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.
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:
-
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.
-
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]
-
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]
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.
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.