The avalanche of executive orders from a Donald Trump eager to fulfill his electoral promises and change the face of American society as soon as possible did not wait long. In his first day as president – a day in which, he promised during the campaign, he was ready to be “dictator for a day” – he proved not only that he is in a hurry, but also that this time he knows the ways of Washington and that he does not intend to accept a No in response, even if that means frontally attacking the sacrosanct text of the US Constitution.
In his first hours in the Oval Office (and before that, in a stadium packed with thousands of supporters thirsty for spectacle), Trump put his beaked signature on 41 documents with a wide range of consequences: from closing the border with Mexico and ending the main legal means to request asylum to pardon some 1,500 people prosecuted and convicted for the assault on the Capitol; and from extending TikTok’s permission to operate in the country to removing the world’s leading power from the Paris climate agreement or renaming the Gulf of Mexico (from America, as of this Monday).
JIM LO SCALZO / POOL (EFE)
Some of these measures should be questioned from the point of view of their contempt for the rules of democracy, such as ordering the Department of Justice not to comply with a law, in the case of TikTok, or pardoning the most serious crimes of the January 6, which included violent actions against officers as part of a premeditated attack on the principle of the peaceful transfer of power contemplated in the United States Constitution. But none of those executive orders signed by Trump offer as serious legal doubts as the one that ends birthright citizenship (birthright).
This is a right guaranteed by the Fourteenth Amendment of the fundamental text. Approved in 1868, three years after the end of the Civil War, it guaranteed, with slavery abolished, the equality of all before the law. It is, therefore, rooted in customs for more than 150 years. And it establishes that anyone born in the United States is automatically a citizen of the country. Trump does not aspire to eliminate it retroactively, but he considers it an essential weapon in his offensive against irregular immigration, because it grants nationality to the children of those without papers for having come into the world in this land of opportunities.
In a gesture that also recalled the rituals of his first Administration, the opposition in the courts to this measure, which is scheduled to come into force in 30 days, was not long in coming. Before the end of the day, the veteran Association for the Defense of Civil Liberties (ACLU) challenged it in a New Hampshire court. Later, Lawyers for Civil Rights joined with another complaint. Both did so on behalf of couples about to become parents.
Finally, a coalition of 18 States, to which another four were later added, filed another lawsuit on Tuesday alleging that the order, titled Protecting the meaning and value of American citizenship, It violates the constitutional rights of thousands of children and places undue costs on local authorities, as they will lose federal funding linked to Medicaid (something like Social Security) and children’s health insurance. The District of Columbia (Washington) and the city of San Francisco – like the rest of the plaintiffs, under Democratic control – also joined.
Trump does not seem to care about these challenges, which could be foreseen, nor that nationality by birth is intimately intertwined with the history of the construction of the United States as a nation and is an indispensable element of that entelechy called the “American dream.” Nor does the Fourteenth Amendment begin with one of the most famous phrases of the Constitution: “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 in which they reside.”
That provision was upheld in 1898 by the Supreme Court, when Wong Kim Ark, a young man born in San Francisco to immigrant parents, was denied entry to the country after going to China to see his family during a period in which that fury against immigration – especially Asian immigration – was intensifying in the United States. Wong appealed the decision and the Supreme Court agreed with him. In 1924, the birthright It spread to Native Americans.
When Trump was signing the executive order, he said, once again, untruthfully: “We have to end this. “We are the only country that has it.” In reality, dozens of legal systems have versions similar to naturalization by American birth (this is not the case of Spain, but it is the case of Mexico or Canada).
Wink to his electoral base
In an email, Professor of Law and Political Science at the University of Massachusetts Amherst Paul Collins, author of several books on the politicization of the high court, explained this Tuesday that he considers this executive order as “a wink from Trump to his electoral base.” ”. “The idea that a president is authorized to unilaterally reinterpret an amendment is a crazy legal theory. It seems to me that the courts will finally reject it, but I would not be surprised if some of the justices appointed by Trump in his first term support it,” he says. Collins also warns that this executive order must be seen as “an example of the kind of policies that are going to be carried out.” [el nuevo presidente] and that will generate tension in the American legal and political systems.” “In the absence of stronger opposition, I am concerned about the system’s ability to withstand that pressure,” Collins concluded.
