Buried within one of the dozens of executive orders that President Donald Trump issued in his first days in office is a section titled “Terminating the Green New Deal.” As presidential directives go, this one initially seemed like a joke. The Green New Deal exists mostly in the dreams of climate activists; it has never been fully enacted into law.

The next line of Trump’s order, however, made clear he is quite serious: “All agencies shall immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 or the Infrastructure Investment and Jobs Act.” The president is apparently using “the Green New Deal” as a shorthand for any federal spending on climate change. But the two laws he targets address much more than that: The $900 billion IRA not only funds clean-energy programs but also lowers prescription-drug prices, while the $1.2 trillion bipartisan infrastructure law represents the biggest investment in roads, bridges, airports, and public transportation in decades. And the government has spent only a portion of each.

In one sentence, Trump appears to have cut off hundreds of billions of dollars in spending that Congress has already approved, torching Joe Biden’s two most significant legislative accomplishments. The order stunned even some Republicans, many of whom supported the infrastructure law and have taken credit for its investments.

And Trump didn’t stop there. Yesterday, the White House ordered a pause on all federal grants and loans—a move that could put on hold an additional tens of billions of dollars already approved by Congress, touching many corners of American life. Democrats and government watchdogs see the directives as an opening salvo in a fight over the separation of powers, launched by a president bent on defying Congress’s will. “It’s an illegal executive order, and it’s stealing,” Representative Rosa DeLauro of Connecticut, the top Democrat on the House Appropriations Committee, told me, referring to the order targeting the IRA and infrastructure law.

Withholding money approved by Congress “undermines the entire architecture of the Constitution,” Democratic Senator Chris Van Hollen of Maryland told me. “It essentially makes the president into a king.” Last night, Senate Minority Leader Chuck Schumer said that Trump’s freeze on federal grants and loans “blatantly disobeys the law.”

The Constitution gives Congress the so-called power of the purse—that is, the House and the Senate decide how much money the government spends and where it goes. Since 1974, a federal law known as the Impoundment Control Act has prohibited the executive branch from spending less than the amount of money that Congress appropriates for a given program or purpose. During Trump’s first term, the nonpartisan Government Accountability Office found that the administration had violated that law by holding up aid to Ukraine—a move that became central to Trump’s 2019 impeachment.

[Jonathan Chait: Trump’s second term might have already peaked]

Trump has argued that the Impoundment Control Act is unconstitutional, and so has his nominee for budget director, Russell Vought, who had the same job at the end of the president’s first term. Vought also helped write Project 2025, the conservative-governing blueprint that attracted so many attacks from Democrats that Trump disavowed it during the campaign.

In his Senate confirmation hearings this month, Vought repeatedly refused to commit to abiding by the impoundment act even as he acknowledged that it is “the law of the land.” “For 200 years, presidents had the ability to spend less than an appropriation if they could do it for less,” he told senators at his first hearing. During his second appearance, when Van Hollen asked him whether he would comply with the law, Vought did not answer directly. “Senator, the president ran against the Impoundment Control Act,” he replied. His defiance astonished Democrats. “It’s absolutely outrageous,” Van Hollen told me.

The pause on funds for the Biden-signed laws did not draw as much attention as other moves Trump made on his first day back in the White House, especially his blanket pardons for January 6 defendants. Nor was it the only one that appeared to test the limits of his authority. A separate executive order froze nearly all foreign aid for 90 days, while others targeted birthright citizenship and civil-service protections for federal employees.

But the order cutting off spending for the IRA and the infrastructure law could have far-reaching implications. State and municipal governments in both Democratic and Republican jurisdictions worry that they may not be able to use investments and grants that the federal government promised them. “It’s creating chaos,” DeLauro said. “I honestly don’t think the people who are dealing with this know what they are doing.” She listed a range of popular and economically significant programs that appear to be on pause, including assistance for home-energy bills and money to replace lead pipes that contaminate drinking water.

“It was alarming,” Representative Don Bacon of Nebraska told me. Bacon, a Republican who narrowly won reelection in a district Trump lost, called the White House after reading the text of last week’s executive order to seek assurance that money he’d secured for Nebraska—including $73 million to upgrade Omaha’s airport—wouldn’t be stopped.

The immediate confusion became so intense that a day after Trump signed the order, the White House issued a memo seeking to clarify its scope that seemed to slightly narrow its impact and open the door for some spending to continue. Bacon told me that he was assured the directive applied mostly to Biden’s electric-vehicle mandate, which Trump railed against on the campaign trail and is part of the IRA. DeLauro, however, said the memo offered little clarity: “Everything is at risk.”

Yesterday’s memo extending the funding pause to all federal grant and loan programs set off another frenzy. The directive sought to exempt Medicare and Social Security recipients, as well as other direct aid to individuals. But according to a copy of the memo published by The Washington Post, it explicitly targets “financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”

Whether the funding pause constitutes an illegal impoundment is unclear. The executive branch does have some latitude in how it spends money. And yesterday’s memo instructs federal agencies to halt funding only “to the extent permissible under applicable law.” Describing last week’s order targeting the IRA and infrastructure law, Vought told senators that it was merely a “programmatic delay,” a term that arguably falls within what federal departments are allowed to do.

More broadly, executive orders are frequently less consequential than they appear, Nicholas Bagley, a law professor at the University of Michigan and occasional Atlantic contributor, told me about last week’s directive. “It’s one thing to try to get a really nice headline for cutting back on government spending. It’s another thing altogether to decline to spend money that people are expecting you to spend,” Bagley said. “I would not be surprised if rhetoric does not match reality.”

To Charlie Ellsworth, a senior adviser with the nonprofit watchdog Congressional Integrity Project, Trump’s executive order on clean energy unmistakably oversteps the law. “They could have done this legally, but they didn’t,” Ellsworth, a former Schumer aide, told me. A new administration, for example, could have justified a pause in spending to ensure that a program was being funded in accordance with the law. But the order instead instructs agencies to ensure that the spending aligns with new policies set by the Trump administration. Ellsworth said that the order is “self-evidently” illegal.

The fight is almost certain to wind up in the courts, which have repeatedly ruled against the president’s ability to withhold funds appropriated by Congress. Indeed, Vought’s Senate testimony seemed to invite a legal challenge that could lead the Supreme Court, now with a 6–3 conservative majority and three Trump-appointed justices, to reconsider the question. “That seems to be their game plan,” Ellsworth said. “They want to get sued. They want to go to the Supreme Court.”

Van Hollen told me that he believes the Court would rule against Trump but that preferably the dispute won’t get that far. “You would hope that Republicans in Congress recognize they have an institutional interest in protecting Article I [of the Constitution] and the power of the purse, which is clearly congressional,” Van Hollen said.

[David A. Graham: It’s already different]

Beyond the question of legality, Van Hollen warned that Trump’s orders would jeopardize virtually all negotiations over spending on Capitol Hill, because Democrats would not be able to trust the administration to keep its end of any agreement. Although Republicans have majorities in both the House and the Senate, they will need to strike deals with Democrats to avert government shutdowns and a catastrophic default on U.S. debt.

There were early signs of GOP pushback on last week’s spending freeze, but it fell well short of a revolt. Senator Rand Paul of Kentucky, the chair of the Homeland and Governmental Affairs Committee, said at one of Vought’s hearings that he disagreed with the administration’s view on spending and impoundments. “I think if we appropriate something for a cause, that’s where it’s supposed to go, and that will still be my position,” Paul said. And Senator Lindsey Graham of South Carolina, the chair of the Budget Committee, said at a second Vought hearing that he, too, had “concerns” about impoundment. But neither of them planned to stand in the way of the nominee who has argued for the president to wrest control of spending from Congress. “When you win, you get to pick people,” Graham told Vought. “And I’m glad he picked you.”

On the Republican side, the fight might be left to lawmakers such as Bacon, who has some protection from presidential retribution because he represents a purple district where voters might reward him for standing up to Trump. The GOP, he said, should go after policies it opposes through legislation, not executive order. “You just can’t determine what laws you want to execute and what you don’t,” Bacon said of Trump. Executive orders, he added, “have gotten out of hand” from presidents in both parties. “You can’t change the law,” Bacon said. “I think Republicans should stay true to that notion.”

The attempt to end birthright citizenship in the United States is an attempt to reverse history, to push our nation back, way back, before the Dred Scott decision of 1857 and the secession crisis that soon delivered the nation into the Civil War. Calling this action “unconstitutional” is utterly inadequate; the maneuver is the soiling of sacred text with profane lies.

Birthright citizenship is a shield of protection to anyone born in this country, as close to a national self-definition as we have; it is our legal DNA. Section 1 of the Fourteenth Amendment should be emblazoned on small laminated cards and carried in every American’s pocket. The language is amply clear:

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.

That language is as fundamental to the Constitution as any other provision, perhaps even more important to the survival and growth of our pluralistic republic than the First Amendment, which protects free speech, free press, the right of assembly, and the right to petition the government. It is as inherent to constitutional function as federalism itself.

