Tag Archives: Executive Orders

The Constitution And The Court

When Trump first began issuing his blatantly unconstitutional Executive Orders, Women4Change Indiana–recognizing that simply labeling an Order unconstitutional lacked substance– asked me to draft “quick and dirty” explanations of why these Orders deserved that label. I agreed, and proceeded to offer brief explanations I titled “Your Constitutional Minute” which the organization posted to its website.

As we hurtle into even more uncharted waters–as we discover that our rogue Supreme Court is far less interested in protecting our constitutional liberties than either their predecessor or the lower courts–I thought it might be useful to share some of those posts, so that readers might draw their own conclusions about the increasingly dangerous legal territory we inhabit.

Let’s just look at the first of those “Constitutional Minutes.”

Section One of the 14th Amendment reads as follows:                

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Donald Trump’s Executive Order, in pertinent part, reads:               

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The Law:

A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.

Every statement in that brief explanation is accurate. Thus far, they all remain accurate. But the Supreme Court just undermined the application of the constitutional language–not by ruling that it doesn’t apply, but by issuing a ruling that will make it more difficult for people to claim its protection.

The Court did not rule on the merits of Trump’s effort to undermine the clear language of the 14th Amendment. Instead, the majority addressed a procedural question: whether lower federal courts have the authority under the Judiciary Act of 1789 to issue nationwide injunctions. Injunctions are judicial orders that block government actions, and nation-wide injunctions block such actions against everyone, not just the plaintiffs. In other words, if a court finds a government action to be unconstitutional, a national injunction prohibits the government from taking that action anywhere–not just in the state or circuit in which the case arose.

By a 6–3 vote, the Court—led by Justice Amy Coney Barrett—held that district courts generally lack the power to grant nationwide injunctions if that relief is broader than necessary to provide “complete relief” to the plaintiffs who brought the case. The Court granted the government’s request for a partial stay of the nationwide injunctions against Trump’s clearly improper birthright-citizenship Executive Order—although “only insofar as the injunctions exceeded the scope” needed to grant relief to the plaintiff in the lawsuit.

Confused? It was intentional.

Basically, the Court declined to agree that Trump could change the clear language of the 14th Amendment. That outcome was predictable, given the clear language of the Amendment and the history of its jurisprudence. So the radical members of the majority helped the autocrat in the White House by undermining the available remedy.

Justice Sonia Sotomayor called the decision out for what it was, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. Saying that “No right is safe in the new legal regime the Court creates,” Sotomayor wrote “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship… That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

In law school, we learn that there is no right without a remedy. 

Welcome to Trump’s America.

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About Those Executive Orders…

I spent 21 years teaching college students about law and public policy–about the limits that a country’s legal framework imposes on the policies that legislators can legitimately consider. For a significant portion of those years, I was also an annoying scold, ranting about the undeniable fact that most Americans were uninterested in and unaware of the provisions of the constitutional framework that constrain what American government can legally do.

We are now reaping the consequences of that massive constitutional ignorance.

A would-be dictator has taken residence in the Oval Office, and has proceeded to ignore the legal restraints on presidential power. Given his intellectual deficits and manifest ignorance, it is very likely that he is as unaware of those restraints as he is of the American Idea–the underlying philosophy of the Constitution–and of the basic operations of government. (I doubt he could even spell philosophy, given his third-grade vocabulary.)

I have previously cited the constitutional provisions vesting Congress with exclusive authority over many of the areas Trump purports to “rule” with his firehouse of Executive Orders. Such orders have a limited provenance; as  Josh Marshall explained on Talking Points Memo a while back explained more clearly than I have.

Most people, including a lot of journalists, don’t understand what an executive order even is. It’s not a law or even a quasi-law. An executive order is really just a memo from the president to his staff (in this sense, his staff of two million civil servants) to take certain actions. Do this and don’t do that. Enforce this law in that way. Those can be actions the Constitution empowers him to take or ones Congress specifically assigns to him through laws. I interpret the law this way, so take this action, etc. In areas where presidents have a lot of power — say, in border and immigration enforcement, for instance — executive orders are a big deal. Courts can say: no, the law or the Constitution doesn’t empower you or allow you to do those things. But executives act and courts mostly react. So in this area of broad executive power, they’re a big deal. That’s also where you get into the territory of genuine constitutional crises and potential presidential dictatorship, because the outer limits of some of those powers aren’t clearly charted.

