New York’s Civil Lawsuit Against Trump Is Unconstitutional

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Trump has a constitutional right to do business in New York

Steven Calabresi |

New York State Attorney General Letitia James’ lawsuit against Donald Trump is unconstitutional and unfair. James is demanding that Trump, his business, his two oldest sons, and two business partners give back $370 million that she says they obtained through fraud. James wants to permanently ban Trump from running a business in New York State. And, she has obtained a ruling from the judge trying the case to place all of Trump’s New York businesses in receivership and sold with Trump getting only the cash from a forced fire sale.  James’ lawsuit alleges that Trump fraudulently inflated the value of his assets in annual net worth statements to banks to obtain savings on loan interest.  It must be noted at the outset that no bank has complained that Trump committed fraud and that James is charging Trump an enormous and unconstitutional penalty for what is essentially a victimless crime.

The New York State law, as it is being applied to Trump, raises the same due process of law problem as is raised by a classic politically motivated Bill of Attainder. Historically, a Bill of Attainder was a legislative act that singled out a politically unpopular person for punishment.  In Trump’s case, a general and over-broad state law is being used against him in a hitherto unheard of way depriving him of property without due process of law.  And, everyone on both sides of the aisle knows that it is all because New York has a lot of people, especially in the Democratic Party, who hate Trump. The victimless crime that James has charged Trump with is basically that he is a liar, and she does not like his political views.  State Bills of Attainder are banned under Article I, Section 10 of the Constitution, and the Fifth Amendment provides that no person can be deprived of property without due process of law.

The Constitution does not allow banning people from running a business or putting all their assets in receivership and auctioning them off in a fire sale with the victim getting back the resulting cash.  I am not aware of any precedent that supports what James is doing.   The Constitution does not allow hitting Trump with a $370 million fine for a victimless crime, which almost certainly violates the Excessive Fines Clause of the Eighth Amendment.  Putting Trump’s assets in receivership and auctioning them off in a fire sale is a violation of the Fifth Amendment’s Takings Clause for which Trump must at a minimum receive just compensation.  But, even then, private property can only be taken for “a public use”, and there is no “public use” unless you hate Trump’s politics and want to punish him as a result.  And, at that point, you must confront the Bill of Attainder prohibition once again.

I have in the past opposed Trump, vigorously, as I did when he acted improperly as President on January 6, 2021.  I also think that most politicians lie and that Donald Trump lies more than most politicians.  But that does not strip Donald Trump of his fundamental right to do business in New York on the same terms as other New Yorkers. Under the Privileges and Immunities Clause of Article IV, Section 2, Trump, who is a citizen of Florida, has the same right to do business in New York as does a New York citizen.  James should have to show that other New York citizens have been banned from doing business in New York and had all their assets put in receivership for a victimless crime of lying.

I also believe, along with the Institute for Justice, that the four dissenters in The Slaughter-House Cases, 83 U.S. 36 (1873) were right that Americans have a fundamental right to pursue any occupation they want to pursue so long as they do not endanger or hurt third parties along the way.  Occupational licensing of doctors, airplane pilots, and engineers are all O.K., but I think occupational licensing of barbers, flower shops, and tanning salons is unconstitutional.  I hope that some day the Supreme Court will have an epiphany and that it will overrule The Slaughter-House Cases. Americans should have the same fundamental, constitutional right to pursue whatever occupation they want to pursue, as is mentioned explicitly in the Constitutions of Germany, Japan, South Africa, and Israel.  All Americans, including Donald Trump, should and do have a constitutional right to pursue an occupation by, for example, running a business, either in New York State, or in any other state.

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