Preview: Deciphering The Lawlessness of Trump’s Executive Orders

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Preview: Deciphering The Lawlessness of Trump’s Executive Orders
Date: January 21, 2025
Host: Dahlia Lithwick
Guest: Mark Joseph Stern

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Main Theme

This episode offers an urgent preview of Donald Trump’s initial wave of executive orders as the newly inaugurated 47th president. Dahlia Lithwick and Mark Joseph Stern discuss not just the content and contours of these controversial orders, but also their legal standing and potential impact. The conversation explores the unlawful—and often chaotic—nature of these orders, Trump’s approach to executive power, and the constitutional challenges ahead, particularly around immigration, LGBTQ rights, and birthright citizenship.

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Key Discussion Points & Insights

1. Trump's Inauguration & Immediate Actions

• Setting: Trump is inaugurated on Martin Luther King Jr. Day by Chief Justice John Roberts, noted for his influential role in setting the stage for this administration ([00:13]).
• Tone: Lithwick characterizes the moment as “a match made…in the very belly of American carnage,” hinting at the grim road ahead ([00:13]).
• Action: On his very first day, Trump issues a slew of executive orders, many unprecedented in terms of scope and legality. Among them:
  • Repeal of birthright citizenship
  • Mass pardons and commutations for January 6th rioters
  • Renaming the Gulf of Mexico
  • Attacks on rights of LGBTQ individuals, asylum policies, environmental protections, and the federal workforce
• Source Material: Many executive orders are lifted from Project 2025—a controversial conservative playbook ([00:56]).

2. The Limitations and Nature of Executive Orders

• Lithwick’s Caveat:
  • Executive orders don’t change statutes or the Constitution. They’re “letters to Santa,” particularly when “drafted by bad lawyers doing bad law” ([02:22]).
  • Many of Trump’s orders are poorly drafted, filled with “formatting errors and typos,” suggesting they may not stand up in court, possibly written with the help of generative AI ([03:33]).

3. The Legal Chaos and Strategy

• Stern’s View: Trump attempts to frontload the most egregious policies, leveraging the time it takes for litigation with the hope some policies will stick ([03:14]).
• Noteworthy Absence: No day-one executive order specifically attacking abortion or reproductive rights, despite the rollback of Biden policies and reinstatement of the Mexico City policy ([04:26]).
  • Stern notes this is “surprising,” speculates it may be a tactical delay rather than a shift in priorities ([05:25]).

4. Subtle Moves on Gender and Reproductive Rights

• Lithwick’s Addendum: An overlooked executive order refers to gender as “assigned at conception,” a nod to fetal personhood, embedding anti–reproductive rights language even when not overt ([06:27]).
• The hosts predict further erosion of reproductive rights down the line, even if not immediate.

5. Attack on Birthright Citizenship

• The Executive Order: Trump’s order (effective in 30 days) instructs the government to deny citizenship to children born on U.S. soil to a wide range of immigrant parents, including lawful visa holders and those with temporary protected status ([07:46]).
• Legal and Practical Impossibility:
  • Direct contradiction to both the 14th Amendment and centuries of precedent:

    “The very first sentence of the 14th Amendment guarantees birthright citizenship. We fought a civil war over this. The Supreme Court has affirmed birthright citizenship for the children of immigrants since 1898. This is deeply established in precedent.”
    — Mark Joseph Stern ([08:35])

  • Implementation raises nightmarish logistical and ethical issues:

    “Would the government start sending agents to hospitals to interrogate new parents and to detain their newborns until it's proved that they can establish citizenship? The whole thing is, is.. is grotesque and unworkable.”
    — Mark Joseph Stern ([10:32])

  • Even a conservative Supreme Court would struggle to legitimize such a radical upheaval:

    “It would be probably the single largest jolt to the constitutional order that we've ever experienced.” — Mark Joseph Stern ([09:31])

6. Supreme Court’s Prospective Stance

• The hosts predict a lopsided rejection of the birthright citizenship order by the Court, framing it as a chance for the justices to avoid being seen as complete Trump loyalists ([11:35]).

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Notable Quotes & Memorable Moments

• “They should be treated as letters to Santa. Especially when, as Mark and I pointed out in the first Trump era, they are just drafted by bad lawyers doing bad law.”
  — Dahlia Lithwick ([02:21])

• “There are formatting errors and typos...I am convinced that generative AI was used to write some of these orders, including the one renaming the Gulf of Mexico to the Gulf of America, which has this bizarro word salad about the beauty of the Gulf that I think came straight from a robot.”
  — Mark Joseph Stern ([03:33])

• “It is hard to think of more settled law than birthright citizenship, and yet Trump is trying to abolish it.”
  — Mark Joseph Stern ([09:15])

• “If that goes out the window, it is really unclear how almost anyone can prove their citizenship. And it's super unclear how this particular order would be implemented.”
  — Mark Joseph Stern ([10:23])

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Important Segment Timestamps

