The Free Press
Donald Trump had a busy first day. There was the ceremony and the speech and the parade and the parties, parties, parties. And the signatures—so many signatures. The president signed executive orders onstage at his inaugural parade Monday afternoon. He signed them while taking questions from the press in the Oval Office Monday evening. He signed almost 50 official documents on Monday, nearly triple the 14 he signed in his first week in 2017. Joe Biden signed a paltry 15 on his first day in office four years ago.
Trump’s assorted executive orders and proclamations dealt with everything from flying flags at full-staff on Inauguration Day to hiring practices in the federal government to TikTok’s continued operation in the U.S. By far the two most controversial, though, were his mass pardon of almost everyone convicted of crimes during the Capitol riot on January 6, 2021 (read our editorial on that here), and an executive order to end birthright citizenship.
The latter claims that the 14th Amendment, which was ratified in 1868, does not automatically extend citizenship to anyone born in the United States. Rather, it denies automatic citizenship to those whose mothers were not in the United States legally and whose fathers are not U.S. citizens or lawful permanent residents, or whose mothers were in the country legally but temporarily and whose fathers are not Americans or lawful permanent residents. It bars federal agencies from recognizing the citizenship of people in these categories. The ACLU and 22 states have already sued to block it.
Could Trump really overturn such a long-standing legal norm with the stroke of a pen? And what exactly is the legal status of TikTok right now? In search of clarity to these questions and others on the Trump executive orders, I dropped a line to Yale Law School professor and constitutional expert Jed Rubenfeld. Here’s what he told me.
Let’s start with the basics. What exactly is an executive order, and have presidents always had that power?
An executive order is a formal published document with the force of law. Basically, the president is issuing an order to someone he has the power to give an order to—for example, to federal agency heads, or to the head of a department like the attorney general. They are totally proper—there’s nothing wrong or suspect about them. The first executive order was issued in 1789 by George Washington.
Has the use of executive orders changed over time? Have modern presidents strayed too far from their intended use?
Here’s the key to understanding executive orders. The president cannot issue an executive order unless he is exercising either a power he has directly under the Constitution or a power that Congress has given him by statute. The president can’t just make brand-new law through an executive order or violate an existing, valid statute. Except in very unusual cases, executive orders have to work within existing statutes. And while it may feel like their use is expanding, I don’t know if that’s true, at least in recent administrations. Reagan signed 381 executive orders, Clinton 364, Obama 276, Trump 220 in his first term, Biden about 160. In his second term, Trump may issue a lot more executive orders, but FDR holds the record: He signed over 3,000. The federal bureaucracy is so huge that the only way a president can manage it at all nowadays is through executive orders.
Trump signed an executive order yesterday that declared that the U.S. Constitution’s 14th Amendment does not apply to the children of illegal immigrants or people in the United States on a student, work, or tourist visa. In short, he purported to end birthright citizenship in America with the stroke of a pen. Can he really do that?
I think Trump issued some great day-one executive orders, but you’ve identified the most constitutionally suspect one. The 14th Amendment guarantees birthright citizenship—a tremendously important principle—and of course the president cannot change the Constitution. But the 14th Amendment does not actually grant citizenship to all children born here. There’s an exception. People born here but not “subject to the jurisdiction” of the United States are not automatically citizens. An example: Foreign diplomats are not considered to be subject to U.S. jurisdiction, so their children do not get citizenship just by being born in the U.S. That’s the clause that creates an argument here.
Some claim that illegal aliens are not subject to U.S. jurisdiction, and this argument is not totally crazy—or at least not as crazy as its opponents sometimes suggest. But as far back as 1898, the Supreme Court held that birthright citizenship extended to the children of foreign nationals born on U.S. soil. It’s true that the 1898 case did not involve illegal alien parents, but it has long been accepted that the children of illegal aliens are constitutionally included in birthright citizenship, and the Supreme Court has never qualified or limited what it said in 1898.
