I can’t speak for all Americans, but I believe there are several of President Trump’s policy stances that most Americans can support or accept, at least in principle.  Let me suggest a few:

• I think most of us agree that undocumented immigrants who commit serious crimes should be deported.
• I think most of us agree that our country’s borders should be secure, and we should prevent people from illegally entering and staying in the country.
• I think most of us agree that our universities and colleges should not engage in antisemitism; and, more broadly, we agree our colleges and universities should not discriminate against students or employees on the basis of race, religion, national origin, ethnicity, gender, sexual orientation, disability, or age.
• I think most of us agree that our colleges and universities should not infringe on the legitimate exercise free speech (1^st Amendment) rights of students and faculty.  But these rights of free speech do not include the right to vandalize, destroy property, commit violence, or engage in other activities not protected as free speech under US Supreme Court decisions.
• I think most of us agree that our colleges and universities should hire the most qualified individuals. This means applicants should neither be given preferences nor be discriminated against on the basis of race, religion, national origin, gender, sexual orientation, disability, or age.
• I think most of us agree that our colleges and universities should strive for “viewpoint diversity” instead of indoctrinating or radicalizing students to preferred ideologies, whether they be liberal or conservative.
• I think most of us agree that education—from K-12 through higher education—is largely a matter for state and local government, and that the federal government should not attempt to control or micromanage this function.

While most Americans can support or accept the policy stances cited above, we are heavily divided over President Trump’s willingness to use whatever means necessary to pursue these policy ends.

Just because we agree in principle with a policy stance doesn’t mean we support everything the President does to pursue these policies.  It’s not a case of the end justifying the means, because some of the means Trump is using are simply unacceptable to the vast majority of Americans.  Let me give some examples:

• While we embrace deporting undocumented immigrants who commit serious crimes, most of us expect applicable laws and Constitutional provisions to be followed in the process.  There is a great deal of controversy over the Trump Administration’s removal of selected immigrants who have not been afforded due process, or who have been removed by mistake (“Administrative error”). This includes the Administration arguing that it is powerless to correct the error, or that it refuses or stalls complying with court orders regarding the matter.
• Americans are divided over the Trump Administration’s effort to end “birthright citizenship” by means of an Executive Order.  US Supreme Court decisions have long held that children born in America to illegal immigrants are citizens.  But President Trump has issued an Executive Order saying this is an incorrect interpretation, and the order specifies an alternate test.
• Americans are divided over the Trump Administration’s actions to freeze funding and impose conditions on colleges and universities it believes have practiced antisemitism (see e.g., Columbia University antisemitism).  Similar divisions occur with respect to the Administration’s orders to terminate “DEI programs.”  And, the controversy also extends to the Administration’s directives to make governance changes regarding institutions it believes are indoctrinating students (see e.g., Harvard University).

Just because we have great difficulty with a means Trump is using doesn’t mean we oppose the end he is pursuing.  For instance, Democrats and many Americans contest the deportation of Kilmar Ábrego García to a maximum security prison in El Salvador. This man is an “alleged” gang member who has never been charged with a crime.  He lived with his family in Maryland, and was otherwise obeying immigration orders.  He was removed without a hearing, and the federal government acknowledges the removal was an “administrative error.”  Further, the US Supreme Court determined that he should be returned. 

Demanding that Abrego Garcia be returned and given the due process rights set forth in law is not saying we oppose deporting criminal migrants.  Rather, it’s saying we oppose deporting someone without following the law.  It’s also saying we oppose the Administration resisting and sandbagging the legitimate role of the courts in enforcing the law.  We oppose these means, although we continue to support the end of deporting migrants who commit serious crimes.

Unfortunately, Trump and the Republicans are urging Americans to conflate opposition to the means with opposition to the policy end. They charge that Democrats are looking for anything to block or stall the removal of criminal migrants. Democrats care more about criminal migrants than the people the migrants have victimized. A key Trump official, Sebastian Gorka even stated that those speaking up for Abrego Garcia hate America, and may be aiding and abetting criminals.

Of all the means the Trump Administration is using to pursue its policy ends, two that can never be justified are the denial of due process and the willingness to ignore the Constitution’s separation of powers.

In the first hundred days of his second term, President Trump and his Administration took dozens of actions to freeze funding. DOGE (Department of Government Efficiency) froze many Congress-approved spending allocations without providing detailed evidence or allowing for administrative hearings.  Affected parties were forced to resort to the courts. In some instances courts determined Trump had no authority to negate spending decisions of Congress.  And in other instances the courts found the Administration violated the law and due process in dismissing and laying off tens of thousands of federal workers. In the face of these rulings, the Trump Administration argued the courts were usurping his executive authority, and the rulings of corrupt judges should be ignored.

