Political Theatre or Diabolical Anti-Democratic Strategy? 🤷‍♂️

Let’s be clear - birthright citizenship is in the U.S. Constitution.  It is not a law enacted by democrats, or by any modern politician.  It is not an executive order signed by any President.  It is not an interpretation or an extension of a Constitutional provision.  It is the plain text of the 14th Amendment to the U.S. 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 wherein they reside.”  (emphasis added).  There are, of course, plenty of unclear language and ambiguous clauses in the Constitution which require interpretation.  Section 1 of the 14th Amendment is not one of those.  

The President, no matter how powerful the office may now be, does not have the power to amend the Constitution. Article V lays out the specific and onerous process that must be undertaken to change it.  Presidents do not have the authority.  Indeed, it would require an amendment to the Constitution to allow the President to amend the Constitution and only then could the President unilaterally amend the Constitution and end birthright citizenship.  Of course, that would also mark the end of our Constitutional Democracy.

Thus, Trump’s executive order is obviously and unquestionably (at least for any serious person) unconstitutional. It is not even a close call.  Which begs the question, why even bother?  I see three potential explanations for this exercise in unconstitutionality. 

1. Political Theatre.  This is simply Trump firing up his base by keeping a campaign promise.  He is performatively doing what he said he would do (and I say performatively, because given its unquestionable unconstitutionality the action is obviously insincere).  This executive order creates a lovely sound bite for his mouthpieces and supporters to parrot again and again as Trump “delivering” on his promises.  It is politics. It is theatre. It is political theatre!

2.  Distraction.  This is a bombastic, shock & awe, type of action that grabs headlines, website banners, and finite cable news minutes.  People (myself included) are talking about this action more than any other because of its obvious unconstitutionality.  Meanwhile, there are a slew of other executive orders that have real and immediate consequences which will slide under the radar because attention spans are short and both Americans and the media are terribly easy to distract.  It is a “Hey, look over there at this shiny new unconstitutional action” strategy, and it is working.

3.  To test.  This is the theory that leaves me most concerned.  Trump and his team are intentionally teeing up a test for how Trumpian SCOTUS is.  SCOTUS has already decided that a President has carte blanche authority to commit crimes in office. With that ruling died the idea that no man is above the law.  Trump is kicking off his term with an obvious unconstitutional action to test how far SCOTUS is willing to go to support his agenda.  He wants to know if there is any real check on his power left.  Because, let’s be honest, despite the ridiculously indisputable unconstitutionality of the order, there is a non-zero chance that a majority of SCOTUS will engage interpretative contortionism to uphold this order.  If SCOTUS found a way, any way, to uphold this order, Trump will know that there is no check on his power.  But if SCOTUS does the plainly right thing and shuts down the order, Trump is really no worse off for the effort, because Presidential power is supposed to be limited.  He would know that there is some outside backstop on his presidential powers but he loses nothing, and still reaps the rewards of politics and distraction. If this was an intentional strategy, then it is brilliantly diabolical.

To be fair, I do not think SCOTUS will uphold this action.  But there exists a non-zero chance that they do, which is…. Terrifying.  Because, if they uphold this action  it would mark the end of our Constitutional Democracy.  It will not matter what crazy illogical logic, unreasonable reasoning or interpretive contortionism SCOTUS deploys.  If a President can violate the constitution with impunity or unilaterally amend it, then there really is no longer a Constitution.  

As I write this a fourth reason comes to mind.  Actually it is more of a riff on the third reason. So let’s call it reason 3(a).  We can all agree (democrat, republican, liberal, conservative and everything in between) that Trump loves power and wants to accumulate as much as he can for himself and his family.  Right?  That seems a pretty uncontroversial statement at this point. Congress belongs to him, most state legislatures are Republican controlled and he holds the keys to the oval office.  The checks and balances are now nearly nonexistent.  The federal judiciary stands as the last check on presidential power, and even that is stacked with Republican appointees.  Most of us in the legal profession probably still have some faith that even this 6-3 SCOTUS majority would stand against the most obvious unconstitutional actions. With that in mind, this could also be the first step in a conscious strategy to discredit the Court.  It works like this - SCOTUS declares this order unconstitutional, Trump’s people feign a mild degree or outrage, but then present another obviously unconstitutional order, and SCOTUS knocks it down again, Trump’s people then feign a moderate degree of outrage, but also then pursue another plainly unconstitutional action, and SCOTUS shoots it down again, but this time the feigned outrage is severe… and the cycle continues.  Until SCOTUS is either regularly declaring Trump’s actions  unconstitutional and progressively losing credibility and legitimacy in the eyes of Trump supporters OR SCOTUS sees the writing on the wall and begins to capitulate to Trump and upholds his unconstitutional actions in an effort to retain the Court’s legitimacy in the eyes of Trump’s hoard.  Either way, the check on power dies and with it democracy. 

Does this all sound a bit too conspiracy theory?  I don’t think so.  This is just politics in the age of Trump. I hope 3 and 3(a) are simply products of my overly paranoid imagination.  But… here's the rub, 3 and 3(a) don’t even need to be conscious strategy, the effect, the consequence is the same regardless of intent.  

Politics in 2025 cannot be analyzed through traditional lenses.  This isn’t about a clash of ideologies or policy differences.  The Trump age is about power.  Nothing, more nothing less. 

So you know… all good stuff!