[Read: The Attack on Birthright Citizenship Is a Big Test for the Constitution]

The Trump administration now scoffs at this history, purporting to end this guarantee with an executive order signed on Donald Trump’s first day back in the Oval Office and tragically titled, in a fantastic act of Orwellian doublespeak, “Protecting the Meaning and Value of American Citizenship.” The administration makes a phony originalist argument based on the claim that the Fourteenth Amendment’s guarantee extended only to the freedmen and their descendants. Quite the contrary, the amendment’s authors explicitly envisioned the immigrant population and its descendants as part of their plan. Congressman John Bingham, Section 1’s author, defended the amendment by drawing on the authority of the Constitution’s Framers, who had “invited the workers and builders whose honest toil clothes and shelters nations,” and who hailed from “every civilized nationality” to become “citizens of the Republic.” This is why, in blocking Trump’s order last week, the Federal District Court Judge John C. Coughenour said without caveat: “This is a blatantly unconstitutional order.”

Section 1’s origins lie deep in our past. It is rooted in the petitions of African Americans during and after the American Revolution that demanded freedom and natural rights for their service to the patriot cause. It stems from many ideas and strategies of the British and American abolition movements. It echoes Thomas Jefferson’s inclusion of equality among “these truths” in the Declaration of Independence and Abraham Lincoln’s use of the same word in the Gettysburg Address, as well as his full-throated embrace of immigration well before the Civil War. Its most direct and powerful harbinger is the emancipation of nearly 4 million slaves in the midst of the war. Without that greatest transformation in American history, there would be no Fourteenth Amendment—no birthright citizenship and no equal-protection clause either, a codification just as sacred.  

Most profound, birthright citizenship is rooted in the blood of more than 700,000 Americans who died in the Civil War, a catastrophe that made possible what most historians now call the “second founding” of America. The rebirth harkened in the Fourteenth Amendment is the core of this phrase’s meaning. The Trump administration’s desire to obliterate birthright citizenship is part of a larger quest to undo most of this egalitarian tradition, to shift American history into a kind of permanent reverse gear back to an age of secure constitutional white supremacy.

[Read: The Coming Assault on Birthright Citizenship]

One cannot overstate the gravity of Trump’s proposed action, nor the historical ignorance on which it stands. The original Republicans who crafted birthright citizenship into the amendment were doing nothing less than harvesting the greatest results of the Civil War, making good on the promise of freedom for millions of any creed, color, or national origin at the time and for all time to come. Section 1 explained to the world what that war had meant. To erase any part of it now is to tarnish the legacy of William McKinley, Trump’s new favorite president, who fought in the Battle of Antietam. The Union victory there is what prompted the Emancipation Proclamation.

For Bingham, a deeply Christian abolitionist Republican from Ohio, this debate went back at least to the 1850s crises over the expansion of slavery. In 1858 he said, “Every man knows that under our free institutions, every person born of free parents within the jurisdiction of the United States … is a citizen of the United States.” Bingham, of course, overestimated such consensus, because Chief Justice Roger B. Taney in Dred Scott v. Sandford had ruled for a 7–2 majority of the Supreme Court the previous year that Black people possessed “no rights” whatsoever under American law. One of the grand purposes of the Fourteenth Amendment was to relegate the Dred Scott decision to history.

By the winter of 1866, as Congress debated the content of an amendment, it faced many overwhelming obstacles, especially bone-level, historical racism and the doctrine of federalism that fundamentally protected states’ rights. Congress had just fought an all-out war to restore the Confederate states to the Union and to end slavery with an overwhelming use of federal power.

But the Republicans, despite fierce debates, were confident. “I can hardly believe,” wrote Thaddeus Stevens, the radical floor manager for his party, “that any person can be found who will not admit that every one of these proposals is just.” They knew exactly what they intended to achieve. Bingham defended the amendment as protection of the “in-born rights of every person.” Stevens thought they had to “fix the foundations of the government on principles of eternal justice.” Senator Lyman Trumbull saw them advancing principles “which the great Author of all has implanted in every human breast.” They believed that they were enacting justice and morality, not only for freed slaves but for the country’s immigrant future, a fact they deeply understood because they had lived through the recent waves of Irish and German immigration.

[Read: The Real Origins of Birthright Citizenship]

As for states’ rights, Bingham had a constant answer. For “generations to come,” he announced, he sought to “arm Congress … with the power to enforce the Bill of Rights as it stands in the Constitution … in the states.” In the states, by federal power.

In floor debates, Bingham spoke with great eloquence about the purposes of the amendment. “The day of the freedman’s deliverance has come,” he declared, “not without suffering, not without sorrow, not without martyrdom, not without broken altars and broken hearts.” But now he saw potential days of glory, not only for ex-slaves but for the immigrant. The Constitution could now “provide that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless … shall be deprived of life or liberty or property without due process of law.” Above everything, “all persons born” here were forever citizens.  

Trump and his allies have picked a fight over this crucial provision in the Constitution. Americans have to engage the fight, in the courts and with every mode of persuasion. Trump and his allies’ vision is an egregious abuse of real history and the new Constitution it forged in the 1860s. If they succeed, then Grant has surrendered to Lee at Appomattox.

Shortly after taking the oath of office, President Donald Trump signed an executive order revoking the security clearances of about four dozen former national-security officials. Their offense was that in 2020, they had signed an open letter suggesting that the publication of emails found on a laptop purportedly belonging to Joe Biden’s son Hunter might be the result of a Russian-government operation designed to “influence how Americans vote in this election.”

You may remember the letter, but if not, you should reacquaint yourself with this episode, which remains a fixation of the president and many of his supporters. The Hunter Biden laptop letter inspired the executive order that is Trump’s first shot in a war he has long promised against the “deep state”—that collection of CIA officers, FBI agents, and other career bureaucrats who he believes have conspired against him for nearly a decade. The order accuses 51 former officials, by name, of “election interference,” potentially a serious crime.

Here’s why this is so disturbing: If those people can be targeted simply for exercising their free-speech rights, then conceivably so can you if you stake a political sign in your front yard, slap a bumper sticker on your car, or try to persuade people on social media to vote for your candidate of choice.

The emails first came to public attention in an article published in the New York Post in October 2020, a few weeks before the presidential election. The story implicated Joe Biden in his son’s business dealings in Ukraine, a subject of intense interest among Trump’s allies, including the president’s personal lawyer, former New York Mayor Rudy Giuliani. The ex-mayor gave the Post a copy of a laptop hard drive that he had obtained through a repair-shop owner, the newspaper reported, and that purportedly contained Hunter Biden’s emails.

[Read: Trump’s ‘secretary of retribution’]

In response, the 51 former officials signed a letter asserting that “the arrival on the US political scene of emails purportedly belonging to Vice President Biden’s son Hunter … has all the classic earmarks of a Russian information operation.” Mind you, the signatories offered no evidence of a hidden Russian hand in all of this. They supplied no digital trails leading to Russian spies, no confidential sources claiming a connection. And they were up-front about this: “We want to emphasize that we do not know if the emails … are genuine or not and that we do not have evidence of Russian involvement—just that our experience makes us deeply suspicious that the Russian government played a significant role in this case.”

That’s it. They were suspicious. Maybe with good reason. At the time, current officials, with access to classified information, believed that Russian intelligence operatives were trying to feed misinformation about the Bidens to Giuliani, as my colleagues at The Washington Post and I reported at the time. The signatories argued that, based on their long experience doing battle with Russia in the arena of international espionage, people should take their suspicions seriously.

If this all sounds like what op-ed writers or self-professed experts on social media or talking heads on TV routinely do, that’s because it is. Indeed, several of the signatories were regular “Never Trump” commentators on cable talk shows, political podcasts, and Twitter. The letter contains no classified information; the CIA made sure of that when it reviewed the text, as the agency routinely does when former officials write books or articles or make speeches. The letter represented nothing more or less than the collective opinion of people with more knowledge about Russia than the average person, alerting the public to what they considered a legitimate cause for concern.

But they were wrong. Embarrassingly wrong. The emails really did turn out to belong to Hunter Biden, and they raised legitimate concerns that he was trying to profit from his father’s political position. No evidence ever surfaced that Russia had played a role in bringing the emails to light. Intelligence experts sometimes make bad calls. This was one of those times.

Trump’s order, which uses turns of phrase he deployed on the campaign trail, says that the signatories tried to “suppress information essential to the American people,” in what he called “an egregious breach of trust reminiscent of a third world country.” Although the signatories clearly wanted to counter the claims that Trump’s allies were making about Biden and his son, no evidence suggests that they were trying to suppress anything. They appear to have sincerely believed that Russia might be behind the story.

Some of the signatories still defend their work by noting, correctly, that they said the emails might be part of some Russian trick, not that they definitely were. That too-cute defense does not absolve them of bad judgment.

But the Constitution protects their right to be wrong. The signatories are free to advertise themselves as experts, and when their analysis turns out to be off base, they have to suffer the reputational consequences. TV producers might not ask them to appear on their shows. The public might not take them seriously the next time they yell “Russia!” But they should not expect to end up called out in a presidential order accusing them of potentially criminal acts.

“It would be contrary to decades of national security norms to suspend the security clearances of individuals who did nothing other than, as private citizens, exercise their protected First Amendment rights,” Mark S. Zaid, a lawyer representing some of the signatories, told me in a written statement. “It is also quite ironic that at the same time this Executive Order is issued, the White House claims it supports the restoration of freedom of speech and seeks to end federal censorship.”