Elsewhere, California was informed by the President that there were likely to be conditions on its receipt of federal disaster relief for wildfires in Los Angeles. Trump implicated DEI hiring policies without providing evidence. He also declared, again without providing evidence, that the state was negligent in over-protecting the Delta Smelt and not providing enough water to Southern California.  Certainly, Congress has the legal authority to impose conditions in appropriating disaster relief; but the President, acting alone, would usurp the role of Congress when he attempts to do so.

Recently, several colleges and universities, including Columbia, Harvard, Cornell, and Princeton, have had their federal funding frozen or directly threatened.  Freezing funding is to be distinguished from the Department of Education placing an institution under investigation or providing warnings regarding compliance with federal law.  During his campaign, Trump said he would cut off funding for schools that push “critical race theory, transgender insanity, and other inappropriate racial, sexual, or political content.”

Typically, these universities receive a letter announcing determinations and detailing demands. The institutions are not apprised of any investigation or provided with detailed evidence and findings that are the basis for freezing funding. There are no hearings where the institution can present its case and evidence to a neutral decisionmaker.  Instead, the letter informs the institution it has fallen short and then lists a series of demands to rectify the situation.  

Here is a sampling of demands from the letter linked above regarding Harvard:

• “All existing and prospective faculty shall be reviewed for plagiarism and Harvard’s plagiarism policy consistently enforced.”
• The University is required to create an external body, acceptable to the Trump Administration in its composition, to “audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse.  Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity; every teaching unit found to lack viewpoint diversity must be reformed by admitting a critical mass of students who will provide viewpoint diversity.”
• The University was required to create an additional external body, again acceptable to the Trump Administration in its composition, “to audit those programs and departments that most fuel antisemitic harassment or reflect ideological capture.”  Ideological capture is when a group takes over an institution. The group redirects the goals, mission, and resources of the university to serve the interests of the ideological group. 
• “The University must immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives, under whatever name, and stop all DEI-based policies, including DEI-based disciplinary or speech control policies, under whatever name; demonstrate that it has done so to the satisfaction of the federal government; and demonstrate to the satisfaction of the federal government that these reforms are durable and effective through structural and personnel changes.”
• “Discipline at Harvard must include immediate intervention and stoppage of disruptions or deplatforming, including by the Harvard police when necessary to stop a disruption or deplatforming; robust enforcement and reinstatement of existing time, place, and manner rules on campus, including ordering the Harvard police to stop incidents that violate time, place, and manner rules when necessary; a disciplinary process housed in one body that is accountable to Harvard’s president or other capstone official; and removing or reforming institutional bodies and practices that delay and obstruct enforcement, including the relevant Administrative Boards and FAS Faculty Council.”

When Harvard responded that it could not accept these demands, the Trump Administration froze some $2.2 billion in grants.  That amount at stake has now increased to nearly $9 billion.  Again, Harvard was neither presented with the results of an investigation, nor afforded a hearing to contest the determinations or the conditions being imposed. 

Importantly, some of the demands contained in the letter are based not on federal law or Constitutional requirements, but rather on policy preferences of the Trump Administration. There is no federal law that requires viewpoint diversity in colleges and universities.  Also, there is no federal statute that requires the shuttering of everything DEI. Yet the institution is told its funding will be frozen unless it complies with these requirements.

It also needs to be recognized that there is not a college or university in the country that could comply with the demands contained in the letter to Harvard. Viewpoint diversity in every department, field, and teaching unit is not a realistic demand, especially if it must be to the satisfaction of an external group approved by the Trump Administration.  Requiring faculty to be hired and students to be recruited to achieve viewpoint diversity in every department, field, and teaching unit is also an impossible demand.  Indeed, how would the Trump Administration propose to bring viewpoint diversity to the 50 most conservative colleges in America? 

Finally, it’s important to recognize that the President contradicts himself when he says education should be returned to state and local governments, and yet in the next breath proceeds to impose extensive federal requirements telling institutions exactly how they must behave. If fact, the President is micromanaging higher education institutions in pursuit of his political agenda. America has many of the top colleges and universities in the world.  These results are fostered by good working relationships with state and local governments, along with effective accreditation processes.  Americans are right to be wary of a President seeking to bend our envy-of-the-world institutions to his will.

Due process and the separation of powers are fundamental aspects of our Constitution that no President has the power to override or ignore in pursuing policy ends.

Fifth Amendment provides, in part, “No person shall … be deprived of life, liberty, or property, without due process of law.” 

There are two critical aspects of “due process”—procedural and substantive.  Procedural due process requires at least for the government to afford a person notice, an opportunity to be heard, and a decision made by a neutral decisionmaker. Substantive due process protects individuals from government actions that are arbitrary, unreasonable, or that violate fundamental rights.  And due process rights apply to natural persons and legal persons, such as corporations.

