Trump’s Power Grab
When you’re the president, they let you do it.
IN THE FIRST THREE DAYS OF HIS SECOND TERM, President Donald J. Trump has signed a tsunami of executive orders and proclamations revoking Biden-era policies and forging frighteningly aggressive new ones. They span a range of issues that the Constitution largely puts in the hands of Congress—energy and the climate, immigration, affirmative action, LGBTQ+ rights, police brutality, private prisons, civil servants, terrorism, health, and domestic military deployment—not to mention a reprieve for TikTok, security clearances granted with no vetting, and pardons and commutations for the January 6th convicts and defendants.
It will take weeks to work through the legal and policy implications of all these executive actions. The Trump team’s obvious strategy is to so overwhelm litigants, the media, the public, Congress, and the courts that nobody really has a handle on the entirety of what’s hitting us.
One thing is already clear, though: Trump is blatantly violating established federal law, knowing that there’s nothing anyone can do about it.
Trump is the law now.
If that sounds hyperbolic, let’s take a close look at just two examples. First, Trump’s executive order “Protecting the Meaning and Value of American Citizenship,” which directs that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to children born in the United States without at least one parent who is a citizen. Trump’s order directly undermines the concept of birthright citizenship, which takes the text of the Fourteenth Amendment to mean that almost anyone born on U.S. soil, even to parents who are not themselves citizens, is a citizen.1 The relevant part of the amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” So as long the parents of a child born in the United States are not “subject to the jurisdiction” of some other country, as for instance foreign diplomats would be, the child is a U.S. citizen.
As Philip Jaffa pointed out in The Bulwark yesterday, a prominent intellectual force behind Trump’s opposition to birthright citizenship is John Eastman, the former Trump lawyer and “coup memos” author who is under indictment in Arizona for allegedly participating in a conspiracy to overturn the 2020 election. For the last two decades, Eastman has argued that “the view that mere birth on U.S. soil is sufficient to obtain citizenship is mistaken.” This is because, according to Eastman, “the Constitution requires that those born or naturalized in the United States must in addition be ‘subject to the jurisdiction of the United States,’ and the original meaning of that provision meant complete or sole jurisdiction.” Trump’s executive order posits that kids whose parents were not lawfully in the United States to begin with, or who were here lawfully but only temporarily, are not “subject to the jurisdiction” of the United States so they are not citizens under the Fourteenth Amendment.
So far, twenty-two states have sued the administration challenging this policy, and the ACLU is reportedly preparing a suit as well. People are understandably wondering what the 6–3 Trump-friendly Supreme Court majority might do if it gets the case.
But here’s the thing: The Supreme Court already ruled on this question in 1898 and rejected Eastman’s argument. United States v. Wong Kim Ark involved a man born in San Francisco whose Chinese parents never obtained United States citizenship. Following a trip to China in 1895, he was denied permission to re-enter the United States because Congress had enacted the Chinese Exclusion Acts, which prohibited Chinese people who were not U.S. citizens from entering the country. The Supreme Court found Wong Kim Ark was a “native-born citizen of the United States” whose citizenship was derived from the Fourteenth Amendment, and because of that the Chinese Exclusion Acts did not apply to him. Moreover, his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” so the Fourteenth Amendment’s language on “subject to the jurisdiction thereof” did not apply.
Eastman believes that the Supreme Court decided Wong Kim Ark erroneously. (He repeated this claim as recently as yesterday.) And while there is nothing wrong with believing a judicial precedent is mistaken, such beliefs have to be argued out. To act as if the precedents don’t exist is to ignore the rule of law. And that’s what Trump did: On his first day back in office, he signed an executive order directing employees of the U.S. government to act in plain violation of the Constitution and established Supreme Court precedent.
Thanks to a feckless Congress and an enabling Supreme Court majority, there’s no one and nothing to stop him now. What’s a lower court to do? Issue an order stating, There’s no legal question for me to actually decide here because it has been settled for over a hundred years, Mr. President, but please, sir, will you respect and abide by the highest law of the land? The implications for the people this will affect are grim—especially the babies born with uncertain citizenship status—and the implications for our constitutional system are troubling in the extreme.
NEXT CONSIDER TRUMP’S ORDER entitled “Application of Protecting Americans from Foreign Adversary Controlled Applications to TikTok.” Just six days ago, the U.S. Supreme Court unanimously held that the legislation referenced in this order—the Protecting Americans from Foreign Adversary Controlled Applications Act—is constitutional. Meaning it is the binding law of the land. Due to national security concerns, the statute required TikTok to divest of its ownership by a Chinese-owned parent company, ByteDance, before January 19, 2025. Platforms that host the TikTok app after that date are subject to hefty fines. The statute gives the president the authority to grant a one-time extension beyond that date if, as the Court explained, he “makes certain certifications to Congress regarding progress toward a qualified divestiture.”
In Trump’s order, he makes none of the certifications Congress laid out for purposes of triggering the narrow exception to the law. Instead, he simply directs his attorney general not to enforce the statute because its timing “interferes with my ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect. This timing also interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.” He goes on to order the attorney general “to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct” for 75 days to allow him “to determine the appropriate course of action.”
This is breathtaking.
Not only does Trump direct his attorney general to ignore federal law upheld by the U.S. Supreme Court, thereby overriding the prerogative of Congress to enact legislation that says what the law is under Article I of the Constitution, but he simultaneously acts as a judge in a hypothetical legal challenge against app providers (such as Google) who host the TikTok app despite the lack of divestiture, declaring that they have not violated any law.
In more “normal” times, Trump might have directed his attorney general to decline to execute the law. That arguably would fall within the president’s prerogative; although a blanket refusal to enforce a statute might meet a federal judge’s ire, there is at least a coherent argument to be made that a decision not to execute the law is constitutional.
This time, Trump came out of the gate declaring himself above Congress and the Supreme Court. It’s clear from this and his other executive orders that he and his team feel sure there are zero remaining guardrails or levers of accountability anywhere within our system of government. By the time any holdouts for the rule of law catch up to him, it will be way too late.
As the saying goes, when people show you who they are, believe them.
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