Preview: Deciphering The Lawlessness of Trump’s Executive Orders

Summary

Amicus With Dahlia Lithwick | Preview: Deciphering The Lawlessness of Trump’s Executive Orders

Release Date: January 21, 2025
Host: Slate Podcasts
Description: A show about the law and the nine Supreme Court justices who interpret it for the rest of America.

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Introduction and Inauguration Context

In the premiere episode titled "Preview: Deciphering The Lawlessness of Trump’s Executive Orders," Dahlia Lithwick sets the stage by highlighting the tumultuous beginning of Donald Trump’s second term as the 47th President of the United States. Inaugurated on Martin Luther King Day and sworn in by Chief Justice John Roberts, Trump immediately launched a series of executive orders that many critics deem both aggressive and potentially unconstitutional.

Notable Quote:

"Donald Trump... was inaugurated as the 47th President of the United States on Monday, Martin Luther King Day, fittingly sworn into office by Chief Justice John Roberts..."
— Dahlia Lithwick [00:10]

Overview of Trump's Executive Orders

Trump’s first day in office was marked by a flurry of executive orders addressing a wide range of issues. These orders included:

• Repeal of Birthright Citizenship: An attempt to negate the 14th Amendment’s guarantee of citizenship to those born on U.S. soil.
• Mass Pardons: Including pardons for January 6th rioters, some of whom were involved in violent acts.
• Renaming Initiatives: Such as the controversial renaming of the Gulf of Mexico to the Gulf of America.
• Policies on LGBTQ Rights, Asylum, Environment, Immigration, and Federal Employment: These orders often mirrored the strategies outlined in Project 2025’s "Owner's Manual."

Notable Quote:

"Most of these unlawful whims were launched into the world on Monday afternoon in a series of executive orders... This is all but a taste of what is coming next."
— Dahlia Lithwick [00:10]

Dahlia and Mark’s Analysis

Dahlia Lithwick is joined by Mark Joseph Stern, a fellow Slate contributor, to dissect the implications and legality of these executive orders. They emphasize that while executive orders can have significant immediate impacts, they do not alter statutes or the Constitution itself.

Key Points Discussed:

1. Nature and Impact of Executive Orders:

   • Executive orders serve as directives to federal agencies but do not carry the force of law like statutes.
   • Dahlia compares them to "letters to Santa," indicating their discretionary and enforceable nature is limited without legislative backing.

2. Quality and Legality Concerns:

   • Both Dahlia and Mark critique the poor drafting quality of Trump's orders, noting numerous formatting errors and apparent use of generative AI, which compromises their legal robustness.
   • Mark’s Insight:
     "These are really poorly drafted... copy and paste was used. I am convinced that generative AI was used to write some of these orders."
     — Mark Joseph Stern [03:14]

3. Specific Focus on Birthright Citizenship:

   • Trump’s executive order aims to revoke birthright citizenship, a principle firmly rooted in the 14th Amendment and longstanding Supreme Court precedent.
   • Mark argues that this move is not only unconstitutional but also logistically unfeasible, predicting massive legal battles and potential alteration of the constitutional landscape.

Notable Quotes:

"Executive orders do not, in fact, change the law upon signing. They should be treated as letters to Santa..."
— Dahlia Lithwick [02:03]

"Trump... pushed them all through on day one... he's probably thinking, I've got four years to litigate this."
— Mark Joseph Stern [03:14]

Deep Dive into Denying Birthright Citizenship

The conversation delves deeper into Trump’s executive order to deny citizenship to children of immigrants, both undocumented and those legally present without green cards. Mark elaborates on the severity and unprecedented nature of this action.

Key Arguments:

• Constitutional Breach: The 14th Amendment explicitly guarantees birthright citizenship, a provision upheld since 1898. Trump’s attempt to revoke this is seen as a direct attack on constitutional law.
• Practical Implausibility: The logistics of implementing such an order are daunting. It would require the government to verify the immigration status of parents at the time of a child’s birth, leading to invasive and unfeasible procedures.
• Supreme Court’s Role: While the Supreme Court has shown a conservative tilt, the magnitude of this attempt is likely too substantial for it to uphold, potentially leading to a landmark decision reinforcing constitutional protections.

Notable Quotes:

"This was an issue that Congress actually debated when writing the 14th amendment. There was a senator who was himself an immigrant who gave an impassioned floor speech about this."
— Mark Joseph Stern [07:46]

"It is unconstitutional... The whole thing is... grotesque and unworkable."
— Mark Joseph Stern [11:52]

Implications for the Future

Lithwick and Stern discuss the broader implications of Trump’s aggressive use of executive orders. They anticipate ongoing legal challenges and a potential reshaping of the Supreme Court's role in safeguarding constitutional rights. The episode underscores the fragility of established legal precedents in the face of executive overreach.

Notable Quote:

"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."
— Mark Joseph Stern [07:46]

Conclusion and Upcoming Content

The episode concludes with Dahlia promoting additional content available to Slate Plus subscribers, including a forthcoming deep dive featuring expert legal analysis on the legality of Trump’s immigration policies.

Notable Quote:

"We'll be back with your regularly scheduled Amicus episode on Saturday morning with a deep dive on the legality of Trump's ongoing salvo of immigration pronouncements."
— Dahlia Lithwick [11:52]

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Key Takeaways

• Immediate Legislative Actions: Trump’s swift issuance of executive orders aims to implement long-discussed policies, many of which face significant constitutional challenges.
• Legal Fragility: The poor drafting quality of these orders increases the likelihood of them being struck down in courts, serving as both a tactical and strategic move by the administration.
• Supreme Court’s Pivotal Role: The judiciary, particularly the Supreme Court, is expected to play a crucial role in determining the fate of these executive actions, potentially reinforcing or reshaping constitutional norms.
• Ongoing Analysis: Slate Plus subscribers can access in-depth discussions and analyses, providing listeners with comprehensive insights into the evolving legal landscape.

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This episode serves as a critical examination of the intersection between executive power and constitutional law, offering listeners a thorough understanding of the stakes involved in Trump’s policy maneuvers and their potential repercussions on American jurisprudence.

Transcript

[Dahlia Lithwick]

Please raise your right hand and repeat after me. I, Donald John Trump, do solemnly swear.

[Donald Trump]

I, Donald John Trump, do solemnly swear.

[Dahlia Lithwick]

That I will faithfully execute. 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 only 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, 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 J6 oxygen. You'll see a lot of that.

[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. 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 pushed them all through on day one. 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 I'm 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 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 abortion 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. 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 I'll. 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 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 Cass reminded me of, which is the executive order on gender, which we're gonna talk about in a second. Second certainly references your gender as assigned at conception, which is fetal personhood. And I miss that. That conception is the marker of when gender is assigned. 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 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 want to talk about Donald Trump unilaterally 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 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, 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 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 to 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's 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 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 chaos and 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 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. And 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 shoot 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.comamicusplus to get access wherever you listen. We'll be back with your regularly scheduled Amicus episode on Saturday morning 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.