Why Schiff’s Anti-Trump Legislation Is Flatly Unconstitutional

In a well-ordered republic, the law applies to everyone in the same way, and when Congress departs from that basic commitment, it steps into dangerous territory. Senator Adam Schiff’s recent proposal, titled the No Torts for Trump Act, is a study in how far a legislature can fall when partisan aims eclipse constitutional duty. The title itself signals the intent. The bill is crafted to prevent one citizen, Donald J. Trump, the duly elected winner of the 2024 election, from pursuing a claim under the Federal Tort Claims Act. That is not a neutral rule about governmental procedure; it is an attempt to extinguish a single litigant’s rights. A puzzled reader might ask whether Congress is free to define the scope of waivers of sovereign immunity. It is, but the power is not without limits. Those limits exist precisely to prevent what is attempted here, a targeted legal disability imposed on a named individual in the midst of ongoing litigation.

A central concept that guides the constitutional analysis is the prohibition on bills of attainder. A bill of attainder is a law that singles out an individual or an easily ascertainable group for punishment without a judicial proceeding. The Founders understood the temptation of majorities to destroy political rivals by legislative fiat, and they barred Congress from doing so. One might wonder whether denying access to a statutory remedy is the kind of punishment the clause contemplates. The Supreme Court has answered that question by examining the functional character of the legislation. In cases like United States v. Lovett and United States v. Brown, the Court struck down laws that did not imprison anyone, but that nonetheless inflicted punishment by excluding named persons from government employment or union leadership. The lesson is simple. If a law imposes burdens that are aimed at harming a particular person and cannot be justified by neutral principles, the bill of attainder doctrine applies.

The Schiff proposal fits this description. It aims at Trump by specifying the office he holds, it operates retroactively to cut off his pending Federal Tort Claims Act claim, and it has no rationale apart from stopping that single case. The retroactivity is explicit, since the bill applies to claims already pending on the date of enactment. The individualization is equally clear, since there is only one person in the country who holds the presidency and is at this moment pursuing such a claim. When legislative history, timing, and structure all point in the same direction, courts do not pretend otherwise. A statute can violate the bill of attainder clause even if it does not mention a name. It is enough that the class is so narrow that everyone understands who is being targeted.

Consider the analogy of a simple rule in a household. If a parent announces that no child may have dessert before dinner, that is a neutral rule even if one child prompted it. If the parent instead says that only one child is forbidden from having dessert, and that restriction applies only tonight while a dispute is ongoing, the punitive character is impossible to miss. In legal terms, the Schiff bill is the second kind of rule. It does not address a structural flaw in the Federal Tort Claims Act. It does not pursue a general improvement in governmental processes. It aims at a single person. The law thus functions as a direct punishment, since it deprives Trump of a legal right that is available to all others and does so in response to his pursuit of a settlement for harms he alleges flowed from politically charged investigations.

The constitutional problem is not confined to the bill of attainder clause. Equal protection principles, though developed in the context of state actions under the Fourteenth Amendment, inform the broader understanding that government cannot deny a single citizen equal access to the courts out of animus or political hostility. To bar the sitting President, and only him, from seeking relief for past injuries, is to impose a legal disability that is not tied to any legitimate governmental interest. A reader might wonder whether Congress can draw distinctions based on office. Sometimes it can. It can regulate conflicts of interest by limiting certain financial transactions by high office holders. It can require financial disclosures that do not apply to ordinary citizens. But those distinctions must serve an institutional purpose that does not target individuals. The Schiff bill does not shore up institutional integrity but undermines it. It attempts to predetermine the outcome of a specific legal dispute, and it does so by extinguishing one party’s standing to sue.

Separation of powers concerns reinforce this conclusion. The judicial branch is tasked with resolving disputes between private parties and the government. When Congress reaches into a pending case and dictates which party may participate, it moves from legislating rules to deciding cases. The Court has been careful to preserve this line. It has allowed retroactive changes in procedural rules or jurisdictional boundaries, but only when the rules apply neutrally and do not dictate a result. In Plaut v. Spendthrift Farm, for example, the Court invalidated a statute that required federal courts to reopen final judgments, precisely because Congress had attempted to command a particular outcome in certain securities cases. The Schiff proposal, which applies to a class of one and strips a single litigant of his right to pursue a claim, raises an even starker separation of powers problem. By cutting off a pending claim and doing so for transparently political reasons, the bill attempts to influence the outcome of a legal dispute in a way that undermines judicial independence. If Congress can do this to Trump today, it can do it to any citizen tomorrow.

Some readers might ask whether legislation can ever be written with a narrow focus. Congress sometimes passes laws that respond to specific events. For example, it might reform federal contracting rules after a notorious scandal, or it might modify immigration rules in light of a crisis at the border. But such reforms remain general in form and effect. They do not remove rights from a single party, nor do they retroactively shut down litigation already underway. The Schiff bill is different in kind. Its temporal reach is tailored to the precise moment of Trump’s claim, its scope is defined by the office he holds, and its purpose is announced in its title. This strips it of any plausible claim to neutrality.