In other areas–very much including election administration–an Executive Order is flat-out unconstitutional.

But presidents have little to no power over election administration. States administer American elections, for state and federal office. Congress is empowered to create certain baseline rules for how states administer elections, in addition to those enumerated in the Constitution. But that’s the federal role — a critical fact under present circumstances, as I noted a week ago. The president has very little power beyond having the Justice Department bring lawsuits over claimed constitutional infractions or failure to follow federal law. In other words, an executive order on election administration is mostly meaningless — and this is the case for multiple reasons…. Elections are administered by state officials and they are part of a separate, untethered sovereignty. The U.S. president can’t fire a governor or a mayor, ever. Federal law is supreme over state law. That makes states subordinate to but still not at the command of the president. They’re separate sovereignties. It is as though the tendons or draw-wires that connect a head of state down to local government in a unitary state have simply been severed in a federal one. He doesn’t just lack the authority. He lacks the power. As I explained Monday, the real issue is going to come when the president tries to use his unauthorized power to extort compliance by withholding money.

As Marshall notes, it’s one thing when most Americans don’t understand this; it’s close to unforgivable when most journalists don’t–when they cannot even offer clear descriptions of how the mechanics of government are actually supposed to work.

We are, as he says, “ten years in,” and yet Trump is still able to project an authority he very clearly does not possess. His ability to do so is a direct consequence of civic illiteracy–not just the public’s lack, but that of a worrisome percentage of the media. And when cowardly Republican office-holders are joined by cowardly law firms and universities that have bent to financial extortion, and by plutocrats willing to trade the stable governance that made their riches possible for an autocrat’s promise of special treatment…constitutional limits evaporate.

Civic ignorance has consequences, and we’re experiencing them.

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White Sheets And Red Hats

There is no longer any way to pretend that the MAGA movement is not all about racism. The only difference between Trump and a Grand Dragon is that the white sheet has been exchanged for a red hat. (KKK members at least understood that they should hide their faces; MAGA’s racists are “out and proud.”)

Spineless fellow-travelers in the GOP can no longer pretend that clear signs of bigotry are being “misinterpreted”– that Nazi salutes are just signs of exuberance. Trump has removed any ambiguity those quislings might hide behind.

Trump’s Executive orders attacked diversity, equity and inclusion (DEI) programs, ordered the Justice Department to stop civil rights prosecutions already in progress and to cease any investigations of racist discrimination currently underway. As part of that purge of diversity programs, he ordered federal workers to report colleagues who keep such programs alive and  threatened those who don’t comply. In a related order, Trump revoked a 60-year-old rule banning discrimination at federal contractors.

Even his assault on the Department of Education is motivated by the fact that it investigates civil rights complaints at K-12 schools and higher education institutions.

Robert Hubbell has noted a particularly heartless coda to Trump’s effort to make bigotry great again:

Trump expanded “DEI” to include an “A” (for “accessibility”)—apparently indicating an attempt to root out efforts to expand the representation of disabled individuals protected by the Americans with Disability Act (ADA). See Mother Jones, Trump Shuts Down Diversity Programs Across Government.

The New York Times has reported that Trump’s Justice Department has not only halted new civil rights investigations, but has also signaled that it might back out of agreements with local police departments to address misconduct–sending a clear message that police officers accused of unnecessary violence against minority citizens are unlikely to face any penalties.

Hubbell also reported the contents of chilling internal memos:

Internal memos at federal agencies announced the immediate abolition of “DEIA” in ominous language that suggested a police state. The memos said,

The Department [AGENCY” NAME] is taking steps to close all agency DEIA offices and end all DEIA-related contracts in accordance with President Trump’s executive orders titled Ending Radical and Wasteful Government DEI Programs and Preferencing and Initial Rescissions of Harmful Executive Orders and Actions.

These programs divided Americans by race, wasted taxpayer dollars, and resulted in shameful discrimination.

We are aware of efforts by some in government to disguise these programs by using coded or imprecise language. If you are aware of a change in any contract description or personnel position description since November 5, 2024, to obscure the connection between the contract and DEIA or similar ideologies, please report all facts and circumstances to [omitted email address] within 10 days.

There will be no adverse consequences for timely reporting this information. However, failure to report this information within 10 days may result in adverse consequences.

