The New Yorker:

In his executive orders, Trump repeatedly asserted that he can make and interpret law, alongside Congress and the courts.

By Jeannie Suk Gersen

To many Americans, it is foundational that the power to make law lies exclusively with Congress and the power to interpret law ultimately rests with the Supreme Court. The most striking over-all message of Donald Trump’s executive orders, issued on the first day of his second term, is not merely in the register of controversial policies on immigration or the environment. It is, rather, a bold assertion that the President can go toe to toe with the other two branches of government to make and interpret law. The batch of executive orders does not read as bluster and hand-waving; it shows a level of competence, sophistication, and planning that was far less evident in Trump’s first Administration.

The most eye-popping example concerns the Constitution and birthright citizenship. An executive order, titled “Protecting the Meaning and Value of American Citizenship,” declares that a baby born in the United States to a mother who is in the country unlawfully (or lawfully but temporarily) is not a citizen, unless the baby’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’s ratification, Congress, in the Chinese Exclusion Act of 1882, categorically denied Chinese immigrants eligibility for citizenship. The case of United States v. Wong Kim Ark presented the Supreme Court with the question of whether a child born in the U.S. to Chinese parents who were barred from citizenship was nevertheless a citizen under the Fourteenth Amendment. The Court said yes. We have long taken for granted that the Constitution provides for birthright citizenship without regard to the parents’ citizenship status.

Trump’s executive order engages in his own constitutional interpretation that is arguably in conflict with the Court’s. His order does not mention Wong Kim Ark, but it does accurately describe Dred Scott v. Sandford—the “shameful decision” in which the Court interpreted the Constitution to mean that a Black man could not be a citizen—as having been “repudiated” by the Fourteenth Amendment. That portrays the Court as an institution that has made historic mistakes on citizenship and need not be trusted as the sole authority on the meaning of the Constitution. Trump reasons that a person may be born in the U.S. but not be “subject to the jurisdiction thereof” and therefore not be a citizen. He asserts that children born to unlawful immigrants are such people and orders the executive branch not to issue or accept documents recognizing their citizenship. (The order applies only to children born at least thirty days after it was issued.)

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