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Senator Katie Britt, Republican of Alabama, is upset. She believes that someone in the United States Air Force decided to interpret President Donald Trump’s recent executive order to terminate “all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear,” just the way it was written.

No one is quite sure what happened, but somehow this order resulted in the excision from a U.S. Air Force training course of some materials about the legendary Tuskegee Airmen, the all-Black World War II fighter pilots known as the Red Tails because of their aircraft’s distinctive markings. Air Force officials confirmed on Saturday that a video had been removed from the training curriculum but only because it was “intertwined in courses now under review,” and it is now back in the curriculum.

Britt referred to this kind of action as “malicious compliance,” meaning a kind of opposition through aggressive and sometimes overly literal implementation of a command or policy. Rather than refuse to obey, the person or group engaging in malicious compliance takes a kind of “monkey’s paw” approach, implementing the directives as destructively as possible. (Every teenager who has loaded the dishwasher improperly on purpose, hoping never to be told to clear the table again, knows what malicious compliance means.)

Britt also tagged Secretary of Defense Pete Hegseth on social media. Hegseth, who was nominated for his position in part because of his vow to root out wokeness and DEI and to replace them with “lethality,” responded enthusiastically: “Amen! We’re all over it Senator. This will not stand.”

Britt’s complaint about malicious compliance is a diversion. Trump’s wave of executive orders is designed to be performatively malicious. My colleague Adam Serwer years ago noted that, for the MAGA movement, “the cruelty is the point,” and now Trump’s orders make clear that the malice is the policy.

The series of presidential decrees is largely intended to delight the Republican base; unfortunately, government workers cannot divine what Trump really meant. The president has not given any cue that his orders should be interpreted in some more generous way. In fact, days before the Air Force kerfuffle, federal workers received an email from their supervisors (based on a template provided by the Office of Personnel Management) that could have come straight from a party apparatchik in the old Soviet Union. This memo not only told staff to be on the lookout for attempts to hide DEI-related ideological contamination, but warned them of their obligation to rat out colleagues who did so or face “adverse” job consequences themselves.

The advisory, which has since been taken off a government website, continued: “We are aware of efforts by some in government to disguise these programs by using coded or imprecise language. If you are aware of a change in any contract description or personnel position description since November 5, 2024”—that is, since Election Day—“to obscure the connection between the contract and DEIA or similar ideologies,” employees must report it to OPM within ten days.

This is not exactly language that encourages anyone to use common sense and good judgment to decide what constitutes DEI contraband. This is a command that says, in effect: This could mean anything; if you don’t report it, and we find it, you’re in trouble. When government employees get a memo like that, they are not inclined to sit around wondering what counts and what doesn’t.

Trump’s other executive orders are likewise designed to show the GOP base that the new administration is doing all of the things that Trump promised he’d do—even if they’re things that, legally, no president can do. Trump had pledged, for example, to eliminate birthright citizenship, so he sharpied out part of the Fourteenth Amendment and declared victory. He froze federal grants and loans—an order now temporarily blocked by a judge—which could have endangered any number of programs, including school lunches. (And about time, according to Representative Rich McCormick, Republican of Georgia, who told CNN today that those indolent kids need to go get jobs—even, apparently, schoolchildren who aren’t old enough to work—instead of “spong[ing] off the government”).

What would non-malicious compliance with such a mandate even look like? Instead of a lunch, are schools supposed to hand poor kids a glass of water and then wish them luck in their job search?

Of course, the Trump administration knows that aid to states and localities will begin to flow again, that children will be getting lunches, and that babies born on U.S. soil are citizens. The goal of all these orders is not to implement policy, but to generate outrage, report the spasms of liberal apoplexy to the MAGA faithful, and then, when necessary, go to court. And why not? The president now has a politically sympathetic Supreme Court majority that worked hard to keep him out of prison while he was a candidate, and has functionally immunized him against almost any challenge now that he’s back in office. Trump’s people know that they cannot actually shake the Constitution like an Etch A Sketch and make birthright citizenship disappear, but why not give it a shot, especially if a trolling executive order makes the base happy?

