After a morning meeting, I sat down to my computer around 11:30 a.m. ET and read two reader emails picked more or less at random out of my inbox. The first was from an American expat. The gist of his email was that American liberals — Blue America, for lack of a better descriptor — are totally unprepared for what’s coming down the pike toward them. The second was from a federal government employee reviewing the executive orders relevant to the federal workforce and explaining to me in so many words, ‘yeah, good luck with that.’ The expat’s email was generally more pessimistic and totalizing than I’m inclined to be. You may differ and you may be right; who knows? But in general the two emails together captured the moment as well or better than any report, essay or interview I might have read — a mix of actions and red flags almost unimaginable by any normal standard (though in virtually every case unsurprising) mixed with an underbrush of the sheer size, inertia and difficulty of whatever changes Trump is trying to make. They’re both true. Both true at once.
The best way to understand most of these executive orders is that they are statements of intent. That’s actually what an “executive order” is, in its origin: even in the much smaller federal government of a century ago, let alone two and a half centuries ago, the federal government was always a big thing — geographically if not in comparison to what we know today. The President can’t talk to everyone who works for him as head of the executive branch. So executive orders are ways of making clear, putting on paper, what his directions are.
At a fundamental level, they are, especially for Trump, performative. They become real when his appointees begin acting on them and they get litigated in courts, and validated or not validated. Pardons and commutations are real. Those things actually happened yesterday. They’re done. People are out of jail. That can’t be reversed. And Trump appears to have pardoned or commuted either every Jan. 6th convict/indictee or almost all of them. (This last marginal difference is unclear; but if a few stragglers weren’t released, he released the most dangerous and the most violent.) It’s important to understand the difference.
One thing I found interesting last night is that as lawyers began reading through the EOs, they noticed something pretty consistent. They were sloppy and contradictory, often doing things the authors hadn’t even intended. Is that a big deal? Well, yes and no. It’s the President’s will. So he can — mostly — express his will again or kind of as many times as he wants to. Fundamentally if President Trump wants to do X he’s not going to be stopped because an executive order was a sloppy cut and paste job, which many of these were. Success or failure is going to come down to three variables: 1) court action, 2) how much focus and determination his appointees have in putting them into effect and 3) public opinion. But it’s an indication that the belief that Trump’s team is more tried, tested and expert this time around may simply not be true. And that’s an important fact to know.
Birthright citizenship is firmly and unambiguously written into the Constitution. You can pretend it’s not there. And it’s possible courts will validate that false claim, making it a practical reality that certain citizens will lose the effective protections of citizenship. But none of that will change the Constitution’s plain language, an important distinction we will return to. More practically, there are complexities to birthright citizenship that make this much more complicated than anyone watching from a distance probably understands. The actual executive order says you’re not a citizen unless one of your parents was a permanent legal resident at the time of your birth. So it applies to far more than undocumented parents. If I’m understanding this correctly, the EO says this only applies going forward. But if that’s legal, then past citizenship is conditional, too. If you were born to someone here legally 20 years ago, you’re good for now. Until another EO a month from now that says you’re not a citizen, either. Once you open this box, things get very complicated. The entire edifice of U.S. citizenship is based on birthright citizenship, not simply in the sense of rights but also in terms of record keeping, verification and bureaucracy.
Here’s what I mean.
My birth certificate lists that I was born around 5:00 a.m. on February 15th, 1969 at Barnes Hospital in St. Louis Missouri. It lists the names of my mother and father. It doesn’t say anything about their immigration status or whether they were citizens, though they were both U.S. citizens born in the United States. So how am I a U.S. citizen? Well, I do some genealogy so I could point to birth certificates showing that both of them were born in United States. But it’s not clear what that proves anymore. You get where I’m going with this. Birthright citizenship is not only unambiguously the dictate of the U.S. constitution, it is also a huge win in record keeping and simplicity for the citizenship rolls. That birth certificate ends the conversation in terms of my citizenship, as well that of a couple hundred million-plus other Americans. But if you accept that place of birth isn’t controlling, everyone’s citizenship becomes at least uncertain or not clearly documented — and for many whose parents or grandparents immigrated, the uncertainty becomes very real. If any court takes this seriously, they’ll have to untangle that and possibly end up with tens of millions of Americans who may need to prove that they’re actually citizens. Even if you accept the false claim that birthright citizenship can be abolished by anything other than a constitutional amendment, there’s no way that everyone’s citizenship — and I mean everyone’s — will now rest going forward on the claims made in an executive order.
It’s all complicated. And complication matters. You can say things. But then you actually have to make good on them. That’s when things become harder.
Jonathan Last at The Bulwark has a good framework to understand what’s happening right now, what the overarching plan is. As we’ve discussed many times before, everything starts from the original fact that Trump won the Presidency in 2016 and was shocked and enraged by the fact that this didn’t guarantee that the country and his citizens would love him. Truly everything grows from the mix of hurt, resentment and retaliation that grew from there. As Last puts it, term one was about destroying the opposition to him within the Republican Party, something he very much accomplished. What he tried to do, but didn’t have the time or ability to do was disciplining the federal government and its adherence to the rule of law and the larger society, as expressed in the culture and the private sector. That’s what Trump is trying to do now: make the federal government, the culture and the economy personally obedient to him, as well. That’s not novel or earth-shattering but it’s a good, simple framework for understanding what he’s doing.
It’s also daunting because Trump succeeded in making the GOP obedient to his will. And that line of tech execs lined up to praise him at his inauguration yesterday shows he’s off to a nice start there too.
Not good.
But there’s an important catch.
Donald Trump was able to bring the GOP to heel for the simple reason that he made persuasively clear that no Republican politician or elected leader could remain in office or power without being obedient to him. A few tested the proposition and lost. A few others decided that meant the end of their political power. Most swore obedience. What it came down to was Republican voters, or at least enough of them to guarantee that no one could operate in the Republican Party without Donald Trump’s approval. American society and the American economy involves a lot more people, a lot of people who either don’t like or despise Donald Trump. It’s a very different proposition.