[Read: Trump’s ‘deep state’ revenge]

This is where I have to disclose some pertinent facts. I read this letter before it was published, because the people involved in writing it offered it to me exclusively in the course of my reporting on Russian intelligence activities for The Washington Post. I later learned, thanks to a congressional investigation, that the Biden campaign had wanted me to have this letter before any other journalist, for reasons that I still don’t completely understand but probably have to do with my long history of reporting on intelligence matters. I decided not to write about the letter, because I didn’t find it newsworthy. The authors had no evidence to back up their claims. It was merely their opinion that Russia might be up to some shenanigans. And in 2020, that opinion was not exactly novel. The people coordinating the letter ultimately found another publication that wanted to write about it.

I also know many of the signatories. I have quoted several of them in news articles over my two-decade career. But I never saw the letter before these people signed it, and none of them asked me to write about it or pressured me to do so. Some of them would prefer that I forget the whole episode and not renew attention to it.

The punitive measure Trump has directed isn’t trivial. An active security clearance is a requisite for employment in some companies or organizations, and rescinding it could materially affect some of the signatories’ livelihoods. The order also damages their reputations, beyond any hit they may have taken after they released the letter. And it imperils their safety. Since Trump issued the order on Tuesday, one of the signatories told me that he has received online threats. And a retired Green Beret who bills himself as Trump’s “secretary of retribution,” posted on X calling for “Live-Streamed Swatting Raids” against the signatories, referring to the illegal practice of falsely reporting an emergency in order to summon armed law enforcement to someone’s home. You don’t have to feel sorry for these people to appreciate the broader implications of Trump’s order and what he might inspire his followers to do.

Maybe you could chalk up all of this to bare-knuckle politics. Trump’s order is a predictable form of payback. The claim that the former officials “coordinated with the Biden campaign” to write the letter, in order to discredit the New York Post’s reporting, has some truth to it. The congressional investigation into the letter established, based on emails, text messages, and interviews with the people who orchestrated its writing and release, that the idea got rolling after Antony Blinken, then a Biden campaign adviser, asked Michael Morell, a former senior CIA official who was on the shortlist to run the spy agency in a Biden administration, about the Post report. Morell testified to congressional investigators that the letter was intended to give Biden a “talking point” if Trump tried to use the laptop story to attack the vice president. The signatories certainly knew that, or should have, because this was spelled out in emails asking them to put their names on the document.

But how is that “election interference”? The executive order doesn’t say. You can argue that former intelligence officials should stay out of politics, because they spent their careers in a profession that prides itself on being apolitical. But nothing about writing a letter is illegal, or even all that inappropriate. And being motivated by a desire to help one’s preferred candidate win doesn’t preclude a genuine suspicion that a hostile government might be trying to stop him.

[Nicholas Florko: There really is a deep state]

Well before Trump issued his order, some of the signatories privately told me that they wished they’d never participated in the first place. They stand by what the document narrowly says, but they recognize that it has done more harm than good and handed Trump an easy cudgel to use against opponents, real or imagined.

The order doesn’t just target the signers. It instructs the director of national intelligence, in consultation with the director of the CIA, to report to the president “any additional inappropriate activity that occurred within the Intelligence Community, by anyone contracted by the Intelligence Community or by anyone who held a security clearance” in the writing and publication of the letter.

That’s potentially a lot more people, and a longer story. But for now, just know that Trump remembers who dared to speak out, even mildly, against him.

The purpose of the Fourteenth Amendment was to settle once and for all the question of racial citizenship, forever preventing the subjugation of one class of people by another. Donald Trump’s executive order purporting to end birthright citizenship is an attempt to reverse one outcome of the Civil War, by creating a permanent underclass of stateless people who have no rights they can invoke in their defense.

In 1856, in the infamous Dred Scott decision that declared that Black people could not be American citizens, Chief Justice Roger Taney wrote that as “a subordinate and inferior class of beings,” Black people had “no rights which the white man was bound to respect.” Yes, the Declaration of Independence had stated that “all men are created equal,” but “the enslaved African race were not intended to be included.”

Frederick Douglass, who argued that the Constitution did not sanction slavery, responded to the Taney decision by saying that one could find a defense of slavery in the Constitution only “by discrediting and casting away as worthless the most beneficent rules of legal interpretation; by disregarding the plain and common sense reading of the instrument itself; by showing that the Constitution does not mean what it says, and says what it does not mean, by assuming that the written Constitution is to be interpreted in the light of a secret and unwritten understanding of its framers, which understanding is declared to be in favor of slavery.” Sounds familiar.

[David A. Graham: It’s already different]

Trump’s executive order similarly rewrites the Constitution by fiat, something the president simply does not have the authority to do. The order, which purports to exclude the U.S.-born children of unauthorized immigrants from citizenship, states that such children are not “subject to the jurisdiction” of the U.S. and therefore not included in the amendment’s language extending citizenship to “all persons born or naturalized in the United States.” This makes no sense on its own terms—as the legal scholar Amanda Frost wrote earlier this month, “Undocumented immigrants must follow all federal and state laws. When they violate criminal laws, they are jailed. If they park illegally, they are ticketed.” The ultraconservative Federal Judge James C. Ho observed in 2006 that “Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens.”

As such, Trump’s executive order on birthright citizenship is an early test of the federal judiciary, and of the extent to which Republican-appointed judges and justices are willing to amend the Constitution from the bench just to give Trump what he wants. They have done so at least twice before, the first time by writing the Fourteenth Amendment’s ban on insurrectionists running for office out of the Constitution, and the second time by seeking to protect Trump from prosecution by inventing an imperial presidential immunity out of whole cloth. But accepting Trump’s attempt to abolish birthright citizenship would have more direct consequences for millions of people, by nullifying the principle that almost anyone born here is American.

In the aftermath of the Civil War, white southerners tried to restore, at gunpoint, the slave society that had existed prior to the war, notwithstanding the Thirteenth Amendment’s abolition of slavery. Republicans in Congress passed the Fourteenth Amendment to secure equal citizenship and the Fifteenth Amendment to protect the right to vote regardless of race, amendments that guaranteed political and civil equality. The Civil War amendments, the work of the Republican Party, are the cornerstone of multiracial democracy in the United States. Despite this historic accomplishment, for the past 80 years or so, the party of Lincoln has aimed its efforts at repealing or nullifying them.

“Adopted as part of the effort to purge the United States of the legacy of slavery, birthright citizenship, with which the Fourteenth Amendment begins, remains an eloquent statement about the nature of American society, a powerful force for assimilation of the children of immigrants, and a repudiation of a long history of racism,” the historian Eric Foner writes in The Second Founding, a history of the Civil War amendments, though he is cautious to note that these principles were not always respected by the government—Jim Crow and Japanese internment being obvious examples. Birthright citizenship was “a dramatic repudiation of the powerful tradition of equating citizenship with whiteness, a doctrine built into the naturalization process from the outset and constitutionalized by the Supreme Court in Dred Scott.”

This detachment of American citizenship from whiteness was one of the parts of the Fourteenth Amendment that Democrats, at the time the party of white supremacy, hated the most. “Democratic members of Congress repeatedly identified American nationality with ‘the Caucasian race,’ insisted that the government ‘was made for white men,’ and objected to extending the ‘advantages’ of American citizenship to ‘the Negroes, the coolies, and the Indians,’” Foner writes.

Trump’s immigration braintrust sees things similarly. In emails with conservative reporters, Trump’s point man on immigration, Stephen Miller, praised articles attacking the 1965 repeal of racist restrictions on immigration that had been passed in 1921 and were intended to keep out nonwhite people, Southern and Eastern Europeans, and Jews. These laws again redefined American citizenship in racist terms, and helped inspire the Nazis. The end of those restrictions meant that more nonwhite immigrants were able to gain citizenship in the United States, a phenomenon conservatives have dubbed a “Great Replacement,” borrowing a concept from white-supremacist sources. That the Trump coalition now includes people who would have been shut out by Miller’s preferred immigration policies does not change the fact that Trump’s immigration advisers view the decline of the white share of the population as an apocalyptic occurrence that must be reversed. It is no accident that this project begins with the nullification of constitutional language guaranteeing citizenship regardless of race or country of origin.

[Martha S. Jones: The real origins of birthright citizenship]

Republicans have made significant inroads among nonwhite voters in the past few years. Their reasons for supporting Trump change neither the intent of his entourage nor the effects of his policies. A successful repeal of birthright citizenship would mean the so-called pro-life party creates a class of stateless infants, a shadow caste mostly unprotected by law. It would require Americans to prove their citizenship time and time again, and leave them vulnerable to administrative errors that could endanger proof of their status. These burdens would likely fall disproportionately on those nonwhite people Trumpists see as their “replacers,” no matter how enthusiastic about Trump they might be.

Since the rise of Trump, the once-fringe idea that the Fourteenth Amendment does not confer citizenship on the children of undocumented immigrants has gained traction among ambitious conservatives whose malleable principles allow them to shape themselves to Trump’s whims. By November of 2024 the aforementioned Ho, who had previously written a detailed law-review article rejecting such theories, had become a bombastic, partisan Trumpist judge; he carefully retraced his steps and insisted that the birthright-citizenship clause doesn’t apply in the case of immigrant “invasion,” substituting Fox News talking points for legal reasoning.

This is the level of respect for the Constitution one can expect from conservative jurists in the Trump era. Whatever Trump says is correct. What the original framers of the Fourteenth Amendment understood was that the necessities of multiracial democracy demand more than bowing and scraping before this sort of lawlessness. For now, neither party’s political leadership seems up to the task.