Worse, the email threatens federal employees with punishment if they fail to “snitch” on other federal workers who fail to comply with vague, retrospective regulations designed to sniff out alleged “underground efforts” to promote diversity. The analog to Nazi Germany is direct. No similes or metaphors are needed. The memo is a complete one-to-one mapping onto the tactics of Hitler’s SS.

Republican assaults on the very concept of fairness and non-discrimination aren’t limited to the federal government. Here in deep-Red Indiana (former headquarters of the KKK), a bill working its way through the General Assembly would ban diversity, equity and inclusion in state agencies, educational institutions and any organization that receives money from the state.

Under SB 235, DEI’s definition includes social justice, systemic oppression and antiracism. And it bans taking positions on those issues. It also limits training related to race, sex, color, ethnicity, gender identity or sexual orientation. And it bans “influencing the composition” of employees related to race, sex, color or ethnicity.

Give the GOP credit for “coming out.” MAGA has always been racist and White Christian Nationalist to the core– an effort to reclaim social and legal dominance for straight White Christian males. Pundits who attribute Trump’s (slim) electoral victory to Democratic messaging or Biden policies simply refuse to see the GOP elephant in the room: Kamala Harris was defeated by the deeply-rooted racism and misogyny of far too many American voters.

There is no longer any intellectually honest way to avoid recognizing and naming what really motivates these people. And no way for those of us who don’t share those hatreds to escape the clear moral imperative to resist, speak truth to power, and call MAGA what it so obviously is. 

We are either on the side of Episcopal Bishop Budde or the Red Hats. There is no middle ground.

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Time to Fight Back With Everything We Have…

Much of the damage being done by the Trump Administration can be contained (thanks to the Administration’s rather awe-inspiring incompetence), or eventually repaired (when the GOP’s radical fever breaks). People will have been unnecessarily hurt in the meantime, true, but most of the harms can (and probably will) be addressed when (we can hope) cooler heads prevail.

There are only two exceptions to that comforting thought: war and environmental degradation.

If Trump becomes desperate to divert attention from his governing failures and falling poll numbers, the chances of his starting a war are not negligible. And his assault on the already inadequate measures meant to protect the planet from further environmental degradation–if at all effective–will delay efforts to mitigate climate change and result in a loss of time that we don’t have.

We have to hope that the Generals Trump so disdains can prevent him from starting a war; but Trump has already begun his environmental assault with a vengeance. As Politico reports,

In just 40 days, Trump has made it easier for coal miners to dump their waste into West Virginia streams, ordered the repeal of Clean Water Act protections for vast stretches of wetlands, proposed massive job cuts at the Environmental Protection Agency and prepared to begin revoking the Obama administration’s most ambitious climate change regulations.

Trump is also expected to overturn Barack Obama’s moratorium on new federal coal leases, and is considering automakers’ pleas for relief from a scheduled tightening of vehicle fuel-efficiency standards. Obama’s pledge to send billions of dollars to United Nations climate programs is also likely on the chopping block. And Trump hasn’t ruled out withdrawing the United States from the 200-nation Paris climate agreement, a step that could undercut the international effort to confront global warming.

The Politico article details a number of other actions Trump plans to take–including actions to roll back regulations that protect the nation’s air and water quality. He has already signed off on congressional repeals of some Obama-era regulations, including  Interior Department regulations that protect rivers and streams from coal mining pollution.

And this week, he ordered EPA to begin rewriting the Obama administration’s sweeping “Waters of the U.S.” rule, a move that green groups say could leave 60 percent of U.S. stream miles and 20 million acres of wetlands unprotected from development or pollution.

What makes this assault so senseless is that even people who stubbornly refuse to believe that climate change is real should want clean water and breathable air.

The only saving grace of this wholesale assault on science and common sense is that most of these orders won’t take instant effect. As the Politico article notes, it could take years for the EPA to undo the regulations, and the administration will face fierce legal challenges from environmental groups.

In the meantime…

It’s time for every lawyer who can spell “environment” to challenge the Administration’s actions. Executive Orders cannot unilaterally overrule laws that have been duly enacted. I don’t know enough about the processes of regulatory adoption to know whether such orders can revoke them without invoking substantive procedures, but it seems unlikely that rules adopted after lengthy hearings and expert testimony can be undone with the stroke of a denialist’s pen.