Another of the executive orders that caused the greatest commotion on the first day of Trump 2.0 is the one that frees some 1,572 people charged and convicted for the assault on the Capitol. In this case, the indignation it has caused in the United States is above all moral, which is why it has to rewrite the history of a serious attack on the seat of legislative power and one of the pillars of American democracy.
Still, it is in the president’s power to administer pardons like those. Not only that: it is a common custom during transition periods in the White House, which his predecessor, Joe Biden, has made extensive use of in recent months. Biden has pardoned, for example, 37 of the 40 prisoners awaiting their fate on federal death row, in the Terre Haute prison (Indiana). On his last day in office, he ordered the release of Leonard Peltier, an indigenous activist accused of the murder half a century ago of two federal agents in a case full of questions and contested for decades by associations such as Amnesty International.
In a series of more objectionable decisions, Biden granted preemptive pardons to those he believes could be victims of unfair persecution by Trump, and that includes former Republican congresswoman Liz Cheney, who was a member of the House committee that investigated the assault on the Capitol; retired Gen. Mark Milley, who refused to pull out troops to quell the 2020 Black Lives Matter protests; and Dr. Anthony Fauci, White House director of efforts to stop the spread of the coronavirus pandemic. He also, in a later decision, pardoned members of his family, as he had pardoned his son, Hunter, in December, for both his past and future crimes, despite repeatedly promising not to do so.
“In recent years, there has been an increase in the use of executive orders. However, it is normal for there to be a great wave of activity with the beginning of a new Administration,” he explained this Tuesday by e-mail presidential historian Russell Riley of the University of Virginia. “There’s usually a theatrical element to that. President A issues one hundred executive orders during his term, so President B arrives and on the first day issues another hundred that undo what his predecessor did, and then issues his own, which will soon be revoked by the next president. At the beginning of a term, the best way to score political points is to act unilaterally in this way. “It shows both energy and a change of direction.”
In the case of Biden, the extensive use of presidential pardons has also received criticism from his own party by congressmen who wonder if this barrage of pardons has not given Trump the courage to do the same with those convicted of 6 January, whom he considers “hostages” and “political prisoners.” Some of them, like Enrique Tarrio, leader of the extremist Proud Boys militia, will take to the streets after being found guilty by a judge of extraordinarily serious crimes. Tarrio was serving 22 years for, among other charges, one rarely invoked since the Civil War: seditious conspiracy.
Riley calls Trump’s pardon of the insurrectionists “a flagrant and unprecedented abuse of presidential powers.” “The framers of the Constitution will be rolling in their graves. Pardons should be reserved for delivering justice in rare cases where the legal system has failed, as a last chance to right wrongs through acts of executive clemency. It was never intended to be used to overturn sound judicial rulings or to reward political allies, and it was certainly not intended in any way to be used as a political weapon to benefit friends or punish political opponents. In a properly functioning political system, this would be answered with a impeachment”, adds the expert.
Regarding Biden’s decision to use his pardon to protect those Trump had targeted, such as Liz Cheney, Riley’s “first reaction” was to think that “he had made a mistake.” “[Cheney y el resto] They had done nothing wrong and therefore did not deserve such protection. My feeling was that, by acting this way, Biden devalued the currency of pardons, exposing himself to the accusation of having abused his own powers. But I will confess that I changed my mind when I saw what Trump has done with the January 6 violators. President Biden may have had information about what he was planning against his opponents, in which case he was justified in trying to prevent it. It’s just a guess; “We will have to examine the presidential documents before knowing for sure.”
As for TikTok, the executive order attacks a law approved by both chambers and ratified by Biden, which allowed ByteDance, the Chinese owner of the social network, to be granted an extension on its application as long as it had a sales option in place. from the company to an American company. What Trump signed expressly asks the Attorney General, Pam Bondi, still pending ratification by the Senate, and the Department of Justice to forget for 75 days that this rule exists and, therefore, to refrain from enforcing it. “During this period,” says the text approved this Monday, “no measures will be taken to enforce the law or impose sanctions against any entity for any breach of the law.”
