She has displayed a disregard for law, a contempt for constitutional processes, and a readiness to use prosecutorial power against political opponents.
She has displayed a disregard for law, a contempt for constitutional processes, and a readiness to use prosecutorial power against political opponents.
S crutiny of Vice President Kamala Harris as the putative Democratic nominee for president has so far focused on her progressive positions on the economy, race and gender identity, energy, crime, and immigration. But she deserves as much or more scrutiny for her views on America’s constitutional institutions and norms. Even while she and the former top of the ticket, President Joe Biden, claim they are engaged in the “defense of democracy,” Harris is in fact a threat to the American rule of law: She is promising a radical shock to our constitutional system of separation of powers and federalism.
The Constitution makes law enforcement the president’s primary domestic responsibility. Article II declares that the president, and the president alone, “shall take Care that the Laws be faithfully executed.” As interpreted by the Supreme Court, this provision recognizes that the attorney general and, indeed, all federal executive-branch officers assist the president in fulfilling this awesome duty. Presidents and attorneys general have long understood that they must eliminate political partisanship from law enforcement.
But on this most important and consequential of executive functions, Harris has promised to elevate her own personal political and racial biases above her constitutional duty.
First, she will continue the Biden administration’s weaponization of the power of prosecution for political ends. In her first public speech after Biden’s withdrawal from the presidential race, she declared: “I took on perpetrators of all kinds. Predators who abused women. Fraudsters who ripped off consumers. Cheaters who broke the rules for their own gain.” Her concluding lines to a crowd of raucous Democrats in Wisconsin: “So hear me when I say, I know Donald Trump’s type.”
Rather than distance herself from Democrats’ misuse of the criminal-justice system, Harris applauds the prosecution of her political opponents. She supported the New York hush-money trial, in which Manhattan DA Alvin Bragg focused on the salacious details of the encounter between Trump and pornographic-film actress Stormy Daniels while leaving unconstitutionally vague the actual charges. Bragg transformed Trump’s alleged bookkeeping misdemeanor into a felony by treating it as a violation of federal election law (which New York is not allowed to enforce and which federal authorities did not pursue). Although he managed to persuade the jury to convict, the utter weakness of the case revealed Bragg’s partisan motives for all to see. Rather than condemn this interference by an elected state official in a federal election, Harris turned to it to launch her presidential campaign.
Given that Harris supports the weakest of the Democrats’ lawfare campaigns against Trump, it’s not a stretch to assume that she supports Justice Department special counsel Jack Smith’s investigations. The DOJ might convict Trump either in Florida for hoarding classified documents at his Mar-a-Lago home or in Washington, D.C., for attempting to prevent the peaceful transfer of power on January 6, 2021. But unfortunately for Harris, the Supreme Court has held that the statute that forms the core charge against Trump — that he obstructed a congressional proceeding — doesn’t apply to the January 6 riot, just as it has earlier held that the secondary charge of fraud does not apply where no money or property was exchanged. In light of Smith’s excesses, the justices granted Trump immunity from prosecution for actions taken in his official capacity, and the Florida district judge overseeing the documents case, Aileen Cannon, found Smith’s appointment itself illegal.
Harris’s endorsement of lawfare such as this means that if she is elected, there will be more of the same. We can expect her to continue Democrats’ violation of a norm as old as the republic — that presidential abuse of power should meet with political opposition or impeachment, rather than be pursued within the criminal-justice system. Every president before Biden had wisely avoided using criminal law to manipulate elections or punish their political rivals. Gerald Ford pardoned Richard Nixon over Watergate, George W. Bush left Bill Clinton in peace despite the latter’s obvious perjury, and even Trump did not pursue Hillary Clinton for her routing of classified emails to her unsecured personal-computer network. The peace of the republic has largely depended on the observance of that norm.
Under a President Harris, prosecuting presidents would have radical effects on our constitutional system. Future presidents would forever have to worry about their personal legal risk when making difficult decisions. Future state and local prosecutors — almost all of whom are elected — would have incentive to attack their partisan rivals with invented criminal charges. Rather than pursue the crime, prosecutors would investigate the political enemy. As FDR’s attorney general, Robert Jackson, said in a speech that is still considered the greatest statement of prosecutorial principles: It is in cases “in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.”
Second, just as Harris’s penchant for selective prosecution would lead her to targeting her political opponents, so would it lead her to leave crimes and criminals with whom she sympathizes unpunished. Harris has shown that she will elevate her views on racially controversial matters above public safety.
Take her attitude toward the Black Lives Matter protests in 2020. The violent riots that swept the country were among the worst episodes of lawlessness and mayhem in recent decades. The center of the rioting was Minneapolis, where rioters torched a police station, threw Molotov cocktails into a courthouse, and destroyed many small businesses.
Instead of calling for a peaceful end to the rioting and the return of law and order, then-senator Kamala Harris raised money to bail out the rioters. On June 1, 2020, Harris tweeted, “If you’re able to, chip in now to the @MNFreedomFund to help post bail for those protesting on the ground in Minnesota” and provided a donation link. Harris and her media enablers are now denying that she was soliciting contributions to spring rioters from jail. Instead, they claim that the Minnesota Freedom Fund was a mere nonprofit organization supplying bail. But according to Joe Teirab, a former federal prosecutor and now a candidate for Congress in Minnesota, there are many examples of “hardened criminals that are back terrorizing our communities because of the money Harris raised.”