No President, including President Trump, has the power to ignore or override the Constitutional mandate for due process.  This means, for instance, that Harvard University is entitled to an opportunity to be heard and to have a decision made by a neutral decisionmaker.  It also means that Harvard can’t be treated in an arbitrary manner.  If the President insists that Harvard must achieve complete viewpoint diversity in order to receive federal funding, is it not arbitrary to allow all or most other colleges to be free of this requirement? 

Where the Constitution vests certain powers to the legislative and executive branches, no President has the power to override or ignore these provisions. For instance, Congress has the power of the purse and also the power to establish duties and tariffs.  It can delegate authority for the President to act under emergency conditions; but otherwise the President can’t undo or ignore an appropriation Congress has adopted. 

Similarly, the function of the courts is to interpret the law, including the Constitution. President Trump cannot unilaterally impose his own reading of the law.  He either needs to change the law by acting through Congress, or challenge the law in the courts. This is what the separation of powers demands.   

The way forward:  Americans should unite to aggressively pursue policy ends we agree upon, but we must reject any means to these ends that violate the Constitution.

Coming full circle, let me summarize how we could unite to pursue the policy stances I listed at the beginning of this article. These actions can produce robust results without running afoul of the Constitution.

• Undocumented immigrants who commit serious crimes should be deported, but we should do so in accordance with existing laws and Constitutional requirements for due process. Millions have been lawfully deported under both Republican and Democratic Administrations. Congress should work to make the laws and processes more efficient and effective; and resources should be provided to reduce backlogs in immigration court cases.  
• Our country’s borders should be secure, and we should prevent people from entering and staying in the country illegally. More resources should be provided for border security.
• Our colleges and universities should not discriminate against students or employees on the basis of race, religion, national origin, ethnicity, gender, sexual orientation, disability, or age.  This means we won’t tolerate antisemitism. But we also won’t tolerate discrimination against any other religious group, nationality, etc.  The responsibility for monitoring discrimination falls to the institutions themselves, state and local governments, and the federal government.  Monitoring and enforcement should continue with due process procedures at all levels of government.  
• Our colleges and universities should not infringe on the legitimate exercise free speech (1^st Amendment) rights of students and faculty. But these rights of free speech do not include the right to commit vandalism, destroy property, commit violence, or engage in other activities not protected as free speech under US Supreme Court decisions. Monitoring and enforcement of these rights fall especially to the institutions themselves because the line between free speech and unprotected behavior or discrimination can change in an instant.  State and local governments, as well as the federal government, should continue with monitoring and enforcement, applying due process procedures. 
• Our colleges and universities should hire the most qualified individuals. This means applicants should neither be given preferences nor be discriminated against on the basis of race, religion, national origin, gender, sexual orientation, disability, or age. The fact that “Diversity, Equity, and Inclusion (DEI)” is discontinued does not relieve institutions of ensuring that no applicant or employee is discriminated against on account of race, religion, national origin, gender, sexual orientation, disability, or age. The responsibility for hiring and nondiscrimination falls mainly to the institutions themselves, and secondarily to state and local government and the federal government.  State and local governments, as well as the federal government, should continue with monitoriting and enforcement, applying due process procedures. 
• Our colleges and universities should strive for viewpoint diversity, instead of purposefully indoctrinating students on preferred ideologies, whether they be liberal or conservative. It is important that students feel free to express their views and that they won’t be punished or suppressed because of those views. Colleges and universities should be given some leeway in framing their mission, curriculum, and the students they seek to serve.  America has some of the highest ranking colleges in the world that are respected for their conservative or liberal leanings.  In addition, primary responsibility for viewpoint diversity belongs with the institutions themselves. And, finally, if viewpoint diversity is to be mandated at the federal level—and it shouldn’t—this should come from an act of Congress and not an edict of the President.     
• Education—from K-12 through higher education—should remain mostly a matter for state and local government. The federal government does have important responsibilities to assure students and employees are not discriminated against.  Also, hiring processes must comply with federal law. But the federal government should carry out these roles using established due process procedures. Further, the President must respect the separation of powers in pursuing his policies.   

Final thoughts

Those of us unwilling to sanction violation of the Constitution—the vast majority of Americans—remain willing to support the President on various of his policy stances. The fact that most Americans are unwilling to “cross the Rubicon” regarding this means does not imply that we oppose his policy ends to secure the border, deport migrants who commit serious crimes, fight antisemitism on college campuses, ensure free speech, and eliminate discrimination.

Unfortunately, our willingness to support these ends is being muddied by the President and his Administration. They are dividing Americans by conflating our opposition to the means as opposition to the ends.  This divisive tactic needs to be called out. We are simply unwilling to undermine our democracy and create a Constitutional crisis no matter how much we might support a policy end.