of due process under President George W. Bush. Perhaps there is a lesson here for President Donald Trump and the U.S. Supreme Court.  Let me explain.

    President Trump issued an executive order that precluded citizens from seven mainly Muslim nations to travel here, as well as invalidated many of their visas. He also banned admission of refugees who go through years of security screening.  However, he provided a special exemption for persecuted Christians in these nations. Our country, founded in part on freedom of religion and on the promise of being a sanctuary, became the opposite. Trump enshrined Christianity as our preferred state religion in probable violation of several parts of the U.S. Constitution.

    He justified the order on national security grounds and on the danger of “radical Islamic terrorism,” even though the vetting process for these individuals is thorough. Many of those affected sought to avoid being killed in the Syrian civil war or in other devastated places. Trump omitted from his ban the Muslim nations whose citizens were largely responsible for 9/11.

    Coincidentally, Feb. 19 marks the 75th anniversary of another controversial presidential directive that resulted in the U.S. Supreme Court’s 1944 decision, Korematsu v. United States. There, the court upheld the military incarceration of 112,000 American residents of Japanese descent, mostly citizens. They were interned in desolate camps. They had done nothing wrong. Nonetheless, the military enforced President Franklin Roosevelt’s broad executive order.

  • January 31, 2017
    Guest Post

    by Mark S. Kende, James Madison Chair in Constitutional Law, Director of the Drake University Constitutional Law Center

    Tonight, President Trump announced his nomination to the Supreme Court. In doing so, he ratified the inappropriate actions taken by Sens. McConnell, Grassley and others in the Republican Party who refused to give a confirmation hearing to the bi-partisan endorsed and highly credentialed nominee of President Obama, Judge Merrick Garland, Chief judge of the Court of Appeals for the D.C. Circuit. During that refusal delay, the Senate also reduced the status of the judiciary as the Supreme Court only had eight members and could not fully function. The Senate trampled on the idea of three equal branches of government. Republicans further failed to comply with the federal law specifying that there be nine Justices. Ironically, President Trump and these same Republicans now expect the Democratic Party to proceed with confirmation hearings on this nominee. 

    To add to the irony, Republicans said that a Garland nomination was problematic during an election year and “the people” should decide. Though President Trump certainly won the Electoral College, almost three million more people voted for Secretary Hillary Clinton. Thus, if this was a true plebiscite, Chief Judge Garland should still be the nominee by the Republican’s own reasoning. Of course, the Republican statements about the people were little more than window dressing for a raw and unfortunately successful, political calculation that they could stall the Obama nomination (he was supposed to be President for a full eight years after all).

  • January 10, 2017

    by Mark S. Kende, James Madison Chair Professor of Constitutional Law and Director of the Drake University Constitutional Law Center

    President-elect Trump is supposed to take the Oath of office on Jan. 20, 2017 but such an act would likely be illegal. Indeed, Chief Justice Roberts of the Supreme Court would even probably be an inappropriate accessory. Article II Section One Clause 8 of the U.S Constitution requires the president to "swear that I will faithfully execute the Office of President of the United States, the best of my ability, preserve, protect and defend the Constitution of the United States." Yet President Trump would likely be violating the Emoluments Clause of the Constitution at that exact time. He would be personally prospering as president or at least lining his business's pockets, because of his continuing acceptance of financial benefits from foreign governments and businesses. Indeed, his being president would almost certainly increase his business success. 

    The Emoluments Clause asserts in Article I, Section 9, Clause 8 that, "No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever from any king, prince, or foreign state."

    Scholars such as Fordham Law Professor Zephyr Teachout and sources such as the Federalist Papers, have shown the Clause covers the president and was designed to prevent improper foreign influences. It was an essential anti-corruption provision enacted to prevent federal officials from looking to profit from office rather than to act in the nation's interest.