Presidents typically spend their final days in the White House taking care of odds and ends: issuing pardons, signing some last executive orders, thanking staff. Joe Biden is doing all of those things—and also trying to change the Constitution on his way out the door.

This morning, Biden declared on X that “the Equal Rights Amendment is now the law of the land.” Well, there you have it: The Constitution has a 28th amendment, and women’s rights have been enshrined across the country.

Or not. Biden can’t change the Constitution, because the Constitution doesn’t allow him to.

The fight for the ERA is older than the 82-year-old president, and it did not end with Biden’s social-media proclamation. The suffragist Alice Paul first proposed an equal-rights amendment in 1923. Nearly a half century later, in 1972, Congress approved and sent to the states a constitutional change summed up in 24 words: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Congress set up a deadline for ratification. By 1982, when time ran out, only 35 states had ratified the ERA—three short of the three-fourths majority needed to add it to the Constitution.

The battle was mostly dormant until 2017, when Nevada became the 36th state to ratify the ERA. Then Illinois (in 2018) and Virginia (in 2020) followed suit, pushing the amendment across the required threshold. But they were nearly four decades too late, and in that span, several states voted to withdraw their ratification.

[Read: Did Virginia just amend the Constitution?]

In the past several years, advocates for the ERA have tried a few avenues to enshrine the amendment. They’ve argued in court that the time limit was unconstitutional, pointing out that many other amendments didn’t have one attached to their text. They’ve lobbied Congress to rescind the deadline. They’ve urged the archivist of the United States—the official charged with formally certifying and publishing amendments—to add the ERA to the Constitution on her own, damn Congress and the courts.

All of their efforts have failed. In 2021, a federal judge dismissed a case brought by two states seeking to have the ERA recognized; two years later, an appellate court affirmed the ruling. Even Ruth Bader Ginsburg, a staunch supporter of the ERA, opposed the effort, saying in 2020 that advocates needed “to start over” because the deadline had elapsed. In 2021, the House passed a resolution to repeal the deadline, but it never cleared the Senate. And just last month, the archivist, Colleen Shogan, and the deputy archivist, William Bosanko, issued a statement saying that they could not legally publish the ERA, citing “established legal, judicial, and procedural decisions.”

As a last resort, ERA backers have urged Biden to simply instruct the archivist to publish it anyway. But the Constitution doesn’t afford the president any role in the amendment process; unlike regular laws, constitutional changes do not go to his desk for a signature or veto. And in his statement, Biden said nothing about the archivist or publishing the ERA. His declaration is likely to have neither force nor effect. Advocates might hope that a friendly federal judge would accept the presidential statement as a formal recognition of the ERA in a case that makes a legal claim under its auspices. But the conservative-dominated Supreme Court would almost certainly shoot down such a ruling.

Still, Biden’s declaration won praise from Democrats this morning. Hillary Clinton, for one, said she was “thrilled.” But it will likely have no more significance than the farewell address he delivered on Wednesday. It is an affirmation of values, an aspirational statement for posterity, but not an actual decree.

As attempts to change the Constitution go, this was pretty half-hearted. By noon, a community note had been added to his X post, as if to underscore the point: “There is no 28th Amendment.”

The nation is bracing itself for what President-Elect Donald Trump has promised will be the largest deportation effort in American history. Trump has vowed to use the military to assist with deportations, relying on emergency and wartime powers such as the Insurrection Act, the National Emergencies Act, and the Alien Enemies Act. In addition to worrying about the impact on immigrant families, wider communities, and the economy, many Americans are wondering—is this legal?

The deportation of undocumented individuals who are ineligible for asylum or other legal protection is, of course, well within the government’s authority under current immigration law. (As a policy matter, President Joe Biden has chosen to focus on those who have committed serious crimes—a policy that Trump is set to undo, presumably to facilitate broader deportation efforts.) But deploying the military raises an entirely different set of legal questions. Even under the potent authorities Trump has cited, the actions he proposes to take would be, at a minimum, an abuse of power, and they might well be illegal to boot.

Some degree of military involvement in immigration enforcement is already permitted—and has occurred under multiple administrations—without recourse to emergency powers. This may be surprising to many Americans. Anglo-American law has a long tradition of military noninterference in civilian affairs, for the simple reason that an army turned inward can quickly become an instrument of tyranny. In the United States, this tradition finds expression in an 1878 statute, the Posse Comitatus Act, that prohibits federal armed forces from participating in law-enforcement activities unless expressly authorized by law. Although not every American is familiar with the act, the principle it enshrines is deeply embedded in the public consciousness.  

[Quinta Jurecic: Yes, the law can still constrain Trump]

Less well known is the fact that the Posse Comitatus Act is riddled with exceptions and loopholes. For one thing, courts have construed the law to bar only direct participation in core law-enforcement activities, such as arrests or seizures. Federal forces may still provide indirect support to law-enforcement agencies in a number of ways, including conducting reconnaissance, sharing intelligence, and furnishing and operating equipment. In the 1980s, Congress passed several laws authorizing active-duty armed forces to provide these types of assistance.

In addition, the act applies only to federal armed forces. It does not apply to the National Guard—military units within the states that usually operate under state authority—unless the president has called Guard forces into federal service, at which point they become part of the federal military. Congress has passed a law authorizing Guard forces to perform federal missions at the request of the president or secretary of defense even when they haven’t been called into federal service. (Governors have the right to refuse such missions.) The Posse Comitatus Act does not apply to these operations, because the Guard forces remain, at least nominally, under state command and control.

These gaps in the act’s coverage have enabled military involvement in the enforcement of immigration and customs laws at the U.S.-Mexico border for decades, beginning in the 1980s and ramping up after 9/11. Presidents George W. Bush, Barack Obama, and Trump sent thousands of National Guard forces to the border, where they provided support to the Department of Homeland Security in the form of surveillance, transportation, equipment, and the erection of barriers. Trump also deployed active-duty armed forces, as did President Biden. In the summer of 2023, 2,500 National Guard forces and 1,500 active-duty armed forces were stationed at the border.

The seemingly permanent militarization of the U.S.-Mexico border may not violate the Posse Comitatus Act, but it has led to a variety of harms. When thousands of soldiers are routinely arrayed at the border, Americans receive the message that migrants are a threat to national security and public safety—a baseless notion that underlies and fuels support for Trump’s anti-immigration platform. Prolonged deployments at the border are also bad for the military, as they undermine service members’ morale and divert resources and personnel from core military functions.

Trump now reportedly seeks to double down on the militarization of immigration enforcement by invoking a trio of emergency authorities, beginning with the Insurrection Act of 1807—the primary statutory exception to the Posse Comitatus Act. The Insurrection Act gives the president broad powers to deploy federal armed forces (including the federalized National Guard) to quell civil unrest or enforce the law. The criteria for deployment are written in vague, archaic terms that provide few clear constraints. To make matters worse, the Supreme Court held in 1827 that the president is the sole judge of whether the criteria for deployment have been met. In other words, courts generally cannot review a president’s decision to invoke the law.

Although a top aide has said that Trump will invoke the Insurrection Act, the Trump team has provided scant detail on how he plans to use federal forces once deployed. Given that nonemergency authorities already authorize substantial military support to civilian law enforcement, it’s conceivable that Trump’s purpose in invoking the Insurrection Act is purely symbolic—a performative act of “shock and awe.” (The very name of the law suggests that immigrants are attacking from within and must be defeated through force.) At least in theory, though, the law could allow federal forces to perform core law-enforcement functions, such as apprehending and detaining immigrants, in any state in the country and against any governor’s wishes.

Such a use of the Insurrection Act would go beyond a mere expansion of existing military activities. Soldiers rolling into American towns in armored vehicles, knocking on doors, and carting people off to military detention facilities would create risks and harms that current border operations do not. For one thing, direct interactions between military personnel and civilians in fraught circumstances carry a significant potential for violence. After all, soldiers are trained to fight; few receive training in how to peaceably enforce civilian laws while respecting civil liberties. Furthermore, the visible presence of soldiers deployed in the streets would be both alarming and chilling for many Americans. Some would undoubtedly feel less comfortable engaging in protests against Trump’s policies or other basic acts of personal expression.

Heavy involvement of the military in immigration enforcement would also require a massive infusion of resources, both financial and human. That’s where Trump’s plan to declare a national emergency might come in. Under the National Emergencies Act, presidential declarations of national emergency unlock enhanced powers contained in 150 provisions of law spanning almost every area of governance, including military deployment, commerce, transportation, communications, agriculture, and public health. These provisions can supply both additional authority and additional resources for presidential action in a crisis.

Trump has used these powers before. In 2019, Trump declared that unlawful migration at the southern border constituted a national emergency. He invoked an emergency power that frees up funding for “military construction” projects, which he used to secure funds Congress had refused to allocate for the border wall. He might well reprise this effort, and he could attempt to use the same provision to fund the construction of military bases that would serve as immigrant-detention facilities. He could also use emergency powers to call up reservists, amplifying the manpower available to detain and deport immigrants. Indeed, Biden did exactly that in 2023 to supplement forces at the southern border.

[David A. Graham: Why didn’t Jack Smith charge Trump with insurrection?]

