Will Trump’s Executive Orders Hold Up in Court?

After Donald J. Trump was sworn back into the office on Tuesday, he immediately went to work trying to single-handedly rewrite the law by issuing a flurry of very controversial executive orders aimed at everything from transgender rights to the death penalty to birthright citizenship. The problem with Trump’s executive orders is the fact that the government doesn’t work that way. The U.S. government has a series of checks and balances like the separation of powers between the executive, legislative, and judicial branches that ensure that no one person has too much power and, were it possible to simply sign an executive order into instant law, those checks and balances wouldn’t be that effective. Any president would have the power of a monarch or a dictator, which is the exact opposite of what the Presidency of the United States is supposed to be.

What is an Executive Order?

The American Bar Association (ABA) defines an executive order as, “a signed, written, and published directive from the President of the United States that manages operations of the federal government.” While it’s true that Congress can’t overturn an executive order, it’s also true that executive orders aren’t really laws. Rather, they are directions on how the federal government is supposed to interpret and enforce existing laws. As the UMASS Amherst Library points out, executive orders are only applicable to employees of the federal government and they can be challenged in court after the fact.

The Constitution of the United States actually doesn’t have any stipulations that say that presidents have the power to issue executive orders, and yet every president (except William Henry Harrison, who died after a month in office) has issued executive orders, almost as a matter of tradition. George Washington issued the first executive order on June 8, 1789 when Congress had yet to establish executive departments and the old Confederation departments were in place that Washington didn’t have a lot of information on. So his first executive order was a request for information to acting Secretary of Foreign Affairs John Jay. It read: “For this purpose I wish to receive in writing such a clear account of the Department at the head of which you have been, as may be sufficient (without overburdening or confusing a mind which has very many objects to claim its attention at the same instant) to impress me with a full, precise & distinct general idea of the United States, so far as they are comprehended in, or connected with that Department.” Washington subsequently sent additional copies of the same letter to the fledgling nation’s acting Secretary of War, Board of Treasury, and acting Postmaster General.

For the most part, that’s what executive orders have been used for: minor things, formalities, instructions on procedure, etc. In 2009, Barack Obama signed an executive order saying that the federal government had to take stronger leadership in preventing texting while driving. He signed another executive order that year establishing a White House Council on Women and Girls. Bill Clinton signed an executive order in 1993 establishing a President’s Board of Advisors on Historically Black Colleges and Universities within the Department of Education. A lot of executive orders are about establishing committees or establishing a priority within the government, and rarely do they make sweeping changes. That being said, it’s not entirely unheard of for an executive order, in rare circumstances, to make a major change like the ones that Trump is proposing. The most famous executive order in history, officially called Proclamation 95, certainly implemented sweeping changes on a grand scale. You might have heard of it under a different name, though: The Emancipation Proclamation.

During his first term, Donald Trump tried to do a lot of governing through executive order, and a lot of them were struck down by the courts. The difference now is that the highest court in the country, the Supreme Court of the United States, is heavily conservative with three justices who were appointed by Trump. It’s possible that Trump thinks that he’ll fare better this time around with a court that’s mostly in his own pocket. But a lot of the executive orders that Trump has issued so far stand on extremely shaky legal ground, such that it’s hard to imagine a court, no matter how biased, ever upholding these orders. The best example is Trump’s executive order on birthright citizenship which seems unlikely to be held up by any court.

Can Trump revoke birthright citizenship?

The most flagrantly unconstitutional order that Trump signed on Tuesday is titled “Protecting the Meaning and Value of American Citizenship.” The order attempts to deny citizenship to those born in the United States whose parents are not United States citizens. If you feel like there’s something wrong with that idea, then you’re right because it’s a blatant violation of the 14th Amendment to the United States Constitution, which reads: “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.”

The executive order tries to get around the entire 14th Amendment by playing with the ambiguity of the term “and subject to the jurisdiction thereof” and trying to make that out to mean that only those born to U.S. citizens meet the qualifications of being born in the United States and being subject to the jurisdiction thereof. The ACLU explains that, under current interpretation of the law, the only people considered “subject to the jurisdiction thereof” are foreign diplomats who are protected by diplomatic immunity.

The only thing that can override a constitutional amendment is another constitutional amendment, such as the 21st amendment which was made to nullify the 18th amendment, thus ending prohibition. Executive orders certainly don’t have the power to overturn a constitutional amendment, especially considering how flimsy the power of an executive order truly is.

Can the courts uphold the executive order?

The ACLU has already launched a lawsuit against the Trump administration challenging this order, as have 22 different states. It seems unlikely that any judge with even the slightest bit of integrity would strike down such an executive order, but with so much of the Supreme Court indebted to Trump, is it possible that the SCOTUS is so corrupt they might uphold a clearly unconstitutional order?

One thing to keep in mind is that, while three of the justices on the SCOTUS are Trump appointees, all three of them have defected from the conservative wing of the court on at least one occasion. In the trio of cases in 2019 which established that someone couldn’t be fired from a job due to sexual orientation or gender identity, Trump appointee Neil Gorsuch voted with the liberal wing in favor of LGBTQ+ rights. Trump appointee Brett Kavanaugh voted with the liberal wing of the court in gerrymandering case Moore v. Harper and in the case of Allen v. Milligan about voting discrimination against Black people, leading SCOTUSBlog to label him the “center.” And Trump’s third appointee, Amy Coney Barrett, dealt Trump a major disappointment when she voted with the liberal wing against delaying Trump’s sentencing in his hush money case. Chief Justice John Roberts, a George W. Bush appointee, has also been known to vote with the liberal wing from time to time. Now, none of that is a guarantee of anything, but it would seem that all of Trump’s appointees have at least some allegiance towards something other than voting along party lines, which means they have at least a shred of integrity. And, while I have no doubt that Justices Alito and Thomas will stay in lock-step with Trump, I don’t see something as preposterous as single-handedly tearing down a constitutional amendment ever being taken seriously in a courtroom.

So where does that leave us?

So, while it’s very likely that Trump’s birthright citizenship executive order will be struck down, his other executive orders have been only slightly less preposterous. Almost all of them are a clear overreach of what the executive order is supposed to be capable of, but I’m a little less certain that a conservative court will see it that way regarding transgender rights, for example. Still, I expect some, if not many, of Trump’s executive orders will not survive judicial scrutiny. At the very least, I think the 14th Amendment is safe.

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