Of course, the President and the head of the EPA can simply decline to enforce existing laws and regulations, but that would seem to put businesses subject to the regulations in a very uncomfortable spot; they have a legal obligation to comply with existing rules, and there are probably non-EPA organizations and individuals who would have standing to sue enterprises that made a calculated decision to violate existing law.

In addition to “lawyering up,” every one of us who cares about the environment–or just wants clean air and water and a government that respects science and the rule of law–should contribute as generously as possible to environmental organizations (preferably those having a legal team).

And last but most certainly not least, every one of us has to begin now to organize for the 2018 elections. Find people to run against Trump-supporting incumbents–either rational Republicans to primary them from the left, Democrats to oppose them in the general election, or both. Register any unregistered person we can find, and make sure that person has identification sufficient to satisfy the relevant Voter ID laws. Get anyone who didn’t vote last November to the polls.

We need to change this feckless Congress as soon as humanly possible, because some kinds of damage can’t be fixed.

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How Long Can This Last?

Sentient Americans of all political persuasions knew that Donald Trump was unfit to occupy the Oval Office. We knew he was unstable. But even those of us who were terrified by his election have been astonished by the speed with which he is harming critical American interests and plunging the country–and world– into chaos.

Trump’s most recent Executive Order, banning refugees, is as astonishing as it is inhumane. As the Huffington Post reported,

Trump approved the refugee ban amid the biggest refugee crisis in history and on Holocaust Remembrance Day, which honors the millions of people killed during World War II, many of whom tried to flee to the U.S. but were turned away.

It’s not the blanket ban on Muslims that Trump advocated for during his campaign, and it does not single out any country by name other than Syria for its refugees.

But Trump did say earlier in the day that he would prioritize helping Syrian Christians. He also mentioned “radical Islamic terrorists” while signing it. And in the text, it carves out an exception for admitting refugees who are religious minorities even while nearly all others will be barred for 120 days.

The order–which exempts countries where Trump does business or has hotels (business uber alles, evidently)–has caused chaos at airports around the world. It has kept students from returning to their universities, scientists from professional meetings. It applies even to longtime holders of green cards–people who have lived and worked legally in the U.S. for years.

It affects tens of thousands of people: not just refugees already “extremely” vetted and on their way to the U.S., but foreign nationals, immigrants and tourists from the designated countries and Americans whose families will now be unable to visit. It also affects thousands of Iraqis who risked their lives helping this country during the Iraq War.

Like all of Trump’s actions in the days since assuming office, it was hasty, ill-considered, and based on “alternate facts.” As USA today noted,

While Trump has claimed that most Syrian refugees coming to the U.S are single, military-age men, the State Department said those numbers didn’t add up. As of Nov. 2015, 77% of Syrian refugees who entered the U.S. were women and children. Only 23% were adult men, and only 2% were “single men unattached to families.”

As Senator Chris Murphy pointed out, not only does this profoundly unAmerican order not make us safer, “Trump has now handed ISIS a path to rebirth. They can and will use his announcement today as confirmation that America is at war with Muslims, especially those Muslims living in desperate circumstances.”

Even Dick Cheney says this order “goes against everything we stand for and believe in.”

It has been a little over a week since this delusional and dangerously ignorant man has been President. In that time, he has poisoned relations with Mexico, a neighbor and important trading partner; continued his inexplicable, fawning relationship with Vladimir Putin; and pulled the U.S. out of the TPP, rather than addressing fixable problems that had been identified with it– an action that will allow China to become a dominant influence in the economies of not just Southeast Asia, but also East Africa and even parts of Europe. He’s announced his support for the use of torture. He has declared war on the media. He has ignored and trashed the Constitution. His insistence that “millions” of illegal votes were cast is both ridiculous and an affront to America’s democratic institutions.

And that’s just week one.

How long will the Republicans in Congress continue to enable this dangerous madman?  How many of Trump’s corrupt and ill-equipped Cabinet nominees will they obediently confirm? How long will their self-serving partisanship trump patriotism?

If there is a silver lining in any of this, it is in the horrified reaction of everyday Americans–the millions who marched, the multiple Resistance groups that have sprung up in the wake of the election, the throngs of protestors that spontaneously descended last night on the nation’s airports: the millions of Americans who know that we are better than this.

We the People cannot allow this to continue.

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