Finally, Trump has pledged to invoke the Alien Enemies Act—the last remaining vestige of the notorious 1798 Alien and Sedition Acts. A president may invoke this law when Congress has declared war or when the president proclaims an “invasion” by a foreign government. It allows the president to detain and deport immigrants, including green-card holders and others lawfully in the country, who are not U.S. citizens and who were born in the enemy nation. Immigrants targeted under the act are not entitled to the hearings and other procedural protections afforded by immigration law.

The act was last used in World War II to implement the internment of more than 31,000 noncitizens of Japanese, German, and Italian descent. (U.S. citizens of Japanese descent were detained under a separate authority.) Congress and the U.S. government have since apologized for much of this shameful episode in our nation’s history.

According to reporting in Rolling Stone, Trump may claim that migration from Mexico and other countries south of the border constitutes an “invasion” perpetrated by drug cartels that are operating as de facto governments in those regions. The Alien Enemies Act does not itself authorize military deployment, but it could be combined with the Insurrection Act and other authorities to significantly expand the military’s remit. Most notably, if Trump were successful in invoking these laws, they could allow troops to detain and deport not just undocumented individuals but people who are lawfully present in the United States.

There is no question that the authorities Trump has cited grant the president sweeping powers. The Brennan Center, where I work, has called attention to the dangers posed by each of them. My colleagues and I have urged Congress to reform the laws in order to incorporate safeguards against presidential overreach (or, in the case of the Alien Enemies Act, to repeal it).

But there is also no question that Trump’s proposed actions, as he and his allies have framed them, would be a staggering abuse of these authorities—and quite possibly illegal. Despite the permissive language of the Insurrection Act, it was clearly intended for crises that could not be solved by civilian government actors. That is why it has been invoked only 30 times in the nation’s history and has lain dormant for the past 33 years. In keeping with tradition and constitutional principles, the Justice Department has interpreted the law narrowly, asserting that it should be used only as a “last resort”—specifically, when state and local authorities request military assistance, are obstructing federal law, or have “completely broken down.”

There are many ways to address unlawful immigration short of deploying federal troops. Last spring, for instance, the Senate voted twice on a bipartisan bill that would have dramatically tightened border security. Republicans blocked the measure—reportedly at Trump’s behest, so that he could continue to make the porous border a central focus of his campaign. Having actively obstructed an effort to ramp up civilian enforcement of immigration laws, Trump can hardly argue that military deployment is a “last resort.”  

His cynical behavior could open the door to a legal challenge. Although the Supreme Court has generally barred judicial review of Insurrection Act invocations, it has suggested on various occasions that there might be an exception for deployments undertaken in bad faith. That’s because all of the president’s actions, even those committed to his discretion under Article II of the Constitution, must be consistent with the express constitutional obligation to faithfully execute the law.

In addition, the Supreme Court has distinguished between a president’s decision to invoke the Insurrection Act (which is usually not subject to judicial review) and any actions taken by the military after deployment (which are squarely within the courts’ purview). Soldiers deployed under the act must comply with the Constitution and other applicable federal law. If people’s legal rights were violated under a Trump-ordered deployment—for instance, if military detention conditions failed to meet basic human needs—courts would be able to intervene.

Just as invoking the Insurrection Act would be inconsistent with the law’s intent, declaring a national emergency would be a misuse of emergency powers. To be sure, America’s broken immigration system has led to unprecedented numbers of unlawful border crossings. Emergency powers, however, are designed to address sudden, unexpected crises that can’t be handled by Congress through ordinary legislation. There is nothing sudden or unexpected about the problems at the southern border, and Congress can—and should—address those problems through reform of the immigration system.

[Quinta Jurecic: Trump secures his get-out-of-jail-free card]

As a legal matter, courts will be reluctant to second-guess Trump’s decision to declare an emergency. But they will be less deferential in reviewing whether his administration’s actions are authorized under the specific powers he invokes. Although Trump has not identified which powers he plans to use, none of the 150 provisions available during a national emergency is designed to facilitate deportation. Trump will likely be stretching some of these laws beyond their permissible limits. (During his first administration, some courts struck down his use of the military-construction authority to build the border wall.) Courts will also review whether the actions Trump takes pursuant to a national-emergency declaration comport with other federal laws and constitutional rights.

Perhaps the most glaring abuse would be invoking the Alien Enemies Act. The history and design of the law make clear that it is a wartime authority only. It was intended to address armed attacks by foreign nations, not people fleeing political persecution, drug- and gang-related violence, or economic hardship. Even if a significant portion of migrants were criminals—a myth contradicted by all available evidence—that would not render their border crossing an act of war.

Moreover, whether in wartime or peacetime, the Alien Enemies Act suffers from grave constitutional flaws. It permits the targeting of individuals based solely on their ancestry, rather than their conduct, and it allows those individuals to be detained and deported without a hearing. As a recent Brennan Center report argues, these powers are fundamentally inconsistent with modern understandings of constitutional equal-rights and due-process protections.

Whether the Supreme Court would uphold the actions Trump has threatened is impossible to say with any certainty. In recent years, the Supreme Court has occasionally taken positions previously thought inconceivable, and overturned numerous long-standing precedents. But regardless of how the Supreme Court may rule, these actions should rightly be understood as an abuse of power, an abuse of the public trust, and an abuse of the law. And as soon as there is an opportunity, Congress must reform the emergency authorities in question so that no president can ever commit such abuses in the future.

Four years ago, scores of police officers were attacked only yards away from where Donald Trump will swear to defend the Constitution and faithfully execute the duties of his office. The scene, in the words of one officer, was “a non-stop barrage” with “weapons and things being thrown, and pepper spray, and you name it … You could hear them yelling. You could hear them, screams and moans, and everything else.” One officer later said that he was certain he would die the moment he entered the crowd: “You know, you’re getting pushed, kicked, you know, people are throwing metal bats at you and all that stuff. I was like, yeah, this is fucking it.”

All of this happened because Trump, according to Special Counsel Jack Smith’s report, could not accept his loss in the 2020 election, and so he tried on January 6, 2021, to “direct an angry mob to the United States Capitol to obstruct the congressional certification of the presidential election and then leverage rioters’ violence to further delay it.” The crowd that attacked the Capitol, Smith wrote, “was filled with Mr. Trump’s supporters, as made clear by their Trump shirts, signs, and flags,” and they “violently attacked the law enforcement officers attempting to secure the building.”

The ensuing riot was one of the worst days for law enforcement since 9/11. More than 140 officers were injured on January 6, but we know only the names of some of the most famous victims of the mob, such as Officers Michael Fanone, Aquilino Gonell, Harry Dunn, and others who have testified to Congress or given interviews. Their injuries were severe. Fanone was beaten to the point of a concussion and a heart attack; Gonell was attacked by more than 40 rioters and assaulted with his own riot shield. He has since undergone multiple surgeries and suffers from post-traumatic stress disorder.

In his campaign for reelection, the man who conjured this violence against his own government—and then stood by as police from multiple jurisdictions were attacked—portrayed himself as the guardian of law and order. (One of the themes of the 2024 GOP convention was “Make America Safe Again.”) This strategy worked: Trump yet again nabbed the endorsement of the National Fraternal Order of Police. The FOP vice president, Joe Gamaldi, said in November that police see Trump’s victory as a mandate from voters who are “tired of all the chaos and disorder we’re seeing in our streets. We are tired of the ‘defund the police’ talk, and basically we’re just tired of the crap.”

[Read: Trump’s empty promise of ‘law and order’]

The new president’s supporters may be tired of what they mistakenly believe is a rise in crime in the streets, but they’ve memory-holed Trump’s willingness to throw a swarm of raging insurrectionists against the same police forces that will be protecting him at today’s inauguration. Nothing, however, should be allowed to erase the truth that the party of law and order is now led by not only a convicted felon, but one who callously looked on as outnumbered police officers did battle for hours to protect the lives of the members of the United States Congress.

I understand the anger that some police officers feel when the public assumes that they’re all corrupt bullies, potential killers no better than the men involved in the ghastly 2020 murder of George Floyd. My father and brother were both police officers (Dad in the 1950s, and my brother from the 1960s to the 1980s). Our next-door neighbor when I was a boy was a police officer, and I grew up among cops in my small New England city. Most of them became “law and order” Republican voters when Richard Nixon was able to turn riots—including the mess at the 1968 Democratic National Convention—into a campaign issue.

Trump has done the same through his three presidential campaigns, depicting America as a lawless hellhole. At least Nixon, however, had the advantage of pointing to the other party, and to his political opponents, as the source of danger to Americans and their armed protectors. Trump has managed to erase from millions of minds the fact that the people who attacked the police on January 6 were his own supporters, acting on what they believed were his wishes.

“I would like to see January 6 burned into the American mind as firmly as 9/11,” the conservative writer George Will said in 2021, “because it was that scale of a shock to the system.” But like so many of Trump’s outrages and scandals, the attack on the Capitol has faded into the noise of the 2024 campaign. Trump today will likely thunder on about the return of law and order and swear to make America’s streets safer, but American voters, no matter their party, should remember what actually happened to scores of police officers because of Trump’s own actions.

Police officers at the Capitol were being attacked with an assortment of weapons—bear spray, flagpoles, even their own equipment. (“My helmet came down and felt like someone was on top of me and I couldn’t see anything,” the Capitol Police officer Winston Pingeon told ABC News in an October 2024 interview. “And I remember just thinking, I have to protect my gun, because they stole my baton.”) During all of this, Trump, as usual, was tweeting: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order-respect the Law and our great men and women in Blue. Thank you!” Meanwhile, the mob pressed on. One officer recounted that rioters dragged him into the crowd, where they beat and tased him while yelling things such as “I got one!” and “Kill him with his gun!”

