Faculty Journal Posted on Wednesday, December 19, 2018

The Potential Imbalance in Balance: Trump, Executive Orders, and the Supreme Court

CalvinJohn Smiley Assistant Professor of Sociology, Hunter College

The election of Donald Trump as the 45th President of the United States has been nothing short of controversial as he has built his presidential platform around stoking fears through sometimes covert but often overtly racist rhetoric directed at Muslims, Mexicans, or foreigners, typically non-white.  His slogan of “Make America Great Again” evokes and emboldens an American past that is rife with the past eras that limited women’s rights or the rights of people of color. One of the most prominent points that Donald Trump has made is his claim of building a wall on the southern U.S. border to “keep out” the “Other.” While Trump’s rhetoric is inflammatory, dangerous, and downright disgusting, it is his legacy of appointing Supreme Court Justices that might have the most devastating impact on the American public. In his short tenure thus far, Trump has appointed two Supreme Court Justices. In contrast, Barack Obama only had two appointees during his eight years in office.

Children across the United States are taught in civics and social studies classes about America’s ‘Checks and Balances’ system, which include the Executive, Legislative and Judicial branches of government as the pillars of accountable democracy. While the Executive and Legislative branches have term limits, the Judicial branch has life-long appointments, arguably making it the strongest branch of government. Therefore, it is important to understand how Donald Trump could theoretically undermine U.S. democracy based on four recent events: 1. Appointment of Justice Brett Kavanaugh; 2. A statement by former speaker of the House Newt Gingrich; 3. Donald Trump’s controversial statement on birthright citizenship; and 4. Vice President Mike Pence’s interpretation of President Trump’s statement on birthright. All point to a potential devastation to the Checks and Balances system with the undermining of American democracy through a silent coup. American democracy seems to be at a very important crossroad that highlights the tensions of expansive presidential powers and the inadequate vetting process of recent judicial appointments.

On October 6, 2018, Brett Kavanaugh was sworn in as the 114th Supreme Court Justice of the United States. Prior to Kavanaugh’s confirmation and only days within the announcement of his nomination, a former high school classmate and current psychology professor, Dr. Christine Blasey Ford, alleged that Kavanaugh had sexually assaulted her some thirty-five years previously. In the midst of the #MeToo movement, Dr. Ford’s accusations were not shrugged off or dismissed, even though many conservatives and others believed she was lying or this was part of some sort of Democratic “witch hunt.” During a Senate hearing, Dr. Ford presented testimony of being pinned down by Kavanaugh while at a party in high school and feared for her life. At the same hearing, Kavanaugh had the opportunity to defend himself and his reputation where he dismissed these charges and denied ever being involved with Dr. Ford. Kavanaugh’s actions at this hearing became, in some ways, a bigger point of contention than the accusation itself. At one point, Kavanaugh stated, “This whole two-week effort has been a calculated and orchestrated political hit…fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” This and other charged and deeply partisan statements catalyzed opposition to Kavanaugh’s nomination. None more appalled than retired Supreme Court Justice John Paul Stevens who stated in a New York Times article that he did not feel that Kavanaugh had the demeanor or was unbiased to serve on the court. In the end, President Trump refused political opinions and suggestions that Kavanaugh should step aside for a less embattled candidate and the Republican-controlled Senate confirmed Kavanaugh as the newest Justice in the Supreme Court.

On October 25th, with the mid-term elections only a few weeks away, The Washington Post interviewed former Speaker of the House and Republican Newt Gingrich. When asked if the Democrats would subpoena Trump’s tax returns, Gingrich agreed it could happen and would almost certainly make its way to the Supreme Court. Gingrich went on to make the alarming statement: “We’ll see whether or not the Kavanaugh fight was worth it.” Many heard this statement and immediately believed it implied that Kavanaugh was appointed to simply become the deciding vote in cases pertaining to President Trump, with the Court split 5-4, between conservative and liberal justices, respectively.