Verdict: This executive order is likely to be struck down.
In another executive order, Trump suspended the TikTok ban by 75 days. Can he do that, given that it appears to override legislation? What is the legal status of TikTok in the United States right now?
The president is constitutionally required to “take care” that federal statutes are “faithfully executed,” so you can see why people might be upset about this one. But the thing to know here is that the TikTok ban statute makes federal prosecution its primary enforcement mechanism, and it’s well established that presidents have the power of “prosecutorial discretion”—meaning the power to decline to prosecute. That can give presidents a lot of leeway not to enforce statutes. That’s what Trump’s TikTok executive order does: It directs the attorney general not to enforce the ban.
Verdict: This executive order will hold up and permit TikTok to continue to operate for at least 75 days.
In another order, Trump called for the elimination of government diversity programs and the end of DEI in federal agencies. As written, will this order really change how the government works? Or is this a superficial bit of politicking?
This order will have very substantial effects. DEI programs proliferated like weeds throughout the federal government during the last four years under directions from Biden’s executive orders. Some have been incredibly expensive. The Biden-era DEI initiatives at [the Department of] Health and Human Services alone are estimated to have cost taxpayers hundreds of millions of dollars. This executive order might also reach racial preferences in admissions at the military academies, and it also applies to so-called “climate justice” programs. This executive order is very significant.
One executive order signed by Trump promises to “end the weaponization of the federal government.” But it seems light on specifics. Tell me: Do you think it will make a real difference?
For now, this executive order is mostly about investigating and information-gathering. It calls on various agencies to look back on the last four years and identify actions that improperly targeted political opponents, and then to report on those actions and recommend remedies. Notably, this order is specifically and only directed at “past” acts of “weaponization”—i.e., actions taken during the Biden administration.
Trump went much further than many, including J.D. Vance, had suggested he would, by pardoning basically everyone convicted of crimes relating to the January 6, 2021, riot at the Capitol. Whatever the legitimate political and ethical objections to the move, am I right in thinking there is no doubt about Trump’s authority to issue these pardons?
You’re right. The presidential pardon power is extremely broad, and these pardons fall right in the core in that they are pardons given for specific crimes and acts. Biden’s preemptive pardons—immunizing Fauci and Biden’s son Hunter, and others, for all kinds of crimes they may have committed over long periods of time—are much more unusual. No Supreme Court case upholds that kind of broad, preemptive pardon, but I think they too would very likely be found valid if a court ever had to decide.
By issuing sweeping pardons for his political supporters, including for acts of violence against law enforcement, has Trump undermined his promise to end the weaponization of justice and separate politics from the law?
That’s going to depend a lot on your view of January 6 and the January 6 prosecutions. Trump supporters see the January 6 prosecutions as lawfare—as improper, selective, overcharged, politically motivated prosecutions that are themselves examples of weaponization. From that point of view, the pardons are not special gifts for Trump’s political supporters. They are a vindication of Trump’s promise to undo the weaponization of the criminal justice system engaged in by Biden’s Department of Justice. I have to say that given the prosecutions Trump himself faced—with their novel, often contorted legal theories and their pretty massive constitutional problems—it’s a little hard to take seriously Democrats who, throughout the campaign, were bashing Trump for supposedly getting ready to prosecute political opponents.
In any event, you have to remember that prosecuting political opponents—and particularly the leading presidential candidate from the other party—is a much graver threat to democracy, a much more dangerous use of criminal justice, than pardoning. That goes for Biden’s pardons too. I’m against Biden’s midnight pardons to his allies and family, but they are not nearly as dangerous as was the misguided lawfare directed against Trump.
Donald Trump, just sworn in as the 47th president, was reelected to be a wrecking ball to the Beltway elites. And while this populist moment feels unprecedented, host of our new show Breaking History Eli Lake says it’s not—the rebuke of the ruling class is encoded in our nation’s DNA. Listen to the first episode below or wherever you get your podcasts.