[Tom Nichols: Trump’s dangerous January 6–pardon promise]

Trump now refers to many of the rioters who have been convicted and jailed as “hostages.” He has promised to pardon some of them upon taking office. “Most likely, I’ll do it very quickly,” he said on Meet the Press last month, adding that “those people have suffered long and hard. And there may be some exceptions to it. I have to look. But, you know, if somebody was radical, crazy.”

The once and future president seems to have a forgiving definition of radical. On the campaign trail, he lauded a choir formed by some of the jailed insurrectionists. He even lent them his voice; their song, “Justice for All,” includes Trump reciting the Pledge of Allegiance, and Trump regularly played it at his rallies. “Our people love those people,” Trump said last May.

Four of this “J6 Prison Choir” were charged with assaulting a law-enforcement officer. One rioter, Julian Khater, had already pleaded guilty to assaulting multiple officers before the song was recorded. He was sentenced to almost six years in prison. Another choir member, Shane Jenkins, was also sentenced to six years in prison after being convicted of seven felonies and two misdemeanors, including throwing makeshift weapons at the police. “I have murder in my heart and head,” he wrote to an associate in the weeks after the riot, according to the Justice Department.

Trump has described January 6 as “a day of love.” The police who were there know better. Many of them live with physical and psychological scars. Four of them committed suicide within a year. “Tell me again how you support the police and law and order when all these things are happening?” Gonell asked last spring.

Safely back in the White House, Trump will never have to answer that question. But every time he and other elected Republicans claim to be the party of law and order, Americans should remember the day that the 47th president was willing to sacrifice the men and women on the thin blue line on the altar of his own ambitions.

Donald Trump’s repeated promise to consider pardons for the January 6 attackers is rightly seen as a craven political move, one that would both satiate his base and bolster the lie that the violent assault on the U.S. Capitol was a peaceful protest, and that those who have been charged and convicted are political prisoners or even “hostages.” But the promise is something graver too: Blanket pardons for the January 6 rioters would be a severe assault on the legitimacy of the criminal legal system, and in particular, on the role of the judiciary in that system.

Since January 6, 2021, the federal judges of the district court in Washington, D.C., have worked tirelessly to handle the nearly 1,600 criminal cases brought by the U.S. Department of Justice against those who allegedly attacked police officers, damaged and stole government property, caused members of Congress and the vice president of the United States to flee for their lives, and prevented the counting of the Electoral College ballots for more than six hours. The charged crimes have ranged from misdemeanors such as trespassing and disorderly conduct to serious felonies such as assaulting police, obstructing an official proceeding, and seditious conspiracy.

In every case, federal judges have worked to ensure that the defendant’s constitutional rights have been protected, including the rights to counsel, due process of law, and a jury trial. More than 1,000 of those charged have pleaded guilty. More than 250 have been found guilty after a trial. More than 800 have received sentences of incarceration, including some who were permitted to serve their sentences in home detention. Others have received sentences of probation. And through it all, the federal judges—whether appointed by a Republican president, a Democratic president, or former President Trump himself—have devoted themselves to carefully stewarding their cases in accordance with U.S. law.

[Tom Nichols: Trump’s dangerous January 6–pardon promise]

This has required thousands of hours of intense, difficult work. These judges have seen the evidence over and over again—seen their fellow Americans beat police with baseball bats and flagpoles, erect a gallows to hang the vice president, scale the walls of the Capitol and break through its windows, and brag about their insurrection on social media. They have sentenced some who are contrite and remorseful, and many others who remain defiant and unapologetic, amplifying the lies about January 6. Regardless of political affiliation, the judges have been uniform in condemning the acts of those convicted in their courtrooms.

As Royce C. Lamberth, a Republican-appointed judge with nearly 40 years on the bench, said at the sentencing of a January 6 defendant:

The Court cannot condone the shameless attempts by [the defendant] or anyone else to misinterpret or misrepresent what happened. It cannot condone the notion that those who broke the law on January 6 did nothing wrong, or that those duly convicted with all the safeguards of the United States Constitution, including a right to trial by jury in felony cases, are political prisoners or hostages.

So let me set the record straight, based on what I’ve learned presiding over many January 6 prosecutions, hearing from dozens of witnesses, watching hundreds of hours of video footage, and reading thousands of pages of evidence. On January 6, 2021, a mob of people invaded and occupied the United States Capitol, using force to interrupt the peaceful transfer of power mandated by the Constitution and our republican heritage …

Although the rioters failed in their ultimate goal, their actions nonetheless resulted in the deaths of multiple people, injury to over 140 members of law enforcement, and lasting trauma for our entire nation.  This was not patriotism; it was the antithesis of patriotism.  

These same judges, many of whom have been threatened with violence by supporters of the January 6 defendants, are now being asked by those appearing before them to postpone their proceedings, including their sentencings, because Donald Trump has promised to pardon them. For the most part, the judges have remained firm and pressed ahead. As Judge Reggie B. Walton, another Republican-appointed judge, noted, “The potential future exercise of the discretionary pardon power, an Executive Branch authority, is irrelevant to the Court’s obligation to carry out the legal responsibilities of the Judicial Branch.” Judge Carl J. Nichols, who was appointed by Trump, lamented that “blanket pardons for all January 6 defendants or anything close would be beyond frustrating and disappointing,” though he added that it wasn’t his “call” and agreed to reschedule a jury trial from late 2024 to after the inauguration.

[Paul Rosenzweig: Pardon Trump’s critics now]

The judicial branch is an integral part of our country’s criminal legal system. Federal judges in the nation’s district courts must ensure that every defendant before them is treated fairly and afforded the same constitutional rights. It is their responsibility to dispense justice not only to those with means, or to those in the president’s favor, but to those who are indigent and far out of favor. And in my experience as a former federal prosecutor for nearly 20 years, most defendants respect the judges who handle their case and accept the sentence imposed on them.  

Some defendants who have been sentenced by a federal judge later receive clemency—either a pardon or commutation of sentence—from the president. This act of mercy is sometimes granted to defendants who have accepted responsibility and changed their lives for the better while serving their sentence. Sometimes it is used when sentencing practices have changed dramatically, making sentences imposed long ago seem draconian. But it would be an all-out assault on our criminal legal system, and on the role of the judiciary in that system, to issue blanket pardons to the January 6 attackers regardless of the seriousness of their crimes, their remorse (or lack thereof), and their actions post–January 6. These federal judges deserve more respect than that.

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Frosty pine trees rim the edge of an icy lake. Snow is falling; spa music plays in the background. A gray-haired man with a pleasant face stands beside the lake. He begins to undress. He is going swimming, he explains, to demonstrate his faith, and his opposition to science, to technology, to modernity. “I don’t need Facebook; I don’t need the internet; I don’t need anybody. I just need my heart,” he says. As he swims across the lake, seemingly unbothered by the cold, he continues: “I trust my immune system because I have complete trust and faith in its creator, in God. My immunity is part of the sovereignty of my being.”

This is Călin Georgescu, the man who shocked his countrymen when he won the first round of the Romanian presidential election on November 24, despite hardly registering in opinion polls and conducting his campaign almost entirely on TikTok, where the platform’s rules, ostensibly designed to limit or regulate political messages, appear not to have constrained him. On the contrary, he used the tactics that many social-media influencers deploy to appeal to the TikTok algorithm. Sometimes he added soft, melancholic piano music, imploring people to “vote with your souls.” Sometimes he used pop-up subtitles, harsh lighting, fluorescent colors, and electronic music, calling for a “national renaissance” and criticizing the secret forces that have allegedly sought to harm Romanians. “The order to destroy our jobs came from the outside,” he says in one video. In another, he speaks of “subliminal messages” and thought control, his voice accompanied by images of a hand holding puppet strings. In the months leading up to the election, these videos amassed more than 1 million views.

Elsewhere, this gentle-seeming New Age mystic has praised Ion Antonescu, the Romanian wartime dictator who conspired with Hitler and was sentenced to death for war crimes, including his role in the Romanian Holocaust. He has called both Antonescu and the prewar leader of the Iron Guard, a violent anti-Semitic movement, national heroes. He twice met with Alexander Dugin, the Russian fascist ideologue, who posted on X a (subsequently deleted) statement that “Romania will be part of Russia.” And at the same time, Georgescu praises the spiritual qualities of water. “We don’t know what water is,” he has said; “H₂O means nothing.” Also, “Water has a memory, and we destroy its soul through pollution,” and “Water is alive and sends us messages, but we don’t know how to listen to them.” He believes that carbonated drinks contain nanochips that “enter into you like a laptop.” His wife, Cristela, produces YouTube videos on healing, using terms such as lymphatic acidosis and calcium metabolism to make her points.

