Trump’s Executive Orders And 5 Potential Legal Challenges Ahead

Yesterday’s inauguration of President Trump was broadcast around the world, and following the formal swearing in ceremony, was noteworthy because he publicly signed several Presidential executive orders of significant consequence to millions of individuals. The scene as portrayed was of a president who was so powerful that with duly signed executive orders he could sweep away all the obstacles in the way to fulfilling almost all of the promises he made in his campaign for office. He spoke as if the once prevalent doctrine of the divine right of kings was newly reinstated in him by, as he put it, “the Lord protecting him against assassination threats.” In the spectacle presented, it appeared as though there was almost no longer any need for congress, for courts, nor for state legislative bodies; as if almost everything could henceforth be resolved through Presidential executive orders. But are matters so easily resolved and how sure are we that his executive orders will be implemented?

Here is a list of President Trump’s recent executive orders ranked by their legal vulnerability, from weakest (most likely to face successful legal challenges) to strongest, along with the specific issues for each:

1. Trump’s Termination of Birthright Citizenship

Legal Weakness:

Constitutional Conflict: The 14th Amendment guarantees citizenship to individuals born in the U.S., making this order almost certain to be struck down.

Judicial Precedent: Courts have consistently interpreted the 14th Amendment as applying broadly to nearly all children born on U.S. soil.

Executive Overreach: Changing constitutional rights via an executive order exceeds the president’s authority and would require a constitutional amendment or Supreme Court reinterpretation.

2. Ending the Humanitarian Parole Program

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Legal Weaknesses:

Administrative Procedures Act: Abrupt termination without following the formal rule-making process or providing adequate justification can be challenged as “arbitrary and capricious.”

Equal Protection Claims: Critics may argue that targeting specific nationalities or groups constitutes discrimination, violating the Fifth Amendment.

Reliance Interests: People already in the U.S. under the program can argue they reasonably relied on its continuation and that sudden termination disrupts established legal expectations.

3. Reinstatement of Trump’s "Remain in Mexico" Policy

Legal Weakness

Asylum Rights: Forcing asylum seekers to remain in Mexico while their cases are processed could violate international law (non-refoulement) and U.S. asylum laws protecting migrants from harm.

Implementation Issues: Legal challenges could focus on the unsafe conditions and lack of resources for migrants in Mexico, as demonstrated by prior court rulings against similar policies.

Executive Overreach: Critics may argue that bypassing legislative processes to implement a controversial policy undermines due process.

4. National Emergency Declaration at the U.S.-Mexico Border

Legal Weakness:

Separation of Powers: Redirecting funds for border wall construction without Congressional approval challenges the Constitution’s allocation of spending authority to Congress.

Standing: Property owners or environmental groups can sue over land seizures or ecological harms resulting from construction.

Judicial Precedent: Similar attempts during Trump’s first term faced significant legal hurdles, with courts frequently limiting or blocking funding diversions.

5. Designation of Human Trafficking Cartels as Foreign Terrorist Organizations

Legal Weakness:

Separation of Powers: Designating foreign groups as terrorist organizations traditionally involves collaboration between the State Department and Congress, raising questions about the president’s authority to act unilaterally.

Due Process: U.S.-based individuals or organizations accused of ties to these groups could challenge the designation as violating constitutional rights.

Diplomatic Risks: The designation could provoke international disputes, particularly with Mexico, complicating its legal and practical implementation.

Apart from these executive orders, President Trump has shut down the CBP One entry program initiated by President Biden to moderate the flow of undocumented immigrants across the Mexican border into the United States and promised a slew of other measures to come including the introduction of tariffs on Mexican and Canadian products entering the United States. Deportation raids have started and that element has been discussed broadly elsewhere.

Future of Trump’s Orders Uncertain

To summarize, Trump’s new Presidential decrees face significant legal vulnerabilities: the termination of birthright citizenship constitutes a clear constitutional violation and is the most legally precarious; ending the humanitarian parole program breaches administrative law and undermines reliance interests; reinstating the "Remain in Mexico" policy conflicts with asylum rights and international law; declaring a national emergency challenges the separation of powers and contradicts prior rulings; and designating cartels as terrorist organizations raises concerns about executive authority and due process. In short, the road ahead promises to be rocky and full of controversy.