Harris supported BLM in other ways. In a September 2020 interview, she praised it for its “brilliance” and “impact” and acknowledged having personally attended at least one BLM protest. When her interviewer noted that Time had put BLM’s founders on its cover, Harris lauded the magazine for doing so. BLM, she said, is “the most significant agent for change within the criminal justice system” — only slightly hedging her praise by saying in passing that protest must of course be “peaceful.” But she said nothing to criticize the violence that BLM had recently sponsored and that BLM protesters had committed.
Harris’s threat to our governing institutions goes beyond the abuse of the power of prosecution. She has also made plain that she would seek to undermine the independence of the judiciary. During the 2020 Democratic primaries, she joined all of the candidates — except for Biden, ironically — in support of expanding the size of the Supreme Court and packing it with progressive allies. She will no doubt further support Biden’s current proposal, announced on Monday, to place term limits on the justices. Since the Constitution protects judicial independence by securing life tenure for justices and judges, for such an act to be legal, it would require an amendment to the Constitution. But why let the written Constitution, and centuries of constitutional practice, stand in the way of progressive causes?.
Harris has made clear that she seeks to pressure the federal courts because of disagreement with their decisions. In an interview on NBC’s Meet the Press shortly after the Supreme Court issued Dobbs (which overturned Roe v. Wade), Harris said that the decision “causes me great concern about the integrity of the Court overall.” This drew a strong rebuttal from Chief Justice John Roberts, who stated, “The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate. . . . But I don’t understand the connection between the opinions people disagree with and the legitimacy of the Supreme Court.”
Unable or unwilling to criticize the Dobbs opinion in legal terms, Harris instead seeks to upend the courts themselves. Harris has said that she would sign federal legislation to codify Roe v. Wade nationwide. Neither the president nor Congress, however, can overturn a Supreme Court decision, particularly one that returns a policy decision — the balance between a fetus’s right to life and a woman’s right to terminate a pregnancy — to the control of the states (as the Court made clear in City of Boerne v. Flores). Under Roe and the 1992 Casey decision that largely superseded it, the constitutional inflection point for determining when the states may prohibit abortion is fetal “viability,” i.e., normally around 23 or 24 weeks into the pregnancy. Characteristically, Harris has evaded the question of when she thinks the legal turning point should be.
Harris’s blithe disregard for the judiciary’s role in interpreting the law — rather than making public policy — was on display during the Senate confirmation hearings of Justices Neil Gorsuch and Amy Coney Barrett. Harris opposed Gorsuch in part because he “consistently valued legalisms” over “real lives.” Her questioning of Barrett about the Affordable Care Act (then under constitutional challenge before the Supreme Court) also focused on the effect an adverse decision might have on “people.” Harris’s apparent inability to distinguish the interpretative function of the Court from the policy-making powers of Congress reveals a profound ignorance of, or indifference to, the fundamental structures of the Constitution. If elected, she would undoubtedly appoint justices and judges who would attempt to reaccelerate the trend to activist, law-free, post-constitutional decision-making that the Roberts Court has sought in recent years to reverse.
Harris’s desire to ignore judicial decisions and attack the courts that issue them extends to race as well as abortion. In a 2019 exchange with Al Sharpton at an event sponsored by his National Action Network, Harris said that, if elected president, she would sign reparations legislation. Again in 2019, as senator, she co-sponsored a bill to “establish a commission to study the impact of slavery and continuing discrimination against African-Americans and make recommendations on reparation proposals for the descendants of slaves.” Under the Supreme Court’s long-standing case law, but especially since its 2023 Harvard decision striking down race-based college admissions, such a race-based measure would undoubtedly be held unconstitutional.
Equally unconstitutional is a bill Harris introduced in 2019, called the “Ensuring Diverse Leadership Act.” The bill would have required that every Federal Reserve Bank, in appointing its president, interview at least one person on the basis of “gender diversity” and at least one on the basis of race or ethnic diversity.
Harris appears to have as little understanding of Congress’s constitutional role as she has of the judiciary’s. Soon after the Supreme Court handed down its 2023 decision striking down the Biden administration’s student-loan “forgiveness” directive, Harris told National Public Radio, “We are going to be creative” about student loans. Apparently not included in her idea of “creativity” was asking Congress for appropriate legislation — something her administration (though both she and Biden served in Congress) have signally failed to do. Yet even her San Francisco colleague Nancy Pelosi has said that congressional action is required for debt cancellation.
Despite her claims in regard to these issues that she is advancing the interests of people over legalisms, as she put it to Justice Gorsuch, Harris is all too willing to brush aside individual rights that don’t conform to her progressive worldview. One of the marked features of Harris’s approach to constitutional issues has been her hostility to freedom of religion, especially her anti-Catholicism. As a senator, Harris challenged judicial nominee Brian Buescher for being a member of the Knights of Columbus, a charitable organization for Catholic men. This blatant bias is in tension (to say the least) with the Constitution’s ban on religious tests for federal office. Nor does she seem to care much about freedom of the press when her political opponents exercise that fundamental right: as California attorney general, Harris targeted for prosecution a pro-life journalist, David Daleiden, who exposed Planned Parenthood’s gruesome involvement in the sale of aborted babies’ body parts.
This is not a record that suggests anything but disregard for law, contempt for constitutional processes, and above all a readiness to weaponize prosecutorial power against political opponents while giving violent criminals a free pass if she finds their causes sympathetic. The Biden administration has already reached unprecedented lows in all these areas. A Harris administration would likely be even worse.
John Yoo is the Heller Professor of Law at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a distinguished visiting professor in the School of Civic Leadership at the University of Texas at Austin. Robert J. Delahunty is the Washington Fellow at the Claremont Institute’s Center for the American Way of Life.