My generation seems to be in crisis. Close friends are passing on. Women are supposed to live longer than men, but on my journey, wives of close friends are passing too, leaving a hole in the hearts of those I have cared for deeply.
So, it was excruciating to wake up on January 21 to see violent criminals, their guilt established on videotape. absolved and set free, and to see an unconstitutional attempt to repeal birthright citizenship by a mere executive order. During the campaign, Trump promised to accomplish these nitwit actions by executive order, but I didn’t think he would dare. I was trained as a lawyer and served in the 1960s as a federal prosecutor. Trump’s actions are at odds with everything I grew up to believe about this country and the rule of law.
The roughly 1500 January 6 convicts showed no remorse: The poster child, Jacob Chansley, the one the press called the QAnon Shaman in recognition of his horned-animal headdress and body paint at the insurrection, exulted: “I JUST GOT THE NEWS FROM MY LAWYER… I GOT A PARDON BABY! THANK YOU, PRESIDENT TRUMP!!!” Chansley was convicted following his guilty plea to a felony indictment charging him with obstructing an official proceeding. He was sentenced to three and one-half years in prison. He gloated over his pardon.
“NOW I AM GONNA BY [sic] SOME MOTHA FU*KIN GUNS!!! I LOVE THIS COUNTRY!!! GOD BLESS AMERICA.
Also pardoned was Enrique Tarrio, former chairman of the right-wing extremist group known as the Proud Boys, who was implicated in the planning of the Capitol riot. Tarrio was convicted on charges of seditious conspiracy in connection with January 6 and sentenced to 22 years imprisonment, although he was not physically present at the Capitol that day.
The pardons, which included violent criminals like Chansley and Tarrio, startled Republicans.
On January 12, J.D. Vance told Fox News Sunday that “if you committed violence on that day, obviously you shouldn’t be pardoned.”
Asked what they thought of the blanket pardons, GOP Senators were taken aback. Even MAGA Senator Tommy Tuberville said it was unacceptable to pardon people who assaulted police officers. More enlightened GOP Senators Lisa Murkowski and Susan Collins criticized Trump’s blanket amnesty.
A Scripps News/Ipsos poll conducted in late November, after Trump had won the presidential election, found that only 30 percent of Americans supported pardoning the January 6 rioters. In early January, many Republican lawmakers said they would not support pardons for those who committed violence against police officers.
The D.C. Police Union expressed its “dismay over the recent pardons,” stressing its position that “anyone who assaults a law enforcement officer should be prosecuted to the full extent of the law, without exception.”
Trump’s move came as a tonic to the MAGAs that the justice system that tried to hold him—and them—accountable for lawless acts is corrupt. He will protect the Pretorian Guard that defends.
Since taking office this week, Trump has issued at least 26 executive orders on subjects ranging from immigration to energy policy. The orders include:
Withdrawing from the Paris Climate Agreement and the World Health Organization.
Declaring a national emergency at the southern border
Rescinding diversity, equity, and inclusion programs within the federal government.
Redefining gender as strictly male or female at the federal level.
I found some of these pretty troublesome, even mean-spirited. He had them at the ready as part of his Project 2025. But, in his executive order concerning birthright citizenship, he demonstrated his willingness to take autocratic action.
Trump assumes the power to decide who can be considered a citizen.
In 1868, following the Civil War, Americans added the Fourteenth Amendment to the U.S. Constitution to enable the federal government to override discriminatory state laws. At the outset, the Fourteenth Amendment provided that “[a]ll 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,” and then declared that no state could “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fourteenth Amendment made it clear that being born in the United States made someone a United States citizen. The qualifying language in the amendment, “and subject to the jurisdiction thereof,” has historically been used to carve out limited exceptions to birthright citizenship. For example, U.S.-born children of foreign diplomats who are not subject to the jurisdiction of our laws since they enjoy diplomatic immunity are not American citizens. For over a century and one-half, the exception has been narrowly construed. That is, until now.
Trump’s argument centers on the contention that children born in the U.S. to people lacking legal immigration status don’t qualify. But that argument is patently absurd. Both the parents and the child are subject to the jurisdiction of the United States in ways that foreign diplomats can’t be.