Trump and his people may also believe that a sleet storm of executive orders, some of which might stick here and there while others melt on contact with reality, is a way to demonstrate competence. They are likely still stung by the fiasco over the 2017 travel ban that initially got swatted down in court, and this time they want to appear as if they know what they’re doing.

But this is merely mimicking competence and energy. The “return to work” order, for example, is a MAGA fan favorite, because it plays to a common stereotype among many Americans that federal employees who work from home are scamming goldbrickers plodding around the house in their bunny slippers and tapping the occasional key on a laptop. Although showing up to an office or worksite in-person is (and should be) a basic requirement of most jobs, remote work in many cases benefits the government and the taxpayer: It reduces congestion in cities, and it offloads a lot of overhead costs (heat, water, lighting, etc.) onto the worker. That’s why the government and private industry were trending toward remote arrangements long before the pandemic.

In any case, many federal offices don’t have enough space to bring everyone back, but Trump may be attempting to make government service onerous enough that some of them will leave anyway: All federal employees have until February 6 to accept a sizable buyout if they cannot or will not return to in-person work. In the end, the RTO power play isn’t really about trying to fill empty offices. Instead, Trump is telling federal employees that all of the arrangements they’ve made with their departments about schedules, child care, commutes, and staffing are now invalid, because their career and service matters less than making some red-state voter feel that the president finally stuck it to them and their co-workers.

Maybe a non-malicious way to enforce such orders exists. But that’s not the point.

Related:

The cruelty is the point. (From 2018) The strategy behind Trump’s policy blitz

Here are three new stories from The Atlantic:

Trump tries to seize the “power of the purse.” What an undervaccinated America would look like China’s DeepSeek surprise

Today’s News

A district-court judge temporarily blocked the Trump administration’s pause on federal grants and loans. Trump signed an executive order that would exclude gender-transition care from federal insurance programs. The Department of Justice announced yesterday that it has fired more than a dozen officials who worked on the criminal investigations into Trump.

Evening Read

Illustration by Danielle Del Plato

Just Say No to Terrible White LEDs

By Gilad Edelman

God said, “Let there be light”—everyone knows that. But God did not specify what color light, and this would eventually prove problematic.

In the age of the LED light bulb, consumers have an unfathomable range of lighting options. This has, perversely, made the task of pleasantly illuminating our homes harder, not easier.

Read the full article.

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Stephanie Bai contributed to this newsletter.

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Special Counsel Jack Smith’s report into his investigation of Donald Trump’s 2020 election subversion is an atlas of roads not taken—one to a land where Trump never tried to overturn the election, another where the Justice Department moved more quickly to charge him, and another where the Supreme Court didn’t delay the case into obsolescence.

One of the most beguiling untrod paths is the one where Smith charged Trump with insurrection against the United States. The nation watched Trump try to overturn the election, first through spurious lawsuits and then by instigating a violent riot on January 6, 2021, in a vain attempt to prevent the certification of President Joe Biden’s victory. A conviction for insurrection would have prevented Trump from returning to office, but when Smith indicted Trump in August 2023, he didn’t charge him with insurrection.

Smith’s report, which was released early this morning, finally explains why. In doing so, it shows how the United States legal system is and was unprepared for a figure like Trump. The framers of the law simply didn’t contemplate a sitting president trying to use the vast powers of the federal government to reverse the outcome of an election.

[Read: The cases against Trump—a guide]

Most of the report, which runs to about 150 pages, focuses on the crimes that Smith did charge, the evidence behind them, and why he believes he would have convicted Trump if he’d had a chance to try them. Instead, Smith moved to dismiss the charges in November after Trump won reelection, citing Justice Department rules that bar the prosecution of a sitting president. Even if he had not done so, Trump had vowed to fire Smith and close the case immediately upon taking office. (Smith also dropped charges in another case related to Trump’s hoarding of classified documents at Mar-a-Lago. His report on that case was not released, because charges are still pending against Trump’s erstwhile co-defendants.)

Though the material included is damning, it’s also mostly known. News reports, the House January 6 committee, and Smith’s initial and superseding indictments had already laid out how Trump tried to steal an election that he knew he had lost—first by filing bogus lawsuits and pressuring state officials; then by attempting to corrupt the Justice Department; next by trying to convince Vice President Mike Pence to reject electoral votes; and finally by instigating his followers to attack the Capitol. The evidence is no less conclusive or horrifying for its familiarity.