• 00:13 — Introduction to Trump’s inauguration and context of the executive orders
• 02:21 — Lithwick’s “letters to Santa” analogy and the limits of executive orders
• 03:33 — Stern on the poor quality and possible AI origin of the orders
• 04:26 — Absence of a day-one abortion order and Trump’s approach to reproductive rights
• 06:10 — Language shifts toward fetal personhood in gender-related orders
• 07:46 — Discussion of the birthright citizenship executive order and its sweeping effects
• 09:15 — Constitutional grounding and practical impossibility of revoking birthright citizenship
• 11:35 — Likely Supreme Court response and implications for constitutional order

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Tone & Closing Thoughts

The episode is deeply analytical with a sense of urgency and frustration. Both Lithwick and Stern blend wry humor (“letters to Santa,” “word salad from a robot”) with grave warnings about the reach and recklessness of Trump’s opening acts. They caution listeners against panic but underscore how the orders—however sloppily drafted—herald fierce legal and constitutional battles, likely returning the Supreme Court to center stage.

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For further legal deep-dives, Slate Plus members can access the full bonus episode schedule. The next main episode will take a close look at the legality of Trump’s immigration orders.

Transcript

[Donald Trump]

Please raise your right hand and repeat after me.

[Mark Joseph Stern]

I, Donald John Trump, do solemnly swear.

[Donald Trump]

I, Donald John Trump, do solemnly swear.

[Mark Joseph Stern]

That I will faithfully execute.

[Dahlia Lithwick]

Donald Trump was inaugurated as 47th President of the United States on Monday, Martin Luther King Day, fittingly sworn into office by Chief Justice John Roberts, who did as much to ensure that this would happen as almost anyone in government. Also fittingly, John Roberts will spend the next four years of his life deciding which of Trump's cruel and probably unlawful whims will be constitutional and which will not. It's a match made, some might say, in the very belly of American carnage. Many of these unlawful whims were launched into the world on Monday afternoon in a series of executive orders. Some were long promised and expected the presidential repeal appeal of birthright citizenship. Some were unpopular, yet still executed. Mass pardons and commutations of January 6th rioters, including those who committed truly heinous acts of violence. Some were just stupid, like renaming the Gulf of Mexico. And many related to LGBTQ rights, asylum, the environment, immigration, career government employees were vicious. Most were lifted directly from the pages of Project 2025, the Owner's Manual. This is all but a taste of what is coming next.

[Donald Trump]

The scales of justice will be rebalanced. The vicious, violent, and unfair weaponization of the Justice Department and our government will end. But you'll be happy because you know, it's action, not words, that count. And you're going to see a lot of action on the J6R series. See a lot of action.

[Dahlia Lithwick]

I'm Dahlia Lithwick. I cover the Supreme Court and the law at Slate and Mark Joseph Stern, my ride or die on this increasingly dark beat is here with me for an extra bonus episode of Amicus for our Slate plus subscribers to discuss the what of these executive orders and perhaps more urgently, the how of whether they can be lawfully put into practice. And I want to open with a caveat that executive orders do not, in fact, change the law upon signing. They do not change statutes. They don't change the Constitution. They should be treated as letters to Santa. Especially when, as Mark and I pointed out in the first Trump era, they are just drafted by bad lawyers doing bad law. My second caveat, we are not going to get to all of them in the next half hour, but we're going to try to get our arms around at least some of them and the big themes. So, Mark Joseph Stern, welcome back. Uh, I know you've been reading the badly drafted bad lawyered executive orders. That's my just initial sense of the thing is, like, not time to panic just yet.

[Mark Joseph Stern]

I don't believe in panicking as a general rule. I do think that what happened on Monday was abominable and horrific. What Trump has tried to do out of the gate here is gather up most of his worst, cruelest, most sadistic and unlawful policies from the first administration and push them all through on day one. Um, you know, there are issues here, like the politicization of the federal workforce that he only really got to at the end of his last term, and now it's a day one priority. And so I think it is very clear that Trump isn't wasting any time trying to get his nastiest, again, most egregiously unlawful policies off the ground. And he's probably thinking, I've got four years to litigate this. I might win some, I might lose some, but going to get some of these through. And that's terrifying. I'll just add two footnotes. One, I agree with you that these are really poorly drafted. There are formatting errors and typos that repeat over and over throughout different orders which reveal that copy and paste was used. I am convinced that generative AI was used to write some of these orders, including the one renaming the Gulf of Mexico to the Gulf of America, which has this bizarro word salad about the beauty of the Gulf that I think came straight from a robot. And I think they're really poorly lawyered on the whole. There are declarations of law that are false that are wrong. I mean, as we'll discuss, the birthright citizenship executive order doesn't even really attempt to explain why Trump has the power to end birthright citizenship. And I think, overall, it's a good thing that they're poorly lawyered, because they will fare worse in court. Um, the second thing I'll note is this is really surprising. There was no executive order specifically targeting abortions or reproductive rights. Yes, Trump immediately took down the reproductive rights page from the White House website. Yes, he is going to reinstate the Mexico City policy that restricts reproductive freedom around the world. Yes, he is rescinding a bunch of Biden policies that had attempted to expand access to reproductive rights despite the end of Roe v. Wade. But there's no order that immediately tries to say, take medication abortion off the market or restrict access to medication abortion, or go after abortion providers under the Comstock Act. And all of that could still come. I don't want to create a false sense of security, but it was not a day one priority to the extent that I thought it would be. So I think there's one area where Trump is still a little bit afraid to poke the bear again. I think all that could be coming. I think his appointees will be very hard, right. And push some of that stuff. But I do think it's notable at this early date that it wasn't one of these first orders straight out the gate.

