On Monday, Donald Trump swore to “preserve, protect, and defend the Constitution of the United States.” Then within minutes he began to undermine it. Like other presidents before, Trump began his term with a blitz of executive orders and unilateral moves. They aim to convey action.
I worked on some executive orders when I served in the first days of Bill Clinton’s White House. Government insiders know that often these are basically press releases, edicts with little real authority. Recall that two days into his term, with grand fanfare, Barack Obama signed an executive order closing the prison at Guantánamo Bay. Last we checked, it’s still open for business.
Trump’s team calls it all “shock and awe.” That requires all of us to be shocked and awed. Instead, let’s take a look at what he’s done — what’s new, what’s surprising, and what’s just noise.
Start with the pardon of the insurrectionists who stormed the Capitol and assaulted law enforcement officers four years ago. This is an appalling act, if not a surprise. (He had the chutzpah to talk about the “J6 hostages,” i.e., convicted criminals, standing in front of relatives of actual hostages held in Gaza.)
Just last week, JD Vance said reassuringly, “If you committed violence on that day, obviously you shouldn’t be pardoned.” Obviously. Yet Trump’s order sprung the leaders of the Proud Boys and Oath Keepers, violent right-wing paramilitary forces, from prison in triumph.
These pardons complete a successful cover-up of one of the biggest crimes in American history — the attempted overturning of an election.
Let’s look at the other executive actions.
One of the most troubling is flatly unconstitutional. Trump signed a decree to end birthright citizenship. That’s the guarantee that if you are born in the United States, you are a citizen. As my colleague Tom Wolf writes, presidents can’t do this. Birthright citizenship is in the Constitution. In fact, a principal purpose of the 14th Amendment was to enshrine it, overturning the notorious Dred Scott decision. The Supreme Court confirmed that it applies to the children of non-U.S. citizens in 1898.
This order was far broader (and sloppier) than expected. It purports to prohibit citizenship at birth not just for the children of undocumented immigrants but to any child born in the United States to a mother who is either unlawfully or temporarily present and a father who is not a U.S. citizen or lawful permanent resident. Among others, this would mean that Nikki Haley and Vivek Ramaswamy would not have become citizens at birth had the order been in effect.
We’re also looking at the other steps taken to crack down on illegal immigration. Plainly, concern about immigration levels was a big issue in the campaign. Indeed, the Biden administration had stanched the flow at the border.
As we’ve described, Trump has pledged to use some antiquated laws to round up and deport noncitizens. These laws (such as the Insurrection Act) give vast power to presidents. And in fact, in his inaugural address, Trump referred to the Alien Enemies Act. That’s the remaining part of the notorious Alien and Sedition Acts — which Thomas Jefferson said reflected a “reign of witches” — and has only been used three times before, most recently to detain Japanese nationals during World War II.
But Trump’s orders go far beyond even these troubling legal bases. He ordered NORTHCOM, the U.S. military command that protects the United States, to develop a military campaign to “repel” the “invasion” resulting from “unlawful mass migration.” As my colleague Liza Goitein notes, the order doesn’t say anything about civil support or mention the Department of Homeland Security. Instead, it relies on the president’s commander-in-chief authority.
This seems to authorize more than help with law enforcement. It seems to authorize the military to go to war on American soil. Will the military, sworn to uphold the law and the Constitution, take the bait?
All of this resembles some of the missteps of the first Trump term. Then, sloppily drafted orders and procedural snafus led courts to step in.
This is a challenge for the courts. By choosing the broadest, least constitutional bases for many of these moves, Trump and his squad seem to be daring the courts, especially the Supreme Court, to act.
And it’s a challenge to all of us, too. Many of these moves are very unpopular. A recent Washington Post poll showed that two-thirds of the public opposed pardons of the January 6 insurrectionists. Only 3 in 10 support changing the Constitution to end birthright citizenship.
Like Presidents Clinton, Bush, Obama, and Biden before him — and in Trump’s own first term — Trump’s party has control of Congress as he assumes office. That doesn’t signal an end to public debate, but the beginning. The voice of the public will matter more than ever.