The insurrection-charges discussion, however, is new. It shows that Smith did seriously consider whether the law applied but concluded he would struggle to convict Trump under it—not because what happened was not an insurrection, but because the laws were written too narrowly, such that although Trump appears to have violated the spirit of the law, he may not have broken its letter. (Smith writes that no one has been charged with violating the law in question for more than a century.)

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

A conviction of insurrection would have been far more consequential than convictions on the charges of conspiracy to defraud the United States, obstruction and conspiracy to obstruct, and conspiracy against rights, which Smith did bring. Felons are entitled to hold federal office—as Trump will prove on January 20—but the law stipulates that anyone convicted of insurrection or rebellion “shall be incapable of holding any office under the United States.”

But Smith saw several challenges to bringing charges under the law. First, he would have had to prove that what happened on January 6 was an insurrection. As he notes, multiple courts have described the events as an “insurrection.” Smith “recognized why courts described the attack on the Capitol as an ‘insurrection,’” but was still worried about establishing this fact under such an obscure and little-used law. He considered past cases, but they didn’t offer any guidance on what the legal standard for an insurrection is, or how it is different from a riot.

He also found that case law tended to treat insurrection as an attack against a sitting government, rather than an attempt to remain in power—an autogolpe, in political-science terms.

[Read: The paperwork coup]

“The Office [of Special Counsel] did not find any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside,” Smith writes. “Applying Section 2383 in this way would have been a first, which further weighed against charging it, given the other available charges, even if there were reasonable arguments that it might apply.”

Smith faced yet another complication. Trump cleverly instigated his followers to attack the Capitol, and suggested that he was coming with them, but he instead returned to the White House and watched the chaos unfold on TV, rather than take part. (As The Atlantic’s editor in chief, Jeffrey Goldberg, has written, Trump often uses this mafia-boss tactic of encouraging his minions to act without ever explicitly implicating himself.)

What about inciting an insurrection? Smith saw reasonable arguments that Trump’s actions met even the high legal bar the Supreme Court has set for incitement—“the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay”—but Smith didn’t have any direct evidence of Trump saying the full scope of violence was his goal, so he worried that bringing charges against Trump for inciting an insurrection would be risky.

[David A. Graham: Trump gets away with it]

Besides, Smith couldn’t find any examples of prosecutions where a defendant was charged who didn’t actively participate in the act. “There does not appear to have ever been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection,” he wrote. “Thus, however strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first.”

This led Smith to conclude that, given the other charges, “pursuing an incitement to insurrection charge was unnecessary.”

But necessity is in the eye of the beholder, and lawyers can only see so much. Smith’s decision is understandable but shows why criminal law was always an unreliable method for holding Trump to account. Smith’s remit was to hold Trump accountable to the law, a relatively narrow task. And although the Justice Department ought to have moved faster—Smith was appointed to take on the case only in November 2022 and then acted with speed—the more consequential error was the Senate’s failure to convict Trump at his impeachment trial in February 2021.

[Jeffrey Goldberg: Donald Trump’s Mafia mind-set]

As Smith writes in a different context in his report, impeachment has a different aim than prosecution. “When Congress decides whether a President should be impeached and convicted, that process does not depend on rigorously adjudicating facts and applying law, or on finding a criminal violation. Instead, the impeachment process is, by design, an inherently political remedy for the dangers to governance posed by an office holder who has committed ‘Treason, Bribery, or other high Crimes and Misdemeanors.’”

But some Republican senators, led by Minority Leader Mitch McConnell, believed that voters were so irate about the January 6 attacks that Trump was a spent force. As a result, these senators didn’t need to risk the ire of his supporters by voting to convict Trump. The Senate voted 57–43 to convict, short of the two-thirds majority required to convict Trump and then bar him from future office.

Two years later, some legal scholars tried to make the case that Trump had committed an insurrection and broken his oath of office under the Fourteenth Amendment. But courts ruled that only Congress could make such a determination, which was politically never going to happen. Only political processes—voters’ choices and impeachment—could have definitively prevented a second Trump presidency.

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.