Blatantly unconstitutional': Law professor says key Trump executive orders won't survive

President Donald J. Trump, joined by Vice President Mike Pence, Secretary of the Treasury Steven Mnuchin, National Security Advisor Robert O'Brien, and Sen. Lindsey Graham, signs an Executive Order on Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Syria on Monday, Oct. 14, 2019, in the Oval Office of the White House. (Official White House Photo by Shealah Craighead)
Matthew Chapman
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Raw Story
January 20, 2025Bank

Trump's flurry of planned executive orders are rife with "dangerous and illegal abuses of power" that will not hold up under the slightest legal scrutiny, George Mason University law professor Ilya Somin wrote in a scathing analysis for the libertarian magazine Reason on Monday.

In particular, he argued, Trump's plans to go nuclear against immigration will face immediate legal challenges that even his own judges will struggle to defend under the Constitution.

To start, he wrote, Trump's plans to stop recognizing birthright citizenship for children of unauthorized immigrants.

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"This is blatantly unconstitutional," he wrote. "Section 1 of the Amendment grants citizenship to anyone 'born … in the United States and subject to the jurisdiction thereof.'"

Trump wants to argue illegal migrants aren't subject to U.S. jurisdiction, but this is nonsense, he noted, otherwise, they wouldn't have to follow U.S. laws and couldn't be arrested.

"I think it highly likely that courts will strike down this action, as the text and original meaning are clear, longstanding Supreme Court precedent points in the same direction, and there is broad (though not quite universal) cross-ideological agreement on the subject among legal scholars."

Similarly, Trump cannot use the 1798 Alien Enemies Act as a basis for mass deportation, as he has suggested, Somin continued, "because we are not in a 'declared war' with any foreign nation, and there also is no 'invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.'"

Trump also plans to declare a national emergency at the southern border.

"There is no sudden crisis at the border right now. In fact illegal entries are down to their lowest level since August 2020, when the rate was unusually low due to the Covid pandemic. What remains is an ongoing policy issue, on which there is longstanding disagreement," wrote Somin. That said, he added, Trump has a better chance of winning that one in court, because judges may simply defer to the executive branch on what constitutes an emergency.

One of the most alarming ideas, he concluded, is Trump's reiterated dream to "take back" the Panama Canal.

"Perhaps it was a mistake for the US to transfer the Canal to Panama in 1999," he wrote. "But we did do it, and there is no remotely plausible moral or legal justification for seizing it now. As with possible attacks on Mexico, it would poison relations with a key ally and damage the international standing of the US for no good reason."