With Harvard - Trump Can Violate The Constitution

WASHINGTON - April 16, 2025 - PRLog -- The editorial board of the Wall Street Journal, normally friendly towards Trump, is concerned that much of what he is hoping to achieve at Harvard would violate the Constitution.
Donald Trump Tries to Run Harvard * *  Many of his demands on the school exceed his power under the Constitution (https://www.wsj.com/opinion/donald-trump-harvard-funding-conditions-constitution-congress-c26040f8?mod=hp_opin_pos_1)

But that's exactly what effective litigation can do and has done in the past, notes public interest law professor John Banzhaf, who has used litigation to achieve goalswhich would have been unconstitutional if contained in legislation and signed by the president.

For example, after Banzhaf obtained an order from the FCC which required broadcasters to provide hundreds of millions of dollars worth of free time for anti-smoking commercials, the ruling was challenged by both the tobacco and broadcasting industries as unconstitutional.

Although recognizing that "this argument has considerable force," the U.S. Court of Appeals upheld the ruling, in part because it had resulted from agency litigation, and was not an attempt by Congress to legislate in the area of Free Speech.
Banzhaf v. F.C.C., 405 F.2d 1082 (DC Cir. 1968) (https://law.justia.com/cases/federal/appellate-courts/F2/...).

Later, when the deluge of antismoking messages had caused the first major decline ever in cigarette consumption, the tobacco industry begged Congress to ban cigarette commercials so that broadcasters would not longer have to provide free time for the messages.

Congress did as the tobacco industry had requested, but the legislation was challenged as unconstitutional by the broadcasting industry because its companies lost the enormous revenue from cigarette commercials.

But the U.S. Court of Appeals, following the arguments in Banzhaf's brief amicus curiae, upheld the ban because Banzhaf's ruling had forced cigarette makers to request it; otherwise it almost certainly would have been declared unconstitutional.
Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (3-judge, DC 1971), aff'd 405 U.S. 1000 (1972) (https://law.justia.com/cases/federal/district-courts/FSup...)
See generally, The Man Behind the Ban on Cigarette Commercials, Reader's Digest, March, 1971 (http://www.google.com/url?esrc=s&q=&rct=j&sa=U&url=http://banzhaf.net/about/ManBehindTheBanReaders%2520Digest.pdf&ved=2ahUKEwijgqTi0NyMAxX5RTABHcqYHw8QFnoECAEQAg&usg=AOvVaw2r152kV7Oc4My3L9BAQnHZ)

Finally, it what may be the best example of how litigation can achieve goals which could not possibly be achieved by governmental action because of constitutional restrictions, Banzhaf was able to help obtain bans on cigarette advertising on billboards, and the use of cartoon characters in any tobacco ads - results which certainly would have been declared unconstitutional if enacted into legislation.

For this he has been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."

So, cautions Banzhaf, while the Trump administration almost certainly cannot require Harvard to take many of the actions it seeks by legislation, it might be able to achieve them indirectly.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf