Trump defies US Constitution: From ending birthright citizenship to pardoning Capitol rioters

The flurry of executive orders from a Donald Trump impatient to fulfill his campaign promises and rapidly change the face of American society was not long in coming. On his first day as president — a day he had vowed during his campaign to act as “a dictator” — Trump showed not only a sense of urgency but also a keen understanding of Washington’s workings. He made it clear he would not take no for an answer, even if it meant confronting the revered principles of the American Constitution head-on.

In his first hours in the Oval Office — and earlier, in a stadium packed with thousands of supporters eager for spectacle — Trump affixed his distinctive signature to 41 documents with far-reaching consequences. These actions included closing the U.S.-Mexico border for asylum seekers, dismantling the primary legal pathway for seeking asylum, pardoning approximately 1,500 individuals prosecuted and convicted for the Capitol assault, extending TikTok’s authorization to operate in the U.S., withdrawing the world’s leading power from the Paris Climate Agreement, and even renaming the Gulf of Mexico to the “Gulf of America” as of Monday.

Some of these measures, such as instructing the Justice Department not to enforce certain laws in TikTok’s case or pardoning individuals convicted of the most serious crimes of the January 6 assault — including violent acts against officers as part of a premeditated attack on the peaceful transfer of power, a principle enshrined in the U.S. Constitution — raise significant concerns about their disregard for democratic norms. However, none of the executive orders signed by Trump raises as serious legal doubts as the one that ends birthright citizenship.

This right is enshrined in the 14th Amendment to the Constitution, ratified in 1868, three years after the Civil War ended. Following the abolition of slavery, the amendment guaranteed equality for all under the law and has been a cornerstone of American legal tradition for over 150 years. It stipulates that anyone born in the United States is automatically granted citizenship. While Trump does not aim to eliminate this right retroactively, he views it as a critical tool in his campaign against illegal immigration, as it confers citizenship to the children of undocumented immigrants simply by being born in the so-called “land of opportunity.”

In a move reminiscent of his first administration’s tactics, opposition to the measure — which is set to take effect in 30 days — was swift in the courts. By the end of the day, the veteran American Civil Liberties Union (ACLU) had already challenged it in a New Hampshire court. Soon after, Lawyers for Civil Rights filed a separate complaint, both on behalf of couples expecting children.

On Tuesday, a coalition of 18 states — later joined by four others — filed another lawsuit, arguing that the order, titled Protecting the Meaning and Value of American Citizenship, infringes on the constitutional rights of thousands of children and imposes undue burdens on local governments. These governments would lose federal funding tied to Medicaid and children’s health insurance. The District of Columbia (Washington) and the city of San Francisco — like the other plaintiffs, under Democratic control — also joined the legal challenge.

Trump appears unconcerned by these legal challenges, which were anticipated, nor by the fact that birthright citizenship is deeply woven into the fabric of U.S. history. It is an essential part of what constitutes the “American dream.” He also seems indifferent to the fact that the 14th Amendment begins with one of the Constitution’s most iconic phrases: “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 provision was upheld by the Supreme Court in 1898, when Wong Kim Ark, a young man born in San Francisco to immigrant parents, was denied re-entry into the country after visiting China to see his family. This was a time when anti-immigrant sentiment, particularly toward Asians, was running high in the U.S. Wong appealed the decision, and the court ruled in his favor. In 1924, birthright citizenship was extended to all native-born Americans.

As Trump signed the executive order, he once again made the false claim: “We are the only country that has it.” In fact, dozens of legal systems have versions similar to American birthright naturalization, including Mexico and Canada.

A nod to his electoral base

In an email, Paul Collins, a professor of law and political science at the University of Massachusetts Amherst and the author of several books on the politicization of the Supreme Court, explained on Tuesday that he views the executive order to be “a nod from Trump to his electoral base.” He continued: “The idea that a president is authorized to unilaterally reinterpret an amendment is a crazy legal theory. I think the courts will ultimately reject it, but I would not be surprised if some of Trump’s first-term justices support it.”

Collins also warned that the executive order should be seen as “an example of the kind of policies that [the new president] is going to pursue and that will create tension in the American legal and political systems.” “In the absence of a stronger opposition, I am concerned about the ability of the system to withstand that pressure,” he said.

Another one of the executive orders that stirred the most controversy on the first day of Trump 2.0 was the one granting clemency to approximately 1,572 individuals accused and convicted in connection with the Capitol assault. This move has sparked significant moral outrage in the United States, as it seems to rewrite the history of a serious attack on the seat of legislative power — one of the cornerstones of American democracy.

However, the president has the constitutional authority to issue such pardons. Indeed, it is a common practice during White House transition periods, and one that Joe Biden, Trump’s predecessor, has made extensive use of in recent months. For instance, Biden pardoned 37 of the 40 prisoners awaiting execution on federal death row at the Terre Haute prison in Indiana. On his final day in office, he also ordered the release of Leonard Peltier, an Indigenous activist accused of the 1975 deaths of two federal agents — an unresolved case that has been fiercely contested for decades by organizations such as Amnesty International.

In a series of more contentious moves, Biden also granted preemptive pardons to individuals he believes might be unfairly targeted by Trump. Among those pardoned were former Republican Congresswoman Liz Cheney, who served on the House committee investigating the Capitol riot; retired General Mark Milley, who resisted calls to deploy troops to suppress the 2020 Black Lives Matter protests; and Dr. Anthony Fauci, the White House’s chief official in the fight against the coronavirus pandemic. Biden also pardoned his son, Hunter, in December, for both past and future offenses, despite having previously promised not to do so.

“There has been a surge in the use of executive orders in recent years. Still, it’s normal for there to be a flurry of activity with the start of a new administration,” said Russell Riley, a presidential historian at the University of Virginia, via email on Tuesday. “There’s often an element of theater to this. President A issues a hundred executive orders during his term, and then President B comes in and issues another hundred on day one, reversing his predecessor’s actions, before issuing his own orders — many of which will soon be undone by the next administration. At the start of a term, the most effective way to score political points is to act unilaterally in this way. It shows energy and a shift in direction.”

Biden’s extensive use of presidential pardons also drew criticism from members of Congress within his own party, who question whether this surge in pardons has emboldened Trump to consider similar actions for those convicted in connection with the January 6 Capitol riot — individuals he refers to as “hostages” and “political prisoners.” Some of these individuals, like Enrique Tarrio, the leader of the extremist militia Proud Boys, are set to be released after being convicted of exceptionally serious crimes. Tarrio, for example, was serving a 22-year sentence for charges that include seditious conspiracy — an offense rarely invoked since the Civil War.

Riley calls Trump’s pardon of the January 6 insurrectionists “a flagrant and unprecedented abuse of the president’s powers.” “The framers of the Constitution will be rolling in their graves,” he said. “Pardons should be reserved for delivering justice in rare cases where the legal system has failed, a last chance to right wrongs through acts of executive clemency. They were never, ever intended to be used to overturn wise court decisions or reward political allies, and they were certainly not intended to be used as a political weapon to benefit friends or punish political opponents. In a properly functioning political system, this would be met with impeachment.”

On Biden’s decision to use his pardon to protect people targeted by Trump, such as Liz Cheney, Riley’s “first reaction” was to think that “he made a mistake.” “[Cheney and the others] had done nothing wrong and therefore did not deserve such protection. My sense was that, by acting this way, Biden devalued the currency of pardons, opening himself up to the accusation of having abused his own powers. But I will confess that I changed my mind after seeing what Trump has done with the January 6 offenders. It is possible that president Biden had information about what he was planning against his opponents, in which case, he was justified in trying to prevent it. It is only conjecture on my part now; presidential documents will have to be examined before we know for sure. What is not in doubt, I repeat, is that President Trump’s abuse of the pardon power is unparalleled in the history of the institution.”

As for TikTok, the executive order directly challenges a law passed by both chambers of Congress and ratified by Biden, which allowed ByteDance, the Chinese owner of the social network, an extension as long as it was in the process of selling the company to a U.S. entity. The order signed by Trump specifically instructs Attorney General Pam Bondi, whose confirmation by the Senate is still pending, and the Department of Justice to disregard this law for 75 days and refrain from enforcing it. “During this period,” the text approved on Monday states, “the Department of Justice shall take no action to enforce the Act or impose any penalties against any entity for any noncompliance with the Act.”

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