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

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.

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]).

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])

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

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.

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.