One might also ask whether Congress’ control over waivers of sovereign immunity provides an escape from this analysis. The Federal Tort Claims Act is a statutory creation, and Congress may shape or withdraw sovereign immunity as it sees fit. But Congress cannot use that power to create punishments for disfavored individuals. A useful analogy is the government’s authority to levy taxes. That power is broad, but a law imposing a special tax on a named political opponent would be unconstitutional. Powers granted for public purposes cannot be twisted into tools for personal retaliation. The FTCA is no different. It exists to provide a limited means for citizens to seek redress for wrongs committed by federal officials acting in the scope of their duties. A selective withdrawal of that remedy from a single individual transforms a rule of governance into an instrument of vengeance.

Political context matters for understanding how extreme this bill is. Schiff has long been a partisan antagonist of Trump. He championed investigations that relied on claims about Russian collusion that collapsed under scrutiny, and he continued to repeat those claims even after intelligence reviews undercut them. That history heightens the appearance, and likely the reality, of punitive intent. A bill that closes the courthouse door to the one citizen Schiff has pursued for years is not a coincidence. It is the legislative culmination of that pursuit. The appearance of impropriety is so stark that it alone would warrant censure, yet the constitutional defects go deeper. The legislature is not a stage from which to settle personal and political scores, especially when those scores involve fundamental rights. Schiff’s bill collapses that boundary and invites further abuses by future majorities.

Some readers might worry that defending Trump’s right to sue the government encourages an endless cycle of litigation between the President and the bureaucracy. That concern is misplaced. The FTCA does not invite frivolous claims, and courts have well developed doctrines for screening meritless suits. Permitting Trump to pursue his claim does not guarantee victory, it simply preserves the neutral process through which disputes are resolved. Stripping him of that opportunity would undermine confidence in the rule of law, not safeguard it. The government’s interests are best served by a fair and orderly resolution of claims, not by ad hoc legislation that singles out litigants based on political considerations.

A deeper philosophical concern arises when one considers the purpose of constitutional constraints. Institutions endure only when they bind themselves. The temptation to pursue short term advantage through extraordinary means is always present, especially in a polarized age. The Schiff bill is a test of whether Congress can resist that temptation. If Congress can impose special disabilities on the political enemies of the majority, then the very idea of equal justice is at risk. Today the target is Trump. Tomorrow it could be any citizen who falls out of favor. Legislation that operates as punishment for individuals erodes the framework within which freedom is preserved. Conservatives have long argued that the stability of the American order depends less on technocratic expertise and more on adherence to basic structural limits. Here those limits are not subtle. They are written in the text of the Constitution.

It is also worth reflecting on how rhetoric shapes perception. By naming the bill the No Torts for Trump Act, Schiff abandons even the thin veneer of neutrality. The title signals to supporters that the bill is meant to strike a blow against a political rival, not to improve federal law. This undermines public trust. Even readers sympathetic to Schiff’s politics should hesitate before embracing such tactics. If political passion justifies such measures now, it will justify still more radical measures in the future. A republic does not crumble all at once. It decays through repeated small departures from principle until the structure can no longer bear the weight of accumulated exceptions. The best time to resist that decay is at the first obvious breach.

Given these considerations, censure is not merely an appropriate response, it is a necessary one. The institutional health of Congress depends on members respecting the constitutional limits that define their authority. When a senator introduces a bill that so clearly violates those limits, the body must respond. Censure is the means by which Congress signals its commitment to those limits and deters future abuses. Without such accountability, the legislature risks becoming a tool for factional dominance rather than a guardian of the constitutional order. A formal rebuke of Schiff would not resolve every constitutional worry in modern Washington, but it would mark a line that even partisan zeal may not cross.

The broader public should also be attentive to the precedent this bill would set. Laws that name or target individuals run counter to the American tradition. They resemble the practices of governments where power is used to settle personal vendettas rather than to secure the liberties of the people. The Founders rejected such practices, and they designed a Constitution meant to make them difficult. That design depends on each branch respecting the boundaries imposed upon it. Schiff’s bill represents a deliberate breach of those boundaries. To allow it to stand would be to normalize the very thing the bill of attainder clause was written to prevent.

The argument presented here is not that Trump is entitled to win his case. It is that he is entitled to pursue it through the ordinary processes of law. That entitlement is not a special privilege but a basic right. When Congress attempts to strip a single person of that right, it abandons its role as a legislature and assumes the role of judge and executioner. That is incompatible with the constitutional framework of the US. It is incompatible with the principles that support a free society. And it is incompatible with the idea that laws should be written for the public good rather than partisan triumph. A serious republic does not write statutes whose entire purpose is to deny a remedy to one man.

If the American experiment is to endure, fidelity to constitutional principles must take priority over transient political gains. Schiff’s proposal is a cautionary tale about how easily those principles can be set aside. The proper response is to reject the bill, reaffirm the prohibition on bills of attainder, and hold accountable those who would ignore it. Censure is the minimum that constitutional self respect requires.

If you enjoy my work, please subscribe: https://x.com/amuse.

Sponsored by the John Milton Freedom Foundation, a nonprofit dedicated to helping independent journalists overcome formidable challenges in today’s media landscape and bring crucial stories to you.

READ NEXT: New Lead Prosecutor Appointed In Georgia Election Case Against Trump