Then on October 30th, one week before the mid-term elections, a clip from the HBO show Axios was released online, which highlighted a segment of an interview with Donald Trump. In short, Trump stated that he could end birthright citizenship in the United States via Executive Order. Trump stated, “It was always told to me you need a Constitutional Amendment [to end birthright], you don’t…now they’re saying I can do it with just an Executive Order. We’re the only country in the world where a person comes in, has a baby and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It’s ridiculous. It’s ridiculous and it has to end…it’s in the process, it will happen with an Executive Order.” Similar to many Trump statements as president, this is a grossly inaccurate reading of the law. First, the United States is one of roughly thirty countries that promise automatic birthright to any child born within the borders of the United States. In short, birthright simply means having citizenship of the nation. Second, many constitutional law scholars believe this cannot be done but must go through the proper channels of Congress to legislate a Constitutional Amendment. In this case, the 14th Amendment is in question, which states: “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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 14th Amendment along with the 13th and 15th Amendments are known as the “Reconstruction” Amendments that were passed following the American Civil War. Here, the 14th Amendment’s intention was to bring the newly freed persons, who were previously slaves into the fold of American society. Therefore, the notion of removing or eliminating birthright citizenship is related directly to historical issues of race and identity in the United States.

While the vast majority of controversial statements and twitter posts by Donald Trump strike many on an emotional level, his statement about birthright citizenship becomes more troubling after Vice-President Mike Pence was asked about the President’s statement. Vice President Pence replied,  “And what I think the President [Trump] has made clear is that we are looking at action that would reconsider birthright citizenship. We all know what the 14th Amendment says. We all cherish the language of the 14th Amendment. But the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment, subject to the jurisdiction thereof, applies specifically to people who are in the country illegally”(emphasis added). Here Pence, in not so many words, adds the last piece to a larger puzzle surrounding the use of Executive Order. The President, like other presidents before him, can utilize Executive Orders to manage and give directives that are subject to judicial review. Therefore, looking at all four recent events, there is a likelihood that Donald Trump will circumvent the safety features of Checks and Balances by bypassing the Legislative Branch by embarking on the use of Executive Order and relying on the newly tilted conservative Supreme Court to rule in his favor.

In summary, Donald Trump could theoretically use his Executive Orders to change birthright citizenship and other laws although he and his cabinet know that it will be subject to judicial review or be immediately challenged in the courts. If Newt Gingrich’s statement is true that this fight for Kavanaugh may be “worth it” or in other words, the bruising and brutal nomination process was won at all costs just so there could be a loyal supporter to count on within the Court, then we could see a coup to American democracy like none before. Trump even attacked then-Speaker of the House Paul Ryan, who disagreed with Trump’s interpretation of his use of Executive Orders. In a tweet, Trump wrote, “Paul Ryan should be focusing on holding the Majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about! Our new Republican Majority will work on this, Closing the Immigration Loopholes and Securing our Border!”Here, Trump goes on the attack, even turning on political allies who questioned him.

In the end, this might all be nothing but speculation and Trump might just abandon this idea, as it might simply be a tool to create fear and stir moral panic about the “invasive” foreign immigrant among his base. However, in the same week that Trump stoked fears around the birthright issue, several violent attacks occurred with the mailing of pipe bombs to prominent Democratic leaders and media outlets, the shooting of two African-Americans in a grocery store in Kentucky, and the mass shooting in a Pittsburgh synagogue that left eleven congregants dead. The common denominator between all three events was that the purveyors of violence were all white men who had stated their ardent support of Donald Trump and his divisive political platform. So, even if Trump, his usage of Executive Orders, and judicial review by the Supreme Court never occur, we cannot be short-sided to the fact that his words have come to matter in the actions of others.

CalvinJohn Smiley received his Ph.D. from The Graduate Center-CUNY in 2014. His work focuses on the intricacies and complications of prisoner reentry for urban inhabitants. More specifically, his research seeks out how men and women navigate and negotiate reentry space, moving from confinement to community, with diminished legal rights and amplified social stigmas. His dissertation focused on residents of Newark, New Jersey who were in the early stages of their reentry process transitioning from prison to halfway houses to community. Smiley’s work is critical of the glaring contradiction in the ways citizenship is simultaneously given and taken away from persons with a felony conviction. In other words, the state creates a unique type of citizenry for those who have been incarcerated; individuals are concurrently an in-group and out-group. He is currently working on a book proposal based on his research.