For many Americans, it is essential that the power to make law rests exclusively with Congress and that the authority to interpret the law ultimately rests with the Supreme Court. The most striking message ever Donald TrumpThe president’s executive orders, issued on the first day of his second term, are not merely in the record of controversial immigration or immigration policies. environment. Rather, it is a bold assertion that the president can deal face to face with the other two branches of government to make and interpret the law. The set of executive orders cannot be read as threats and hand-waving; It shows a level of competence, sophistication and planning that was far less evident in the first Trump administration.
The most striking example concerns the constitution and born citizenship. An executive order entitled “Protecting the Meaning and Value of American Citizenship” declares that a child born in the United States to a mother who is in the country illegally (or legally but temporarily) is not a citizen, unless the child’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 was ratified, Congress, in Chinese Exclusion Act In 1882, Chinese immigrants were flatly denied citizenship. United States v. Wong Kim Ark brought before the Supreme Court the question of whether a child born in the United States to Chinese parents who were denied citizenship was nonetheless considered a citizen under the Fourteenth Amendment. The court said yes. We have long held that the Constitution provides for birthright citizenship regardless of the citizenship status of the parents.
Trump’s executive order engages in his own constitutional interpretation, which arguably conflicts with the court’s interpretation. Wong Kim Ark doesn’t mention it, but he describes it accurately Dred Scott vs. Sandford– “The shameful decision” in which the Court interpreted the Constitution to mean that a black man could not be a citizen – as “objectionable” under the Fourteenth Amendment. This portrays the Court as an institution that has made historical mistakes regarding citizenship and need not be trusted as the sole authority regarding the meaning of the Constitution. Trump believes that a person may be born in the United States but is not “subject to its jurisdiction” and therefore not a citizen. It affirms that children born to illegal immigrants are such persons and orders the executive branch not to issue or accept documents recognizing their nationality. (The order only applies to children born at least thirty days after its issuance.)
The ACLU, Lawyers for Civil Rights, and nearly two dozen states immediately filed lawsuits asking several different federal courts to declare the executive order violating the Fourteenth Amendment, citing Wong Kim Arc. In response, the president could claim that he is not directly in conflict with the court, because the case recognized that there are some people born in the United States who are not citizens — for example, a child born to foreign diplomats. Trump’s executive order makes the argument that a child born to illegal immigrants or temporary visitors falls into this category. However, the executive order moves the court forward with a bold constitutional interpretation. The court could react by downplaying the president’s boldness. Or it can accept its diminished status and let the president’s interpretation of the Constitution take over. There is a possibility that the Court, knowing that its popularity and public confidence in it is at historic lows, fears that this president will consider disobeying the Court’s order to issue citizenship documents and choose not to test it.
Trump’s executive order on TikTok faces Congress. The platform is owned by ByteDance, which operates in China and must cooperate with Chinese intelligence and give the Chinese government access to private data. Congress deemed it a threat to national security, and passed a law prohibiting US companies, such as Apple, Google, and Oracle, from distributing, maintaining, or updating TikTok, effectively requiring the social media platform to be shut down. In a constitutional challenge brought by TikTok and its users on the grounds of freedom of expression, the Supreme Court ruled last week that the law did 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 to be confirmed soon, Pam Bondi) not to enforce congressional law for seventy-five days, allowing time for TikTok’s parent company to be sold to an American company — or for Trump to lobby. Congress to repeal or revise the statute.
“I have unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions.” Trump wrote. In fact, he complained that the law, which takes effect the day before he takes office, “interferes with my ability to negotiate a solution to avoid a sudden shutdown of TikTok while addressing national security concerns.” There is no doubt that the president has a unique role in national security, but it is emphasized that “the “Unique constitutional responsibility” because it is so biased, especially in a context in which a national security law that Congress properly passed and now takes effect refuses to enforce. His order goes so far as to say that the Attorney General “shall issue a letter to each service provider stating that there has been no violation of the law and that there is no liability for any conduct” during the relevant period. The factual point here is that as long as the law is not enforced and no liability is imposed for its violation, it is functionally the same as if there had been “no violation” of the law—or even as if there had been no law. If within seventy-five days Trump cannot reach a successful solution, he could extend the period for a few more months or even indefinitely.
This raises questions about whether the president can effectively suspend any laws of Congress he does not like by declaring that he will not enforce them and assuring potential violators that they can move forward because there will be no liability. The president has broad executive discretion, such that the effect of laws passed by Congress can depend entirely on the decisions of the executive branch. One of the president’s unique constitutional responsibilities is his duty “to see to it that the laws are faithfully executed.” President Barack Obama’s Deferred Action on Childhood Arrivals (Dhaka) It was in effect a policy of refraining from enforcing federal immigration laws on deportation against illegal immigrants who arrived as children. This sparked accusations that Obama violated the Constitution’s “take care” clause because… Dhaka This means that immigration law has not been “faithfully implemented.” Similar accusations could be brought against Trump for explicitly declaring that a congressional law will not take effect until he says it will. But again, a court is unlikely to find that his decision not to enforce falls outside the president’s authority, even if the person or entity has standing to sue to enforce the law.
One of Trump’s executive orders refuses to implement a binding federal regulation, in order to fulfill his promise to do so Dismantling the administrative state. Last year, the Biden administration concluded a formal rulemaking process that resulted in a final rule designed to protect civil servants in the executive branch from being fired at will. Trump’s executive order requires the director of the Office of Personnel Management to “rescind all changes made” under that rule to the extent that they impede his administration’s goal of making employees fireable at will. The president has the power to overturn the final rule, but that is a legal process, established by Congress, that usually takes at least months. In the meantime, many of the offending portions of the final rule “shall remain ineffective and without effect,” Trump wrote. A rule that has not yet gone through the repeal process is not actually “ineffective and without effect,” but again, if the executive treats a rule in this way under the President’s orders, it shows that the binding nature of the statutory regulation depends on the President’s decision to implement or ignore it. . This Executive Order goes further and directs the executive branch to potentially violate the regulation to which it is currently bound. The National Treasury Employees Union immediately filed a lawsuit, alleging, among other things, that Trump’s executive order exceeds the president’s authority under congressional law governing the hiring and firing of federal employees.
