The Eighth Amendment of the Bill of Rights addresses the national government’s power in regard to bail. As with many other provisions in this set of the first ten amendments to the Constitution, the declaration regarding bail is one of limitation on the national government’s power rather than a grant of power. “Excessive bail shall not be required,” the amendment commands.
Yet, out of whole cloth, President Donald Trump is out proclaiming he can demand that all local and state courts across America limit their use of a cashless bail that can be less onerous for accused individuals than is cash bail. Indeed, on Monday, Trump signed an executive order that puts in place a mechanism for the United States government to deny distribution of money to state and local governments that allow for cashless bail for a variety of defendants. Cashless bail provides a process by which some accused individuals can be free from incarceration while awaiting trial without having to post cash bail.
This executive order turns the Eighth Amendment bail provision on its head. Instead of protecting against excessive bail, Trump is demanding that a less restrictive form of bail be denied.
The constitutional problem with Trump’s effort to interfere with state and local cashless bail is compounded by the facts that Trump is seeking here to legislate — a power reserved to the Congress in the Constitution — and is seeking to override powers reserved to the states in the Tenth Amendment.
Trump’s action regarding cashless bail is demonstrating that he the type of politician that the Bill of Rights was adopted to protect against — a politician bent on unilaterally increasing government power at the expense of individual rights and states’ rights.
