
There’s a popular perception that the U.S. presidency has become an “imperial presidency”. Part of this idea is that Congress is so hopelessly gridlocked that the President has begun governing by executive order — basically, an elected king. I don’t think this is true — at least, not compared to the past. Executive orders were more common in the early 20th century than they have been in recent years — Calvin Coolidge issued 215 a year and Herbert Hoover 242, compared to 55 by Donald Trump (so far), and 38 by Joe Biden. Even in terms of word count, we don’t see much change over the years.
As for whether executive orders have overreached in terms of their scope, that is definitely a concern (though it was also a concern a century ago), and I’ll talk about that later. But many modern executive orders are just one President revoking or canceling some executive order of the previous President — often some symbolic culture-war thing. Yo-yoing back and forth between conservative and progressive cultural stances isn’t necessarily the most stability-inducing thing, but it doesn’t make the President a king.
Donald Trump’s flurry of executive orders should be seen in this context. A bunch of what Trump did on his first day in office was just to cancel out stuff Biden tried to do. Ultimately, the effect on the nation won’t be noticeable. But in addition, Trump issued some orders that could have far-reaching consequences, and in a few cases they represent a broadened assertion of presidential power. Time has a good summary. Of course I’ll write more about these orders in the days ahead, but I thought I’d give some rapid reactions. The five main areas I’m going to focus on here are:
Immigration
Environmental review and permitting
Affirmative action and DEI
Energy policy
DOGE and the federal workforce
Canceling birthright citizenship is a terrible idea (and the U.S. isn’t being invaded)
Trump’s executive order on birthright citizenship is his most important, because it’s the biggest test of executive power by far. The 14th Amendment of the U.S. Constitution guarantees birthright citizenship:
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.
This is a common practice in the Western hemisphere, though it’s rare in the Old World. Immigration restrictionists have been wanting to go after this one for a while, and they finally decided to just go for it and see what happens.
Trump’s executive order says that visa holders — people here on O-1, H-1b, and so on — are not subject to U.S. jurisdiction, and therefore their kids are not citizens even if born in the U.S. (It also says the same about the kids of illegal immigrants.) It doesn’t revoke anyone’s citizenship; it applies only to future kids.
Trump’s EO is not declaring the Constitution null and void, but it’s asserting an interpretation of the text that has already been contradicted by the Supreme Court, way back in 1898. SCOTUS ruled that “subject to the jurisdiction” of the U.S. means that you’re under U.S. law, and visa holders are definitely under U.S. law, so there’s a good chance this executive order will be struck down. Already, states are launching a flurry of lawsuits against the order. (Update: A federal judge has already blocked this executive order, so we’ll see what SCOTUS has to say.) I’m no legal expert, but it seems pretty nonsensical to argue that green card holders are subject to U.S. jurisdiction, but O-1 holders aren’t.
Even if the order does get struck down, however, it’ll probably exert a chilling effect on skilled immigration. The chance to have a kid who’s an American citizen is one reason that the world’s most talented people come to America to work — often on an O-1 visa. Getting those people to work here is a national security priority, as well as a boon to the U.S. economy":
Now those people know that the citizenship of their future children is a precarious thing — a political football. This will probably exert a chilling effect on America’s ability to recruit top talent. The EO also seems badly written, in a way that could potentially be interpreted turn the kids of visa holders into illegal immigrants the moment they’re born (though I bet they’d find some fix for this).
What will the voters think of this move? Birthright citizenship is broadly popular, though not overwhelmingly so. A bunch of recent polls find support for birthright citizenship in the 60% range. But Americans are about evenly split on granting it to the kids of illegal immigrants. As usual, Americans like immigration in general, but really hate the idea that people are violating the country’s rules and getting away with it. It seems possible to me that Trump’s people added visa holders to the EO in order to give a conservative SCOTUS a face-saving way to split the difference — ending birthright citizenship for the kids of unauthorized immigrants, but keeping it for the kids of visa holders.
Anyway, I also think this order confirms a trend that I’ve been noticing since Trump’s first term: The MAGA movement is opposed not just to illegal immigration, but also to high-skilled legal immigration, especially immigration from India. The massive blowup on right-wing social media around Christmastime was all about Indians, and there continues to be a huge amount of hate directed specifically at Indians in right-wing circles. Elon Musk stood up for H-1b workers on X, but if there was any internal battle over it within the administration, his faction does not appear to have come out on top.
All in all, this is Trump’s worst executive order, for any number of reasons, and has the potential to do lasting harm to the fabric of the nation.
It’s also part of a suite of executive orders attacking immigration in general. A lot of this stuff — suspending asylum claims at the border, suspending refugee resettlement, reimplementing the “remain in Mexico” policy, and so on — is stuff that the American people wanted (or probably would want if they understood it). Many of these orders will be challenged in court, as they were in Trump’s first term; permanent resolution of these problems will require Congress to change the asylum law.
But Trump’s legal justification for these orders relies on his declaration that the wave of illegal immigration constitutes an “invasion”. Obviously, this is nonsense — it’s just a bunch of poor people looking for work, the same as it ever was. Declaring that this is an “invasion” seems like a clear recipe for executive overreach.
Restricting environmental review is great
If the birthright citizenship EO is Trump’s worst, the two orders on environmental review — basically, limiting NEPA — are easily his best.
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