The idea of the Fourteenth Amendment was to protect former slaves and their children by granting them U.S. citizenship. Before that, the Supreme Court had ruled in the infamous 1857 Dred Scott decision that enslaved people and their descendants were not citizens, were not eligible to become citizens, and were not entitled to any protection under its laws.
The Fourteenth Amendment put Dred Scott where it belonged—in the ashcan of history.
As the Court elaborated on the Amendment:
“[T]he protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State and reaches into every corner of a state’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State’s civil and criminal laws. And until he leaves the jurisdiction — either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States — he is entitled to the equal protection of the laws that a State may choose to establish.”
In short, if you are born in the United States of immigrant parents (even parents who are here illegally), you are a United States citizen under the Constitution. There is also a federal statute that provides for birthright citizenship. No wonder 22 state attorneys general brought actions to declare the Trump executive order unconstitutional.
But the Constitution doesn’t matter to Trump even though he swore to “preserve, protect and defend” it. “We’re going to end [birthright citizenship] because it’s ridiculous,” he said.
The Supreme Court reinforced the Amendment’s intent in the late nineteenth century despite a period of anti-immigrant sentiment primarily directed against the Chinese.
In 1882, Congress passed the Chinese Exclusion Act, prohibiting the immigration of workers from China. Thirteen years later, in 1895, Wong Kim Ark, an American-born child of Chinese immigrants, was denied reentry to the U.S. after a visit to China. He sued, arguing that the Fourteenth Amendment established birthright citizenship, and he won. The Supreme Court, in a lengthy opinion, determined that the children of immigrants were U.S. citizens, entitled to all the rights and immunities of citizenship and that no act of Congress could overrule a constitutional amendment. If an act of Congress can’t pass constitutional muster, how can an executive order? The case has been taught to generations of law students.
Trump is facing lawsuits not only on his attacks on birthright citizenship but also on the executive order that would enable him to fire nonpartisan civil servants and replace them with MAGAs.
On Thursday, a federal judge in Washington State just issued a two-week restraining order blocking Trump from moving forward on an effort to end birthright citizenship for the children of undocumented immigrants and foreign visitors, calling the directive “blatantly unconstitutional.” Who said there are no guardrails? This Supreme Court may have overruled Roe v Wade, but they will be hard-pressed to overrule this.
And, in a trice after Trump took the oath, at least three lawsuits were filed in Washington, D.C., against the new Department of Government Efficiency, known by the acronym DOGE (I always thought a “Doge” was a Venetian Duke). Doge is run by Elon Musk, the wealthiest man in the world—Vivek Ramaswamy has been given his walking papers—charging that it was breaking transparency laws.
The new administration has other problems as well. Even before he took office, Trump began to renege on his campaign promises—on lowering food prices, for example—and the administration is continuing to move the goalposts now that he’s in office. After the Senate unanimously confirmed Marco Rubio as Secretary of State, reporters asked him about Trump’s repeated promise to end the war in Ukraine on Day One; Rubio said that Trump meant that the war in Ukraine needed to end. A minor detail!
Trump also pardoned Ross Ulbricht, the dark founder and administrator of an online criminal marketplace called Silk Road, where more than $200 million in illegal drugs and other illicit goods and services, such as computer hacking, were bought and sold with cryptocurrency, Trump’s latest enterprise. Most of the sales were of drugs, with the Silk Road home page listing nearly 13,000 illegal options, including heroin, cocaine, ecstasy, and LSD. The wares were linked to at least six deaths from overdose around the world. In May 2015, Ulbricht was sentenced to life in prison and was ordered to forfeit more than $180 million.
In May 2024, during his presidential campaign, Trump promised to pardon Ulbricht to court the votes of libertarians who support drug legalization because people should be able to make their own choices.
Tonight, Trump posted that he had pardoned Ulbricht: “The scum that worked to convict him were some of the same lunatics who were involved in the modern-day weaponization of government against me. He was given two life sentences plus 40 years. Ridiculous!” Now the lawyers are “scum,” not the criminals.
Executive orders have the legal effect of a White House press release. The president can only use them to direct activity within the executive branch. He can’t make other people comply. Orders must comply with the Constitution and laws of the United States.
It’s all so depressing. I always thought when I reached age 85, I might have an easy time of it. I guess it is not to be.
