Trump's Orders Feature Nonexistent Emergencies, Illegal Power Grabs, and Blatant Inconsistencies
But at least he restored respect for a tariff-loving predecessor by renaming a mountain.
As expected, President Donald Trump's attempt to cancel birthright citizenship by executive fiat ran into immediate legal trouble this week. On Thursday, a federal judge in Seattle granted a temporary restraining order against Trump's decree, which encompasses not only the children of unauthorized immigrants but also anyone born to people lawfully present in the United States unless at least one parent has permanent legal status.
U.S. District Judge John C. Coughenour, who was appointed to the bench by Ronald Reagan in 1981, was dismayed that any president would try such a thing. "I've been on the bench for over four decades," and "I can't remember another case where the question presented is as clear as this one is," he told the lawyer tasked with arguing that Trump could disregard the clear language of the 14th Amendment and 127 years of judicial precedent. "I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind."
Trump claimed to be addressing a nonexistent "emergency" through legally dubious means. The upshot in this case, it seems likely, is that Trump's order will amount to nothing but a symbolic stand against the "invasion" he perceives when people enter the United States in pursuit of better lives, as his own ancestors did at a time when European immigrants faced no restrictions like the ones the president is keen to enforce. And Trump's reflexive hostility to immigration, which underlies some initiatives that will have much more practical effect, seems inconsistent with his other priorities, such as promoting economic growth and preserving old-age entitlement programs.
This episode illustrates several conspicuous themes of the 26 executive orders that Trump signed on his first day in office.
Nonexistent Emergencies
Trump declared "a national emergency at the southern border of the United States" caused by illegal immigration and the flow of "illicit narcotics." Given "the gravity and emergency of this present danger and imminent threat," he said, "it is necessary for the Armed Forces to take all appropriate action to assist the Department of Homeland Security in obtaining full operational control of the southern border."
Another executive order instructs the secretary of defense to "seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities." This emergency may also require trade restrictions, Trump said in a memo, alluding to his threat of punitive tariffs against Mexico and Canada.
As George Mason law professor Ilya Somin notes, "an emergency is a sudden, unexpected crisis, not an ongoing policy issue on which the president wants to redirect resources in ways not authorized by Congress." The situation at the southern border "doesn't even come close to qualifying" as an emergency, Somin argues, especially since "illegal entries are down to their lowest level since August 2020, when the rate was unusually low due to the Covid pandemic." If the president "can declare an emergency and tap a vast range of special emergency powers anytime he wants for any reason he wants," Somin warns, "that makes a hash of the whole concept of an emergency, raises serious constitutional problems, and creates a dangerous concentration of power in the hands of a single person."
Trump also declared "a national energy emergency," which likewise stretches the meaning of the term beyond recognition. "America is the world's largest producer of oil and natural gas, and the price of oil, about $76 per barrel, is roughly the same as the average cost over the past 20 years, adjusted for inflation," The New York Times notes. "The cost of gasoline, about $3.13 per gallon, is close to a three-year low." As energy economist Howard Gruenspecht put it, "I don't have the sense that the world is particularly short of fossil fuels in the present demand-and-supply balance." Somin concurs, noting that "US energy production has greatly increased over the last several years" and that "prices have fallen since the inflation of 2021-23."
Trump likewise says he will deliver "emergency price relief for American families" beset by a "cost-of-living crisis." The U.S. inflation rate surged to around 7 percent in 2021 and dropped only slightly in 2022, thanks to a combination of pandemic-related supply disruptions, demand shifts, and profligate government spending. But the rate fell to 3.4 percent in 2023 and 2.9 percent in 2024. And while "inflation outpaced wage growth for most workers in late 2021 and early 2022," the Times reported last October, "wages have been rising faster than inflation for more than two years."
Around the same time, the Brookings Institution analysis took a longer view, comparing wage and price growth since 2019. Based on the personal consumption expenditures (PCE) index, it said, nominal pay "has done relatively well in keeping up with overall costs of living since 2019." Based on the consumer price index (CPI), however, "nominal pay has done somewhat less well in keeping up with increases in the costs of goods and services" that are especially "salient to consumers." Although Trump says this constitutes a "crisis" requiring "emergency" action, reasonable people may disagree.
Legally Dubious Means
In addition to Trump's defiance of the 14th Amendment, Somin highlights his attempt to use the Alien Enemies Act of 1798 as "a tool of mass deportation." That law, Somin notes, "allows detention and removal of migrants only when there 'is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.'" Since there is no "declared war," Trump is asserting that illegal immigration qualifies as an "invasion" by a "foreign nation or government." That does not make much sense on its face, and Somin thinks Trump's interpretation of the statute is unlikely to pass judicial muster.