[Dahlia Lithwick]

One footnote that I actually didn't clock reading his. It's a footnote to your two footnotes because we are lawyers. Boom. That I didn't clock. But friend of this show, friend of Slate, Dr. Derek Kass reminded me of, which is the executive order on gender, which we're gonna talk about in a second, certainly references your gender as assigned at conception, which is fetal personhood. And I miss that. That conception is the marker. Gender is a sign. Maybe that's too subtle and too clever, but it does feel as though the more we pick over these, the more we're gonna find the language of anti reproductive rights, even if, as you say, we don't have, you know, shot across the bow. The cynic in me says that's already been achieved in so many ways and will continue to be achieved. You know, he's got the courts on that. And so maybe it waits for another day. I do know, Mark, that you wanna talk about Donald Trump unilateral announcing that he gets to just end birthright citizenship as guaranteed kind of explicitly in the 14th Amendment. And I want to just note for listeners, we've actually avoided spending a lot of time on this show in the last year or so on this question of can the president just revoke the Constitution because it felt like it was in the bucket of, oh, hell no. And so we didn't talk about it, but he certainly made it clear on Monday that he is going to try.

[Mark Joseph Stern]

Yes, he has issued an executive order that kicks in 30 days from Monday that directs the federal government to deny citizenship to the children of many, many immigrants. Not only undocumented immigrants, but also immigrants who are lawfully present but do not yet have a green card, including visa holders, many of whom have lived here for years and are still waiting in the green card lottery, and arguably including dreamers, people who have DACA status, although, again, this is worded so poorly and confusingly that that's not totally clear. Including people who have temporary protected status, who, as of this moment, are living here lawfully. This goes, again, far beyond what Trump had previewed on the campaign trail. And the idea is that starting in a month, these newborns who are born on American soil to people who are in the United States, including, again, many people who are here legally. They will be denied citizenship, subject deportation back to a country that they have literally never stepped foot in. So, as you said, this is unconstitutional. The very first sentence of the 14th Amendment guarantees birthright citizenship. We fought a civil war over this. The Supreme Court has affirmed birthright citizenship for the children of immigrants since 1898. This is deeply established in precedent. This was an issue that Congress actually debated when writing the 14th amendment. There is a kind of meme on the right, this misinformation that this clause was only about granting citizenship to newly freed slaves after the Civil War. That is not true. Congress expressly considered whether they should grant birthright citizenship to the children of immigrants and decided yes. There was a senator who was himself an immigrant who gave an impassioned floor speech about this during the ratification debates over the 14th amendment. It is hard to think of more settled law than birthright citizenship, and yet Trump is trying to abolish it. I do not think this will work, and I want to be clear that that's not because I have unwavering faith in the Supreme Court. Obviously, the Supreme Court is very conservative and has previously contorted the law to benefit Donald Trump. But this is in a different league, and I would even venture to say unique. This is such a fundamental guarantee at the heart of our constitutional order. It's an. It's an ancient liberty. It actually predates the 14th Amendment. It was rooted in an English common law predates the founding of this nation. And for the Supreme Court to just upend it, it would be probably the single largest jolt to the constitutional order that we've ever experienced. It would be a shattering blow to precedent that would also throw many, many people's lives into cha. Disorder and uncertainty. I mean, the only reason that most of us even have citizenship in America is because we were born here. We rely on our birth certificates to establish our citizenship. If that goes out the window, it is really unclear how almost anyone can prove their citizenship. And it's super unclear how this particular order would be implemented. I mean, would the government have to start investigating every newborn's parents? It's not like our birth certificates state our parents immigration status. Would the government start sending agents to hospitals to interrogate new parents and to detain their newborns until it's proved that they can establish citizenship? The whole thing is, is. Is grotesque and unworkable. And I think if it were allowed to be implemented, all of these questions would go to the Supreme Court. And it would spend the next 50 years answering exactly how birthright citizenship could be uprooted. I don't think the justices want to do that, and I think this is an easy early win for the justices to say we're not going to be a rubber stamp for Trump. And this down by a lopsided vote.

[Dahlia Lithwick]

Slate plus members can access my conversation with Mark Stern in full right now. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicus+ to get access wherever you listen. We'll be back with your regularly scheduled Amicus episode on Saturday morning with With a deep dive on the legality of Trump's ongoing salvo of immigration pronouncements, we're going to be talking to one of the very most knowledgeable lawyers on the subject and digging through the shock and the awe to find the substance and the harms.