To many Americans, it is foundational that the power to make law lies exclusively with Congress and the power to interpret law ultimately rests with the Supreme Court. The most striking over-all message of Donald Trump’s executive orders, issued on the first day of his second term, is not merely in the register of controversial policies on immigration or the environment. It is, rather, a bold assertion that the President can go toe to toe with the other two branches of government to make and interpret law. The batch of executive orders does not read as bluster and hand-waving; it shows a level of competence, sophistication, and planning that was far less evident in Trump’s first Administration.
The most eye-popping example concerns the Constitution and birthright citizenship. An executive order, titled “Protecting the Meaning and Value of American Citizenship,” declares that a baby born in the United States to a mother who is in the country unlawfully (or lawfully but temporarily) is not a citizen, unless the baby’s father is a citizen or permanent resident at the time. The Fourteenth Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Several years after the amendment’s ratification, Congress, in the Chinese Exclusion Act of 1882, categorically denied Chinese immigrants eligibility for citizenship. The case of United States v. Wong Kim Ark presented the Supreme Court with the question of whether a child born in the U.S. to Chinese parents who were barred from citizenship was nevertheless a citizen under the Fourteenth Amendment. The Court said yes. We have long taken for granted that the Constitution provides for birthright citizenship without regard to the parents’ citizenship status.
Trump’s executive order engages in his own constitutional interpretation that is arguably in conflict with the Court’s. His order does not mention Wong Kim Ark, but it does accurately describe Dred Scott v. Sandford—the “shameful decision” in which the Court interpreted the Constitution to mean that a Black man could not be a citizen—as having been “repudiated” by the Fourteenth Amendment. That portrays the Court as an institution that has made historic mistakes on citizenship and need not be trusted as the sole authority on the meaning of the Constitution. Trump reasons that a person may be born in the U.S. but not be “subject to the jurisdiction thereof” and therefore not be a citizen. He asserts that children born to unlawful immigrants are such people and orders the executive branch not to issue or accept documents recognizing their citizenship. (The order applies only to children born at least thirty days after it was issued.)
The American Civil Liberties Union, Lawyers for Civil Rights, and nearly two dozen states immediately filed lawsuits asking several different federal courts to declare the executive order in violation of the Fourteenth Amendment, citing Wong Kim Ark. In response, the President could claim that he is not directly contravening the Court, because the case acknowledged that there are some persons who are both born in the U.S. and not citizens—for example, a child born to foreign diplomats. Trump’s executive order sets up the argument that a child born to unlawful immigrants or temporary visitors is in that category. Nevertheless, the executive order is pushing ahead of the Court with a bold constitutional interpretation. The Court could react by smacking down the President’s audacity. Or it could accept its own diminished status and let the President’s constitutional interpretation carry the day. There is some chance that the Court, which knows that its popularity and public trust are at historic lows, will fear that this President might contemplate disobeying a court’s order to issue citizenship documents, and choose not to test him.
Trump’s executive order on TikTok takes on Congress. The platform is owned by ByteDance, which operates in China and must coöperate with Chinese intelligence and give the Chinese government access to private data. Congress deemed it a threat to national security, and passed a statute that prohibits U.S. companies, such as Apple, Google, and Oracle, from distributing, maintaining, or updating TikTok—effectively requiring that the social-media platform be shut down. In a constitutional challenge brought by TikTok and its users on free-speech grounds, the Supreme Court ruled last week that the statute does not violate the First Amendment, and the law went into effect the day before Trump’s Inauguration. In his executive order, Trump instructed his Attorney General (likely the soon to be confirmed Pam Bondi) not to enforce Congress’s statute for seventy-five days, creating time for TikTok’s parent company to be sold to a U.S. company—or for Trump to pressure Congress to repeal or revise its statute.
“I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions,” Trump wrote. Indeed, he complained that the statute going into effect the day before he took office “interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.” There is no doubt that the President has a unique role in national security, but the assertion that he has “the unique constitutional responsibility” for it is highly tendentious, especially in a context in which he is refusing to enforce a national-security law that was validly enacted by Congress and is in effect. His order goes so far as to say the Attorney General will “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” during the relevant period. The realist point here is that, so long as a law will not be enforced and no liability will be imposed for violating it, it is functionally the same as if “there has been no violation” of the law—or even as if there is no law. If in seventy-five days Trump hasn’t been able to bring about a successful resolution, he could extend the period for another few months or even indefinitely.
This raises the question of whether the President could practically suspend any congressional statutes that are not to his liking by announcing that he won’t enforce them and assuring potential violators that they can go ahead because there will be no liability. The President has vast enforcement discretion, such that the effect of laws passed by Congress can depend entirely on executive-branch decisions. One constitutional responsibility that is unique to the President is his duty to “take care that the laws be faithfully executed.” President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) was actually a policy to refrain from enforcing federal immigration statutes on deportation against undocumented immigrants who arrived as children. That provoked allegations that Obama violated the “take care” clause of the Constitution, because DACA meant that immigration law was not being “faithfully executed.” Similar charges could be levelled at Trump for baldly declaring that a congressional law won’t be in force until he says it will. But again, it is unlikely that a court would find that his non-enforcement decision lies outside the President’s authority, even if a person or entity had standing to sue to enforce the law.
One of Trump’s executive orders refuses to enforce a binding federal regulation, in order to fulfill his promise to dismantle the administrative state. Last year, the Biden Administration concluded a formal rule-making process that resulted in a final rule designed to protect civil-service employees in the executive branch from at-will firing. Trump’s executive order tells the director of the Office of Personnel Management to “rescind all changes made” by that rule to the extent that it impedes his Administration’s goal of making employees fireable at will. The President does have the prerogative to rescind a final rule, but that is a legal process, laid out by Congress, that usually takes months, at a minimum. Trump wrote that in the meantime, several offending parts of the final rule “shall be held inoperative and without effect.” A rule that has not yet gone through the rescinding process is not actually “inoperative and without effect,” but, again, if the executive branch treats a rule that way under the President’s orders, it demonstrates that the binding nature of a legal regulation depends on the President’s decision to enforce or ignore it. This executive order goes even further and directs the executive branch to potentially violate a regulation by which it is currently bound. The National Treasury Employees Union immediately filed suit—claiming, among other things, that Trump’s executive order exceeds the President’s authority under the congressional statute that governs the hiring and firing of federal employees.