Somin also questions Trump's designation of drug cartels as "foreign terrorist organizations." He notes that "terrorists are people who target civilians to further political causes." Drug cartels, by contrast, use violence to "protect and enhance their role in illegal markets." If drug cartels are terrorist organizations, Somin says, "so too are virtually any [criminal] organizations that might resort to violence."
Trump, who favored banning TikTok during his first term, is now promising to "sav[e] a platform used by 170 million Americans." While it is hard to disagree with that goal, Congress has decreed that the platform cannot operate in the United States unless there is a change in ownership, and the Supreme Court declined to override that decision. Trump nevertheless instructed the Justice Department to refrain from enforcing the Protecting Americans from Foreign Adversary Controlled Applications Act for 75 days so he can "determine the appropriate course of action with respect to TikTok." Congress already determined that; Trump just disagrees with its solution. Is this simply a matter of exercising enforcement discretion, or is Trump violating his obligation to "take care that the laws be faithfully executed"?
Trump's attack on "diversity, equity, and inclusion" (DEI) programs, insofar as it applies to federal agencies, is well within his authority as president. But he also directed "all departments and agencies" to "take strong action to end private sector DEI discrimination, including civil compliance investigations." That initiative extends to private businesses with DEI policies that offend the president, which will have to predict what he thinks counts as "discrimination." Is it just practices like reserving internships for people in DEI-favored groups, or does it include employee training based on principles he does not like? Businesses are apt to err on the side of caution, a reality that raises First Amendment concerns.
Symbolism
Trump wants to "secure the right of the American people to engage in constitutionally protected speech" and "ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen." Those are good goals! But the Biden administration, which Trump rightly faults for persistently pressuring social media platforms to suppress content that federal officials perceived as a threat to public health, democracy, or national security, always claimed to be respecting freedom of speech.
The Supreme Court, which dodged the issue by ruling that the plaintiffs who challenged such censorship by proxy lacked standing to sue, never did resolve the question of whether the Biden administration's pestering violated the First Amendment. But it is hard to imagine that Trump's underlings, with or without an executive order on the subject, would attempt the sort of interference their boss detests. And now that Meta CEO Mark Zuckerberg says he regrets complying with the government's "asks" and the platform formerly known as Twitter is owned by a guy who adamantly rejects such meddling (in the United States, at least), Trump's directive seems unnecessary except as an expression of his longstanding grievances.
The urgent matters that Trump thought required immediate attention included "restoring names that honor American greatness." He ordered that "North America's highest peak," officially known as Mount Denali since 2015, will once again be known as Mount McKinley, restoring respect for a president who "championed tariffs to protect U.S. manufacturing, boost domestic production, and drive U.S. industrialization and global reach to new heights." In the same order, Trump says the Gulf of Mexico will henceforth be known as the Gulf of America, which is not so much a restoration as an ahistorical innovation that may not gain much traction.
Trump also defended "the immutable biological reality of sex," which may be a bit more complicated than he thinks. He has had it with all this preferred-pronouns nonsense, and he thinks that impatience should be reflected in federal policy, which henceforth will operate on the assumption that transgender, nonbinary, and intersex people do not exist.
Contrary to its name, Trump's Department of Governmental Efficiency (DOGE) is not a department (which would require congressional authorization) but a "temporary organization" confusingly subsumed under a division within the Executive Office of the President that used to be called the United States Digital Service but will now be called the United States DOGE Service. I sincerely hope that DOGE amounts to more than symbolism. But given the fiscal realities that Trump refuses to face and the track record of previous deficit-reduction attempts that amounted to advice Congress was free to ignore, I have my doubts.
Inconsistencies
Trump, who added an estimated $8.4 trillion to the national debt during his first term, condemns his predecessor's fiscal irresponsibility and vows to do better with his "DOGE agenda" but is committed to leaving entitlements untouched and boosting defense spending. He defends "the right of the American people to engage in constitutionally protected speech" but seems bent on policing employee training lest it promote an ideology he abhors. He promises American consumers relief from high prices yet favors tariffs that will raise the cost of living. He describes himself as a "peacemaker" while threatening to seize the Panama Canal. He supports "law and order" but excused political violence by granting pardons to Trump supporters who assaulted police officers while expressing their outrage at an election he falsely claimed was stolen. He freed Silk Road founder Ross Ulbricht, rightly condemning his life sentence for facilitating drug deals as "ridiculous," but argues that other people convicted of similar charges should be executed.
As those contradictions suggest, Trump has few firm convictions, aside from some mostly bad instincts, and he is willing to deviate even from those when they do not serve his interests. His flurry of early presidential acts and orders is a hodgepodge of personal grievances and politically convenient positions unified by no discernible philosophy or principle. We will have to get used to that. Again.
