Attaining Balance
It’s Easter Sunday, 2025. Surprisingly, for Ohio, it’s a beautiful spring day, a “Hallmark” Easter. The grass is growing (too fast), and the air is quickly warming: Happy Easter, and Passover!! But the spiral ham won’t go into the smoker until 1pm. There’s plenty of time for a “lesson” on the United States Constitution. In particular, those powers prohibited to the United States government by the Constitution.
The authors of the Constitution were trying to strike a balance. They rebelled against the heavy-handed administration of the British Crown a decade before. And they demanded a fair say in their own governance, and admonished the King for failing to give the colonists the “rights of Englishmen”. But the original national government, the Continental Congress organized under the Articles of Confederation, went too far. It weakened national powers.
The phrase, “A sovereign nation of sovereign states” missed the mark on this first government. The several states (the old colonies) had considerably more individual power than the national government. It was a nation of thirteen rivals, rather than one. So the Constitution tried to re-balance those powers, giving the national government specific areas of influence. Other powers were given to the states, the people themselves, or prohibited all-together.
Powers of Congress
We see the President of the United States claiming unprecedented powers today. Those original Constitutional authors placed most of those powers in the legislature, the Congress; not the executive. The power to set tariffs, to regulate commerce, to set rules of naturalization, to declare war; all are Congress’s power, not the President’s.
Those powers are outlined in Article I (the Congress), Section 8. There are eighteen sub-sections defining the powers of Congress, including the famous last section, the “elastic clause”. It gives Congress the power to make all laws “necessary and proper” to carry out the other powers.
Limits
But the less discussed Article I, Section 9 is what we will examine today. That specifically sets the legal limitations on the powers of Congress, and therefore, the national government. Section 9 is best known for one of the “enslavement compromises”. The first sub-section prohibits the national government from interfering with slave importation to the United States for twenty years (it does allow an “import duty” of up to $10).
And it also contains the “emoluments clause”, preventing any “officer of the United States” from receiving a gift, payment or other benefit from any “King, Prince, or foreign state” without the consent of Congress. That raises serious questions about Donald Trump profiting from literal Princes of Saudi Arabia, or banks controlled by Russian oligarchs.
Also, Section 9 clearly states the following legal prohibition on Congress:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto Law shall be passed.
There is a separate essay on “habeas corpus” (Holding the Body) from last week. So today, let’s look at the more obscure prohibition on passing laws of “bill of attainder” or “ex post facto”.
Thus “beginneth” our Easter lesson.
Ex Post Facto
“Ex post facto” is Latin for after the fact. Congress cannot “post-date” an action as against the law, that, prior to Congress’s action, was legal. A great example of this is from the drug trade, where a law against a drug is actually against a particular chemical compound. So Congress can make a law against a particular hallucinogen formulation, but if chemists can slightly alter the formula; it’s legal until Congress makes another law against the “new” formulation.
Or, for another example: if it was legal for a permanent resident non-US citizen, to speak out against an action of the President’s administration, then neither Congress, nor certainly not the President without any authority at all; can make that against the law. They could pass a new law with that restriction, but that law cannot be retroactive. If what Mahmoud Khalil did was legal when he did it, then it cannot later be made illegal, “after the fact” (ex post facto).
Bill of Attainder
Finally, a “bill of attainder” is a law that makes it illegal to have membership in a group. For example, being a “card carrying member” (do they have memberships cards?) of the Ku Klux Klan is NOT against the law. What is against the law? Taking actions: burning crosses on people’s lawns, kidnapping, lynching, or conspiring to do so; all are illegal. But just being a member is not, and by the Constitution, cannot be.
So what about being a member of the “Tren de Aragua”, the infamous Venezuelan gang? They certainly don’t carry cards, instead, their membership is emblazoned by tattoos on their bodies. How is it that “migrants” are rounded up based on vague accusations of membership, without any claim of actual criminal actions? Isn’t that the very definition of a “bill of attainder”, specifically prohibited under Article I, Section 9?
About a decade after the Constitution was ratified, Congress passed a law called the “Alien Act”. That law allowed the President to detain and even deport an “alien” (non-US Citizen) who posed a danger to the national interest in time of war. In America’s declared wars: the War of 1812, and the First and Second World Wars, aliens of enemy nations were rounded up and imprisoned. In fact, during World War II the President claimed even greater powers, and imprisoned American citizens of Japanese descent. They called it “re-location”, but they were behind barbed wire fences by soldiers with guns.
Unconstitutional
But all of those actions under the Alien Act were in time of war, a power that ONLY Congress has under Article I, Section 8. And while Donald Trump can “declare war” on “Tren de Aragua” or “MS-13”, calling them “terrorist organizations”; his statements do not make it so. In fact, Trump is issuing a bill of attainder, something that neither the President, or the Congress for that matter, can do.
We are beyond the Constitution. It is up to the Congress, and the Supreme Court, to exercise their own powers to “check and balance” executive branch over-reach, and unconstitutionality. I wish I had more faith that they will be so. But we live in a nation where the US Supreme Court has never even explicitly overruled Korematsu v United States, the 1944 case that allowed the re-location of US citizens to continue (though several Justices in dissent called it “gravely wrong”).
We have “arrived” at the Constitutional crisis, the one we’ve been fearing since the first election of Donald Trump. Our individual rights, and our Constitutional balance, are at stake. That may sound “apocalyptic”. That’s because it is.