Both of them also promote “peace,” a vague goal that seems to mean that Romania, which borders Ukraine and Moldova, should stop helping Ukraine defend itself against Russian invaders. “War cannot be won by war,” Cristela Georgescu wrote on Instagram a few weeks before voting began. “War destroys not only physically, it destroys HEARTS.” Neither she nor her husband mentions the security threats to Romania that would grow exponentially following a Russian victory in Ukraine, nor the economic costs, refugee crisis, and political instability that would follow. It is noteworthy that although Călin Georgescu claimed to have spent no money on this campaign, the Romanian government says someone illegally paid TikTok users hundreds of thousands of dollars to promote Georgescu and that unknown outsiders coordinated the activity of tens of thousands of fake accounts, including some impersonating state institutions, that supported him. Hackers, suspected to be Russian, carried out more than 85,000 cyberattacks on Romanian election infrastructure as well. On December 6, in response to the Romanian government’s findings about “aggressive” Russian attacks and violations of Romanian electoral law, Romania’s Constitutional Court canceled the election and annulled the results of the first round.

Given this strange combination—Iron Guard nostalgia and Russian trolls plus the sort of wellness gibberish more commonly associated with Gwyneth Paltrow—who exactly are the Georgescus? How to classify them? Tempting though it is to describe them as “far right,” this old-fashioned terminology doesn’t quite capture whom or what they represent. The terms right-wing and left-wing come from the French Revolution, when the nobility, who sought to preserve the status quo, sat on the right side of the National Assembly, and the revolutionaries, who wanted democratic change, sat on the left. Those definitions began to fail us a decade ago, when a part of the right, in both Europe and North America, began advocating not caution and conservatism but the destruction of existing democratic institutions. In its new incarnation, the far right began to resemble the old far left. In some places, the two began to merge.

When I first wrote about the need for new political terminology, in 2017, I struggled to come up with better terms. But now the outlines of a popular political movement are becoming clearer, and this movement has no relation at all to the right or the left as we know them. The philosophers of the Enlightenment, whose belief in the possibility of law-based democratic states gave us both the American and French Revolutions, railed against what they called obscurantism: darkness, obfuscation, irrationality. But the prophets of what we might now call the New Obscurantism offer exactly those things: magical solutions, an aura of spirituality, superstition, and the cultivation of fear. Among their number are health quacks and influencers who have developed political ambitions; fans of the quasi-religious QAnon movement and its Pizzagate-esque spin-offs; and members of various political parties, all over Europe, that are pro-Russia and anti-vaccine and, in some cases, promoters of mystical nationalism as well. Strange overlaps are everywhere. Both the left-wing German politician Sahra Wagenknecht and the right-wing Alternative for Germany party promote vaccine and climate-change skepticism, blood-and-soil nationalism, and withdrawal of German support for Ukraine. All across Central Europe, a fascination with runes and folk magic aligns with both right-wing xenophobia and left-wing paganism. Spiritual leaders are becoming political, and political actors have veered into the occult. Tucker Carlson, the former Fox News host who has become an apologist for Russian aggression, has claimed that he was attacked by a demon that left “claw marks” on his body.

This New Obscurantism has now affected the highest levels of U.S. politics. Foreigners and Americans alike have been hard-pressed to explain the ideology represented by some of Donald Trump’s initial Cabinet nominations, and for good reason. Although Trump won reelection as a Republican, there was nothing traditionally “Republican” about proposing Tulsi Gabbard as director of national intelligence. Gabbard is a former progressive Democrat with lifelong ties to the Science of Identity Foundation, a Hare Krishna breakaway sect. Like Carlson, she is also an apologist for the brutal Russian dictator Vladimir Putin and for the recently deposed dictator of Syria, Bashar al‑Assad, both of whose fantastical lies she has sometimes repeated. Nor is there anything “conservative” about Kash Patel, Trump’s nominee for FBI director, who has suggested that he intends to target a long list of current and former government officials, including many who served in the first Trump administration. In keeping with the spirit of the New Obscurantists, Patel has also promoted Warrior Essentials, a business selling antidotes both to COVID and to COVID vaccines. But then, no one who took seriously the philosophy of Edmund Burke or William F. Buckley Jr. would put a conspiracy theorist like Robert F. Kennedy Jr.—another Putin apologist, former Democrat (indeed, from the most famous Democratic family in America), and enemy of vaccines, as well as fluoride—in charge of American health care. No “conservative” defender of traditional family values would propose, as ambassador to France, a convicted felon who sent a prostitute to seduce his sister’s husband in order to create a compromising tape—especially if that convicted felon happened to be the father of the president’s son-in-law.

[From the October 2024 issue: Kash Patel will do anything for Trump]

Rather than conservatism as conventionally understood, this crowd and its international counterparts represent the fusion of several trends that have been coalescing for some time. The hawkers of vitamin supplements and unproven COVID cures now mingle—not by accident—with open admirers of Putin’s Russia, especially those who mistakenly believe that Putin leads a “white Christian nation.” (In reality, Russia is multicultural, multiracial, and generally irreligious; its trolls promote vaccine skepticism as well as lies about Ukraine.) Fans of Hungarian Prime Minister Viktor Orbán—a small-time autocrat who has impoverished his country, now one of the poorest in Europe, while enriching his family and friends—make common cause with Americans who have broken the law, gone to jail, stolen from their own charities, or harassed women. And no wonder: In a world where conspiracy theories and nonsense cures are widely accepted, the evidence-based concepts of guilt and criminality vanish quickly too.

Among the followers of this new political movement are some of the least wealthy Americans. Among its backers are some of the most wealthy. George O’Neill Jr., a Rockefeller heir who is a board member of The American Conservative magazine, turned up at Mar-a-Lago after the election; O’Neill, who was a close contact of Maria Butina, the Russian agent deported in 2019, has promoted Gabbard since at least 2017, donating to her presidential campaign in 2020, as well as to Kennedy’s in 2024. Elon Musk, the billionaire inventor who has used his social-media platform, X, to give an algorithmic boost to stories he surely knows are false, has managed to carve out a government role for himself. Are O’Neill, Musk, and the cryptocurrency dealers who have flocked to Trump in this for the money? Or do they actually believe the conspiratorial and sometimes anti-American ideas they’re promulgating? Maybe one, maybe the other, possibly both. Whether their motivations are cynical or sincere matters less than their impact, not just in the U.S. but around the world. For better or for worse, America sets examples that others follow. Merely by announcing his intention to nominate Kennedy to his Cabinet, Trump has ensured that skepticism of childhood vaccines will spread around the world, possibly followed by the diseases themselves. And epidemics, as we’ve recently learned, tend to make people frightened, and more willing to embrace magical solutions.

Other civilizations have experienced moments like this one. As their empire began to decline in the 16th century, the Venetians began turning to magic and looking for fast ways to get rich. Mysticism and occultism spread rapidly in the dying days of the Russian empire. Peasant sects promoted exotic beliefs and practices, including anti-materialism, self-flagellation, and self-castration. Aristocrats in Moscow and St. Petersburg turned to theosophy, a mishmash of world religions whose Russian-born inventor, Helena Blavatsky, brought her Hindu-Buddhist-Christian-Neoplatonic creed to the United States. The same feverish, emotional atmosphere that produced these movements eventually propelled Rasputin, a peasant holy man who claimed that he had magical healing powers, into the imperial palace. After convincing Empress Alexandra that he could cure her son’s hemophilia, he eventually became a political adviser to the czar.

Rasputin’s influence produced, in turn, a kind of broader hysteria. By the time the First World War broke out, many Russians were convinced that dark forces—tyomnye sily—were secretly in control of the country. “They could be different things to different people—Jews, Germans, Freemasons, Alexandra, Rasputin, and the court camarilla,” writes Douglas Smith, one of Rasputin’s biographers. “But it was taken on faith that they were the true masters of Russia.” As one Russian theosophist put it, “Enemies really do exist who are poisoning Russia with negative emanations.”

Replace dark forces with the deep state, and how different is that story from ours? Like the Russians in 1917, we live in an era of rapid, sometimes unacknowledged, change: economic, political, demographic, educational, social, and, above all, informational. We, too, exist in a permanent cacophony, where conflicting messages, right and left, true and false, flash across our screens all the time. Traditional religions are in long-term decline. Trusted institutions seem to be failing. Techno-optimism has given way to techno-pessimism, a fear that technology now controls us in ways we can’t understand. And in the hands of the New Obscurantists—who actively promote fear of illness, fear of nuclear war, fear of death—dread and anxiety are powerful weapons.

[Autocracy in America: The end of democracy has already begun]

For Americans, the merging of pseudo-spirituality with politics represents a departure from some of our deepest principles: that logic and reason lead to good government; that fact-based debate leads to good policy; that governance prospers in sunlight; and that the political order inheres in rules and laws and processes, not mystical charisma. The supporters of the New Obscurantism have also broken with the ideals of America’s Founders, all of whom considered themselves to be men of the Enlightenment. Benjamin Franklin was not only a political thinker but a scientist and a brave advocate of smallpox inoculation. George Washington was fastidious about rejecting monarchy, restricting the power of the executive, and establishing the rule of law. Later American leaders—Lincoln, Roosevelt, King—quoted the Constitution and its authors to bolster their own arguments.

By contrast, this rising international elite is creating something very different: a society in which superstition defeats reason and logic, transparency vanishes, and the nefarious actions of political leaders are obscured behind a cloud of nonsense and distraction. There are no checks and balances in a world where only charisma matters, no rule of law in a world where emotion defeats reason—only a void that anyone with a shocking and compelling story can fill.

This article appears in the February 2025 print edition with the headline “The New Rasputins.”

A politically powerful opponent of birthright citizenship railed that the United States cannot “give up the right” to “expel” dangerous “trespassers” who “invade [our] borders,” “wander in gangs,” and “infest society.”

Was this Donald Trump speaking in 2024? No, the quote is from an 1866 speech on the Senate floor by Senator Edgar Cowan of Pennsylvania, a leading opponent of adding a provision to the U.S. Constitution granting citizenship based solely on birth on U.S. soil. Who were the “invaders” that Senator Cowan so feared? “I mean the Gypsies,” Cowan explained, despite offering no evidence that Roma migration posed a risk to the United States.

Senator Cowan lost the fight. In 1868, the nation ratified the Fourteenth Amendment, the first sentence of which guarantees birthright citizenship. The amendment invalidated the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford, which declared that no Black person could ever be a U.S. citizen. Equally important, the Constitution now guaranteed citizenship to the children of immigrants born on U.S. soil, “no matter from what quarter of the globe he or his ancestors may have come,” as one senator later put it in a speech to his constituents.

[Martha S. Jones: Birthright citizenship was won by freed slaves]

More than 150 years later, Trump has vowed to end birthright citizenship on “day one” of his new administration for children without at least one parent who is a citizen or green-card holder. He made that announcement in a three-minute video prominently posted on his campaign website, which he repeated in an interview with NBC’s Meet the Press last month.

In 2025, the end of birthright citizenship is more than just an applause line at the Conservative Political Action Conference. It has a genuine, if slim, chance of making its way into law. If it does, it will upend the lives of millions, and create a caste system in which a new set of people—native-born non-Americans—can never work or live in the open.

This prospect ought to be taken seriously. How would President Trump implement such a plan? Is it constitutional? And would the U.S. Supreme Court back him up?

The first question is easy, because Trump has told us exactly how he intends to proceed. In the video, the president-elect commits to issuing an executive order on January 20, 2025, that would deny citizenship not only to the children of undocumented immigrants but also to those born to parents who both are legally in the United States on a temporary visa for study or work. (Trump’s order as proposed would apply only to children born after it is issued.)

The consequences would be immediate. Trump says he will order government officials to deny these children passports and Social Security numbers. They will be prohibited from enrolling in federal programs such as Medicaid, the Children’s Health Insurance Program, and the Supplemental Nutrition Assistance Program, and likely state benefits as well.

As adults, if all goes according to Trump’s plan, they will be barred from voting, holding elected office, and serving on juries. States could deny them a driver’s license and block them from attending state universities. They would be prohibited from working in the United States, and any U.S. citizen who employs them could be fined or even jailed under federal immigration laws. Many would be rendered stateless. Perhaps worst of all, they would live in perpetual fear of being deported from the only country in which they have ever lived.

[Read: Trump’s murky plan to end birthright citizenship]

Ending birthright citizenship for these children would affect everyone in America. Everyone would now have to provide proof of their parents’ citizenship or immigration status on the date of their birth to qualify for the rights and benefits of citizenship. The new law would necessitate an expanded government bureaucracy to scrutinize hospital records, birth certificates, naturalization oaths, and green-card applications.

Lawsuits are sure to follow, which leads to the second question: Will Trump have the constitutional authority to end birthright citizenship for the children of undocumented immigrants?

Per the text of the Constitution, the answer is a hard no. Some constitutional provisions are fuzzy, but the citizenship clause is not one of them. It 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.”

Even the deeply racist Supreme Court back in 1898 couldn’t find any wiggle room in that language. Just two years before, in 1896, the Court had somehow read the Constitution’s equal-protection clause to permit “separate but equal” in Plessy v. Ferguson, ushering in the Jim Crow era. But when the U.S. government argued in United States v. Wong Kim Ark that the children of Chinese immigrants were not birthright citizens, the justices balked. The language granting citizenship to “all persons born” in the United States was “universal,” the Court explained, restricted “only by place and jurisdiction.” More recently, the Supreme Court reaffirmed that point, stating as an aside in a 1982 opinion addressing the rights of undocumented children to attend school: “No plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Despite the clear text and long-standing judicial precedent, Trump claims that undocumented immigrants and their children are not “subject to the jurisdiction” of the United States, and so fall within the exception to universal birthright citizenship.

That is nonsense. Undocumented immigrants must follow all federal and state laws. When they violate criminal laws, they are jailed. If they park illegally, they are ticketed. They are required to pay their taxes and renew their driver’s license, just like everyone else. Trump certainly agrees that undocumented parents of native-born children can be deported for violating immigration laws at any time. So in what way are these immigrants and their children not subject to U.S. jurisdiction?

The citizenship clause’s exception for those not “subject to the jurisdiction” of the United States applies only to children born to members of American Indian tribes and the children of diplomats, as Congress explained when drafting that language in 1866. In contrast with undocumented immigrants, both groups owe allegiance to a separate sovereign, and both are immune from certain state and federal laws. (Native Americans were granted birthright citizenship by federal statute in 1924.)

As nonsensical as they are in an American context, Trump’s ideas didn’t come out of nowhere. In 1985, the law professor Peter Schuck and the political scientist Rogers Smith wrote an influential book, Citizenship Without Consent, arguing that the Fourteenth Amendment’s citizenship clause did not apply to the children of undocumented immigrants. These scholars asserted that “immigration to the United States was entirely unregulated” before the 1870s, and so there was no such thing as an “illegal immigrant” and likewise no intent to grant birthright citizenship to their children. Many scholars and commentators, including some members of Congress, have repeated that same claim. In 2015, the law professor Lino Graglia testified before the House Judiciary Committee that “there were no illegal aliens in 1868 because there were no restrictions on immigration.” Then-Representative Raúl Labrador repeated the same point at that hearing, asserting as fact that there was “no illegal immigration when the Fourteenth Amendment came into being.” In an op-ed in June 2023, a former Department of Homeland Security policy adviser declared, “There were no immigrant parents living unlawfully in the United States” in the 19th century.

These critics have their facts wrong. In a recent law-review article, the legal scholars Gabriel Chin and Paul Finkelman explained that for decades, Africans were illegally brought to the United States as slaves even after Congress outlawed the international slave trade in 1808, making them the “illegal aliens” of their day. The nation was well aware of that problem. Government efforts to shut down the slave trade and deport illegally imported enslaved people were widely reported throughout the years leading up to the Civil War. Yet no one credible, then or now, would argue that the children of those slaves were to be excluded from the citizenship clause—a constitutional provision intended to overrule Dred Scott v. Sandford by giving U.S. citizenship to the 4.5 million Black people then living in the United States.

[Read: Birthright citizenship wasn’t born in America]

Even so, these ideas have gained traction in the right-wing legal community—a group that will be empowered in Trump’s next term. The Fifth Circuit judge James C. Ho, who is regularly floated as a potential nominee to the Supreme Court, recently said in an interview that children of “invading aliens” are not citizens, because “birthright citizenship obviously doesn’t apply in case of war or invasion”—a reversal of his previous position on this issue. (This is the judicial equivalent of shouting, “Pick me! Pick me!”) Never mind that undocumented immigrants—a majority of whom entered the United States legally and then overstayed their visa—don’t qualify as invaders under any definition of the word. And never mind that there is no support for that idea in either the Constitution’s text or its history. In 1866, Senator Cowan opposed granting citizenship to the children of the “flood” of Chinese immigrants into California, as well as to Gypsy “invaders” of his own state. His colleagues pointed out that the only invasion of Pennsylvania was by Confederate soldiers a few years before. Birthright citizenship, they explained, would ensure that the United States would never revert back to the slave society that the Confederates invaded Pennsylvania to preserve.

In truth, all of these baseless arguments are window dressing for the real goal. The Fourteenth Amendment’s overarching purpose was to end a caste system in which some people had more rights under the law than others. To be sure, that ideal has always been a work in progress. But many opponents of birthright citizenship don’t even hold out that ideal as a goal; they would rather bring caste back, and enshrine it in our laws.

If birthright citizenship were to end tomorrow for children without at least one parent who was a citizen or lawful permanent resident, it would bar from citizenship hundreds of thousands of people each year. These people wouldn’t be eligible to participate in our democracy, and they would be forced to live and work in the shadows, as would their children and their children’s children. The end of birthright citizenship would create a caste of millions of un-Americans, locked in perpetuity into an inferior, exploitable status. Ironically, if Trump were to succeed in ending birthright citizenship, he would preside over the most dramatic increase of undocumented immigrants in U.S. history.

That brings us to the third question: Would five members of the Supreme Court uphold Trump’s proposed executive order?

No sitting justice has addressed this question directly. At his confirmation hearing in 2006, Justice Samuel Alito was asked whether he thought the children of undocumented immigrants qualified for birthright citizenship under the Fourteenth Amendment. He refused to answer on the grounds that a future case might come before him, but he also observed: “It may turn out to be a very simple question. It may turn out to be a complicated question. Without studying the question, I don’t know.” Justice Amy Coney Barrett declined to respond to the same question for the same reason. (These two justices also dodged questions about whether they would overturn Roe v. Wade on those grounds.)  

The Georgetown law professor Steve Vladeck, an expert on the Supreme Court, believes that, at most, “two” or “maybe … even three justices” on the current Court would vote to end birthright citizenship. But all it takes is five, and the Court’s composition may well change. Trump appointed three justices during his first term in office, and he could appoint a few more before the end of his second. It is they who will have the last word.